Recent Posts

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 ...

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 ...

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 ...

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. ...

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 ...

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 ...

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 ...

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 ...

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 ...

Lawyers, scholars and judges who promote judicial restraint and the rule of law are frequently called “conservative.” Justice Grant Huscroft of the Ontario Court of Appeal is often cited as an example of a judge whose judicial philosophy is a thinly veiled guise for his conservative predispositions. But is this really the case? In his recent decision in Michela v. ...