The Supreme Court of Canada (SCC) has ruled that there is no duty to consult Indigenous groups at any stage of the law-making process.  This is an important ruling as the recognition of a justiciable duty to consult in the legislative process would have had very significant implications for the ability of federal, provincial, and territorial governments to pass laws ...

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 ...

On January 15, 2018, lawyers for Advocates for the Rule of Law (“ARL”) will be appearing before the Supreme Court of Canada to make submissions in a case that will consider whether there is a justiciable duty to consult potentially affected Aboriginal groups in the legislative process.  This is the first Supreme Court of Canada case that ARL has intervened ...

One could scarcely find an area of law so muddied as administrative law. In a recent blog post on Double Aspect,  Leonid Sirota argues (omitting some far more colourful language) that our courts continue to struggle with reconciling the basic concepts of parliamentary supremacy and the rule of law, which are said to be in conflict with one another. The ...

In a recent commencement address at Brandeis University, Justice Rosalie Abella of the Supreme Court took a stab at President Donald Trump. Decrying “narcissistic populism,” Justice Abella argued that a “shocking disrespect for the borders between power and its independent adjudicators like the press and the courts” defines the modern era.  This isn’t her first foray into political terrain. Last year, after receiving ...

The Supreme Court of Canada  has on numerous occasions insisted upon the primacy of the written text of the Constitution.[1] In the Reference Re Secession of Quebec, the Supreme Court explained that the recognition of underlying constitutional principles “could not be taken as an invitation to dispense with the written text of the Constitution”. It noted that “[a] written constitution ...

It’s always easy to seek permission when you know you’ll get it. While not required to do so, the Liberals asked the House of Commons to vote recently on whether to ratify the Paris Agreement, an international climate change accord. In contrast, they do not intend to ask Parliament to approve their plan to send 600 soldiers to Africa on a ...

On July 8, 2016, in R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada overturned its decision in R. v. Morin, [1992] 1 SCR 771. The Court is supposed to be the gatekeeper of the Constitution. However, in R. v. Jordan, it ignored the separation of powers and legislated “ceilings” in establishing whether an accused’s s. 11(b) “right ...

A District Court judge in Pennsylvania held that President Obama’s recent Executive Action on Immigration exceeds his executive authority and usurps the authority of Congress. The court cited President Obama’s previous speeches in which he stated that such Executive Action would violate the  separation of powers and the rule of law. On March 28, 2011, for example, Obama declared that “America is ...

This article originally appeared in Huffington Post Canada   When the Conservatives were in opposition, they frequently chastised the governing Liberals for ruling their backbencher MPs with an iron fist. Most if not all votes were whipped, which meant that, in a majority government, the position of the Prime Minister and his inner Cabinet invariably became the law of the ...