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Some Recent Scholarly Work on Doré v. Barreau du Québec
I have a long-standing interest in the Supreme Court of Canada’s decision in Doré v. Barreau du Québec,  1 SCR 395, 2012 SCC 12, in which the Court endorsed a deferential approach to administrative decisions infringing fundamental rights. See this paper, for example. One of the most intriguing issues post-Doré is what the Court […] Read more
Standard of Review on Questions of International Law: A Primer on Febles v Canada
On Thursday, the Supreme Court of Canada will release its decision on the appeal in Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324. I summarized the Federal Court of Appeal decision here. Here is a primer on one of the issues: whether courts should defer to administrative decision-makers on interpretations of international law. […] Read more
The Policy/Operational Distinction in Canadian Tort Law: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42,  3 S.C.R. 45
* This is an extract from a forthcoming article, “The Policy/Operational Distinction — A View from Administrative Law“. Download a draft here. * The uninitiated might look at the Supreme Court’s recent decision in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42,  3 S.C.R. 45 and suggest that the policy/operational distinction is no longer […] Read more
When Does an Administrative Record Become a Public Document?
An interesting question, answered in Edmonton (Police Service) v Alberta (Law Enforcement Review Board), 2014 ABCA 267. A complaint was made against a police officer but dismissed by the Chief of the Edmonton Police Service after an internal review. The complainant appealed to the Board. A report of the internal review was made available for […] Read more
Christopher Walker on What Do Regulatory Drafters Do
Regular readers will know that I have no fondness for the idea that the “common objective” of courts and administrative decision-makers is the proper application of the principles of statutory interpretation. In part, my position is that it is unrealistic to expect administrative decision-makers to apply these principles. Some empirical doubt is cast on that […] Read more
Legitimate Expectations and Procedural Fairness: Only a Part of the Analysis?
Canadian courts are to take five factors into account in determining the content of procedural fairness in any given case. One of these factors is whether the applicant had any legitimate expectation about the procedure to be followed. I have always found this unusual. Surely once an applicant establishes that a legitimate expectation has been […] Read more
Special Issue of Constitutional Forum on the Gun Registry Case
The Centre for Constitutional Studies’ Constitutional Forum has published a special issue on cooperative federalism and the gun registry case heard by the Supreme Court of Canada last week. My contribution (in French) is on the relevance of unwritten constitutional principles to the resolution of the case. There are also papers from my colleague Jean-Francois […] Read more
Mind the Gap: Regulating End-of-Life Care in a Federation
Tomorrow, the Supreme Court of Canada hears a challenge to the federal criminal law prohibition on assisted suicide: Carter v. Canada. This law was upheld narrowly in 1993 (Rodriguez v. British Columbia (Attorney General),  3 SCR 519), but the Court is being asked to take a fresh look in light of changed circumstances. For […] Read more
Extra Time at the Divisional Court: the Wide Net of Judicial Review
Readers may remember my post late last year on an Ontario case refusing judicial review of a school’s decision to expel a student, with the knock-on consequence that the student was unable to graduate: Setia v. Appleby College, 2013 ONCA 753. They may also be interested in suggesting how one can reconcile that case with […] Read more
What Should Public Lawyers Do?
That is the title of a famous/notorious essay by political scientist Brendan O’Leary reviewing Paul Craig’s Public Law and Democracy in the UK and the USA. O’Leary attacked Craig’s book, not so much for its content but for its very mission: to draw lessons for public lawyers from political science and political philosophy.* The basic […] Read more