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Yearly Archives: 2018

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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Supreme Court Rejects a Legislative Duty to Consult in ARL’s First Intervention

The Supreme Court of Canada (SCC) has ruled that there is no duty to consult Indigenous groups at any stage of the law-making process.  This is an important ruling as the recognition of a justiciable duty to consult in the legislative process would have had very significant implications for the ability of federal, provincial, and territorial governments to pass laws ...

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Constitutionalism from the Cave

The imbroglio with the Ontario legislature’s enactment of Bill 5 to restructure the Toronto City Council a couple of months before an upcoming election, the Superior Court’s declaration of that legislation unconstitutional, the threatened invocation of the “notwithstanding clause” to override that declaration, and the Court of Appeal’s restoration of what little sanity could still be restored by reversing the Superior ...

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Supreme Court Rejects Duty to Consult in Legislative Process

The Supreme Court of Canada released its decision today in Mikisew Cree First Nation v. Canada (Governor General in Council). The decision significantly deals with whether there is a duty on the government to consult with Aboriginal groups prior to introducing legislation.  The Court held (7-2) that no such duty exists. However, 3 of the 7 justices were somewhat equivocal in their ...

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Discussing the Notwithstanding Clause

I had the real privilege today of appearing on Your Morning on CTV to chat about the notwithstanding clause with host Ben Mulroney. In particular, we discussed the threat of premier-designate, François Legault to invoke s.33 of the Charter preemptively in legislation that would ban public servants and officials from wearing religious symbols. The full interview can be accessed here. ...

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Political Costs as Control on the Notwithstanding Clause

The notwithstanding clause saga brought about by the Ford government is difficult for those born and bred on Supreme Court precedent. Law students are presented with an idea of the courts as benevolent actors of the public trust, hemming in cavalier legislatures acting on the passions of citizens. The saga, though, forces us to reckon with another sort of control ...

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ARL is Heading Back to the Supreme Court

As previously reported, Advocates for the Rule of Law recently sought intervenor status in the standard of review appeals before the Supreme Court. The Court has indicated that it intends to reconsider Dunsmuir – the seminal administrative law decision in Canada. These appeals will have a significant impact on administrative law, and, potentially, on the rule of law itself. It ...

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Why ARL is Seeking Leave to Intervene in the Standard of Review Appeals

On August 30, 2018, Advocates for the Rule of Law brought a motion for intervention at the Supreme Court of Canada in three appeals: Minister of Citizenship and Immigration v Vavilov,[i] Bell Canada v. Canada (Attorney General),[ii] and National Football League v. Canada (Attorney General).[iii] In a rare move, the Court’s judgment granting leave to appeal elaborated as follows: The ...

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ARL Seeks Intervenor Status in Standard of Review Appeals

Advocates for the Rule of Law has brought a motion to intervene in Minister of Citizenship and Immigration v Vavilov, Bell Canada v. Canada (Attorney General),and National Football League v. Canada (Attorney General), which will come before the Supreme Court of Canada on December 4-6, 2018. In its reasons granting leave to appeal, the Supreme Court stated as follows: “The ...

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