09 July 2024
What are Principles and How Do They Work?
Unwritten constitutional principles pose a number of interesting puzzles, some of which are unique to their unwritten status, some of which are shared with all principles, unwritten and written, legal and non-legal. Using examples from the Canadian constitutional system, this blog post examines what principles are before going on to consider how they work. Its observations are intended to be of general, cross-jurisdictional relevance. Continue reading >>
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08 July 2024
The Salience of “Writtenness” and “Unwrittenness” as Constitutional Categories in Canada
Canada's Constitution sits somewhere between the paradigms of a fully codified written and partially codified unwritten constitutional order. This blog post explains why the differentiation between the written and unwritten matters for our understanding of Canada's constitutional system with a view to terminological, institutional, proceduaral, and policial questions. Continue reading >>
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30 December 2022
The Theoretical Limits on the Override Power
In 2019, anticipating that Israel might one day adopt an express override mechanism that would enable the Israeli legislature (the Knesset) to override the Basic Laws (Israel’s Constitution), I developed a novel theoretical framework to limit the override power. With the new hard-right government, my theory might be tested in practice. I therefore want to make this theory available in English for international audiences. Continue reading >>
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12 May 2022
The Dilemma of Mild Emergencies that are Accepted as Consistent with Human Rights
Amid the pandemic and the war in the Ukraine, Canada had a quiet emergency. On 14 February 2022, the federal government used the Emergencies Act to respond to a three week occupation of the Parliament building and various border blockades. This was a mild and quick emergency, as far as emergencies go. Mild emergencies that arguably respect rights are better than severe emergencies that do not, yet there is cause for concern. Continue reading >>
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24 November 2021
The Long Shadow of 9/11
At the broadest level, 9/11 exacerbated the chronic precarity of non-citizens’ status as legal subjects governed under the rule of law. In principle, the rule of law is indifferent to citizenship: after all, the legal subject is constituted through subjection to law, not to the state as such. And yet, the rule of law has always been insipid in the sphere of migration, and securitization diluted it even further. This is true across all jurisdictions, including those bound by human rights entrenched in constitutional texts. Continue reading >>
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08 March 2021
COVID-19 in Canada: Variable Forms of Power and Unvarying Judicial Deference
As of early 2021, the COVID-19 pandemic continues to rage across Canada. These are dark days. Although the arrival of vaccines suggests light will soon appear at the end of the tunnel, Canada is a long way from the end of its COVID-19 crisis. In this blog, I hope to illuminate readers, through the lens of pandemic-related public law litigation, about how Canada has responded to COVID-19. Continue reading >>
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06 April 2020
Canada the Good?
Canada is in almost full emergency mode in its bid to flatten the pandemic curve. But so far the federal government has not declared a federal state of emergency in terms of the Emergencies Act (1985), although it has discussed publicly the pros and cons of taking this step and has been urged to do so on the basis that such a declaration would enable a nationwide testing program. There are four main reasons for this hesitation to declare a national state of emergency. Continue reading >>
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