Are university affairs ever open to Charter scrutiny, particularly in matters of student discipline? This was one of the key questions raised, though not conclusively decided, in Pridgen v University of Calgary. This question, in an era of political polarization and mass mobilization on university campuses, directly affects Canada’s roughly two million post-secondary students. The authors argue that despite the Alberta Court of Appeal’s well-reasoned section 32 analysis, the decision’s relative legal and public obscurity, coupled with the broad individual and institutional interests at stake in deciding this question, suggest a need for the Supreme Court of Canada to rectify its ambiguous interpretation of section 32 in McKinney v University of Guelph. This paper attempts to demonstrate an interpretive cleavage in section 32 jurisprudence surrounding universities’ exercise of disciplinary powers by contrasting the opinions expressed within the Pridgen ABCA case and the narrow application of section 32 by other courts across the country, particularly in Ontario.
How important is community acceptance? For Canada’s First Nations peoples whose band governments are the gatekeepers to benefits and services, it might seem desperately important. Even if one self-identifies as being a member of a First Nation, there remains the question of whether they will be recognized as belonging to that community, such that they receive benefits and services provided under section 35 of the Constitution Act, 1982 and the Indian Act. While the Supreme Court of Canada has not explicitly affirmed the right to self-government as a freestanding right protected under section 35 of the Constitution Act, 1982, the court has affirmed elements that might comprise such a right. Other Canadian courts and tribunals have also produced a substantial body of case law in support of its existence.
In this essay, the author advocates for the use of a modified justificatory approach to assess whether a First Nation’s discriminatory membership code is justifiable under Canadian law. If the law purports to infringe on women’s equality rights, Canadian law should impose a limitation on a First Nation’s autonomy in order to protect these rights, as such discrimination cannot be justified in light of Canada’s historical context.
The Windsor Review of Legal and Social Issues is proud to present the second volume of the Digital Companion.
Exclusively reserved for student work, the second volume of the Digital Companion features the very best papers presented by law students at the 8th Annual Canadian Law Student Conference, held in March 2015, in Windsor, Ontario.