Rule of Law

May 5, 2014

Constitutional Amendment and the Law

I have been a bit harsh on the Supreme Court in my first post on its opinion in the Reference re Senate Reform, 2014 SCC 32, saying that it had reduced the constitutional text to the status of a façade, which hid as much as it revealed of the real constitutional architecture, which only the… Continue reading

Constitutional law, Legal philosophy

constitutional amendment, Fuller, Rule of Law, Senate reform, Supreme Court of Canada
April 21, 2014

A Puff of Smoke

I argued last week that the Supreme Court should find British Columbia’s “hearing fees,” which litigants must pay to bring a case in front of a judge, unconstitutional as a violation of the principle of the Rule of Law. But what about the Supreme Court’s decision in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC… Continue reading

Constitutional law, The Justice System

access to justice, courts, hearing fees, Rule of Law, underlying principles
April 16, 2014

Which Way to Court?

I wrote yesterday about the oral argument which the Supreme Court heard on Monday in the case now known as Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), formerly Villardell v. Dunham. At issue is the constitutionality of the “hearing fees” which British Columbia requires a litigant setting a civil case down for… Continue reading

Constitutional law, The Justice System

access to justice, courts, hearing fees, Rule of Law, underlying principles
April 15, 2014

Who Pays for Justice?

Yesterday, the Supreme Court heard the oral arguments in the B.C. hearing fees case, now known as Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), a case I have much blogged about as it made its way through the B.C. courts (where it was known Villardell v. Dunham, both on trial and… Continue reading

Constitutional law, The Justice System

access to justice, Charter, courts, hearing fees, Rule of Law, underlying principles
March 13, 2014

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

Constitutional law, Constitutional Theory

Bedford, Charter, judicial review, remedies, Rule of Law, suspended declaration of unconstitutionality
November 8, 2013

Bad Poetry

“A statute is written to entrap meaning, a poem to escape it.” So writes Hillary Mantel in Bring Up the Bodies. That’s true ― normally. But some statutes are in fact written to escape meaning rather than to capture it. They are usually bad statutes, and often bad poetry. What was first mooted as the… Continue reading

Law and Religion, Literature

Charte de la honte, laïcité, legislation, politcs, Québec, Rule of Law, secularism
October 26, 2013

Storm and Havoc

Time for more shameless self-promotion, after my rant on Thursday about not being cited by the Québec Court of Appeal. A paper of mine, called “Storm and Havoc: The Rule of Law and Religious Exemptions,” is coming out any time now in the Revue Juridique Thémis de l’Université de Montréal, a mere three years after… Continue reading

Constitutional Theory, Law and Religion, Legal philosophy

Charter, laïcité, Québec, religion, religious exemptions, Rule of Law, secularism
July 22, 2013

Swearwords

I have written at great length recently about a challenge, now before the Superior Court of Ontario, to the constitutionality of the requirement that would-be Canadian citizens swear an oath of allegiance to the Queen (my posts on the topic are all here). For those who want to read more on the topic, Liav Orgad’s… Continue reading

Constitutional Theory

citizenship, conscience, oath, Rule of Law
June 3, 2013

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

Criminal Law/Policy, Legal philosophy

criminal law, retroactivity, Rule of Law, Waldron
February 21, 2013

For Sale! (Or To Give Away)

Last week, the BC Court of Appeal issued a decision upholding the constitutionality of the “hearing fees” imposed by the government on litigants who took their cases to trial in the province’s courts, Vilardell v. Dunham, 2013 BCCA 65. The fees had been struck down last May by the province’s Supreme Court. “Some things are… Continue reading

Constitutional law, The Justice System

courts, hearing fees, judges, Rule of Law, separation of powers, underlying principles