HomeAuthor Archives: Asher Honickman (page 5)

Author Archives: Asher Honickman

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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The People Need Their Say on Electoral Reform

Prime Minister Justin Trudeau promised during the recent campaign that 2015 would be the last federal election to employ “first-past-the-post.” This is the electoral system familiar to  Canadians, in which the candidate who wins a plurality of votes in each riding is elected to Parliament. In its place we would see the introduction of a more “representative” system, most likely ...

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Banning “Hate Speech” is Beyond Provincial Power

Hate speech is back in the news. The Quebec government has recently tabled Bill 59, which, among other things, would prohibit “hate speech” – a term that is not defined. Anyone who “engages in or disseminates” hate speech is liable to be fined up to $10,000 for the first utterance and $20,000 for the second.   The Bill would also ...

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The True American Import to Canada is the Living Tree, not Originalism

Old Supreme Court

Constitutional originalism, which holds that the meaning of the Constitution remains constant with the passage of time, does not enjoy a great deal of support Canada. It is dismissed as an American phenomenon, and a distastefully conservative one at that. The Canadian Constitution, we are told, is a “living tree” and it is therefore the responsibility of judges to rediscover ...

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Good Law in the Face of Hard Facts

In a recent decision of the Ontario Court of Appeal, R. v. Jacques, Justice Lauwers correctly applied the law despite his understandable reservations about the outcome. Mr. Jacques had been convicted before the Provincial Offences Court on two counts of driving without automobile insurance and one count of driving with a suspended license. His convictions were upheld on appeal before the Ontario ...

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The Ghosts of Nadon Haunt the Supreme Court

Is there any real distinction between the phrases “from the Bar” and “from among the advocates”? According to two recent Supreme Court of Canada decisions, the answer to that question must be an emphatic “yes”. The first decision is well-known to the legal community and to the public as a whole. In Reference re Supreme Court Act, ss. 5 and ...

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The Right to Strike Should Not Be a “Fundamental Freedom”

Last week, the Supreme Court of Canada released what is arguably its most troubling decision of the 21st century. In Saskatchewan Federation of Labour v. Saskatchewan, a 5-2 majority of the Court held that there is a constitutional right to strike, even for certain services that the government deems essential. In putting forth this ruling, our highest court has removed ...

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Canada’s Blasphemy Law Should Be Repealed

In the wake of the terrorist attacks in Paris, freedom of expression is coming back to centre stage. This week, the National Post reported that Humanist Canada and Centre for Inquiry- two organizations dedicated to promoting secularism – will ask the Department of Justice to abolish section 296 of the Criminal Code, which prohibits “blasphemous libel.” Section 296 was enacted well ...

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A Questionable Ruling on Aboriginal Rights

As has been widely reported, an Ontario court has ruled that native parents have a right to deny their children life-saving medical treatment. The case of Hamilton Health Sciences Corporation v. D.H. concerned an 11-year-old child, J.J., who was diagnosed with leukemia in August 2014. Her treatment team determined that she had a 90%-95% chance of being cured with chemotherapy, ...

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