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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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A Province Cannot Shut Down anti-Abortion Expression

This summer, the Ontario government conducted consultations regarding its plan to enact “safe access zones legislation” (SAZL) modeled on British Columbia’s. I’ll give a brief background on B.C.’s law before diving into a division of powers argument against enacting such a law in Ontario. In short, I will argue that just as a province cannot enact a penal prohibition on ...

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The Rule Against Violence

The Court of Appeal for Ontario recently delivered a noteworthy decision regarding the scope and limits of the constitutional protection for freedom of expression, Bracken v Town of Fort Erie, 2017 ONCA 668. The decision, written by Justice Miller for a unanimous court, breaks no new ground, but contains clear and cogent reminders of two elementary principles that, sadly, may ...

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Courts, Legislatures, and the Illusion of “Dialogue”

I.     WHAT IS A CONSTITUTIONAL RIGHT? It has been said that Constitutions are a “mirror reflecting the national soul”[1].  While these comments were made before the Canadian Charter of Rights and Freedoms (Charter) came into effect, there is no reason to believe that the Charter, which focusses on a guaranteed set of civil liberties (Charter rights), should be any less ...

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The Courts are not Supreme Arbiters of Morality

In a post over at Slate, Omar Ha-Redye sets out what his title describes as “A Judicial Vision of Canada at 150 and Beyond“. The post is a rather rambling one, but insofar as I understand its overall purpose, it is meant to highlight the centrality of the Supreme Court to our constitutional framework, as illustrated in particular by the ...

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A Respectful Dissent from the Khadr Consensus

The case of Omar Khadr gives scholars a rare opportunity to question the fundamentals of public law damages. Such damages are notoriously difficult to quantify. As Lord Shaw once put it, “the restoration by way of compensation is therefore accomplished to a large extent by the exercise of a sound imagination and the practice of a broad axe.” This is ...

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The Courts Have No Jurisdiction to Review “Church Discipline”

Can a matter of church discipline be appealed from a church to a court? The question has made its way up to the Supreme Court of Canada in Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses. It may surprise you that it was answered in the affirmative by the chambers judge, Justice Wilson, and by a majority ...

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Vriend v Alberta Revisited: A Road to Constitutional or Judicial Supremacy?

The Supreme Court of Canada  has on numerous occasions insisted upon the primacy of the written text of the Constitution.[1] In the Reference Re Secession of Quebec, the Supreme Court explained that the recognition of underlying constitutional principles “could not be taken as an invitation to dispense with the written text of the Constitution”. It noted that “[a] written constitution ...

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Not Just A Pillowfight: How the SCC Has Muddied the Standard of Review

Recently, Justice David Stratas of the Federal Court of Appeal released an extremely helpful summary of almost every aspect of administrative law in Canada. Administrative law students, practitioners, and academics would be well-served to carefully read the document. But Justice Stratas’ piece is far from merely descriptive—in it, he provides a number of recommendations for a return to sound and ...

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