HomeAuthor Archives: John Sikkema

Author Archives: John Sikkema

Protecting Rights: A Common Responsibility

“Are great public problems best addressed through institutions designed to apply the explicit technical knowledge of experts or by those designed to channel the implicit social knowledge of the community?”[1] Since the enactment of the Charter of Rights and Freedoms, Canada has experienced a remarkable shift from the latter forum to the former—namely, from legislature to courtroom.[2] Not only has ...

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Applying the law (or not) to “a child born of a three-way”

In a decision delivered in April 2018, a Newfoundland court recognized three legal parents (two fathers and one mother), based on the throuple’s sexual relationship  The case starts with a Newfoundland throuple—two men and a woman in a sexual relationship—who had a child in 2017.[1] The identity of the mother is clear, both biologically and in law. However, the men could ...

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The Wall of Separation

The Supreme Court of Canada released its judgement in the Wall appeal last week. It’s a victory for clarity in what had become quite a confused case.  The Court, overturning both courts below, ruled that judges do not have authority to review the decision of an unincorporated religious body to expel one of its members. Confusion at the lower courts Randy Wall, the ...

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“The Basic Bedford Rule” and substantive review of criminal prohibitions under section 7

How should the objective of a criminal prohibition be determined for the purpose of substantive review under section 7 of the Charter? I’m grateful that my attempt to answer that question will be published in a special edition of the Supreme Court Law Review. In my paper, I argue that the Supreme Court in Carter (2015) struck down the prohibition on assisted suicide based on ...

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ONCA questions Doré-Loyola framework on eve of TWU’s SCC hearing

Is it “antithetical” to the “Charter value” of “inclusivity” to allow a child to be excused from a public school classroom while sexual orientation or gender is being discussed? In this article I review a case that raises this very question. Many lawyers today are concerned that “Charter values” are being used as a sword for state-enforced moral conformity, when ...

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A Province Cannot Shut Down anti-Abortion Expression

This summer, the Ontario government conducted consultations regarding its plan to enact “safe access zones legislation” (SAZL) modeled on British Columbia’s. I’ll give a brief background on B.C.’s law before diving into a division of powers argument against enacting such a law in Ontario. In short, I will argue that just as a province cannot enact a penal prohibition on ...

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The Courts Have No Jurisdiction to Review “Church Discipline”

Can a matter of church discipline be appealed from a church to a court? The question has made its way up to the Supreme Court of Canada in Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses. It may surprise you that it was answered in the affirmative by the chambers judge, Justice Wilson, and by a majority ...

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The Decisions to Reject Trinity Western were not “Prescribed by Law”

This article appears in the current (Fall 2016) edition of the Christian Legal Journal, a publication of Christian Legal Fellowship, an intervener in Trinity Western University’s litigation in all three provinces.   Any state-imposed limit on a constitutional right or freedom must be “prescribed by law”, according to section 1 of the Charter. This requirement stems from the principle of ...

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Carter Should not be the “Last Word” on Assisted Dying

The Alberta Court of Appeal ruled in May in Canada (AG) v. E.F. that a woman suffering from “severe conversion disorder” — a non-terminal, psychiatric condition that causes physical symptoms — was eligible to receive “aid in dying” under the “criteria” stated in the Supreme Court of Canada’s February 2015 decision on physician-assisted dying, known as Carter I. The Attorney ...

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