Canada
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Why Do the Write Thing?
Sir Geoffrey Palmer and Andrew Butler, both of them former legal academics and current barristers, Sir Geoffrey having also served as Attorney-General and Prime Minister in between, are about to publish a book advocating that New Zealand enact a “written” constitution. They have also set up a Twitter account and a website to both promote the book and… Continue reading
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Unconstitutional
Thoughts on the constitutionality of the new Supreme Court appointments process In my last post, I argued that the process for appointing Supreme Court judges announced by the federal government last week is not a positive development. It will neither increase the transparency of the appointments nor de-politicize them, while creating an illusion of having done… Continue reading
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Smoke and Mirrors
The new process for appointing judges to the Supreme Court is nothing to be happy about Last week, the Prime Minister announced a new(-ish) appointments process for judges of the Supreme Court of Canada. The announcement was met with praise by many, and criticism by some. For my part, I am with the critics. Far from being a… Continue reading
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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… Continue reading
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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… Continue reading
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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… Continue reading
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Yes They Can II
Does existing legislation allow a referendum on electoral reform? The former Chief Electoral Officer, Jean-Pierre Kingsley, has caused some ongoing confusion on Twitter about whether a referendum on electoral reform would be legal. The source of this confusion is section 3 of the federal Referendum Act, which provides that Where the Governor in Council considers that… Continue reading
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Expanding Hatred Again
Don’t expand the Criminal Code’s hate speech provisions. Repeal them! This morning, the federal government has introduced a new bill in Parliament, C-16, that would, if enacted, add “gender identity” and “gender expression” to the definition of “identifiable grounds” used in the advocacy of genocide and hate speech provisions of the Criminal Code. (It would… Continue reading
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Originalism ― The Talk
My remarks on originalism in Canada at the Courts and Politics workshop Yesterday, I spoke about the place of originalism in Canadian constitutional jurisprudence at the Courts and Politics workshop that Kate Puddister and Emmett Macfarlane had convened at the University of Guelph. The whole things was a lot of fun and very educational, not… Continue reading
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Originalism in Canada
A couple of papers about originalism, and a call for comments As promised in my last post, I have something to show for my silence in the last few weeks. Benjamin Oliphant and I have been working very intensively on a study of originalism in Canadian constitutional law. In a nutshell, we argue that, contrary… Continue reading
Double Aspect 