A Strategy against Lethargy?
Double Aspect | Canada's constitution and other exciting things
by Leonid Sirota
1M ago
In my last post, I summarized and criticized the Federal Court’s decision in Hameed v Canada (Prime Minister), 2024 FC 242, which declared that the government of Canada has a duty under the constitution to just get on with judicial appointments already. Emmett Macfarlane has made many similar points on his Substack as well. But, as I noted, while the actual reasons given by Brown J were very bad, that doesn’t mean there weren’t serious arguments to be made for the outcome he reached ― though I’m not sure whether any such arguments were actually put to him by counsel. In this post, I review the ..read more
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Putting the Courts Together Again
Double Aspect | Canada's constitution and other exciting things
by Leonid Sirota
1M ago
Yesterday, the Federal Court delivered a decision declaring that the Canadian government has a constitutional duty to ensure timely judicial appointments and setting out specific targets to attain: Hameed v Canada (Prime Minister), 2024 FC 242. The outcome is a startling one, but it is Justice Brown’s reasons that are truly remarkable, and not in a good way. The outcome, indeed, might even be defensible, at least in part, though I doubt it. But Brown J’s reasons are pernicious. Hameed is something of a constitutional law professor’s crazy exam hypothetical. The bottom line is simple enough. Th ..read more
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Sotto Voce
Double Aspect | Canada's constitution and other exciting things
by Mark Mancini
2M ago
The Supreme Court has an inexplicable habit, especially in administrative law. Much has been written about the Court’s uneasy—to put it mildly—relationship with precedent. Especially after Bedford/Carter, which expanded the grounds on which previous precedents can be discarded, stare decisis is less of a hard-and-fast rule and more of an option in hard cases. But official departures from stare decisis are not the only means by which courts can question precedents. Lower courts can sometimes overrule from below—arguably, this happened in the pre-Vavilov world, when the Federal Court of Appeal ..read more
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#LOLNothingMatters
Double Aspect | Canada's constitution and other exciting things
by Leonid Sirota
3M ago
I’m a bit late to the debate, I’m afraid, but I did want to say something about the Supreme Court’s decision in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, delivered last week. The decision is very significant insofar as it purports to uphold the approach to judicial review of administrative decisions implicating constitutional rights and vibes first outlined in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, which had been severely criticized by both judges and scholars of administrative law ..read more
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The Metastasis of Charter Vibes…Again
Double Aspect | Canada's constitution and other exciting things
by Mark Mancini
3M ago
**A version of this appeared in my newsletter, the Sunday Evening Administrative Review** For the two years or so that I have been doing this newsletter, the story has been a good one. Vavilov settled the law of judicial review to such a considerable extent that I found myself optimistic about the state of things. However, this NWT case—and to a lesser extent, Mason v Canada (Citizenship and Immigration), 2023 SCC 21—cause me worry about the future of Canadian administrative law (see Issue #108). I wrote about this NWT case as representing the “Metastasis of Chart ..read more
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Bonkerstown Bypass
Double Aspect | Canada's constitution and other exciting things
by Leonid Sirota
4M ago
Last week, the Court of Appeal for Ontario issued its decision in Ontario Teacher Candidates’ Council v Ontario (Education), 2023 ONCA 788. The case was the appeal from the notorious “math is racist” decision of the Divisional Court,  Ontario Teacher Candidates’ Council v The Queen, 2021 ONSC 7386, about which I blogged here. The Court of Appeal, contrary to the Divisional Court, holds that the math and pedagogy test (the Math Proficiency Test [MPT]) that aspiring teachers are required to take in Ontario does discriminate against non-white candidates. But the decision’s scope is very limi ..read more
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Montreal and Aboriginal Law
Double Aspect | Canada's constitution and other exciting things
by Leonid Sirota
4M ago
Guest post by Maxime St-Hilaire This post is translated and adapted (by L.S.) from the original version published at À qui de droit I have recently had an email exchange with a colleague from McGill, and noticed that their signature included the following statement: “McGill University is located on unceded Indigenous land Tiohtià:ke – Montreal”. Tiohtià:ke is the Mohawk name of the Monreal area. As the colleague in question is not an expert in this area, I surmise that this assertion is in more or less common use at McGill.  And not only there. For instance, on October 26, 2021, Radi ..read more
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A Squalid Policy
Double Aspect | Canada's constitution and other exciting things
by Leonid Sirota
5M ago
The Financial Times’s Peter Foster and Lucy Fisher report on plans by the UK’s Home Secretary Suella Braverman to crack down on those who are called “rough sleepers” on this side of the pond, or simply homeless people on the other. They would be banned from sleeping in ― and charities that help them would be banned from distributing ― tents. The report quotes predictable and understandable criticisms of this on the merits, but I would like to make a different point about Ms Braverman’s plan: namely, that it is yet another example of a policy that seeks to nudge people by “crapping on them”, to ..read more
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The End of Administrative Supremacy in Canada
Double Aspect | Canada's constitution and other exciting things
by Leonid Sirota
5M ago
There has been a great deal of debate about the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653, including about how much it would change Canadian administrative law, and then about how much it has in fact changed the law. For example, in a recent post, I argued that Mason v Canada (Citizenship and Immigration), 2023 SCC 21 was illustrative of some of the practical changes Vavilov has wrought. But this debate can also be had at a different level, that of administrative law and indeed constitutional theory. The ..read more
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Listening to Podcasts Like a State
Double Aspect | Canada's constitution and other exciting things
by Leonid Sirota
5M ago
If you are in the podcasting business (as indeed this blog occasionally is), the Canadian government wants to know about you. It hasn’t yet decided what to do about you, to be sure. Fear not, it will, in its own good time. But, while the full implications for the freedom of expression will only become clear once it does make up its mind, it is not to soon to be (re-)learning some lessons about the administrative state. Michael Geist (among others) has explained what is afoot: in late September, The CRTC [i.e. Canadian Radio-television and Telecommunications Commission] … released the first two ..read more
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