Between 2000 and 2008, under Chief Justice McLachlin’s oversight, the Supreme Court of Canada (SCC) was unanimous in its disposition of division of powers issues in 25 rulings or reference opinions. Then, after the 2009 division in Fastfrate, 2009 SCC 53, the SCC divided sharply in all six federalism rulings released in 2010. In 2011, [...]

The Supreme Court recently released its opinion on the federal government’s proposed Securities Act, deciding that the proposal is not a valid exercise of federal power under the general branch of the trade and commerce power. Rather than rejecting the idea of a national securities regulator per se, the Court’s opinion seems to lay the [...]

This post is one of two winning papers submitted by JD students at Osgoode Hall Law School, York University as a written assignment for Prof. Richard Haigh’s State and Citizen course. In its 2007 ruling, the Supreme Court of Canada addressed the controversies regarding interjurisdictional immunity in Canadian Western Bank v The Queen in Right [...]

This post is one of two winning papers submitted by JD students at Osgoode Hall Law School, York University as a written assignment for Prof. Richard Haigh’s State and Citizen course. The doctrine of interjurisdictional immunity, which can be used to challenge statutes on the ground of division of powers, seeks to limit the applicability [...]

Advocates for a national securities regulator in Canada will be disappointed with the Alberta Court of Appeal’s decision in favour of the provincial opponents in the Reference re Securities Act (Canada), 2011 ABCA 77.  The Court of Appeal found that the federal government does not have the constitutional authority to regulate securities under the proposed Securities [...]

The Supreme Court of Canada (“SCC”) has released its decision in NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45 (“NIL/TU,O”). TheCourt.ca had first brought the B.C. Court of Appeal case to light nearly two years ago here. In its judgment, released November 4, the SCC re-visited the test for [...]

I love the Supreme Court of Canada. I really do. I’ve spent most of my career trying to defend it (at least to my first year constitutional law classes). Very few people could do the job that Supreme Court judges do. But it’s sometimes hard to keep soldiering on defending the Court. How, for instance, [...]

On September 2, the U.S. Justice Department brought a lawsuit against Joe Arpaio, an Arizona sheriff from Maricopa County who is best known for his aggressive crackdowns on illegal immigrants. The Justice Department had been investigating Mr. Arpaio’s division after critics alleged that the sheriff’s arrest sweeps amounted to racial profiling against Hispanic individuals. Negotiations [...]

Editor’s Note: This is the first of a two-post series on the proposed Canadian Securities Act. The federal government recently referred the proposed legislation to the SCC.  The first post focuses on the constitutionality of the proposed legislation, while the second post will compare the merits of federal and provincial regulation, and discuss the effect [...]

(Editor’s Note: The author, Richard Butler, is a constitutional lawyer with the B.C. Ministry of Attorney General. The views expressed are those of the author, and not his employer.) Introduction A profound change of thinking on constitutional design is evident in the Supreme Court’s recent jurisprudence –  a change made manifest in the Court’s evolving approach [...]