Pornography in Prisons: Naraine v. Canada (Attorney General), 2015 FC 934
Naraine v. Canada (Attorney General), 2015 FC 934 recently provoked the breathless — and breathtakingly misleading — headline: “Prison can’t take porn channels away from inmates, federal court rules“. The trigger for the Naraine litigation was apparently a parliamentary hearing on sexual harassment in the federal workplace before the Standing Committee on the Status of […] Read more
It’s Just (a) Fine: Guindon v. Canada, 2015 SCC 41
Say you were a legislator who wished to dress up a criminal offence as a regulatory penalty, perhaps because you wanted to avoid triggering the constitutional protections that attach to criminal proceedings. You would presumably impose an extraordinarily large fine, include language that has connotations of guilt and set out an informal process. Now, say […] Read more
Charter Application by Administrative Tribunals: Statutory Interpretation
Canadian courts have come to accept that the constitution is not some sort of holy grail that administrative decision-makers should not touch. As it is the supreme law of the land, its writ ought to run in any government agency, and its authority may be invoked by individuals in almost any decision-making setting. But does […] Read more
Who Decides to Deport You When There’s a Risk of Torture?
There is a piece in the latest print issue of Maclean’s magazine (sub only) on a very interesting Federal Court case from earlier this month: Muhammad v. Canada (Citizenship and Immigration), 2014 FC 448. M’s details were posted on what I have dubbed “Canada’s Least Wanted“, the Canadian Border Services Agency’s ‘wanted‘ list of immigration […] Read more
Section 1 of the Charter: A (Con)Way Out of the Morass?
Section 1 of the Charter of Rights and Freedoms provides that any infringement of a Charter right must be “prescribed by law”, a requirement that must be satisfied by the government before an application of the proportionality test. The jurisprudence on section 1 is very messy and has been criticized. Indeed, the Supreme Court of […] Read more
Can Omar Khadr Apply for Habeas Corpus?
My colleague Stéphane Beaulac raises a question that has not (it seems) had any consideration: can Omar Khadr, now back in Canada, apply for habeas corpus? Khadr can apply for a conditional release next year, but perhaps he will not have to wait that long.Khadr can almost certainly apply for the Great Writ. The leading […] Read more
Human Rights Remedies and Administrative Bodies
Unlike many (perhaps most?) other countries, Canada allows administrative bodies to make non-binding interpretations of constitutional provisions and to grant remedies for human rights violations by state actors.To put it in terms first suggested by the now-Chief Justice, the constitution is “not some holy grail which only judicial initiates of the superior courts may touch” […] Read more
Avoiding ‘Charter-Free’ Zones
One of the questions not broached by the Supreme Court of Canada in Doré (see my earlier post here) was what happens when the legislature has attempted to exclude consideration of the Charter by an administrative decision-maker. In a pair of decisions released in 2003, the Court made clear that where an administrative decision-maker has […] Read more
One of the reasons offered by the concurring judges in Multani for merging administrative review and constitutional review (at least when an individualized decision was challenged) was that keeping them separate and distinct would be confusing to lower courts and litigants. That view never seemed particularly compelling to me: lawyers and judges often make and […] Read more
The Charter and Administrative Adjudication
The Supreme Court of Canada has been feverishly productive in the field of administrative law since the Fall of 2011, rendering decisions on standard of review (questions of law, jurisdictional error and labour arbitrators), the right to reasons, issue estoppel, attempts to pre-empt the administrative decision-making process, and review of municipal by-laws. Plenty of grist […] Read more