Section 159 of Bill 96, An Act respecting French, the offıcial and common language of Québec, purports to amend the Constitution Act, 1867, and therefore the Canadian Constitution, by introducing two new articles, “90Q.1” and 90Q.2”, respectively, providing that “Quebecers form a nation” and that “French is the only offıcial...
The Quotidian Rule of Law
The rule of law is often linked, at least in the minds of its most fervent advocates, with a desire or nostalgia for “normal” life. Typically, the focus is on regularity or norm-following in the context of executive or administrative decision-making. In this paper, though, I focus on a somewhat...
Justice Scalia’s Impact on Canadian Jurisprudence
Few scholars have focused on the transnational influence of U.S. Supreme Court Justice Antonin Scalia. At first glance, his twin approaches of textualism and originalism seem distinctly un-Canadian. For example, the dominant mode of Canadian constitutional interpretation — living tree constitutionalism — seemingly represents the diametric opposite of originalism. Yet...
Recent Honour of the Crown Jurisprudence and the Problem of Legal Uncertainty
This article discusses the ways in which the Supreme Court of Canada has applied the honour of the Crown to dramatically expand Crown liability in novel ways, with a particular focus on the majority decisions in Manitoba Métis Federation v. Canada and Mikisew Cree First Nation v. Canada (2018). In...
Law, Liberty and the Pursuit of the Common Good
In this article, I wade into the debate between textualism and “common good” methods of interpretation. I argue that, except for those advocating the most extreme version of each position, the debate is a narrow one about the utilization of purpose in the interpretation of legal text. Most textualists already...
Henry VIII Clauses and the Constitution Stephen Armstrong
Sections 91 and 92 of the Constitution Act, 1867 reveal a formula for a governmental structure designed to protect individual liberty. These sections assign the authority to “make Laws” exclusively to legislatures. The separation of legislative power from executive power and the vestiture of legislative power in a representative institution...
De Jure Submission and De Facto Courteous Regard: Places for Two Types of “Deference” Post-Vavilov
Considerable controversy in Canadian administrative law concentrates on whether “deference” is warranted. This article argues that much of this conflict could be avoiding by recognizing that the word is used to describe two different phenomena: surrendering authority as a matter of obligation, and humbly electing to yield recognizing that another’s...
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