The Canadian Bar Review

EVALUATING THE LEGAL CHALLENGE TO TRUDEAU’S PROROGATION

2026-10-05T13:34:16+00:00

Prorogation is a routine occurrence in the parliamentary calendar. In recent years, however, this seemingly mundane event has become a matter of some controversy. In early January 2025, Prime Minister Justin Trudeau announced that he would resign as prime minister once a new Liberal leader was selected. He also revealed that he had advised the Governor General to prorogue Parliament and that she had granted the request, with Parliament set to return in late March. The announcement ended months of speculation about Trudeau’s future. But it also raised questions about whether Parliament had been prorogued to avoid a vote of no confidence and to allow for the selection of a new leader.

These events and the litigation they prompted raise questions about (1) the constitutional limits, if any, on the prime minister’s advice-giving function, (2) when, if ever, the governor general is entitled to refuse a request to prorogue parliament, and (3) whether prorogation is amenable to judicial review. In this article, I discuss the legal and the political issues raised by prorogation, both in the context of the current litigation and more broadly. I conclude that judicial intervention in the current prorogation case is not constitutionally justified. By staking out a judicial role in prorogation, I argue, courts risk disrupting the delicate balance of legal and political that defines our modern constitutional order.

PRIMAUTÉ DU DROIT ET POUVOIRS POLICIERS

2026-10-05T15:09:08+00:00

In an era when the ideology of security weakens the foundations of the criminal justice system, questions have arisen as to whether policing can be conducted in accordance with the rule of law. Essentially, the requirements of the rule of law should yield to the flexibility state agents need to ensure effective law enforcement. In light of such discourse, arguments based on this principle are often met with skepticism, making it difficult for the rule of law to prevail. This study aims primarily to challenge this skepticism, which prevents serious consideration of whether the importance and complexity of law enforcement’s mission can be reconciled with a legal framework that meets the requirements of the rule of law. It argues that taking the rule of law seriously makes it possible to uphold that very principle without compromising public safety.

To demonstrate that skepticism towards the rule of law is unwarranted and that respecting the rule of law in the governance of police work is both desirable, possible and necessary, the author first analyzes the relevant literature and case law to clarify the significance and scope of the principle in Canadian law. More specifically, this analysis identifies the seven key requirements stemming from this principle with respect to oversight of policing. By comparing the current state of the law to these principles, the author identifies a significant decline in the rule of law in the oversight of policing in Canada and traces its source to a failure to respect the respective roles of courts and lawmakers. However, this decline does not mean that the importance and complexity of law enforcement cannot be reconciled with a legal framework that meets the requirements of the rule of law. The author concludes that such reconciliation is not only possible but can be achieved primarily by lawmakers and the courts diligently performing their respective duties, without encroachment.

THE BUSINESS OF PURPOSE TRUSTS

2026-10-05T15:31:31+00:00

In an age of increased awareness around climate change, wealth inequality and employee well-being, many private business owners are rethinking the fundamentals of corporate ownership. This has prompted a rise in the popularity of long-term “purpose” trusts as an alternative ownership strategy, particularly in the US. The recent decision in Fletcher’s Fields Ltd. v Ontario Rugger Union has served as a timely review of the law of purpose trusts in Ontario. Meanwhile, the recognition of non-charitable purpose trusts in Alberta’s new Trustee Act could provide a pathway for other Canadian jurisdictions to follow.

In light of these developments, greater discussion about the opportunities and challenges of the law of purpose trusts is warranted. Part one of this paper considers the development of the purpose trust, a concept rooted in common law. Part two draws attention to Patagonia, Inc.’s conversion to a purpose trust, which is a high-profile example of the broader movement towards an emerging form of corporate ownership. Part three applies the current Canadian law to the concept of purpose trusts, highlighting the possibilities and conflicts. Part four considers alternative structures for purposeful business ownership in Canada, offering up two key structures: not-for-profit organizations and employee ownership trusts. Finally, in Part five, the author suggests how legislators in Canada’s provinces and territories can modernize their respective trust statutes to facilitate the use of non-charitable purpose trusts as a viable alternative business ownership strategy for socially minded founders.

STATUTORY PROTECTIONS AGAINST INFRINGEMENT OF ABORIGINAL AND TREATY RIGHTS

2026-10-08T13:40:02+00:00

Parliament and three provincial legislatures have added non-derogation clauses to their interpretation statutes. These clauses are intended to protect Aboriginal and treaty rights from abrogation or derogation by other legislation. This article argues that the recent Supreme Court decision in Dickson v Vuntut Gwitchin First Nation has clarified the effect of these clauses. In that case, a majority decided that section 25 of the Canadian Charter of Rights and Freedoms prevents the Charter’s individual rights provisions from abrogating or derogating from the Aboriginal, treaty or other rights or freedoms of the Aboriginal peoples. If there is an irreconcilable conflict between a Charter right, such as a section 15(1) equality right, and a section 25 right, the section 25 right prevails.

The non-derogation clauses in the interpretation statutes mirror the language of section 25. It is therefore appropriate to apply the Supreme Court’s interpretation of section 25 to those provisions. Consequently, the laws of Canada, Saskatchewan, Manitoba and British Columbia must respect the Aboriginal and treaty rights recognized and affirmed by section 35 of the Constitution Act, 1982. If possible, those laws should be read as not abrogating or derogating from those rights, but if this is not possible because there is an irreconcilable conflict between them, the Aboriginal peoples’ rights should prevail. This means that, absent a clear, constitutionally-valid legislative intention that the relevant non-derogation clause does not apply to the law in question, it is no longer possible for governments in these jurisdictions to justify infringements of these rights.

INTÉGRITÉ OU PRESTATION

2026-10-08T14:01:35+00:00

Under Quebec’s disability insurance system, an insured who refuses care may have their benefits reduced or cancelled. This can result from a clause in the insurance policy, the duty to minimize damages, or government compensation plans. This article explores the right to refuse care in the context of disability insurance; the analysis helps identify obstacles to exercising free and informed consent, evaluate the validity of said clauses, and understand the current state of the law. A dichotomy between human rights and duties emerges, forcing the insured to choose between their integrity and their insurance benefit.

HRYNIAK’S EROSION

2026-10-08T17:41:12+00:00

Access to civil justice has long been in crisis in Ontario, and the 2010 reforms to the Rules of Civil Procedure broadened the scope of summary judgment under Rule 20 in part to tackle cost and delay. The Supreme Court of Canada also encouraged the use of summary judgment as an adjudicative alternative to trial in Hryniak v Mauldin in 2014, calling for a “culture shift” in the conduct of litigation.

The effect of Hryniak, however, has been eroded. Our empirical research of reported summary judgment decisions in Ontario from January 1, 2015 (five years pre-pandemic) to December 31, 2024 (five years after its start) shows that summary judgment decisions and hearings plummeted in 2020 and have not recovered. Our study also shows that parties are now bringing summary judgment motions that are more likely to succeed.

The reasons are procedural and doctrinal. Since July 2015, Toronto’s Civil Practice Court has been screening summary judgment motions before they can be scheduled. In addition, decisions from the Court of Appeal for Ontario have restricted the availability of summary judgment.

More recently, the Civil Rules Review Working Group tasked with reforming Ontario’s Rules has targeted ‘failed’ summary judgment motions. Given that numbers of such motions have already reduced drastically and there is already screening in Toronto and elsewhere, the impact of those changes may be slight. There is also the danger that, without more judicial resources, the Working Group’s proposed ‘Summary Track’ may suffer the same erosion as Rule 20.

AND TWO COWS TO MY WIFE … SO LONG AS SHE REMAINS MY WIDOW

2026-10-08T18:29:17+00:00

This article presents the case against all forms of testamentary clauses that impose restraints on marriage clauses in Canadian wills. These include conditions requiring a beneficiary never to marry or to remarry; requiring a beneficiary to divorce their current spouse; forbidding a beneficiary from marrying a person of a certain race, ethnicity, religion, sex, or gender; or requiring the beneficiary to be married or marry in order to obtain or retain their gift. It argues that they should be found contrary to public policy and comprises three parts. First, it confronts and discounts the most common arguments for the preservation of the law as it stands. The article then explains the problems with how courts apply public policy to marriage clauses in Canada outside the province of Quebec. Not only is the current law likely incompatible with Ontario’s laws of evidence, but its rationale is also sexist, outdated, and irrelevant to today’s values and laws. The third part of this article argues what the contemporary public policy of Canada with respect to marriage clauses should be. It explains that if the doctrine is interpreted and applied in pari materia with a variety of legislative, constitutional, and international law sources, it becomes clear that all testamentary marriage clauses offend public policy.

CAPPING DEFAMATION DAMAGES

2026-10-08T18:45:57+00:00

The law governing defamation damages is problematic. Injury is presumed, without the need for any supporting evidence. Damages are at large and reflect intangible injuries, so their quantification is inevitably arbitrary. Amounts are increasing at far greater than the rate of inflation. Particularly given the free speech consequences of large defamation damages awards, the law should do more to restrict them.

One possibility is to cap non-pecuniary damages in defamation law. While the Supreme Court of Canada rejected this approach in Hill v Church of Scientology, several things have changed since that case was decided in 1995. First, courts have consistently modified defamation law to provide greater protection for freedom of expression. Second, the quantum of defamation damages awards has increased dramatically since Hill. Third, non-pecuniary defamation damages have been capped in England and Australia, and subject to ranges or caps in other jurisdictions. Fourth, Ontario and other provinces have created privacy torts, protecting interests similar to reputation, which generate relatively low damages awards. Finally, the reasons given in Hill for rejecting a cap were, in our view, unconvincing even in 1995.

We therefore argue that the time has come for a cap on non-pecuniary defamation damages in Canada, or for a set of ranges to guide the damages assessment. Since cap thresholds are arbitrary, it is difficult to defend any specific number. However, we argue for a cap of half the personal injuries damages cap—$50,000 in 1978 dollars, or about $234,000 in 2026 dollars.

A UNIFIED APPROACH TO CONSTITUTIONAL AND STATUTORY INTERPRETATION

2026-10-09T13:24:17+00:00

As a jurisdiction with a written constitution, in Canada, questions arise about whether constitutional interpretation should be and is the same as ordinary statutory interpretation. Should the Supreme Court of Canada interpret constitutional and ordinary statutes in the same way? Does the Court do so? Although the jurisprudence and the scholarship hint at diverging answers to these questions, there has been little sustained attempt to answer them. In this article, I aim to fill that lacuna. I argue that the Court should adopt the same approach to constitutional and statutory interpretation. Then, I suggest that although the Court has purported to adopt different approaches to constitutional and statutory interpretation, its practice has been to adopt what is in substance and effect a unified approach. In short, I suggest that there is both a normative case and a descriptive case for a unified approach to constitutional and statutory interpretation in Canada. On the unified approach, the interpretation of a statute, whether the statute is constitutional or ordinary, considers the text and the entire context, including the purpose and history. Constitutional interpretation is a special case of statutory interpretation, given the distinctive text and context.

The Rural Lawyer

2026-10-09T14:08:15+00:00

The Rural Lawyer: How to Incentivize Rural Law Practice and Help Small Communities Thrive
By: Hannah Haksgaard
(Cambridge: Cambridge University Press, 2025)