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Yearly Archives: 2016

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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Wilson v. AECL: A Missed Opportunity to Protect the Rule of Law in Administrative Law

This summer saw a sharply divided Supreme Court of Canada on many points. The case of Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 illustrated this perhaps better than any other, with the Court issuing four separate opinions. Many issues are raised in the case, from whether certain non-unionized federally regulated employees can be dismissed without cause to the number ...

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R. v. Jordan is Judicial Legislation

On July 8, 2016, in R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada overturned its decision in R. v. Morin, [1992] 1 SCR 771. The Court is supposed to be the gatekeeper of the Constitution. However, in R. v. Jordan, it ignored the separation of powers and legislated “ceilings” in establishing whether an accused’s s. 11(b) “right ...

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Seven’s Wonders and Sixty Colours: More on the Interpretation of Section 7

In my last article, “Reaffirming the Case for Constraint“, I replied to Leonid Sirota’s article “How to do Constitutional Adjudication,” which was itself a response to my paper, “The Case for a Constrained Approach to Section 7.” Mr. Sirota also wrote a piece entitled “Seven’s Sins” in response to my original paper. I had intended to reply to “Seven’s Sins” ...

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Asher Honickman and John Sikkema Publish in Law Matters

The Summer 2016 edition of Law Matters, a publication of the Canadian Bar Association (Alberta Branch) features two articles penned by members of ARL. Asher Honickman has written a paper entitled “The Case for a Constrained Approach to Section 7,” which discusses section 7’s textual limitations. An slightly modified version of this article was first published on the ARL website. ...

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Constraint and Candour

This article is written in response to Asher Honickman’s recent article, “Reaffirming the Case for Constraint.” Mr. Honickman will post a reply to this article shortly, which will also address Mr. Sirota’s comments in a previous response entitled “Seven’s Sins“. This article was originally published at Double Aspect, Mr. Sirota’s award-winning blog. Asher Honickman has posted a reply to my ...

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The Comeau Decision is a Welcome Example of Serious Doctrinal Analysis

Constitutional law and alcohol are forever linked. Many famous distribution of powers cases giving rise to new federalism doctrine were about alcohol. It should not be a surprise that we can now add another case to the list. R. v. Comeau, coming out of the New Brunswick Provincial Court, is a novel judicial meditation on Canadian federalism, specifically regarding the ...

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Reaffirming the Case for Constraint: A Reply to Léonid Sirota

Leonid Sirota has written two excellent articles in response to my essay, “The Case for a Constrained Approach to Section 7.” I am grateful for these pieces, firstly, because Mr. Sirota takes the view that my position is “largely misguided,” meaning that he endorses at least some of my views (though perhaps I am channelling Lloyd Christmas a bit on ...

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Election Promises and Marijuana Policy: What Federalism Has to Offer

Marijuana legalization has officially been announced by Health Minister Jane Philpott for spring of 2017 and the expected outcome, for now at least, is a federally-led initiative. This is the case because section 91(27) of the Constitution Act, 1867 provides Parliament with the power to legislate on issues coming within the purview of the criminal law. That said, if Parliament’s goal is to make marijuana accessible and remove it from the Controlled Drugs ...

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How to Do Constitutional Adjudication: A Response to Asher Honickman’s Take on the Judicial Role

This is the secondof two articles Mr. Sirota has written in response to Asher Honickman’s essay entitled “The Case for a Constrained Approach to Section 7.”  Mr. Honickman’s reply to follow.  This article was originally published at Double Aspect, Mr. Sirota’s award winning blog.   As I mentioned in my previous post, I would like to respond to a number of points ...

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