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A Citizen’s Guide to the Rule of Law

The following is an excerpt from the author’s chapter in Constitutional Democracy Under Stress – A Time For Heroic Citizenship, Peter L. Biro (ed.), forthcoming from Mosaic Press, Oakville, Canada The Rule of Law entails the existence of a legal framework, binding at all times on the government and also on individuals in at least some of their interactions with ...

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Easing the Stress on Constitutional Democracy

On October 6, 2019, I had the pleasure of speaking at a conference entitled “Constitutional Democracy Under Stress.” The conference was hosted by Section 1 and its founder, Peter Biro, who incidentally was one of my early mentors when I was a summer student. Mr. Biro, whose article for ARL on the Section 1 project can be read here, gathered ...

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Toronto v Ontario: Correcting Results-Oriented Reasoning

It is not often that I can write a post in full agreement with a judicial decision. Perhaps this says something about my constitution. No matter, the Court of Appeal for Ontario’s recent decision in Toronto v Ontario is an admirable decision that strikes all of the right notes when it comes to interpreting overlapping Charter rights and the use ...

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R. v. Stillman: A Missed Opportunity for Guidance on Stare Decisis

On July 26, 2019, in R. v. Stillman, 2019 SCC 40,the Supreme Court of Canada held by a 5-2 majority that a member of the Canadian Forces does not have the right to trial by jury for a “civilian” criminal offence for which they are charged under the National Defence Act (the “NDA”). Section 130(1)(a) of the NDA converts any ...

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Constitutional Democracy Under Stress: Developing A Resistance To Unaccountable Government

One of the litmus tests of the legitimacy of any government that presides over a “democracy”, is the extent to which it is genuinely and adequately accountable to its citizens.  While this may seem a trite observation, it has sadly become normal, within so-called democratic societies, to find governments that are wanting in the accountability department.  In Ontario, for example, ...

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Deconstructing Section 28

Professor Kerri Froc has written a thoughtful guest post for Double Aspect, in which she argues that s. 28 of the Charter is not merely an interpretive provision, but is rather a substantive and justiciable section in its own right. The implication if she is correct should not be understated. Section 28 states: Notwithstanding anything in this Charter, the rights ...

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ARL Celebrates Five Years and Charitable Status

Five years ago, I founded Advocates for the Rule of Law with a small group of like-minded lawyers. We were concerned with what we perceived to be a growing disregard for the rule of law, and a move toward what some – including most notably, Justice Abella of the Supreme Court of Canada – have called the “rule of justice.” ...

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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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