HomeTag Archives: constitutional law

Tag Archives: constitutional law

Nothing to Declare: Part II

This is the second of a two-part essay written by Professor Maxime St-Hilaire and Xavier Foccroulle Ménard. Part I can be read here. Assessment of the Fourth Argument on British, Australian and New Zealand Law While not convincing, we find the comparative argument to have more weight, and this despite the following clarification. Grégoire Webber, Eric Mendelshon and Robert Leckey give two examples taken from Australian law: that of the Human ...

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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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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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Substantive Equality: Some People are More Equal Than Others

Double Aspect, the law blog of Leonid Sirota and Mark Mancini, recently hosted The 12 Days of Christmas, in which contributors offered their picks for the five worst public law Supreme Court of Canada decisions between 1967 and 2017. My list included Andrews, which I criticized for starting the mess that the Supreme Court has made of section 15(1) of ...

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Unearthing Canadian Originalism: Reflections on my Conversation with Justice Stratas

Earlier this month, I had the true privilege of taking part in a discussion with Justice David Stratas of the Federal Court of Appeal, who is one of Canada’s most prominent jurists, on the subject of statutory and constitutional interpretation. The conversation was part of the Runnymede Society’s annual Law & Freedom Conference. Justice Stratas and I covered a lot ...

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Understanding Unconstitutionality

The following is an excerpt from Mr. Peltomaa’s recently published text, Understanding Unconstitutionality: How a Country Lost its Way.    Courts are often said to “strike down” laws that conflict with the Constitution. An image is evoked of black-robed judges hurling bolts of lightning in Zeus-like manner, thereby destroying the legal efficacy of unconstitutional laws and expunging them from 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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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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A Conversation on Comeau

This informal discussion between myself, Asher Honickman and Professor Malcolm Lavoie is owed, first of all, to a mea culpa. It’s a transcription of a discussion that was meant to be a podcast, but due to a recording issue wasn’t captured correctly. Since Asher, Malcolm and I agreed the discussion was useful and worth preserving, we’ve decided to present it ...

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