criminal law
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When the Surgeons Miss
Federalism and the Genetic Non-Discrimination Act Reference 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 Those amendments, among other things, repealed s. 634 of the Criminal Code, which enshrined the statutory right to peremptory challenges of potential jurors (as opposed to challenges for cause).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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R v Poulin: Charter Interpretation in the Spotlight
Introduction Section 11 (i) of the Charter guarantees the right to offenders “if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.” Ambiguity ripples through this provision. Most notably, does the provision Continue reading
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Frustrating
I am quite late on this, but I have only recently come across a post by Grégoire Webber on the UK Constitutional Law blog, arguing that the Supreme Court’s reasoning in Canada (Attorney General) v. Bedford, 2013 SCC 72, the decision striking down various prostitution-related provisions of the Criminal Code is based on flawed inferences from the fact that these provisions did not Continue reading
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Looking Back
Rule of Law theorists invariaby insist that legislation must be prospective ― that the law must be changed, if changed it must be, for the future only and not for the past. But a thoughtful opinion delivered last week by Justice MacDonnell of the Superior Court of Ontario shows that sometimes at least, things are Continue reading
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The Limits of Independence
I want to return to the Québec Bar’s challenge against the constitutionality of all the mandatory minimum sentences increased or created by Bill C-10, the “tough on crime” omnibus bill adopted by Parliament earlier this year, about which I blogged here earlier this week. One of the grounds of possible unconstitutionality which the Bar raises Continue reading
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Booze, Fights, and Federalism
As Justice Fish pointed out in a recent lecture on “The Effect of Alcohol on Canadian Constitution,” “alcohol has nurtured our constitutional development from its earliest days.” Canadian constitutional lawyers can proudly say, with Churchill, that we “have taken more out of alcohol than alcohol has taken out of” us. For instance, the double aspect Continue reading
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Petty Punishment
The Court of Appeal for British Columbia has struck down yet another element of the “tough-on-crime” agenda of the Conservative government in a recent decision, Whaling v. Canada (Attorney General), 2012 BCCA 435, holding that the abolition of accelerated parole could not be applied to prisoners sentenced before the coming into force of the Abolition of Early Parole Continue reading
Double Aspect 