B. Berger and J. Stribopoulos, eds, The Constitution of Criminal Justice in Canada (Toronto: Lexis Nexis, 2012) 391-408
In 2011, I had a choice to make: prostitution or polygamy? Both are perennial topics of debate, particularly in feminist legal circles, producing passionate oppositional dialogue; and both have gained increased profile and attention in the wake of several court proceedings: R. v. Bedford in Ontario, Downtown Eastside Sex Workers United against Violence Society in B.C., and from B.C. again, the Reference re: section 293 of the Criminal Code. I decided to tackle polygamy. I thought it would be less controversial. Just kidding. Actually, the Reference draws together several areas of particular interest to me: the doctrine of arbitrariness; the appropriate limits of criminal law; the (ab)use of social science evidence in Charter litigation; and the scope of the advisory function of Canadian courts. This piece, written initially for the 2011 Osgoode Constitutional Cases Conference, allowed me to reflect on some of those issues, and to lay the groundwork for a much bigger project. Plus, it gave me a much-needed opportunity to let off some steam about the Reference, which I view as one of the worst Charter decisions of the last thirty years. Have a read and find out why.
By the way, if you think you’re seeing double, you’re not. This article was published twice, in the SCLR and in this amazing collection edited by Ben Berger and James Stribopoulos.