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Someone’s Got to Do It
Was the Supreme Court right to change the law on the right to a speedy trial? In my last post, I summarized the Supreme Court’s decision in R. v. Jordan, 2016 SCC 27, in which the Court, by a 5-4 majority and over the vigorous disagreement of the concurrence, held that criminals prosecutions in which a…
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Keeping Time, Time, Time
The Supreme Court changes the meaning of the right to be tried within a reasonable time A couple of weeks ago, the Supreme Court issued a very important, and fairly radical, decision on the “right … to be tried within a reasonable time,” which paragraph 11(b) of the Canadian Charter of Rights and Freedoms grants to “any…
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What’s Constitutional Law, Anyway?
Understandings of what is constitutional law depend on time and place Law is beset with definitional problems. Quite apart from the law’s struggles to define terms external to it, and translation difficulties, 2400 years after Plato, we can even agree about what law is. And it is similarly difficult to define specific legal categories and…
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Not Such a Simple Thing
A divided Supreme Court expands the powers of search incident to arrest A couple of weeks ago, the Supreme Court issued a decision, R. v. Saeed, 2016 SCC 24, that was further evidence of its majority’s expansive views of the police’s powers of search incident to arrest ― and trust in judicially developed checklists to prevent…
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Yes Or No?
Post-Brexit thoughts on referenda, especially in the context of electoral reform In the aftermath of the Brexit referendum, there is renewed debate about the lessons, if any, that it might hold for other democratic polities on the use of the referendum generally, and in particular for Canada about an eventual referendum on electoral reform. Many…
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How To Do Constitutional Adjudication
Some thoughts on Asher Honickman’s take on the judicial role As I mentioned in my previous post, I would like to respond to a number of points that Asher Honickman makes in a very interesting ― albeit, in my view, misguided ― essay written for CBA Alberta’s Law Matters and published at the website of…
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Seven’s Sins?
A response to Asher Honickman’s take on the section 7 of the Charter In a very interesting essay written for CBA Alberta’s Law Matters and published at the website of Advocates for the Rule of Law, Asher Honickman discusses the role of the judiciary in constitutional cases, focusing on section 7 of the Canadian Charter of…
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(Un)conventional
No, constitutional conventions cannot stop free trade within Canada I didn’t write about the “Free the Beer” decision, R. v. Comeau, 2016 NBPC 3, when it came out this spring. It took me a very long time to read, and others beat me to it ― notably Benjamin Oliphant, to whose excellent analysis over at Policy…
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A Frozen Concept
Here is a stray thought inspired by the discussion of interjurisdictional immunities in the Supreme Court’s decision in Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23, about which I wrote yesterday. One way in which the Supreme Court has, or so it is often claimed, dismissed originalist constitutional interpretation is by comparing it to a…
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If You Build It
A good decision for federalism and for property rights from the Supreme Court This morning, the Supreme Court has delivered its decision in Rogers Communications Inc. v. Châteauguay (City), 2016 SCC 23, holding that a municipality cannot prevent a telecommunications company from building an antenna at a site authorized by the federal government, since under the constitution…
Double Aspect 