In Sidney Shapiro, Elizabeth Fisher and Wendy Wagner’s fascinating article, they contrast the “rational-instrumental” model of administrative decision-making, which they describe as dominant, with the “deliberative-constitutive” model, which they prefer. If you are interested in the legitimacy of the administrative state, the article is a must-read. Under the former model, “agency accountability is ensured by […] Read more

My paper for this Saturday’s conference at the University of Ottawa in honour of Justice Charron is now available on SSRN. You can download it here. To whet your appetite, here is the abstract: In interpreting the “prescribed by law” requirement contained in section 1 of the Charter of Rights and Freedoms, Canadian courts have […] Read more

On May 10 next, we at U de M are hosting what we hope will be the first in a series of conferences on key concepts of the common law. To kick off, the conference on May 10, 2013 is Regulation and the Common Law. Our keynote speaker will be Gillian Metzger, the Stanley H. […] Read more

The hearing of the federal government’s appeal of the decision granting Québec an injunction to prevent the destruction of long-gun registry data and ordering the federal government to return data relating to Québec to the province finished up this morning.I did not make it to this morning’s hearing (made up of the tail end of […] Read more

A well-known rule of administrative law is delegatus non potest delegare: the beneficiary of a statutory power cannot delegate its exercise. This is only a rule of construction, though, and is subject to the famous Carltona exception, pursuant to which civil servants can act in the name of a minister named in a statute. A […] Read more

In Ireland last week, the High Court rendered a landmark judgment on surrogacy: M.R. v. An t-Ard Cláraitheoir, [2013] IEHC 91. Here, the registrar of births had refused to register a biological (or genetic) parent as the mother of her twins. Instead, the state agency insisted that the surrogate (or gestational) mother should be registered. […] Read more

Next week, the Quebec Court of Appeal will hear argument in the Gun Registry Destruction case: Québec (Procureur général) c. Canada (Procureur général), 2012 QCCS 4202 (unofficial English translation of the first-instance decision). I have previously explained why the attempted destruction of the data by the federal government is unconstitutional (see my posts here, here […] Read more

Language is the third rail of Canadian politics, so it is with some trepidation that I wander out onto the tracks to muse on enforcement discretion in the wake of recent controversy about the Charter of the French Language and the Office québécois de la langue française. “Pastagate” arose when the OQLF conducted an inspection […] Read more

There are limits to what courts can do to thwart legislative enactments of Henry VIII clauses, which grant powers to the executive to modify legislation. Typically, Henry VIII clauses are included in legislation for limited periods of time, to facilitate the implementation of the statutory provisions. Much of what governs modern life is not produced […] Read more

In an important decision yesterday in Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, the Supreme Court of Canada upheld against constitutional challenge s. 14 of the Saskatchewan Human Rights Code (albeit with slight modifications).  The legislation provides for private parties to make complaints to a human rights tribunal; s. 14 allows the tribunal […] Read more