Mark Mancini
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Day Three: Emmett Macfarlane
Among the panoply of difficult constitutional decisions rendered by the Supreme Court of Canada, there are many occasions when the majority of justices provide reasoning that can only be described as less than compelling (some might simply say ‘wrong’). The virtues of dissenting reasons – which, even on a highly consensual court like the Supreme… Continue reading
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Vavilov’s Reasonableness Standard: A Legal Hard-Look Review
In my first post on Vavilov, I celebrated the Court for finally bringing some sense to the Canadian law of judicial review. Particularly, I focused on three issues relevant to determining the standard of review: the banishment of jurisdictional questions, the introduction of statutory rights of appeal as a category of correctness review, and the… Continue reading
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Vavilov: A Note on Remedy
With all of the discussion of Vavilov’s revised standard of review analysis, one aspect of the decision has gone somewhat unnoticed: the renewed focus on the remedy in judicial review proceedings. I write today to discuss this “development” in the Canadian law of judicial review. While the Court certainly applied existing principles in declining… Continue reading
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Canada Post: Vavilov’s First Day in the Sun
Vavilov didn’t have to wait long to have its first day in the sun. In Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67 (a 7-2 opinion, Abella and Martin JJ dissenting), the Court had its first crack at applying the revised standard of review framework set out in Vavilov. In my… Continue reading
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Vavilov: A Step Forward
**This post originally appeared on Advocates for the Rule of Law** Today, the Supreme Court of Canada released its decisions in Vavilov and Bell/NFL. I have previously summarized the facts of these cases and analyzed them here (Vavilov) and here (Bell/NFL). Overall, today’s decisions (a 7-2 decision, Abella and Karakatsanis JJ concurring in result) are… Continue reading
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Because It’s (The End of) 2019: Focusing on Legislative Meaning in Judicial Review
For Canadian legal watchers, specifically administrative law aficionados, 2019 has been a year of frustration and “confusion and contestation.” On one hand, we await guidance from the Supreme Court in Vavilov and Bell/NFL regarding the standard of review of administrative action. In other ways, we have seen interesting trends from the Supreme Court on other… Continue reading
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Constructive Shooting
How to evaluate New Brunswick’s use of the Charter’s “notwithstanding clause.” Continue reading
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Rafilovich: A Textualist (or Quasi-Textualist) Turn?
Since Telus v Wellman, the Supreme Court of Canada has moved towards a sort of “textually constrained” purposivism in statutory interpretation cases. To my mind, textually constrained purposivism involves two parts: (1) a focus on the text over abstract purposes in determining the meaning of text and (2) if there are conflicting purposes at the… Continue reading
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R v King: Creative Remedies
On September 19, 2019, certain new amendments to the Criminal Code took effect. Those amendments, among other things, repealed s. 634 of the Criminal Code, which enshrined the statutory right to peremptory challenges of potential jurors (as opposed to challenges for cause). The bill in question replaced s.634 with a new provision that allowed expanded… Continue reading
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A Funny Thing Happened on the Way to the Pipeline…
The Rule of Law need not be exclusively the rule of courts. But in order for a society to be governed by the Rule of Law, even those who advocate a “thick” conception of the Rule of Law say that we need an impartial system of courts (see Tom Bingham, “The Rule of Law”; and… Continue reading
Double Aspect 