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"[E]very international dispute is of a political character, if by that is meant that it is of importance to the State in question. Thus viewed, the proposition that some legal questions are political is an understatement of what is believed to be the true position. The State is a political institution, and all questions which affect it as a whole, in particular in its relations with other States, are therefore political"-- Provided by publisher.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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The equality rights guarantee contained in section 15 of the Canadian Charter of Rights and Freedoms has been described by members of the Supreme Court of Canada as “the most difficult right” and “the Charter’s most conceptually difficult provision.” Therefore, it is not surprising that, as Mr. Justice LeBel stated in Québec v A., “the analytical framework [of s. 15] developed by this Court has been discussed, reformulated and enriched many times over the last two decades”. Mr. Justice Cory stated in Vriend that the equality rights guarantee in the Charter embodies “our fondest dreams, the highest hopes and the finest aspirations of Canadian society.” In this paper, I will look back at the last decade of Supreme Court of Canada case law and review how it has been reformulated. I will then look forward and make some comments about where the Court should go with its equality jurisprudence in the next decade if it is to help us realize the “finest dreams of Canadian society.”
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This article draws on debates about the ‘boundary problem’ in democratic theory to consider the normative challenges raised by descent-based Aboriginal membership rules in Canada. The boundary paradox is one of the most intractable puzzles of democratic theory. If a demos is necessarily bounded, so that some people are excluded, what normative principle could justify these exclusions? Liberal theory tends to insist on the primacy of consent as the basis of political society and so fails to explain the reliance of liberal democracies on birthright membership, especially the distribution of citizenship to foreign-born descendants of citizens. Applied to expressly kinship-based polities like Aboriginal communities, liberal approaches prioritize non-discrimination, potentially denying to those communities the capacity to distribute membership by reference to characteristics listed as ‘prohibited grounds’ in human rights law, including, most problematically, race and ethnicity. The article outlines the parallels between Canadian citizenship law, the Indian Act regime, and First Nations’ membership codes, and examines the distinctive role to be played by section 35 of Canada’s Constitution Act 1982 in tempering non-discrimination logics. It concludes that existing justificatory tests (the ‘valid legislative object’ test, and the section 1 ‘reasonable limits’ test) are unlikely to provide a way forward, but that a promising methodology can be discerned in Canadian law and policy, in which the ‘reasonableness’ of Aboriginal descent–based exclusions is assessed relative to the characteristics of a free and democratic Aboriginal community. I suggest that this adaptation of liberal non-discrimination norms is an expression of the continuing importance of kinship and descent boundaries in settler-state constitutionalism. Although many questions remain to be resolved, Canadian human rights laws and methodologies could assist in the primary challenge posed to settler-state political theory: the reconciliation of tribal and liberal forms of political organization.
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This new edition sets out what the law of remedies actually is in Australia. Written in simple to understand language, the book delivers what students and practitioners want and their clients need, with each chapter ending with a series of questions and answers
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Le privilège parlementaire, essentiel au bon fonctionnement du parlementarisme canadien, est trop souvent mal compris par les tribunaux, mais également par les parlementaires eux-mêmes, qui vont parfois l’invoquer de manière abusive. Depuis l’avènement de la Charte canadienne des droits et libertés, les tribunaux tentent, avec un succès mitigé, de réconcilier le privilège parlementaire avec les droits et libertés constitutionnels. À l’aide d’une étude de la jurisprudence et de la doctrine, l’auteur analyse de manière critique le modèle canadien de privilège parlementaire. Il tente tout d’abord de bien comprendre les bases historiques et constitutionnelles du privilège au Canada. Par la suite, il circonscrit les principaux problèmes de l’approche de la Cour suprême du Canada en la matière pour ensuite proposer des pistes de solution, adressées aux tribunaux, mais aussi aux parlementaires, afin de mieux adapter le privilège parlementaire aux réalités du xxie siècle.
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