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Constitutionalism from the Cave

The imbroglio with the Ontario legislature’s enactment of Bill 5 to restructure the Toronto City Council a couple of months before an upcoming election, the Superior Court’s declaration of that legislation unconstitutional, the threatened invocation of the “notwithstanding clause” to override that declaration, and the Court of Appeal’s restoration of what little sanity could still be restored by reversing the Superior ...

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Supreme Court Rejects Duty to Consult in Legislative Process

The Supreme Court of Canada released its decision today in Mikisew Cree First Nation v. Canada (Governor General in Council). The decision significantly deals with whether there is a duty on the government to consult with Aboriginal groups prior to introducing legislation.  The Court held (7-2) that no such duty exists. However, 3 of the 7 justices were somewhat equivocal in their ...

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Discussing the Notwithstanding Clause

I had the real privilege today of appearing on Your Morning on CTV to chat about the notwithstanding clause with host Ben Mulroney. In particular, we discussed the threat of premier-designate, François Legault to invoke s.33 of the Charter preemptively in legislation that would ban public servants and officials from wearing religious symbols. The full interview can be accessed here. ...

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Political Costs as Control on the Notwithstanding Clause

The notwithstanding clause saga brought about by the Ford government is difficult for those born and bred on Supreme Court precedent. Law students are presented with an idea of the courts as benevolent actors of the public trust, hemming in cavalier legislatures acting on the passions of citizens. The saga, though, forces us to reckon with another sort of control ...

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ARL is Heading Back to the Supreme Court

As previously reported, Advocates for the Rule of Law recently sought intervenor status in the standard of review appeals before the Supreme Court. The Court has indicated that it intends to reconsider Dunsmuir – the seminal administrative law decision in Canada. These appeals will have a significant impact on administrative law, and, potentially, on the rule of law itself. It ...

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Why ARL is Seeking Leave to Intervene in the Standard of Review Appeals

On August 30, 2018, Advocates for the Rule of Law brought a motion for intervention at the Supreme Court of Canada in three appeals: Minister of Citizenship and Immigration v Vavilov,[i] Bell Canada v. Canada (Attorney General),[ii] and National Football League v. Canada (Attorney General).[iii] In a rare move, the Court’s judgment granting leave to appeal elaborated as follows: The ...

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ARL Seeks Intervenor Status in Standard of Review Appeals

Advocates for the Rule of Law has brought a motion to intervene in Minister of Citizenship and Immigration v Vavilov, Bell Canada v. Canada (Attorney General),and National Football League v. Canada (Attorney General), which will come before the Supreme Court of Canada on December 4-6, 2018. In its reasons granting leave to appeal, the Supreme Court stated as follows: “The ...

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The Original “Living Tree”

One of the main arguments in Canada in favour of the “living tree” is that it has deep roots in our constitutional tradition. As the Supreme Court of Canada said in Reference Re Same Sex Marriage, the living tree is “one of the most fundamental principles of Canadian constitutional interpretation.”[1] The argument goes something like this: beginning with the famous ...

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Deference and Delegation As Fickle Bedfellows

The administrative state, the supposed sword of progressives, is not necessarily so. In many countries, the administrative state was constituted on the urging of progressives to advance a social justice agenda. In the United States, progressive reformers during the New Deal era sought to make government a “prescriptive entity” designed to advance certain progressive goals. Executive orders reached a “heyday” during ...

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Canada’s Political Safeguards of Federalism: A Theory on Shaky Doctrinal Ground

When Canada abandoned its appeals to the Judicial Committee of the Privy Council in constitutional matters, the Supreme Court of Canada began to slowly re-shape the boundaries of our federalism jurisprudence. In doing so, it expanded the federal Parliament’s powers and articulated a diminished view of the judicial role. Its case law developed a “cooperative, flexible federalism”[1] defined by “a ...

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