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Losing Rights in the Balance

Back in 2008, the College of Physicians and Surgeons of Ontario (CPSO) issued a new policy entitled “Physicians and the Ontario Human Rights Code.” That policy informed physicians that they should be prepared to “set aside their personal beliefs” in providing healthcare. It warned that the Human Rights Code has no defence for discriminatory refusals of medical services, “even if the refusal is ...

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The Political Consequences of Deference are not Always the Same

In my last post on this blog, I commented and mostly praised two recent blog posts at Double Aspect by Mark Mancini from earlier this month calling for less deference to administrators in judicial review, unless a statute explicitly calls for such deference. But after I began drafting my response, a new development arose that now calls for a brief ...

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Deference to Administrators Must be Legislated not Assumed

Earlier this month, Mark Mancini wrote two very thoughtful blog posts on the Double Aspect blog, attempting to bring administrative law back to first principles. These intriguing posts are worthy of commentary. I will respond to Mancini’s two posts today, and follow up next week with an addendum in light of the Supreme Court of Canada’s recent decision in Canada ...

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Abdicating Legislative Power: The Carbon Tax Case

If there is one aspect of Canadian administrative law that is relatively understudied, it is the constitutionality (or, less ambitiously, the desirability) of the delegation of legislative power from Parliament to the Cabinet and administrative actors. The recent Saskatchewan Carbon Tax Reference puts into stark relief the underdeveloped nature of the law in this area, and the stakes underlying the ...

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The Original Meaning of Military Law

Advocates for the Rule of Law returned to the Supreme Court of Canada last month in the Stillman and Beaudry appeals to make important submissions on the topic of stare decisis. I attended with my co-counsel, Adam Goldenberg and Peter Grbac. Mr. Goldenberg’s oral submissions were stellar and the panel kept him up for an additional few minutes to ask him ...

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The “Return” of “Textualism” at the SCC?

Under the so-called “modern approach” to statutory interpretation, courts are instructed to take into account the text, context, and purpose of a statute. But perhaps because the “text, context, and purpose” recital is so commonplace, other difficult interpretive questions are masked under its patina. For example, which takes priority—text or purpose? The Supreme Court has said that clear text is ...

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ARL Files Factum in Stillman Appeal

On March 8, 2019, ARL filed its factum at the Supreme Court of Canada in Stillman v. The Queen and R. v. Beaudry. We have previously written about how these military justice appeals offer the Court a rare opportunity to provide guidance on the doctrine of horizontal stare decisis. ARL’s factum proposes a framework that we hope will assist the ...

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Our Pythic Judges: SNC-Lavalin

In Ancient Greece, travelers from far and wide descended upon the Oracle at Delphi. Known collectively as the Pythia, these priestesses or women of Delphi, over generations, provided advice and counsel to anyone wishing to seek it. The Pythia were thought to channel the god Apollo. As the mythology of the Pythia grew, with kings, leaders, and leaders of armies ...

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The Problem with Prosecutorial Independence in Canada

As has been widely reported, the PMO has been embroiled in a scandal over the last two weeks for allegedly exerting pressure upon its former Attorney General, Jody Wilson-Raybould, regarding the prosecution of SNC Lavalin.  Precisely what occurred remains unknown, and contrary to many social media commentators, we are not going to give our opinion on what may or may ...

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Military Justice and Stare Decisis: ARL Returns to the SCC

For the third time in little more than a year, the Supreme Court of Canada has granted Advocates for the Rule of Law leave to intervene to assist the Court in addressing a significant public law issue. This time, ARL will make submissions on when intermediate appellate courts may depart from their own binding precedents. This question of horizontal stare ...

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