constitutional interpretation
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The Comprehension of “Composition”
Parliament cannot require Supreme Court judges to be bilingual Sébastien Grammond has published a guest-post over at Administrative Law Matters arguing that Parliament could legislate to prohibit the appointment of Supreme Court judges who are not bilingual. It is a bold and interesting argument, and I greatly admire prof. Grammond as a thinker and advocate. Nonetheless, 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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All That History
A historicist, if not quite an originalist, decision from the Supreme Court of Canada Last week, the Supreme Court issued its decision in Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, holding that Métis and non-status Indians fall within the scope of Parliament’s legislative power over “Indians” provided for in section 91(24) of 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
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How to do Originalism
In my last post, I summarized the Supreme Court’s recent decision in Caron v. Alberta, 2015 SCC 56, which held that Alberta is not under a constitutional obligation to enact legislation in French as well as English. There was, you will recall, a majority opinion by Justices Cromwell and Karakatsanis, who were joined by four of Continue reading
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What Did They Mean?
Must the laws of Alberta ― like those of Manitoba (as well as Québec, New Brunswick, and of course Parliament itself) be enacted and published in both French and English? The answer to this question, which the Supreme Court addressed in Caron v. Alberta, 2015 SCC 56, decided on Friday, turns on the meaning of a short Continue reading
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Untenable
The Supreme Court will hear the oral arguments in l’Affaire Mainville this Friday. The issue in this case concerns the eligibility of Federal Court judges appointed from Québec, and thus former members of the Québec bar, for seats on Québec’s s. 96 Courts, pursuant to s. 98 of the Constitution Act, 1867, which provides that Continue reading
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Not Beyond Interpretation
This afternoon, the Québec Court of Appeal delivered its opinion in the Reference re Section 98 of the Constitution Act, 1867 ― which asked it to pronounce on the constitutionality of the appointment, to the Court, of Justice Robert Mainville who was, at the time of that appointment, a judge of the Federal Court of Continue reading
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The Mainville Hearing: Interpretive Issues
On Wednesday, I was at the Québec Court of Appeal as it heard the oral arguments in the reference on the constitutionality of Justice Mainville’s appointment. The Québec government, supported by Rocco Galati (a Toronto lawyer who had originally challenged Justice Mainville’s appointment before the federal court) and the Constitutional Rights Centre Inc. (a public Continue reading
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Courts, Government, and Originalism
Despite its popularity south of the border, originalism hasn’t had much of a purchase in Canadian constitutional thinking. One reason, no doubt, is the power of what we think is the example of the “Persons Case,” Edwards v. Canada (Attorney General), [1930] A.C. 124, generally taken to be a decisive rejection of originalist constitutional interpretation. Continue reading
Double Aspect 