Is the Pearson Airport Legislation Unconstitutional?: The Rule of Law as a Limit on Contract Repudiation by Government

It has long been assumed that Parliament has unlimited power to enact legislation cancelling valid contracts and denying compensation to any persons affected. This paper challenges that conventional wisdom. The author argues that the principle of the rule of law requires that governments be accountable in the ordinary courts for wrongful actions of government officials. This principle is undermined if government is absolved from any liability for breach of a fairly bargained and valid contract. Thus, legislation purporting to abrogate contracts and deny compensation is invalid, since it violates the implied limits on legislative authority associated with the rule of law. The author also explains how protecting contractual expectations in the manner suggested does not unduly limit Parliamentary sovereignty, and will not result in a wholesale constitutional entrenchment of property rights

2006-2010 Strategic Plan: Making a Difference

https://digitalcommons.osgoode.yorku.ca/strategic_plans/1001/thumbnail.jp

An Agenda for Constitutional Reform

This Final Report is the culmination of the efforts of the York University Constitutional Project, a project of the York University Centre for Public Law and Public Policy. The report is based on a comprehensive eight-month study by researchers at the Centre, meetings and conferences with eighteen distinguished academics from York University and the University of Toronto, and individual Background Studies by distinguished academics and professionals throughout Canada. This Report puts forward and discusses forty-eight recommendations on legal issues surrounding Quebec sovereignty. Ontario\u27s interests in the current constitutional discussions, and federal proposals released in September of 1991. This Report is written in a manner which promotes discussion and cooperation on specific issues, with the objective of arriving at a consensus. By so doing, it brings us one step closer to a resolution of Canada\u27s constitutional problems.https://digitalcommons.osgoode.yorku.ca/faculty_books/1310/thumbnail.jp

Is the Pearson Airport Legislation Unconstitutional?: The Rule of Law as a Limit on Contract Repudiation by Government

It has long been assumed that Parliament has unlimited power to enact legislation cancelling valid contracts and denying compensation to any persons affected. This paper challenges that conventional wisdom. The author argues that the principle of the rule of law requires that governments be accountable in the ordinary courts for wrongful actions of government officials. This principle is undermined if government is absolved from any liability for breach of a fairly bargained and valid contract. Thus, legislation purporting to abrogate contracts and deny compensation is invalid, since it violates the implied limits on legislative authority associated with the rule of law. The author also explains how protecting contractual expectations in the manner suggested does not unduly limit Parliamentary sovereignty, and will not result in a wholesale constitutional entrenchment of property rights

“In the Public Interest”: Understanding the Special Role of the Government Lawyer

The concept of the “public interest” is the foundational principle that guides and structures the special role of government lawyers. This public interest role is derived from a number of constitutional and statutory sources but, in Ontario, it finds its foundation in section 5 of the Ministry of the Attorney General Act, which provides that the Attorney “shall see that the administration of public affairs is in accordance with the law”. This responsibility to uphold and advance the rule of law falls not just to the Attorney but to all government lawyers who act on his or her behalf. What does this mean in practical terms for government lawyers on a day-to-day basis? in the view of Ontario’s Deputy Attorney General, there are three foundational principles that must serve as touch-stones in the fulfilment of their public interest role, namely: (i) independence; (ii) a commitment to principled decision-making; and (iii) accountability. This paper elaborates the significance and implications of each of these foundational principles. It also considers whether, in light of the public interest role of government lawyers, they should be held to a higher or different standard of professional responsibility. The author argues that any such special or higher duty would be inappropriate and inconsistent with the proper limits of the lawyer’s professional role within government. Finally, the paper explains how and why solicitor-client privilege plays a critical enabling role in the fulfilment of government lawyers’ responsibilities

The Law and Politics of Quebec Secession

This paper considers the various legal issues that would arise in the context of Quebec\u27s secession from Canada, and attempts to situate these issues politically. The author argues that, under the current constitutional amending formula, Quebec secession would require the support of the federal Parliament as well as the unanimous consent of the provinces; he also suggests that it is extremely unlikely that this level of support would be attained. The paper goes on to explore the possibility of Quebec seceding from Canada through a unilateral declaration of independence (UDI), suggesting that the success or failure of a UDI would depend upon the ability of Quebec to exercise effective and exclusive control over its own territory and population. The author also argues that a Quebec UDI would almost certainly be contested by Canada, thus precipitating a costly contest for legal supremacy between the Canadian and Quebec governments. The legal, economic, and political uncertainty associated with two rival regimes would impose enormous costs on everyone involved, leading to author to conclude that a Quebec uDi is a legal possibility, but quite impractical and unacceptable in pragmatic political terms. The final section of the paper considers the implications of the recent proposals for joint political institutions between a sovereign Quebec and Canada, claiming that joint political institutions are unlikely to be created following sovereignty

“In the Public Interest”: Understanding the Special Role of the Government Lawyer

The concept of the “public interest” is the foundational principle that guides and structures the special role of government lawyers. This public interest role is derived from a number of constitutional and statutory sources but, in Ontario, it finds its foundation in section 5 of the Ministry of the Attorney General Act, which provides that the Attorney “shall see that the administration of public affairs is in accordance with the law”. This responsibility to uphold and advance the rule of law falls not just to the Attorney but to all government lawyers who act on his or her behalf. What does this mean in practical terms for government lawyers on a day-to-day basis? in the view of Ontario’s Deputy Attorney General, there are three foundational principles that must serve as touch-stones in the fulfilment of their public interest role, namely: (i) independence; (ii) a commitment to principled decision-making; and (iii) accountability. This paper elaborates the significance and implications of each of these foundational principles. It also considers whether, in light of the public interest role of government lawyers, they should be held to a higher or different standard of professional responsibility. The author argues that any such special or higher duty would be inappropriate and inconsistent with the proper limits of the lawyer’s professional role within government. Finally, the paper explains how and why solicitor-client privilege plays a critical enabling role in the fulfilment of government lawyers’ responsibilities

Culture and the Canadian Constitution

This article examines the current division of powers over cultural matters in the Canadian Constitution and the manner in which the 1992 Charlottetown Accord would have altered that distribution. During the debate over the Charlottetown Accord, it was argued by the federal government and the provinces that the Constitution allocates primary legislative responsibility over cultural matters to the provinces. Therefore, the cultural amendments in the Accord which would have recognized the provinces\u27 exclusive jurisdiction to make laws in relation to culture were justified on the basis that they merely codified the status quo. This paper challenges the belief that the provinces enjoy exclusive legislative authority in relation to culture. It is argued that the federal government possesses quite significant legislative authority relating to cultural matters, the most important being its authority to pass laws in relation to matters of national concern. The promotion and strengthening of a distinct Canadian national identity is, it is argued, one such matter of national concern. Thus, over time, the proposed amendments relating to culture in the Charlottetown Accord would probably have significantly reduced federal legislative powers. Assuming that some kind of cultural power is to be entrenched in the Constitution at all, culture should be recognized as an area of shared or concurrent jurisdiction in which both Parliament and the provincial legislatures have legitimate roles to play. This paper also calls into question the whole concept of entrenching a cultural power in the Constitution in the first place, arguing that it is unwise to recognize indeterminate and amorphous concepts like culture as a basis for legislative authority in a federal state

Canadian Federalism and its Impact on Cross-Border Trade

federalism--Canada, federalism--United State