judicial review
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Lies, Damned Lies, and Judicial Review
As the federal government considers its response to the Supreme Court’s ruling in Canada (Attorney General) v. Bedford, 2013 SCC 72, which invalidated the prostitution-related provisions of the Criminal Code, one can be forgiven for wondering whether its response will be guided by facts and research, or by ideology. Unfortunately, as a depressing but important guest post by Maggie… Continue reading
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Reticence and Power
The Supreme Court of Canada is in the habit of “suspending” its declarations of unconstitutionality of legislation, especially controversial or important legislation, ostensibly in order to give the legislature which enacted the statute at issue time to re-write it so as to remove the constitutional defect while preserving as much of the substance of the… Continue reading
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Room for Disagreement
The issue of the respective roles of courts and legislatures in defending ― and defining ― individual rights and liberties is a controversial one. Some, like Jeremy Waldron, argue that protecting rights is the legislatures’ job, at least in the last resort. Others, like Dahlia Lithwick and Sonja West, apparently believe that rights are the exclusive preserve… Continue reading
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Friends Like These
In my comment on the Supreme Court’s decision striking down the Criminal Code’s provisions on prostitution, Canada (Attorney General) v. Bedford, 2013 SCC 72, I expressed concern about the Court’s reliance on “legislative facts” ― that is, the social context in which the impugned legislation operates ― to resolve the case, and especially its holding that a trial judge’s… Continue reading
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Off Course
In my post on Canada (Attorney General) v. Bedford, 2013 SCC 72, the Supreme Court’s recent decision striking down the prostitution-related provisions of the Criminal Code, I said I would have some thoughts on what this decision means for the future of Charter-based judicial review in Canada. As Churchill said, it is a dangerous thing to make predictions, especially… Continue reading
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Difference in Deference
After the sad distraction of the repressive “Québec Values Charter” on which I spent the last week, it is time to return to my more customary business of constitutional law and theory. It will no doubt be very bad for the blog’s traffic, but very good for my mood. There is a good occasion for… Continue reading
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Nothing Like It
Law, perhaps even more than man, is a creature of habit. It thrives on the humdrum. It likes nothing better than demonstrations that one case is just like some other in all relevant respects. It is a creature of habit in a more literal sense too, in that legal rules often crystallize out of the… Continue reading
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Federalism, Democracy, Same-Sex Marriage
It’s about time I got back to blogging. (Well, it was about time about two weeks ago, but… ) And there is surely no easier way to do so, though there are probably better ones, than to jump on the U.S. Supreme Court’s same-sex marriage cases bandwagon. Especially if one can do so in a… Continue reading
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Freedom of Corporate Religion?
A number of cases now working their way through the US court system and attracting a great deal of commentary, some of which Josh Blackman summarizes and/or links to in this post, ask an interesting question: can a corporation challenge a requirement that it provide its employees with health insurance covering, among a great many… Continue reading
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A Purely Hypothetical Maiden
In one of my first posts, I wrote―referring to the suggestion in Stanislaw Lem’s The Cyberiad that there are “three distinct kinds of dragon: the mythical, the chimerical, and the purely hypothetical, … all, one might say, nonexistent, but each nonexist[ing] in an entirely different way”―that “judicial activism is something like the dragon of constitutional… Continue reading
Double Aspect 