The Centre for Constitutional Studies’ Constitutional Forum has published a special issue on cooperative federalism and the gun registry case heard by the Supreme Court of Canada last week. My contribution (in French) is on the relevance of unwritten constitutional principles to the resolution of the case. There are also papers from my colleague Jean-Francois […] Read more

Tomorrow, the Supreme Court of Canada hears a challenge to the federal criminal law prohibition on assisted suicide: Carter v. Canada. This law was upheld narrowly in 1993 (Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519), but the Court is being asked to take a fresh look in light of changed circumstances. For […] Read more

Readers may remember my post late last year on an Ontario case refusing judicial review of a school’s decision to expel a student, with the knock-on consequence that the student was unable to graduate: Setia v. Appleby College, 2013 ONCA 753. They may also be interested in suggesting how one can reconcile that case with […] Read more

That is the title of a famous/notorious essay by political scientist Brendan O’Leary reviewing Paul Craig’s Public Law and Democracy in the UK and the USA. O’Leary attacked Craig’s book, not so much for its content but for its very mission: to draw lessons for public lawyers from political science and political philosophy.* The basic […] Read more

My aversion to the Supreme Court of Canada’s recalibration of administrative law doctrine in Dunsmuir v. New Brunswick is well known: in my view, the Dunsmuir approach simply sweeps a whole lot of substantive analysis under a formal rug. But I thought I would nonetheless ask the question: did Dunsmuir simplify the law on judicial […] Read more

In a remarkable decision yesterday, the Supreme Court of Canada struck down British Columbia’s regime of court fees as unconstitutional: Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59. A litigant was faced with a $3,600 bill for scheduling a 10-day trial. She could not pay the court fees — […] Read more

Canadian administrative law is different in many ways from that of other Commonwealth jurisdictions, but on one question it (for the most part) clings doggedly to an old mantra: procedural questions are for the courts alone to decide, without any deference to decision-makers. This orthodoxy has recently been challenged as a matter of principle. But […] Read more

In his plenary paper at the Public Law Conference, Mark Aronson discussed the growth of substantive review in Australia, a phenomenon that can be glimpsed in most common-law jurisdictions. Mark gave three reasons for growth: 1. The rise of reasons (as a requirement imposed by statute or common law, or, I would add, self-imposed for […] Read more

Canada distinguishes between public law and private law. Judicial review of administrative action is kept separate from the law of tort, contract, property and equity. In an important 2010 decision (Canada (Attorney General) v. TeleZone Inc., [2010] 3 SCR 585, 2010 SCC 62), the Supreme Court of Canada signaled that the importance of the distinction […] Read more

I have been known to complain about courts and administrators supplementing the administrative record after a decision has been made. In a case last year, a Canadian appellate court deferred to an interpretation of law offered in an affidavit. I was reminded at the Public Law Conference that the use of affidavits to bolster the […] Read more