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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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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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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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Parliament Can Still Criminalize Assisted Suicide

Earlier this year, Canada’s Supreme Court struck down the Criminal Code prohibition on assisted suicide in its landmark Carter v. Canada ruling. Parliament’s only option now, many believe, is either to implement a circumscribed “right to die” or invoke the Charter’s notwithstanding clause. But the actual legal reasoning underlying the Court’s invalidation of the law makes possible another path. The ...

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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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In Defence of Constitutional Originalism

The Globe and Mail recently reported that Bradley Miller, a former Western University law professor and a judge on Ontario’s Superior Court, had been appointed to the Ontario Court of Appeal. The Globe’s report drew attention to the following: 1. Miller has criticized gay marriage; 2. Miller has only six months’ experience as a judge; and 3. Miller is an ...

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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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Reaffirming Magna Carta

Magna Carta turned 800 this week. After eight centuries, it remains the foundational text of Anglo-American law. Borne out of a bitter dispute between King John and his aggrieved barons in the spring of 1215, the “Great Charter” scarcely resembles any modern human rights instrument. It did not grant freedom of expression and religion, or even life, liberty and the ...

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Free Expression Must Endure

This past week saw an unspeakable tragedy unfold in the Paris office of a satirical newspaper, Charlie Hebdo, when gunmen opened fire, killing twelve and wounding many more. The apparent motivation for the killings was Charlie Hebdo’s publication of an image of the prophet Mohammad. The artistic depiction of Mohammad is forbidden in many sects of Islam and is offensive ...

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