In a recent American case, Carter v. Welles-Bowen Realty, Inc, the question arose whether the rule that ambiguous penal statutes are to be construed in favour of defendants (the “rule of lenity”) could ‘trump’ the rule that courts are to defer to administrative interpretations of ambiguous statutes (Chevron deference).At issue was a regulatory provision preventing […] Read more

Although I had not planned to reach a staging post by this time of the year, the happy coincidence of year-end and post #250 gives me a chance to reflect on my blawging enterprise. Why Blawg?I was pleasantly surprised to find a large gap in the blawg market: there was no sustained commentary dedicated to […] Read more

The topic of enforcement discretion is the subject of an interesting series of posts by Zachary Price over at the Volokh Conspiracy. The impetus for Price’s series and his underlying article (“Enforcement Discretion and Executive Duty“) comes from several recent American episodes, such as President Obama’s decision not to enforce certain provisions of the Affordable […] Read more

The applicant in Setia v. Appleby College, 2013 ONCA 753 was expelled from a private school for smoking pot.The school had a Code of Conduct which provides that smoking or drug possession may result in expulsion and a Lighting of Substances policy which provides for automatic expulsion. The Code also provided, however, for procedural protections, […] Read more

There was a long piece in the New York Times last week about Britain’s eager adoption of the approach to regulation and law reform set out by Richard Thaler and Cass Sunstein in Nudge: Britain’s Ministry of Nudges. Here is an extract: It is an American idea, refined in American universities and popularized in 2008 […] Read more

This morning’s Supreme Court of Canada decision in AIC Limited v. Fischer, 2013 SCC 69 involved an application of the “preferable procedure” test for certification of class actions to a case in which the Ontario Securities Commission reached a settlement with mutual fund managers about the controversial practice of “market timing“. The question for the […] Read more

A few weeks ago I appeared before the Senate Standing Committee on Legal and Constitutional Affairs about the proposed modifications to the Supreme Court Act. You can watch the hearing here (warning, quicker to stream than to download). I prepared lengthy written submissions, which you can download here. These modifications are, of course, the subject […] Read more

I made a presentation last week to the members of the new Refugee Appeal Division and their legal advisers. The RAD hears appeals from the Refugee Protection Division: most of the relevant statutory provisions are contained in Part IV of the Immigration and Refugee Protection Act. One of the questions the members of the RAD […] Read more

There is an interesting piece over at the RegBlog on agency capture and review by America’s Office of Information and Regulatory Affairs of agency inaction. Michael Livermore and Richard Revesz argue that agency failures to act may well result from agency capture and may be as damaging as inefficient agency action resulting from capture. Accordingly, […] Read more

Ronald Dworkin gave a good example to illustrate what he called “strong” and “weak” discretion. Imagine a sergeant A who is told to pick “any five men” for a mission. Contrast her with a sergeant B told to pick “the five most experienced men”. One has strong discretion, the other weak.Dworkin’s purposes were not those […] Read more