HomeAuthor Archives: Asher Honickman

Author Archives: Asher Honickman

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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Getting Back to the Basics of Judicial Review

One could scarcely find an area of law so muddied as administrative law. In a recent blog post on Double Aspect,  Leonid Sirota argues (omitting some far more colourful language) that our courts continue to struggle with reconciling the basic concepts of parliamentary supremacy and the rule of law, which are said to be in conflict with one another. The ...

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Khadr Debate on YouTube

My debate with CCLA lawyer Rob De Luca has been uploaded to YouTube and can be accessed here. The video can also be accessed on the Runnymede Society website here. My take on the Khadr Settlement can also be read here. Thank you again to the Runnymede Society for hosting the debate and to Joanna Baron, President of the Runnymede ...

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Debating the Khadr Settlement at Western

Tomorow, I will be traveling to London to debate the following proposition: “The Trudeau government’s decision to award Omar Khadr a $10.5m settlement in July 2017 was an error in law and policy.” My opponent will be Rob De Luca, counsel for the Canadian Civil Liberties Association. I will take the position that the settlement was based on a misapplication ...

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A Wise Decision in Retrospect

The Ontario Court of Appeal handed down two seminal decisions last month. In the companion cases, Cobb v. Long Estate and El-Khodr v. Lackie,  the Court of Appeal (hopefully) settled the doctrine in a number of areas relevant to motor vehicle accident (“MVA”) litigation. Cobb and El-Khodr were appeals arising from the assessment damages, prejudgment interest, and costs in the context ...

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“Watertight Compartments” Has Now Been Published

I am pleased to announce that my paper, “Watertight Compartments: Getting Back to the Constitutional Division of Powers” has now been published in the Alberta Law Review. Per the abstract: This article offers a fresh examination of the constitutional division of powers. The author argues that sections 91 and 92 of the Constitution Act, 1867 establish exclusive jurisdictional spheres — ...

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The Legal Case Against the Khadr Settlement

Was the Government of Canada’s decision to settle with Omar Khadr for $10.5 million a pragmatic choice that saved the taxpayers millions in the long run? This is certainly what the government and some commentators would have us believe. If true, this would provide a sensible justification for the settlement. A multi-million dollar payout to an individual who previously participated ...

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Debating Human Rights with Professor Pardy

Recently, I had the pleasure of discussing and debating human rights law with Professor Bruce Pardy of my alma mater, Queen’s Law. The topic of the debate was Parliament’s Bill C-16, which amended the Canada Human Rights Act and Criminal Code, along with recent amendments to the Ontario Human Rights Code. The relevant amendments in both human rights statutes concern ...

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