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Promoting the Runnymede Society

Yesterday, the National Post ran an op-ed piece co-authored by Asher Honickman, Marni Soupcoff (Executive Director of the Canadian Constitution Foundation) and Joanna Baron (Director of the Runnymede Society). The article, “Safeguarding the Rule of Law”, speaks to the importance of constitutionalism and the rule of law in Canada and some recent decisions at the Supreme Court that call into ...

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Galati v. Harper: The Rule of Law is not an “Empty Vessel”

The Federal Court of Appeal’s February 8, 2016 decision in Galati v. Harper is notable for several reasons. First, it notes that fundamental legal rules surrounding costs are not jettisoned in the constitutional context. Second, it recognizes that the constitutional guarantee of the “rule of law”, though seemingly broad in the abstract, has a defined meaning and cannot be used ...

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Reviving Originalism in Canada

Originalism posits that the content of a constitution is determined partly by the intentions and purposes of its founders and the understandings of the founding generation. This essay calls for the (re)introduction of originalism, which has an important place in American politics, legal academia, and courts,1 into Canadian constitutional law. First, I explain the importance of the methodology of constitutional ...

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Introducing the Runnymede Society

We at Advocates for the Rule of Law are pleased to announce that we have teamed up with the Canadian Constitution Foundation, a registered charity dedicated to defending the constitutional freedoms of Canadians, to form the Runnymede Society, a law-school-based membership group that specializes in holding provocative and enlightening debates and educational symposia focused on the rule of law. ‘Runnymede’ refers to a water-meadow in ...

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Justice Miller’s First Major Decision May Surprise His Critics

In December, I questioned the common thought that lawyers, scholars and judges who promote judicial restraint and the rule of law should be called “conservative”. I cited Justice Grant Huscroft of the Ontario Court of Appeal simply applying accepted common law principles to lead to what appeared to be a “progressive” result in the employment law case of Michela v. ...

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Sorry, Electoral Reform is Constitutional

Is the Liberal plan to reform the electoral system unconstitutional? Two recent pieces published in the Globe and Mail and Toronto Star suggest the answer is yes. The articles are well-written by knowledgeable individuals (respectively, a law professor and two former law clerks), but in my view their reasoning is flawed. Both pieces cite the 2014 Senate Reform Reference, in ...

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Misreading Carter v. Canada

In its report released in December, the Provincial-Territorial Expert Advisory Group On Physician-Assisted Dying recommends that assisted suicide and euthanasia be publicly funded and available for the non-terminally ill, the mentally ill, and for minors. Their Report says that its recommendations “were developed in response to the Supreme Court’s decision in Carter.” The Report claims, inaccurately, that the Court “did ...

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Justice Stratas on the Decline of Doctrine

Justice David Stratas of the Federal Court of Appeal gave an excellent talk at the Canadian Constitution Foundation’s Law and Freedom Conference on January 8, 2016. The title of his keynote address was “Reflections on the Decline of Legal Doctrine.” It can be viewed here. The address focussed primarily on constitutional and administrative law. In Justice Stratas’s view, judges and academics ...

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Justice Rothstein Casts Doubt on the Living Tree

I recently learned that, back in October, recently-retired Justice Marshall Rothstein gave a speech at the University of Saskatchewan, in which he criticized the “living tree” doctrine, which holds that the meaning of the Constitution may evolve over time – in most cases, beyond what the text can reasonably bear.  The original living tree metaphor comes from the Privy Council’s decision in Edwards ...

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“Clear and Definitive”: The Offence of Bestiality and the Rules of Statutory Interpretation

Last month, the Supreme Court of Canada heard oral arguments in the case R. v. D.L.W.  The issue for appeal is not exactly garden variety. The Supreme Court has been asked to determine whether the offence of “bestiality” in the Criminal Code requires penetration.   Background The facts are not in dispute and are disturbing to say the least. The accused respondent ...

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