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Statement on the Departure of Justice Brown

Advocates for the Rule of Law is saddened to learn of the retirement of Justice Russell Brown from the Supreme Court of Canada. Over the past 8 years, he has been a singular voice seeking to bring doctrinal coherence, fidelity to precedent, and legal predictability to vastly different areas of Canadian law. All the while, he has taken the lead ...

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“Threats to the Security of Canada”: The Case for a Single Stringent Standard

I: Introduction On what basis can the Governor in Council reasonably conclude that there are “threats to the security of Canada” that justify invoking the Emergencies Act[1]? This question was front and centre during the recently concluded fact-finding hearings of the Public Order Emergency Commission (the “Commission”). What appeared at the outset to be a straightforward matter of statutory interpretation ...

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The Limits of a Culture of Justification

In Vavilov, the Supreme Court of Canada held that, to the extent possible, the law of judicial review should “develop and strengthen a culture of justification in administrative decision making” (Vavilov, at para 2). What is this culture of justification as adopted in Vavilov? It asks decision-makers to ensure that their exercise of delegated public power can be justified to ...

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Quebec’s Bill 96 is an Unconstitutional Attempt to Amend the Constitution of Canada

Section 159 of the current Quebec bill on “the official and common language of Quebec, French” intends to amend the Constitution Act, 1867 by introducing in it what follows: FUNDAMENTAL CHARACTERISTICS OF QUEBEC90Q.1. Quebecers form a nation.90Q.2. French is the only official language of Québec. It is also the common language of the Quebec nation. This scheme has been referred ...

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Law, Liberty and the Pursuit of the Common Good

There is a lively debate afoot in legal circles, both in the United States and now in Canada, on the “common good.” It began with Adrian Vermeule’s call for a “common good constitutionalism,” in which vague provisions would be infused with values drawn from the Catholic natural law tradition. Many others have now adopted the “common good” moniker, though it ...

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The Common Good in Legal Interpretation: A Response to Leonid Sirota and Mark Mancini

A renaissance of interest and juristic thinking about the moral foundations of the law and legal reasoning is underway, and its reverberations have now reached Canadian shores. On February 22, Leonid Sirota and Mark Mancini published a post on the Double Aspect Blog entitled “Interpretation and the Value of Law”.[1] Although the post itself merely claims to show “[w]hy the ...

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On Responsible Scholarship: A Reply to Stepan Wood, Meinhard Doelle, and Dayna Scott September 8, 2020

Accusations of irresponsible scholarship are a serious matter, and they have an even graver dimension when they give the appearance of being framed and timed so as to attempt to interfere with academic contributions to a major public debate.  In this post, I address a recent paper by Stepan Wood, Meinhard Doelle, and Dayna Scott attempting to challenge my well-known ...

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Deconstructing Quebec’s “Shocking” Bill 61

The Quebec legislature has been considering Bill 61 to “restart” the province’s economy in the wake of its initial easing of lockdown measures. The government of Quebec imposed the lockdown on March 13 under the emergency provisions of the Public Health Act. Bill 61 essentially circumvents these provisions of the Public Health Act. This Act would not be formally amended, but the more specific and recent provisions of Bill 61 would override its ...

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Nothing to Declare: Part II

This is the second of a two-part essay written by Professor Maxime St-Hilaire and Xavier Foccroulle Ménard. Part I can be read here. Assessment of the Fourth Argument on British, Australian and New Zealand Law While not convincing, we find the comparative argument to have more weight, and this despite the following clarification. Grégoire Webber, Eric Mendelshon and Robert Leckey give two examples taken from Australian law: that of the Human ...

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