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Yearly Archives: 2018

Welcome to the Lawless Zone: the Kawaskimhon Moot and the Refusal to Recognize State Law

Media coverage of the letter written by Quebec’s Minister of the Environment, in opposition to the new federal environmental assessment process, sparked a debate in Le Devoir on the value of Aboriginal traditional knowledge. On the one hand, a group of eight lawyers argued that “[s]ubordination of traditional knowledge to compatibility with scientific data amounts to establishing a hierarchy of ...

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Comeau is a Casualty of Confused Doctrine

The Supreme Court delivered a bizarre decision last week in R.v. Comeau. By way of background, Comeau concerned the interpretation of s.121 of the Constitution Act, 1867, which states: “All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.” The issue for the Court was ...

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Canon to the Right of Them, Canon to the Left of Them, Canon in Front of Them

The Ontario Court of Appeal’s recent decision in Schnarr v. Blue Mountain is significant for two reasons. First, it provides much needed clarification to the law of occupiers’ liability, and to waivers of liability in particular. Second,  it includes a detailed discussion of some of the principles of statutory interpretation. In this brief article, I discuss the Court of Appeal’s ...

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Has the Supreme Court Moved Beyond the “Living Tree”?

One of the first things law students are taught is that our Constitution is a “living tree.”  The Supreme Court has said that the living tree doctrine, which holds that our Constitution must be capable of evolving to meet new social realities, is “one of the most fundamental principles of Canadian constitutional interpretation” (See Reference Re Same Sex Marriage, at ...

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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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The Dark Art of Deference: Dubious Assumptions of Expertise on Home Statute Interpretation

The 10th anniversary of Dunsmuir presents an opportunity to revisit perhaps its most controversial aspect: the seeds it planted for a presumption of deference on home statute interpretation. As Professor Daly notes, the presumption is a “black hole” which engulfs questions of statutory interpretation in administrative law: Paul Daly, “Unreasonable Interpretations of Law” in Judicial Deference to Administrative Tribunals in ...

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RIP Reasonableness

 The Supreme Court recently issued its decision in Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v Caron, 2018 SCC 3, which may, or may not, be another sign that the Court’s love affair with deference to administrative decision-makers is coming to an end ― in practice if not yet in theory. I ...

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Reflections on Charter Values: A Call for Judicial Humility

The Honourable Peter D. Lauwers is a Justice of the Court of Appeal for Ontario. This speech was delivered to the Runnymede Society in Toronto on January 12, 2018. It develops further some thoughts on Charter values in my article, “Liberalism and the Challenge of Religious Diversity, (2017), 79 S.C.L.R. (2d) 29. The footnotes have not been edited or completed. ...

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ARL at the Supreme Court

Advocates for the Rule of Law is proud to announce that it has completed its first intervention at the Supreme Court. ARL intervened on behalf of the respondent in the case of Courtoreille v. Canada. ARL argued that the duty to consult principle must be balanced against the principle of legislative sovereignty. If the government fails to consult with Aboriginal groups prior ...

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