Supreme Court of Canada
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Lazy Revolutionaries
The CBC’s Chris Hall already had a story along those lines a short while ago, but today the Globe and Mail contains Sean Fine’s masterful in-depth account of the back-story to the failed appointment of Justice Nadon to the Supreme Court and the government’s recent attempts to portray Chief Justice McLachlin as having acted improperly on this the matter when… Continue reading
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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
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The Façade and the Edifice
This is my much-delayed post on the Supreme Court’s opinion, issued last Friday, in Reference re Senate Reform, 2014 SCC 32. Although the Court’s conclusions, all of which I had correctly predicted the day before, were not really a surprise, its reasoning was somewhat unexpected. It is also rather vague and difficult to understand. This may have been the… Continue reading
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It’s a Dangerous Thing…
… To make predictions, especially about the future; so Winston Churchill. But the attraction of doing so is irresistible, so here goes: my forecast for the outcome of the Senate Reference, which the Supreme Court will release tomorrow. (If you need a refresher on the Reference and the issues it raises, as well as another… Continue reading
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La constitution retrouvée
J’ai écrit, il y a quelques mois, que le discours constitutionnel du Parti Québécois s’apparentait à celui du Tea Party américain (ainsi qu’à celui du UK Independence Party) en ce qu’il se fonde en bonne partie sur la notion d’une « constitution perdue ». La « constitution perdue » est celle d’une époque passée, abolie… Continue reading
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What You Wish For
As promised, here are some thoughts on the Supreme Court’s opinion in l’affaire Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21. As I mentioned in my last post, which summarized the majority opinion and Justice Moldaver’s dissent, I think that the majority opinion is a weak one. I should note that my views here seem to be very… Continue reading
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No-don
Yesterday, the Supreme Court has delivered its opinion concerning the legality and constitutionality of the appointment (and swearing in by the Court!) of Justice Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21. By a 6-1 majority, it finds that Justice Nadon’s appointment was not authorized by s. 6 of the Supreme Court Act, and that the enactment by Parliament… 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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Cross-Purposes
I wrote some time ago about the challenges, legal and political, to the appointment of Justice Marc Nadon to the Supreme Court. I argued that although the appointment was unwise because Justice Nadon did not bring enough to the Court, the legal challenge to it, on the basis that he did not fulfill the requirements… Continue reading
Double Aspect 