This article re-evaluates the place of legislative history in Canada's modern interpretive method. Itframes the debate around enduring tensions among text, purpose, and legislative intent. Tracing the shift from exclusion to cautious inclusion oflegislative history and other extrinsic materials, it exposes the methodological uncertainty shaping judicial interpretation. The article shows how errors arise when courts conflate parliamentary evidence with executive commentary or treat incomplete records as authoritative. Finally, it proposes a structured, text-centred methodology that assigns legislative history a restrained, principled, and confirmatory role. This approach promotes interpretive coherence, transparency, and fidelity to constitutional principles and the separation of powers.
This article explores the relationship between legal ethics and restorativejustice. It argues that the legal profession should be reoriented around restorative justice as the moral foundation ofa more progressive approach to legal ethics andprofessional responsibility. It translates concepts from restorative justice into ethical terms, grounding ideas about interdependence, community involvement, and public accountability into a list of restorative principles that can be readily applied in the practice oflaw, and recommending a series of practices and regulatory measures that are consistent with a restorative principles-based approach. Ultimately, the article shows that such an approach has the potential to raise the moral consciousness of lawyers, facilitate collaboration within communities and across systems, andredefine the role oflawyers in the administration of justice, transforming conditions of law and society in a more equitable direction.
This article provides a critique of Canadian courts' attempted integration of Indigenous laws into sentencing for criminal matters. First, it examines Canadian courts' approach to resolving conflicts between Indigenous and Canadian laws in the context of recent criminal contempt proceedings in British Columbia, contrasting this approach with other legal domains. Second, it argues that Canada's recognition of Indigenous laws creates an obligation to incorporate them into determinations of moral blameworthiness. Third, it analyzes the normative rationales underpinning Canada's sentencing regime. Fourth, it argues that a failure to consider conflicts of Indigenous and Canadian laws in sentencing compromises the principle of proportionality. Fifth, it proposes a relaxed standard for admitting evidence of a conflict of Indigenous and Canadian laws at sentencing.
This article discusses the de facto repeal of the "faint hope" clause of the Criminal Code. The clause was relevant to the Supreme Court of Canadas' holding that the minimum sentence for first-degree murder did not violate the prohibition against cruel and unusual punishment protected under section 12 of the Charter, as it permitted offenders who demonstrated adequate personal reform to apply for parole after serving 15 years of their otherwise mandatory 25-year parole ineligibility period. In response to the de facto repeal of the clause, the British Columbia Supreme Court recently held that the minimum sentence for first-degree murder must violate section 12 of the Charter. This article argues that the temporal limitation of the clause could be declared unconstitutional on the basis that it provides an inadequate role for the rehabilitation principle within the Charter framework.
This article contends that lawyers should cultivate a healthy level of disrespect for the law. Professional ethics codes place the notion of respect for the law at the core of legal identity. However, this reverence serves to suppress moral outrage and shields systemic injustice from critique. This article challenges the assumption that lawyers and law students owe respect to the law in a traditional sense, and argues that suspicion of the law is a more appropriate starting point given historical and ongoing inequality. Disrespect, when principled and proportionate, can advance justice, and it is justice, rather than fidelity to law, that should guide the legal profession.
This article analyzes two different approaches to judicial review: the model of rules (whereby the legal validity of an administrative decision hinges on its formal attributes) and the practice of principle (whereby the legal legitimacy of an administrative decision hinges on whether it has been rendered fairly and justified reasonably in light of its legal context). The author argues that the shift toward the practice of principle facilitates the type of complex and contextual normative assessments that are required to promote the rule of law across a broad range of administrative decision-making. However, the author finds that the Supreme Court, in recent cases, has favoured developing and clarifying a new model of rules which has inadvertently created “grey holes” of legality, which exacerbate the risk of arbitrary dismissal in the realm of public employment and stultifies the culture of justification where administrative decisions are subject to a statutory right of appeal.
The Supreme Court of Canada’s pivotal decision in Canada (Minister of Citizenship and Immigration) v. Vavilov introduced a categorical approach to standard of review analysis, aiming to simplify the existing framework. This article traces the evolution of standard of review analysis and outlines previous empirical studies that examine Vavilov’s effect on this analysis. The article describes a new empirical study that employs a current large language model to measure various variables pertaining to Federal Court and Federal Court of Appeal decisions, such as length of standard of review analysis and party agreement on standard of review. The findings confirm that Vavilov has simplified the standard of review analysis, but perhaps that this simplification may have resulted from an evolving approach that began in the years preceding Vavilov.
This article explores the “administrative-legislative paradox”: the tendency for jurists who are least likely to defer to the executive or administrative state on administrative law grounds to be the most deferential to the legislature on constitutional grounds (and vice versa). It relies on Supreme Court of Canada jurisprudence over the past eight years to prove the existence of the paradox and tests four possible hypotheses to explain its occurrence. The article concludes that common to each hypothesis is the division of jurists into those who are philosophically “conservative” and those who are philosophically “progressive.” The article underscores that while these descriptors mean different things within this context than they do in discussing partisan politics, the overlap is no coincidence.
This article considers whether a decision made by generative artificial intelligence can satisfy the standard of reasonableness set out in Canada (Minister of Citizenship and Immigration) v. Vavilov. Vavilov requires that administrative decisions be justified through reasons that are transparent and intelligible to the affected party. Earlier scholarship, law, and policy have assumed that AI cannot do this because it cannot provide reasons and its inner workings are opaque or uninterpretable. However, new capabilities of large language models challenge this view. Recent experiments show that when prompted with party submissions and relevant legal materials, generative AI can produce persuasive, legally grounded reasons for decisions. The article evaluates two responses: one argues that AI decisions remain unreasonable under Vavilov since their true basis lies in opaque technical processes; the other contends that Vavilov focuses on the cogency of stated reasons, not how they were generated. The article supports the latter position, suggesting that Vavilov leaves open the possibility that AI-generated decisions can be reasonable, provided their reasons meet the decision-making standard applied to human actors.
Although the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov has garnered attention for its simplification of standard of review analysis, often overlooked is the impact the decision had regarding statutory appeals: that selection of the standard of review on statutory appeals is now governed by the Housen v. Nikolaisen framework. This article describes the substantial impact this change has had in jurisdictions where statutory appeals are a prominent method of judicial review, using Saskatchewan as an example. The article explores the implications that Vavilov’s treatment of statutory appeals has had on administrative law theory and practice, emphasizing the impact of questions of law on statutory appeals being reviewed on the standard of correctness.
In Canada (Minister of Citizenship and Immigration) v Vavilov, the Supreme Court offered two guiding principles for selecting the appropriate remedy on judicial review. First, Vavilov contends the appropriate remedy should reflect the legislature’s choice to delegate matters to administrative decision-makers. Second, the Supreme Court states that the choice of remedy is multi-faceted and must pay regard to substantive reasons for deference, such as expertise and administrative efficiency. Regrettably, the Supreme Court in Vavilov did not directly state that the question of the appropriate remedy is to be guided by the culture of justification. However, in my view, the culture of justification is a strong theoretical foundation to explain the remedies that have emerged in the Vavilov era, including remitting the decision, direct substitution, indirect substitution and prospective remedies. This would have provided a more solid justification for the chosen intervention in recent cases, such as Mason v. Canada (Citizenship and Immigration), and Pepa v. Canada (Citizenship and Immigration).
