The Collection of Papers

Checking the Court: Justifying Parliament's Role in Constitutional Interpretation

Dennis Baker

This paper challenges the commonplace assumption that the Supreme Court of Canada is the exclusive and authoritative interpreter of the Canadian Constitution, and examines scenarios where Parliamentary interventions may be justified.

The Theory of Law "As Claim" and the Inquiry into the Sources of Law: Bruno Leoni in Prospect

Daniele Bertolini

This paper presents a systematic analysis of the theory of law "as claim" through a critical review of Bruno Leoni's work.

Parliamentary Restrictions on Judicial Discretion in Sentencing: A Defence of Mandatory Minimum Sentences

Lincoln Caylor and Gannon G. Beaulne

This paper traces the history of judicial discretion in sentencing in Canada and examines the creative ways in which some Canadian judges have sought to circumvent Parliament's attempts to use mandatory sentencing tools. An outline is offered on a defence of mandatory minimums and other legislated restrictions on judicial discretion in sentencing at a policy level.

Canadian Proportionality Analysis: 5 ½ Myths

Dwight Newman

The Canadian approach to analyzing Charter-rights limitations – the Oakes test and its proportionality-based approach – is subject to a number of myths. This paper seeks to expose and challenge these myths and to show the highly problematic character of Canadian proportionality analysis.

Lock, Stock, and Barrel v. Ontario: The Montagues' Story

Derek From

This paper challenges the intended purposes of civil forfeiture laws in Canada and contends that those laws most often function as a supplement or alternative to criminal law, thus resulting in a mesh between the two.

Leroux v. CRA: An Unprecedented Tax Case Establishing Duty of Care

Karen Selick

This paper critiques the outcome of the B.C. Supreme Court's unprecedented ruling in Leroux v. Canada Revenue Agency in which Canada Revenue Agency was found to have violated its duty of care by acting negligently to a taxpayer, while the taxpayer's interim motion for Charter relief was struck down.

Lethal Discrimination: A Case against Legalizing Assisted Suicide in Canada

André Schutten

This paper argues that legalizing assisted suicide fundamentally undermines life and liberty because permitting some people to kill members of a particular class, even with their consent, undermines more fundamental rights, e.g., the right to life of other members of that class.

No Statecraft, Questionable Jurisprudence: How the Supreme Court Tried to Kill Senate Reform

Ted Morton

This paper examines the political ramifications of the Supreme Court of Canada's declaration in Senate Reform Reference (2014) that the Harper Government's proposed statutory reforms to the...