constitutional interpretation
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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
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What to Make of the Constitution
I have written a post on the Senate Reference hearings for I-CONnect, the blog of the International Journal of Constitutional Law. In large part, it follows up on and develops some of the ideas I had in my first impressions post last week, with a bit more context. I am cross-posting it below. *** Over… Continue reading
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Living Next to You
Despite living so close, and despite our constitution (not only the main documents, but also the Supreme Court’s constitutional jurisprudence) being substantially influenced (including a negative influence ― attempts not to repeat perceived mistakes) by the American experience, Canadians tend not to know, or not to understand, American constitutional law and theory as well as… Continue reading
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First Impressions
I will have more structured and fuller thoughts in the next days, but here are some initial impressions, in no particular order, of the Supreme Court’s hearings on the Senate Reference, almost all of which I watched. *** This case is, of course, largely about constitutional interpretation. (Much more so, in fact, than most constitutional… Continue reading
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What We Said
Apologies for the recent silence. There was no particularly good reason for it, either. Anyway, I’m back. And there is a very good reason for that: the Québec Court of Appeal has released its opinion in response to a reference by the Québec government on the constitutionality of the Federal Government’s Senate reform plans, which… Continue reading
Double Aspect 