In my last post, I summarized and criticized the Federal Court’s decision in Hameed v Canada (Prime Minister), 2024 FC 242, which declared that the government of Canada has a duty under the constitution to just get on with judicial appointments already. Emmett Macfarlane has made many similar points on his Substack as well. But, as I noted, while the actual reasons given by Brown J were very bad, that doesn’t mean there weren’t serious arguments to be made for the outcome he reached ― though I’m not sure whether any such arguments were actually put to him by counsel. In this post, I review the ..read more

Yesterday, the Federal Court delivered a decision declaring that the Canadian government has a constitutional duty to ensure timely judicial appointments and setting out specific targets to attain: Hameed v Canada (Prime Minister), 2024 FC 242. The outcome is a startling one, but it is Justice Brown’s reasons that are truly remarkable, and not in a good way. The outcome, indeed, might even be defensible, at least in part, though I doubt it. But Brown J’s reasons are pernicious. Hameed is something of a constitutional law professor’s crazy exam hypothetical. The bottom line is simple enough. Th ..read more

I’m a bit late to the debate, I’m afraid, but I did want to say something about the Supreme Court’s decision in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, delivered last week. The decision is very significant insofar as it purports to uphold the approach to judicial review of administrative decisions implicating constitutional rights and vibes first outlined in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, which had been severely criticized by both judges and scholars of administrative law ..read more

Last week, the Court of Appeal for Ontario issued its decision in Ontario Teacher Candidates’ Council v Ontario (Education), 2023 ONCA 788. The case was the appeal from the notorious “math is racist” decision of the Divisional Court,  Ontario Teacher Candidates’ Council v The Queen, 2021 ONSC 7386, about which I blogged here. The Court of Appeal, contrary to the Divisional Court, holds that the math and pedagogy test (the Math Proficiency Test [MPT]) that aspiring teachers are required to take in Ontario does discriminate against non-white candidates. But the decision’s scope is very limi ..read more

Guest post by Maxime St-Hilaire This post is translated and adapted (by L.S.) from the original version published at À qui de droit I have recently had an email exchange with a colleague from McGill, and noticed that their signature included the following statement: “McGill University is located on unceded Indigenous land Tiohtià:ke – Montreal”. Tiohtià:ke is the Mohawk name of the Monreal area. As the colleague in question is not an expert in this area, I surmise that this assertion is in more or less common use at McGill.  And not only there. For instance, on October 26, 2021, Radi ..read more

Today, the Court of Appeal decided Canada Christian College and School of Graduate Theological Studies v Post-Secondary Education Quality Assessment Board, 2023 ONCA 544, a public law case that raises a number of interesting questions ― not all of them intentionally. The facts are simple. In 2020, the Legislature enacted a law authorizing the appellant College to call itself a university and grant degrees. But, like many laws, this one would only come into force only if and when proclaimed by the Lieutenant Governor, on the government’s advice of course. This one never did. On the co ..read more

I thought I was done with dispelling government formation misconceptions, having responded in detail here and here to claims that the party winning a plurality of seats in the House of Commons was somehow entitled to form government even if it lacked an overall majority. But I return to this issue, briefly, to address the converse mistake: the claim, advanced by Patrice Dutil in a Macdonald-Laurier Institute Inside Policy essay, that “[r]esponsible government requires the support of the majority of the House of Commons”, so that “in order to form government in a parliament that is split among ..read more

I am grateful to Charlie Buck for taking up my invitation to explain why the constitutional conventions of government formation in Canada have diverged from those recorded in the Cabinet Manuals of the United Kingdom and New Zealand, which I discussed here. However, I am not persuaded by his argument to the effect that, whatever may have been the case in Canada in the past, and still be the case in its fellow Commonwealth realms, our present conventions make the plurality party in the House of Commons uniquely entitled to govern. There are several strands to Mr. Buck’s argument. First, convent ..read more

For reasons quite beyond my comprehension, Canada is apparently having a “debate” about the rules applicable to government formation in the event an election does not produce a single-party majority in the House of Commons. Philippe Lagassé has covered the essential principles ― as they have long been accepted, certainly up until, roughly, the summer of 2015, and for the most part beyond that too. Contrary to the claims of some Conservative partisans ― and, if memory serves well, to those of the leaders of all three major federal parties during the 2015 election campaign ― winning a plurality ..read more

Deference to administrative decision-makers who limit constitutional rights is, to put it mildly, a controversial issue in Canadian law. It is mandated by the Supreme Court’s precedents, notably  Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395. It was challenged by the amicus curiae but not touched in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653. Both co-blogger Mark Mancini and I have criticized it sharply. Some comments in the opinions in the recent decision of the US Supreme Court in Students for Fair Admissions v President ..read more