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Case Commentary

Justice Miller’s First Major Decision May Surprise His Critics

In December, I questioned the common thought that lawyers, scholars and judges who promote judicial restraint and the rule of law should be called “conservative”. I cited Justice Grant Huscroft of the Ontario Court of Appeal simply applying accepted common law principles to lead to what appeared to be a “progressive” result in the employment law case of Michela v. ...

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Misreading Carter v. Canada

In its report released in December, the Provincial-Territorial Expert Advisory Group On Physician-Assisted Dying recommends that assisted suicide and euthanasia be publicly funded and available for the non-terminally ill, the mentally ill, and for minors. Their Report says that its recommendations “were developed in response to the Supreme Court’s decision in Carter.” The Report claims, inaccurately, that the Court “did ...

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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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A “Progressive” Result from the Rule of Law

Lawyers, scholars and judges who promote judicial restraint and the rule of law are frequently called “conservative.” Justice Grant Huscroft of the Ontario Court of Appeal is often cited as an example of a judge whose judicial philosophy is a thinly veiled guise for his conservative predispositions. But is this really the case? In his recent decision in Michela v. ...

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Judicial Restraint Lives to Fight Another Day

If laws are supposed to be legislated by the legislature, and interpreted by the judiciary, what happens when the judiciary is of the view that the legislature is dropping the ball? This philosophical conundrum was implicitly considered by two different levels of court in Ontario, with different results. In Ernst & Young Inc. v. Chartis Insurance Co. of Canada, [2014] ...

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The Hard Truth – “the contract said what it said”

MacQuarrie v. National Bank Life Insurance Company is a noteworthy decision for those interested in the “textualist” debate – namely, whether words reduced to writing, whether it be in the form of a policy of insurance, a statute, a commercial contract, or otherwise – should be interpreted according to their plain and ordinary meaning. In MacQuarrie, an insured sought payment ...

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Constitutional Challenge to Building Code Act “Doomed to Fail”

Tuesday’s Ontario Court of Appeal decision in R. v. Goebel properly disposed of a claim that raised an important issue, but was deeply flawed from a legal perspective. Justice Epstein’s reasons helpfully noted that s. 7 of the Charter does not include property rights, and an infringement of the right to “security of the person” requires a real connection to ...

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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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Quebec v. Canada: Constitution Cannot Force Orders of Government to Be Nice to Each Other

The Supreme Court of Canada’s March 27, 2015 decision in Quebec (Attorney General) v. Canada (Attorney General) is an exemplary judgment in upholding the rule of law in the realm of federalism. The majority’s decision explicitly (and refreshingly) recognized that the constitution’s text is the primary source of its meaning, while also explicitly recognizing that courts are not to review ...

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