HomeTag Archives: constitutional law

Tag Archives: constitutional law

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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Welcome to the Lawless Zone: the Kawaskimhon Moot and the Refusal to Recognize State Law

Media coverage of the letter written by Quebec’s Minister of the Environment, in opposition to the new federal environmental assessment process, sparked a debate in Le Devoir on the value of Aboriginal traditional knowledge. On the one hand, a group of eight lawyers argued that “[s]ubordination of traditional knowledge to compatibility with scientific data amounts to establishing a hierarchy of ...

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Comeau is a Casualty of Confused Doctrine

The Supreme Court delivered a bizarre decision last week in R.v. Comeau. By way of background, Comeau concerned the interpretation of s.121 of the Constitution Act, 1867, which states: “All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.” The issue for the Court was ...

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RIP Reasonableness

 The Supreme Court recently issued its decision in Quebec (Commission des normes, de l’équité, de la santé et de la sécurité du travail) v Caron, 2018 SCC 3, which may, or may not, be another sign that the Court’s love affair with deference to administrative decision-makers is coming to an end ― in practice if not yet in theory. I ...

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ARL at the Supreme Court

Advocates for the Rule of Law is proud to announce that it has completed its first intervention at the Supreme Court. ARL intervened on behalf of the respondent in the case of Courtoreille v. Canada. ARL argued that the duty to consult principle must be balanced against the principle of legislative sovereignty. If the government fails to consult with Aboriginal groups prior ...

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Why the Appeal to Charter Values Denies the Rule of Law

Barry W. Bussey is Director Legal Affairs, Canadian Council of Christian Charities.  He blogs at: lawandreligion.org. The following is an excerpt of his article, “The Charter is Not a Blueprint for Moral Conformity,” (2017) 79 S.C.L.R.(2d) 367, 393-400   It may be trite to say that a liberal democracy must respect the rule of law.[1] Lord Bingham described the core ...

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Debating the Khadr Settlement at Western

Tomorow, I will be traveling to London to debate the following proposition: “The Trudeau government’s decision to award Omar Khadr a $10.5m settlement in July 2017 was an error in law and policy.” My opponent will be Rob De Luca, counsel for the Canadian Civil Liberties Association. I will take the position that the settlement was based on a misapplication ...

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