Ideas about constitutional law. Surface over structure. Memes.
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Architects and Artisans
The Constitution of Canada has an architecture. Another name for that architecture is the basic constitutional structure. This familiar metaphor is profound: architecture is built by humans but must comply with certain natural laws (e.g. gravity) to serve its various physical and aesthetic functions. The notion of constitutional architecture also has profound implications for the…
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What is a constitutional imperative?
Unwritten constitutional principles are the “lifeblood” of the Canadian Constitution (Reference re Secession of Quebec (QSR), [1998] 2 S.C.R. 217, ¶51) and “the vital unstated assumptions upon which the text is based” (QSR ¶49) which are so fundamental that to explicitly identify them in the text “might have appeared redundant, even silly, to the framers” (QSR ¶62). We…
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It’s official: the SCC is in its Framework Era
In Societé des Casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13, the Supreme Court of Canada reached yet another level of framework usage, setting season-high numbers (and possibly an all-time peak) for both total “frameworks” and usage rate. Truly impressive – and potentially historic – numbers,…
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Stereotypes and Solidarity
On April 9, a single panel of the European Court of Human Rights delivered three decisions (or “Grand Chamber rulings”) on climate change. Some headlines announced a landmark victory for Swiss seniors, but the reality – as always – is more complex. The decisions were written together by the same panel of judges. Read together, they show how…
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Unprecedented volume and efficiency
While its usage rate dropped from the record-setting pace of R. v. Brunelle and the still-scorching Reference, the Court in Dickson dropped an impressive number of “frameworks” across a much longer set of reasons. With this larger sample size, we can start to discern patterns in the Court’s use of “framework”. Like a good shot chart, this survey…
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Frameworks all the way down?
In Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, a unanimous Supreme Court of Canada found that the Act in question is a valid exercise of Parliament’s s. 91(24) authority over “Indians, and Lands reserved for the Indians.” As a result, the Indigenous laws it incorporates by reference are paramount…
Interesting case? New idea?