I have posted “Constitutionally Conforming Interpretation in Canada” to SSRN. Here is the abstract: The presumption of constitutionally conforming interpretation is an important part of Canadian constitutional law. But that there is fundamental disagreement about the presumption. This fundamental disagreement reveals the existence of two different camps of lawyers, which I label Type A and […] Read more

In its landmark decision in the Case of Prorogations, the United Kingdom Supreme Court suggested that the unlawfulness of Prime Minister Johnson’s advice to the Queen rendered it — and the prorogation that followed — a nullity. Together with the UKSC’s earlier decision in the unusual case of Ahmed (No. 2), the Case of Prorogations […] Read more

In a few minutes, Novak Djokovic’s challenge to the validity of the decision to cancel his visa is going to get underway before Australia’s federal court. You can access the court materials here. The live stream will be here. I do not think Djokovic is likely to win this case. He bears the onus to […] Read more

There is an interesting piece today in the Globe and Mail — Canada’s paper of record — about fundamental disagreement between the judges of the Supreme Court of Canada about the interpretation of the Charter. The nine judges are “more divided than ever” on fundamental legal questions. There is certainly a divide there, but it […] Read more

In Vavilov, the Supreme Court of Canada established three correctness categories which are exceptions to the presumption of reasonableness review. The majority also noted that these categories are not necessarily closed. To date, there has been little interest in identifying new categories, with the exception of Stratas JA’s discussion in Entertainment Software Association (in which […] Read more

With Joe Tomlinson (York) and Jennifer Raso (Alberta) I have posted “Administrative Law in the Digital World” to SSRN, a chapter to appear in Carol Harlow ed., Research Handbook on Administrative Law (Edward Elgar, 2022): The rapid advancement of digital technologies is now reaching into almost every aspect of human life. Administrative law scholars cannot […] Read more

Here is another post in my series on constitutionally conforming interpretation. The first two posts are here and here. Judges and commentators have made structural, institutional and intentionalist arguments about the presumption of constitutionally conforming interpretation. Whilst it is impossible to avoid some form of a presumption of constitutionally conforming interpretation, given the Constitution’s supremacy […] Read more

Historically, the strongest support from Canadian courts for broad delegations of authority to executive officials has come in times of emergency. There may be scope for debate about whether the COVID-19 pandemic qualifies as an emergency, but there is no doubt that it has called for rapid, flexible responses on the part of public officials […] Read more

Here is another post on the theme of the presumption of constitutionality. The first one is here. An initial difficulty is that there is disagreement even about the content of the presumption of constitutionally conforming interpretation. The presumption of constitutional conformity “acknowledges the centrality of constitutional values in the legislative process, and more broadly, in […] Read more