This article explores commissions of inquiry, including their nature and role in shaping Canadian identity within the legal and political landscape of Canada's constitutional democracy. The author also discusses the broad mandate and constitutional limitations that commissions of inquiry face in the Charter era as they engage in the determination of public policy, the review of political judgment, and the determination of guilt or innocence, especially with respect to potential threats to individual rights in the inquiry process.

Municipal institutions are the forgotten partners in the Canadian confederation. This is true in both political and legal terms. In political terms the agencies of local government are often under-valued. With respect to the law, the municipal level of government has too often been ignored. Both municipal councils and their related boards and tribunals have an important impact on the lives of citizens at the grass roots level. In carrying out their duties, municipal authorities exercise a wide range of discretionary powers and it is becoming increasingly important that they recognize the legal limits on their powers. The first and most significant limitation is that all public authorities must operate within Canada's constitutional framework or their decisions will be legally void and of no effect. There have been some significant developments in municipal law since the Charter was introduced in 1982, and particularly since the equality provisions came into effect in 1985. However, older aspects of municipal law are still relevant, particularly the jurisdictional issues and the rules of administrative law. Therefore, both the Charter issues and the older constitutional issues are discussed briefly here.

The vindication of constitutional rights through the courts is an arduous, lengthy, and expensive task. Courts are notoriously slow, procedural demands are high, and lawyers are expensive. Given the inherent limitations of the court process as a vehicle of societal change, it is generally preferable to pursue solutions outside of the judicial forum, through administrative and political avenues. However, should lobbying efforts fail to provide a solution, records to the courts may be necessary as a last resort to prod reluctant administrators or politicians. The pursuit of minority language educational rights in particular presents difficult challenges for both litigants and their counsel: the historic tension between Francophones and Anglophones in Canada, the constitutionalized national standards of minority language education which potentially clashes with the constitutional authority of the provinces to legislate on matter of education pursuant to section 93 of the Constitution Act, 1867, and the tradition of local control exercised by school boards and education authorities. This article focuses on the case of Lavoie v Attorney General of Nova Scotia as a case study which illuminates these tensions.

In this article the authors review general principles of negligence as they affect the practice of educators. They also discuss new challenges school face impacting civil liability, including: budget cut-backs; the increasing use of volunteers; school violence and harassment; and medical emergencies and conditions such as anaphylaxis and scent sensitivity. The article concludes with a discussion of some general considerations in the management of risks in schools, including a proactive plan of risk identification and assessment, along with weighting risks against their educational benefits.

Making and enforcing school rules have always been important and difficult aspects of the educator's role. Maintaining an orderly teaching environment is also a statutory duty in all Canadian jurisdictions in addition to being a vital part of the teacher's "in loco parentis" role. In making and enforcing school rules, educators are acting as agents of the state and not as mere delegates of the parents. This fact is crucial because parents and their delegates act in a private capacity, and thus in the majority view, escape the restrictions of the Charter of Rights. Meanwhile the Minister of Education, departmental officials, school boards, school administrators and teachers are subject to the Charter of Rights as public actors on behalf of the state. The school rule process can be broken into three phases: 1) Making Rules 2) Enforcing Rules 3) Penalizing for Breach of Rules Given this breakdown, the school can be viewed as a microcosm of our larger political structure: 1) Rule-making is a legislative function 2) Rule-enforcing is an administrative function 3) Penalizing is a judicial function This article explores the concern and confusion among educators with the advent of the Charter and the implications for educators as state actors going forward to ensure that students' Charter rights are respected.

This article focuses on the role and limits of law as a response to cyberbullying. The problem of cyberbullying engages many of our most fundamental legal concepts and provides an interesting case study. Even when there is general agreement that the problem merits a legal response, there are significant debates about what that response should be. Which level and what branch of government can and should best respond? What is the most appropriate legal process for pursuing cyberbullies—traditional legal avenues or more creative restorative approaches? How should the rights and responsibilities of perpetrators, victims and even bystanders be balanced? Among the key legal concepts that will be explored are privacy, free speech, liberty, and equality. These are the cornerstones of Canada’s constitutional framework and striking the proper balance between them is a challenging and complex business.

The legacy of Justice Bastarache in respect to the evolution of the Charter of Rights and in particular the concept of equality, is an impressive one. Assessing this legacy is both an opportunity and a challenge. It is an opportunity to view the evolution of the Charter through a human and personal lens and to reflect on the role of an individual judge in shaping the law. It is also a challenge to evaluate Justice Bastarache’s conception of equality because it is pervasive in his Charter analysis and multi-faceted in nature. This challenge is heightened by the fact that other contributors are dealing with criminal law, Aboriginal rights, language rights and even section 15 itself — the core equality guarantee. I shall explore the role that equality plays in Justice Bastarache’s decisions outside the above mentioned areas and through selected cases identify some trends and contributions and ultimately come to some conclusions about his equality legacy and judicial style.

Among the many opportunities for a lasting legacy for the newly minted majority Harper government, the appointment of a majority of members of the Supreme Court of Canada may be the most significant. In addition to two existing Harper appointments and the two that are imminent, at least three more sitting justices will reach mandatory retirement at 75 during the next four years. In the Canadian constitutional framework, the Supreme Court of Canada plays a lead role in guaranteeing the basic rights of Canadians and providing a check against any abuses of power at either the legislative or executive (bureaucratic) levels. Even before the adoption of the Charter of Rights and Freedoms in 1982, this country’s courts have been important players on the Canadian scene in upholding the rule of law, keeping administrators in check, and interpreting the division of powers between the federal and provincial levels of government, as articulated in the Constitution Act, 1867. Giving shape to the broad language of the 1982 Charter has expanded the judicial role and raised the profile of the judicial branch of the Canadian state – especially the Supreme Court of Canada. Prime Minister Stephen Harper went on record in a 2000 opinion piece he wrote for The Globe and Mail as being concerned about “biased ‘judicial activism’ and its extremes,” as well as the “serious flaws” in the Charter of Rights and Freedoms. He has repeated these concerns in a more muted form since assuming office in 2006, and has described the appropriate judicial temperament as one that is respectful of the elected legislative role and one that is balanced – restrained – in the interpretation of rights. Concerns about what stamp Harper might put on the Supreme Court should focus on this question of judicial temperament and style, rather than ideology or blatant political partisanship. While matters of ideology and politics may still have some sway in lower-level court and administrative tribunal appointments, Harper is too shrewd a politician and too subtle a strategist to make blatant partisan or ideological appointments at the increasingly scrutinized Supreme Court appointment process.

Both China and Canada are signatories to the United Nations Convention on the Rights of Persons with Disabilities. By examining the right to education guaranteed in the Convention and domestic Canadian law, the article examines Canada’s implementation of that right. To be meaningful, a right to education must be inclusive. Inclusion is achieved on two levels: individual accommodation and systemic changes that challenge established procedures that may result in discrimination. Systemic changes are often seen as more difficult or expensive, and Canadian courts have been reluctant to impose them. However, inclusive education requires a dual focus to combat discrimination on an individual and systemic level, and to uphold international commitments that both China and Canada have made.

While the Canadian Charter of Rights and Freedoms has had a major impact on Canada’s political landscape in its first 25 years, its impact on social and economic rights has been minimal. The courts should assume a larger role in advancing the rights of the many Canadians living in poverty and despair. Judges have traditionally regarded matters of social and economic policy as falling within the expertise of the legislative and executive branches of the state. The Charter has done little to dispel that view. The elected branches of the state must continue to play a major role, but the courts need to also carve out a role, recognizing that many of our most basic civil and political rights have important social and economic dimensions. Courts led by the example of the Supreme Court of Canada have moved beyond the arid legalism of the past to embrace a more contextual approach to judicial decision-making in all areas, but especially the interpretation of the constitution. The social and economic realm offers an appropriate, albeit challenging, extension of this contextual analysis.

This article examines the development and current status of positive social and economic rights in Canada. Exploring the comparative competence of legislatures, courts and human rights tribunals, Wayne MacKay suggests that courts should depart, with caution, from their traditional deferential role to legislators. Due to their flexibility and accessibility, HR Tribunals should supplement the role of the courts and legislatures in giving effect to social and economic rights, which should form part of a holistic package of human rights in Canada.

Almost a decade ago, in June 2000, the Canadian Human Rights Act Review Panel conducted a comprehensive review of the Canadian Human Rights Act [CHRA] and recommended that “social condition” be added as a prohibited ground of discrimination. Since then, no action has been taken to implement this recommendation, despite calls for action from international bodies, political actors, human rights agencies and organizations, and academic commentators to provide protections from discrimination for those suffering from social and economic disadvantage. The authors analyze the experiences at the provincial level with socio-economic grounds of discrimination, jurisprudential developments under the Canadian Charter of Rights and Freedoms related to claims based on socio-economic disadvantage, the broader proposal of incorporating justiciable social and economic rights into Canadian law, and the range of arguments both for and against recognizing social condition as a prohibited ground of discrimination. In the end, the authors recommend a feasible and practical means for adding social condition to the Canadian Human Rights Act so that it will provide predictability for administrators, adjudicators and respondents, as well as sufficient flexibility to reflect the multi-faceted and intersectional experience of discrimination of human rights claimants. While socio-economic inequality continues to be a significant and pressing problem in need of a multi-pronged and comprehensive solution, the addition of the ground of social condition to the CHRA will be one more tool in advancing the rights and interests of those on the very margins of Canadian society.

In this article, drawn from his keynote address to the 2008 annual conference of the Canadian Association for the Practical study of Law in Education, the author considers the contentions question of whether the law and its agents, namely, lawyers, tribunals and courts, have been a boon or a burden to education and educators, whether frontline teachers or administrators and policy makers. He concludes that there is much evidence that the jurisprudence produced by courts and tribunals and the cooperative spirit that he believes has grown between educators and lawyers have benefited education, in general, and students' rights in particular. While he acknowledges that much remains to be done, the author argues that the equality jurisprudence that has developed, particularly since the adoption of the Charter, has provided a beacon guiding educators toward the provision of more inclusive and respectful educational environments.

The authors begin with a discussion of the duality in how children are viewed in both international and domestic law. Children are viewed as both under the protection and authority of adults, at the same time as being rights bearing individuals. Following recognition of the difficult tension created by this duality, these authors focus on its application in the balancing of the safe school environment with student freedom of expression. In particular these authors examine cases and scenarios that highlight the complex relationships that result when student expression contains violent content. This timely examination gives consideration to the contemporary societal context, and proposes a proactive path forward. LIBERTE D’EXPRESSION DES ETUDIANTS : CONTENU VIOLENT ET L’EQUILIBRE SURE DE L’ECOLE RESUME. Les auteurs commencent avec la dualite dans laquelle les enfants sont vus dans les lois domestiques et internationales. Ils sont vus a la fois comme etant sous la protection et l’authorite des adultes, et dans le meme temps comme des individus possedant des droits personnels. Suivant l’identification des tensions difficiles crees par cette dualite, ces auteurs se concentrent sur leurs applications dans l’equilibre d’un environnement scolaire sur avec une liberte d’expression pour l’etudiant. Ces auteurs examinent en particulier quelques cas et scenarios qui eclaircissent les relations complexes qui parviennent quand l’expression d’un etudiant a un contenu violent. Cet examen opportun amenent de la consideration au contexte social contemporain et propose un chemin proactif pour le futur.

Accountability has become one of the major social concerns of the late twentieth century. Wide access to information by telecommunication is fuelling a hunger for knowledge about really happened in relation to major events that cause significant suffering. Access to information has triggered a greater involvement by people in the way their countries and communities are run. Our society has a plethora of mechanisms with which to address individual and institutional accountability, many of them hidden from public view. The commission of inquiry is one mechanism that operates in full public view. The degree of political sophistication of the population means that who did what to is no longer the only question that needs answering. Equally important are such related questions as: Who should be accountable to whom? By what standard should people in positions of responsibility be judged? What political and legal mechanisms enable us to best determine what really happened? What is the ultimate goal of any process of accountability? If some goals of an accountability process are incompatible with each other, how will we prioritize?

Federalism is still a relevant and vital aspect of Canadian Constitutional Law. Although a lower profile, aspect than the Charter of Rights and Aboriginal rights (and in common parlance less sexy), the division of powers continues to be an important part of the work of the Supreme Court of Canada and part of what defines us as a nation . The author argues that the Supreme Court has pursued an increasingly contextualized approach to division of powers issues - one that abandons the arid legalism of earlier days, in favour of a broad social analysis of issues based on extensive use of extrinsic evidence and academic commentary. He asserts that the role of the Court on these important matters of federalism is not just that of the traditional umpire, but rather the more active role of player - albeit a different kind of player than the front-line politicians. To illustrate this point Professor MacKay analyzes the federalism cases of the Laskin, Dickson and Lamer Courts, with a particular emphasis on the latter Court, which on matters of federalism was dominated by Justice La Forest. The focus of this federalism case study is on the expansion of the criminal law power with particular reference to the Hydro Quebec case. The author concludes that the Court has generally served Canadians well on matters of federalism and its justices are appropriately players in Canada's constitutional drama.

The authors review the current structures for judicial appointments in Canada and provide statistical information about the results of these mechanisms in respect to diversity of representation on the courts. They are also critical of the fairness and openness of judicial appointments processes. After examining several variants of the dominant liberal view of law and of judges, the authors proffer and articulate a neo-realist theory of law and what they term a "bungee cord theory of judging." According to the former, law is inevitably a form of politics; according to the latter, judges are unavoidably political actors. In consequence, the judiciary is properly subject to democratic norms, including especially the norms of representation and of diversity. The authors then argue that, judged against those democratic norms, the present systems of judicial appointment (and the judiciary which it has put in place) suffers from what they term "a democratic deficit." After a detailed examination of past attempts to reform this system, of arguments for and against a more democratic and representational approach to judicial selection, and possible models of judicial selection, the authors propose their own reform: the establishment by statute of Judicial Appointments Commissions. Such an approach might help cure the democratic deficit and produce what they dub a Triple-P judiciary, that is, one that is politically accountable, professionally qualified, and proportionally representative.

This article is a response to Professor Walter's article, Digitizing Technology, Transforming Ourselves (1999) 10 NJCL 375. The author explores the extent to which emerging technology has undercut traditional notions of privacy, concluding that the existing legal framework is ill-equipped to protect individuals from this high-tech invasion of our basic human right to privacy. The constitutional protection of privacy is ill-defined and limited; statutory protections are more concerned with access to information than keeping it private, and only in Quebec is privacy regarded as a matter for human rights codes.

In this article the author explores issues relating to equality of educational opportunity. He discusses how employing human rights concepts can help render an education system more inclusive. After explaining briefly how exclusion and discrimination occur in the school system, both directly and systemically, the author uses three case studies to elaborate his general them. Under discrimination on the basis of disability, the author explains the traditional approach taken by the courts to special education, as expressed in Bale v Central Okanagan School District 23, and then goes on to analyze the change in judicial direction embodied in Eaton v Brant (County) Board of Education. In Eaton, the Ontario Court of Appeal reversed the trend of administrative deference and left no doubt that the onus law on a school board to prove than an exclusionary placement of an exceptional pupil was justifiable under section 1 of the Charter. The second exclusionary context the author discusses is racism. He briefly reviews the American experience, explaining how the "separate but equal" doctrine ligitimating racially segregated schooling was eventually successfully challenged and obliterated in the landmark case Brown v Board of Education. The article also explores systemic discrimination in the form of inequitable funding of school districts which are often ethnically insular. While a constitutional challenge based on such an argument was rejected by the U.S. Supreme Court in San Antonio Independent School District v Rodriguez, the author believes such arguments are not beyond the hope of success under the Canadian Charter, in light of the wording of sections 15 and 27. He briefly discusses some initiatives undertaken by provincial Ministries of Education to address racial exclusion in the school system. Finally, the author explains how the role of teachers as moral exemplars can affect the inclusiveness of schools. He uses the Malcolm Ross case from New Brunswick to illustrate that human rights tribunals and courts are more than willing to place constraints on teachers' freedom of speech and expression, even outside of school, to promote an egalitarian school environment. The article concludes with a brief discussion of some administrative initiatives underway in Nova Scotia schools to address concerns about systemic discrimination.

The authors analyze the Ontario Court of Appeal's decision in Eaton v Brant (County) Board of Education in the context of previous legal decisions concerning access to "mainstream" classes for mentally challenged students. They argue that before Eaton, education tribunals, human rights boards of inquiries, and courts deferred to the placement decisions taken by education officials without due regard for the equality rights of the students concerned. The authors welcome the Eaton decision as a new approach in which deference to education officials must be placed within the context of an equality rights analysis - one that shifts the burden of proof from parents and students to education officials.