Constitutional law and ideas about constitutional law.
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The Final Framework Countdown
As the Supreme Court of Canada begins its 2025 term, let us turn one last time to the great framework frenzy of 2024. The league table ended 2024 largely unchanged from our mid-term update. Despite a brief resurgence in York Region, the Court could not maintain its framework form and managed only one case in double digits…
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Constitutional Crossroads
On this site, I’ve paid a lot of attention to how the Supreme Court of Canada (SCC) used principles during its 2024 term. I’ve been looking (maybe a little too closely) at the Justices’ reasons and trying to find new ways to understand the SCC’s work: to make metaphors like “basic constitutional structure” and “internal architecture” a little less familiar, a…
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Literacy and Legitimacy
The Programme for the International Assessment of Adult Competences (PIAAC) is an intensive, longitudinal assessment of skills within the adult populations of the member states of the Organization for Economic Co-operation and Development. The PIAAC assesses adult literacy skills on a scale from Level 1 to Level 5. Canada has conducted the PIAAC twice. According to…
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The Shadow Constitution
Carl Jung wrote “The shadow personifies everything that the subject refuses to acknowledge about himself and yet is always thrusting itself upon him directly or indirectly.”[1] For Jung, the shadow was neither good nor bad; it was inevitable and presented a persistent moral or even existential challenge to the conscious self. Jung and his acolytes applied…
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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…
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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…
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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…
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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 (28.0 FW/100¶). The updated…
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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…
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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:
Interesting case? New idea?