HomeTag Archives: Supreme Court of Canada

Tag Archives: Supreme Court of Canada

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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ARL Files Factum in Stillman Appeal

On March 8, 2019, ARL filed its factum at the Supreme Court of Canada in Stillman v. The Queen and R. v. Beaudry. We have previously written about how these military justice appeals offer the Court a rare opportunity to provide guidance on the doctrine of horizontal stare decisis. ARL’s factum proposes a framework that we hope will assist the ...

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Military Justice and Stare Decisis: ARL Returns to the SCC

For the third time in little more than a year, the Supreme Court of Canada has granted Advocates for the Rule of Law leave to intervene to assist the Court in addressing a significant public law issue. This time, ARL will make submissions on when intermediate appellate courts may depart from their own binding precedents. This question of horizontal stare ...

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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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ARL at the Supreme Court

Earlier this month, Advocates for the Rule of Law appeared as an intervenor in the Bell/NFL and Vavilov appeals at the Supreme Court. Prior to the hearing, the Court advised the parties that these appeals would present an opportunity to reconsider the Court’s seminal decision in Dunsmuir v. New Brunswick, released a decade ago.  Consequently, various organizations, including ARL, moved to intervene in the case. ...

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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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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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