Ideas about constitutional law. Surface over structure. Memes.
-
The Imperatives of Power
Towards the end of its reasons, which dealt at length with the existence and extent of government immunity for unconstitutional laws, the majority in Canada (Attorney General) v. Power, 2024 SCC 26, wrote that where “the balance of constitutional principles tilts in favour of state immunity…the constitutional imperative that the government be afforded the autonomy to…
-
The Structures of Power
The standard model of the Canadian Constitution involves two structures: an internal structure and an institutional structure. The internal structure can be understood as what the Constitution is, whereas the institutional structure can be understood as what the Constitution establishes. This double aspect of constitutional structure is reflected in many Supreme Court of Canada reasons, including: Each…
-
The Principles of Power
The majority in Power v. Canada (Attorney General), 2024 SCC 26 insists constitutional principles like “constitutionality and the rule of law” are “an essential part of our constitutional law” (¶5). This position is consistent with the unanimous opinion in Re Quebec Secession, which stated that underlying constitutional principles are “foundational” (¶49), and even the majority in Toronto (City): “Unwritten…
-
Back to school
I was wrong. The Court’s framework summer had one last peak left. I just went on vacation and missed it. Before coming down in its most recent judgments, the Court in York Region School District Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22 approached its early-term highs: 40 “frameworks” in 143 paragraphs (27.9 FW/100¶). The updated…
-
Organizing principles for organizing principles
The Supreme Court of Canada’s framework era may have been short lived. Its framework usage rate has dropped from early-term heights like the Nikkei 225: Frameworks may have fallen out of favour (for now), but the Court remains preoccupied with constitutional structure. It continues to rely on concepts and metaphors that may seem banal or…
-
dolorem ipsum
In Ontario (Attorney General) v. Restoule, the Court once again reminds us that the relationship between the Crown and indigenous peoples is sui generis (¶70). Lest we forget our Latin, this is what sui generis means in 2024:
-
NOS > NOx
SCOTUS has had a busy week undermining the rule of law, so I’d prefer to take a charitable interpretation of the supposed typos in Ohio v. EPA. Rather than confirmation of the majority’s scientific ignorance, I choose to see them as evidence of impeccable cinematic taste.
-
What are we even doing here?
In CBC v. Named Person, 2024 SCC 21, a unanimous Supreme Court of Canada explained that, under the open court principle, “every person, as a general rule, has the right to access the courts, to attend hearings, to consult court records and to report on their content” (¶28). While it may be “a hallmark of democracy…
-
Major Kodos and Kang vibes from SCOTUS on Flag Day
FDA v. Alliance for Hippocratic Medicine Garland v. Cargill Go ahead, throw your vote away!
-
Conventional wisdom only gets you so far
An administrative decision is unreasonable if it fails to meaningfully consider a relevant constitutional convention (i.e. a convention that forms part of the factual and legal context for the decision) (Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2024 SCC 4, ¶¶21, 40, 57, 58). Such a decision also may be incorrect, as the majority of…
Interesting case? New idea?