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Case Commentary

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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Federal Government Has the Power to Dismantle the Long-Gun Registry and Destroy the Data

Last week, a 5-4 majority of the Supreme Court of Canada held that the federal government is constitutionally permitted to destroy the data it obtained from the former long-gun registry. Quebec (Attorney General) v. Canada (Attorney General) is a classic federalism case that deals with Parliament’s power to regulate criminal law under section 91(27) of the Constitution Act, 1867. In ...

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When Words Apparently Do Not Mean What They Say

Kassburg v. Sun Life Assurance Company of Canada, 2014 ONCA 922, is an Ontario Court of Appeal decision that was released without much fanfare due to the timing of the release (December 29, 2014, right in the middle of the holiday season).   Kassburg is worthy of comment, if only for the reason that it is one of the latest ...

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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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The Right Result for the Wrong Reason: The Court of Appeal’s Decision in Tanudjaja

Last month, the Ontario Court of Appeal’s decision in Tanudjaja v. Canada (Attorney General) upheld the Superior Court’s dismissal of a novel claim, alleging that the Canadian Charter of Rights and Freedoms confers a positive right to housing. The majority of the Court of Appeal was correct to dismiss the claim. However, the basis of the majority’s decision – that ...

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Federal Court Rules Obama’s Executive Action on Immigration is Unconstitutional

A District Court judge in Pennsylvania held that President Obama’s recent Executive Action on Immigration exceeds his executive authority and usurps the authority of Congress. The court cited President Obama’s previous speeches in which he stated that such Executive Action would violate the  separation of powers and the rule of law. On March 28, 2011, for example, Obama declared that “America is ...

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‘Sprite Please’ vs. ‘7Up Se Il Vous Plaît’ – A Distinction Without a (Monetary) Difference

In a widely circulated decision, a 5-2 majority of the Supreme Court of Canada ruled on October 28, 2014 that an Ottawa couple was not entitled to financial compensation for Air Canada failing to provided services in French. Affidavit evidence that was before the court noted that Lynda Thibodeau asked in French for a 7Up, but the unilingual English-speaking flight ...

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