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Ubaka Ogbogu
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Okay, I checked. Tunkers were definitely opposed to taking "legal" oaths.
@Gareth, yes. But (assuming the oath is based on the bible),anabaptists would also have no objections to taking bible-based oaths (I could be wrong).
@Russ, I completely agree with your comments re proving judicial bias arguments. I should add that what makes the inquiry into judicial bias so compelling is exactly that---the conjecturing is fascinating. I attended this legal history seminar where the issue of judicial bias was discussed in the context of race (based on a draft paper by Jim Walker discussing R v RDS---allegations of racial bias against Nova Scotia's sole black judge at the time for throwing out a ridiculous criminal charge against a black kid---I can send you the pdf if you are interested). I am also preparing a chapter for my dissertation that partly examines whether there was some "pro-vaccination" bias in how the SCOTUS handled evidentiary issues in Jacobson v Massachusetts, the seminal public health law case that affirmed a state's power to police and restrict individual liberties in the interest of protecting public health.
Hmnn...not quite sure I understand your comment. I did note that a discussion with my colleagues prompted the question, and I was merely trying to provide more context by noting that a female judge led the Ontario CA decision. Not sure how that translates to answering my own question and to my state of mind. Perhaps you are saying it is not a legitimate question or issue?
Ouroboros! (Lol) Thanks Russ. I am no tort law expert, but I know enough to make me stay away from anything in the general area of the Anns-Kamloops line of cases. Happy holidays to both of you!
Re-reading your first comment, I see you were referring to the right side of the chart, not the left. Yes, it does imply that you can have unconstitutional sections in a constitutionally valid statute. That is exactly the outcome of the case. So even if the statutory scheme is valid (say, a valid exercise of criminal law power), aspects of it can be found to be invalid if not ancillary or incidental to the dominant purpose of the valid scheme. I think the main difference between both approaches is in the way you approach the analysis rather than the outcome.
Thanks. Regarding your first comment (McLachlin 4), I don't think it implies what you stated. The "yes" arrow from "Valid?" (posed as a question) goes directly to "constitutionally valid" and flows in one direction. You only go to the "ancillary or incidental" inquiry if the impugned provisions do not pass the validity (pith and substance) test. So what the chart shows is that an unconstitutional provision can be saved by having some incidental or ancillary connection to the entire statutory scheme. On your second comment, a clause that invoked the foreign power would be okay because it is within federal legislative authority. The issue here is legislating on matters outside of one's constitutional authority (e.g. if the legislation includes a clause on "matters of a local nature"). In fact, that is exactly the conclusion reached by a majority of the court---that provisions in federal criminal legislation that touch on provincial matters are ultra vires Parliament and therefore unconstitutional. On the third comment, you are likely correct. I think though that by introducing the "bulk of legislation" inquiry, the McLachlin 4 added something new which makes the entire inquiry rather confusing. Here's the portion of the McLachlin-penned judgment where she talks about this "bulk of legislation" thing: "Since the Attorney General of Quebec is challenging individual provisions of the federal scheme, this Court must examine the whole scheme and the impugned provisions separately…Ordinarily, this Court would begin by examining the impugned provisions in order to determine if and to what extent they intrude on the provincial sphere of competence…In this case, the Attorney General of Quebec is challenging the bulk of the Assisted Human Reproduction Act. While it concedes that ss. 5 to 7 of the Act are valid, it challenges almost all the remaining operative provisions. Under these circumstances, it is impossible to meaningfully consider the provisions at issue without first considering the nature of the whole scheme."
I meant to say "my post".
Thanks Eran for clearing that up. The original report did seem a bit questionable, which is what prompted by post. What a sad story.
DM just restored my faith in humanity. Seriously fanned.
Thanks for the post - great to see this work out in print!
Great videos - thanks for posting. Interesting to hear about Aaron Levine's poster on stem cell tourism, which I suppose is based on his recent AJOB contribution. The patient perspective is a missing piece in the literature on the topic, so his take is very relevant.
What if you are buying an orange from Godzilla?
Stephen says: "we do know that Obama got into Harvard with less than 3.0 GPA, never published anything while on the law review, never published anything at UofC, wasn't offered a court clerkship as far as I can tell, and only wrote two populist autobiographies. If you get past his titles and honours, seems like a fairly plain intelligence level." Interesting measure of intelligence. I wonder how many of the bright young men and women in your class, or in any law school for that matter would fare on this intelligence scale. One other point - it would have just been easier to call Obama an "affirmative action riding, low achieving poser." Just saying.
Thanks for posting! I couldn't agree more with this commentary. Two of my colleagues here at the UofT are preparing a case comment that addresses the impact of the decision on the scope of religious freedoms. I may be mistaken, but I think they intend to argue that the problem lies in the SCC's approach to Charter interpretation. I'll post a link when it comes out.
Yikes.