The Coherence of Constructive Takings: A Response to Peter Wills

This essay, through exploring the evolution of de facto expropriation in Canada, argues that the Supreme Court of Canada has recently “reformulated” the test for de facto expropriation by inaccurately representing what its own prior cases stated. The Supreme Court asserted that no more than an “advantage” has to be acquired by the state, not an interest in property. After analyzing the Supreme Court’s prior precedents, the article contrasts them with what the Supreme Court said they stood for in its most recent case, Annapolis Group v. Halifax Regional Municipality.

A discussion of the appropriate use of economics in common law adjudication evokes commentary on the common law itself. Indeed, common law adjudication is a topic to which the giants of legal history have spoken: Justice Holmes, in his essays on the common law;' Justice Cardozo, in The Nature of the Judicial Process 2 and The Growth of the Law ;3 Professor Frank, in Law and the Modern Mind;4 and Professor Llewellyn, in The Common Law Tradition.5 Their observations about the sources of judicial decisionmaking provide a useful introduction to the topic of law and economics. Holmes' familiar statement is expressed with a lyrical richness in The Common Law:

This essay reviews The Nature of the Common Law by Melvin A. Eisenberg (Harvard University Press, 1988). Professor Eisenberg's stated goal therein to develop the institutional principles that govern the way in which the common law is established in our society. In the course of doing so, Eisenberg addresses the functions of courts in American society, modes of legal reasoning and the process of overturning prior precedents. Yet Eisenberg never loses sight of his central thesis, namely that all common law cases are decided under a unified methodology, and under this methodology social propositions always figure in determining the rules the courts establish and the way in which those rules are extended, restricted, and applied. According to the reviewer (UCLA law professor Stephen M. Bainbridge), The Nature of the Common Law is one of the most thought-provoking books ever written on common law adjudication. Eisenberg's belief in social morality as a workable guide to decisionmaking surely invites further debate. So too does his concomitant belief that law is more than merely the personal moral and policy preferences of the judge. Indeed, one might almost say that The Nature of the Common Law deserves to be controversial, for Eisenberg has given us a report that is both normatively appealing and descriptively accurate. The Nature of the Common Law succeeds because it is both an attractive vision of how courts should function and a perspicuous account of the real world in which courts actually function.

Creating Legal Space for Animal-Indigenous Relationships

Canada was created through French, and later English colonisation imposed upon Indigenous nations in the seventeenth through the nineteenth centuries. Courts began in early eighteenth-century Nouveau France applying French civil law, followed by the British common law system. Canada was officially born by the British North America Act, 1867, passed by the British Parliament upon request from political leaders in four colonies. Quebec remains the only civil law jurisdiction within a common law and mostly English sea. Section 101 empowered the Canadian Parliament to establish a ‘General Court of Appeal,’ but internal debate delayed its creation until 1875. The Supreme Court of Canada (‘SCC’ or ‘Supreme Court’) has an unusual history, since its decisions were appealable to England in criminal cases until 1933 and in civil matters until 1949. Its importance grew considerably after it became the final court whose decisions are binding on all Canadian courts, tribunals, and domestic governments. Fundamental constitutional reform in 1982, including the entrenchment of the Charter of Rights and Freedoms, has increased its impact. Judgments from final appellate courts in common law jurisdictions circulate quite widely among English-speaking nations, especially when dealing with challenging newer legal issues. This chapter will also describe the Supreme Court’s use of foreign and international law judgments and its relationship with foreign national and international courts.

ABSTRACTThe Supreme Court of Canada's recent decision in R v Hart will be of interest to judges and criminal lawyers throughout the commonwealth. At issue in the case was the question of whether an accused could challenge the admissibility of a confession given in the course of ‘Mr. Big’ undercover police investigation (an elaborate undercover police investigations in which a suspect is misled into believing that he or she is being recruited into a fictitious criminal organisation.) In Hart, Canada's apex court broke sharply with its previous jurisprudence, creating a new, situation specific, common law rule of evidence. Henceforth, confessions obtained in the course of Mr. Big operations are presumptively inadmissible unless the Crown can prove the confession is reliable on a balance of probabilities. In this commentary, the authors argue that, while Hart is a welcome development in the law, commonwealth courts should be cautious in following the Supreme Court of Canada's approach. In the author's view, a better approach would be to modify the existing common law confession rule so that it applied to Mr. Big operations. Such an approach would produce greater certainty in the law and would afford greater protection for the accused.

Expropriation law in Canada has operated on the basis of two presumptions at common law: that compensation is owing for the compulsory acquisition of property unless specifically indicated otherwise by statute; and, that no compensation is owing for land use regulation unless specifically provided for by statute. In its decision in Annapolis Group Inc. v Halifax Regional Municipality, the Supreme Court of Canada abandoned the second presumption that compensation for land use regulation required a statutory foundation. The majority and dissent proceed on the unexamined foundation that there is a common law basis for compensation in claims for constructive takings or de facto takings. This article sets out the earlier consensus, documents the drift to constructive takings at common law, and presents the implications.

The standard view today of customary international law (CIL) is that it arises from the widespread and consistent practice of states followed out of a sense of legal obligation. Although commonly recited, this account is plagued by evidentiary, normative, and conceptual difficulties, and it has been subjected to increasing criticism in recent years. This chapter suggests that these difficulties stem in part from the effort to formulate one conception of CIL that applies across all institutional contexts. This chapter posits a particular account of CIL, considered from the perspective of international adjudication. The application of CIL by an international adjudicator, this chapter suggests, is best understood in terms similar to the judicial development of the common law: that is, as an approach whereby adjudicators look to past practice but necessarily make choices about how to describe it, which baselines to apply in evaluating it, and whether and when to extend or analogize it to new situations. These choices, moreover, are shaped by assessments of both state preferences and the likely consequences of adopting a particular formulation of the relevant international rule, as well as moral and ethical considerations. Unlike the standard view of CIL, this common law account recognizes a significant element of judgment and creativity in determining the content of CIL. Understanding the adjudication of CIL in this way, the chapter contends, avoids many of the difficulties surrounding the standard view of CIL. PROBLEMS WITH THE STANDARD VIEW OF CIL As noted, the generally accepted view among international lawyers and scholars today is that CIL arises from the consistent practices of states that are followed out of a sense of legal obligation, an account that this chapter will refer to as the “standard view.” Under this standard view, CIL is conceived of as having two components: an objective, state practice component, and a subjective, sense of legal obligation component. The second component is sometimes referred to by the Latin phrase opinio juris sive necessitatis , which translates as “a belief that something is required by law or necessity,” although commentators and courts often shorten the phrase simply to opinio juris . This account of CIL has been endorsed by international tribunals, including the International Court of Justice (ICJ), and it is often recited by representatives of states.

Environmental obligations fit uncomfortably into the framework of federal insolvency law. Canadian courts have struggled to articulate which environmental obligations should be stayed, compromised, and discharged in insolvency proceedings and which should remain fully enforceable. In its 2019 decision, Orphan Well Association v Grant Thornton Ltd, the Supreme Court of Canada drew a distinction between two types of environmental obligations: debts and public duties. Debts are subject to being stayed, compromised, and discharged, whereas public duties remain enforceable notwithstanding the obligor’s insolvency proceedings. This article elaborates the distinction drawn by the Supreme Court of Canada between debts and public duties by considering who constitutes the public. It offers three answers. The public could include existing members of the human community, future generations of humanity, or non-human environmental entities. The article synthesizes the legal precedents supporting the different conceptions of the public and traces their implications for insolvency practice. Critics charge that the Supreme Court of Canada’s decision in Orphan Well has improperly given environmental obligations a super-priority in insolvency proceedings and that such a reordering of insolvency priorities should have been left to Parliament. Yet careful attention to the ‘public’ character of environmental obligations justifies judicial interventions like the Court’s decision in Orphan Well. As humanity faces the existential threat of climate change, the common law provides scope for reimagining legal concepts to better serve the needs of our communities.

This article examines the use of literary genre in Supreme Court of Canada (SCC) decisions on Indigenous land rights (Aboriginal title) and in Métis playwright Marie Clements’ 2003 play Burning Vision. I argue that legal decisions on Indigenous rights in Canada take on the features of specific literary genres, and that the genre of these decisions changes over time in response to broader sociopolitical shifts. In response to Section 35(1) of the 1982 Constitution Act, Aboriginal title decisions took on the structural features of comedy, a genre in which reconciliation is facilitated by the disclosure of previously hidden family relationships. This can be seen in Delgamuukw v. British Columbia (1997), a decision wherein the SCC reconciles the uneasy coexistence of two legal systems (Indigenous and common law) within the same national space by making these systems members of the same legal family. Clements’ play critiques this form of genealogical reconciliation by demonstrating how Indigenous law is forced to join the “family” of settler-colonial common law, and by exposing the violence that is elided through such processes of genealogical reconciliation. This article contributes to critical conversations about the relationship between law and genre and about the legal recognition of Indigenous rights.

The author discusses and analyzes some recent decisions emanating from the Supreme Court of Canada on the question of judicial and prosecutorial immunities Canada. The analysis is, first, undertaken with particular attention given to pre-existing judicial precedent at common law. Next, public policy reasons for and the need for judicial immunity, and its derivative in the form of prosecutorial immunity, are canvassed. Professor Law then looks to the evolving principle of judicial independence, which itself provides the policy underpinnings for judicial immunities, in order to explain the phenomena of judicial and prosecutorial immunities. Finally, these immunities, as defined by the Supreme Court of Canada, are discussed from a constitutional perspective.

Introduction. In the paper, the author analyzes the principle of good faith in contractual performance under the common law of Canada and carry out a legal analysis of one of the key judicial precedents that is in relation to the designated area and that was adopted by the Supreme Court of Canada in 2014, i.e. Bhasin v. Hrynew case. The study is focused on the principle of good faith contractual performance under the law of the Canadian province of Quebec as well.Materials and methods. The material for the study consists of the judicial precedents of Canadian courts as well as the papers of foreign and Russian researchers in the field of civil law. The methodological basis of research comprises general scientific methods of cognition (analysis, synthesis, analogy) as well as specific ones, i.e. the comparative legal method, the formal logical method, the systematic method, methods of structure and function and the method of interpretation.Results. The author conducts a detailed analysis of Bhasin v. Hrynew case and determines the role of this precedent in the common law of Canada as well as the criteria for identifying the principle and a duty of good faith contractual performance. The author also analyzes the principle of good faith under the law of Quebec, i.e. the relevant jurisprudence and the codification of this principle in the legislation of Quebec.Discussion and conclusion. The distinction of the principle of good faith in the performance of contractual obligations as a freestanding principle of Canada’s common law is justified. The Bhasin v. Hrynew case is a vivid illustration of the growing role of the principle of good faith in the countries of the common law tradition. Furthermore, the convergence of Canada’s common law and the law of the province of Quebec, the only one among ten provinces and three territories of Canada that clearly adheres to civil law tradition, is an impact on this precedent.

In this Article, I argue that the Supreme Court of Canada's location of the principles of fundamental justice among the basic tenets of our legal system-and nowhere else-aligns the Court with particular aspects of the eighteenth century jurist William Blackstone's thoughts. The jurisprudential part of Blackstone's Commentaries on the Laws of England (1765) is premised upon a faith in the existence of fundamental principles that must be assumed to underlie the common law. As reflections of these principles, common law rules deserve deference, even though the principles themselves are not clear. I argue that, whatever else may be said in favour of Blackstone's ideas about the common law, this perspective provides an inappropriate tool for the analysis of the provisions of the Charter in general, and fundamental justice in Section 7 in particular. I argue that Blackstonian analysis is an inductive, conservative technique that is in direct tension with the deductive, potentially progressive version of strong modern human rights theory, which explains the need for constitutionally entrenched bills of rights such as the Charter.

This paper addresses the issue of Aboriginal title to land, and the relationship I see between Indigenous law and the common law in this context. In my understanding, there have been three judicial approaches to Aboriginal title: 1. A purely proprietary approach, based on occupation of land and the effect given to occupation by the common law (common law Aboriginal title). 2. An Indigenous law approach, whereby Aboriginal title arises from and is defined by pre-existing Indigenous law (Indigenous law title). 3. A territorial approach, whereby Aboriginal title is derived from both common law and Indigenous law and has governmental dimensions (territorial Aboriginal title). I am going to describe each of these, and then offer some critical comments on the Supreme Court of Canada’s decision in R. v. Marshall; R. v. Bernard and the British Columbia Court of Appeal’s more recent decision in William v. British Columbia (the Tsilhqot'in Nation case).

This is a review essay on The Limitation of Charter Rights: Critical Essays on R. v. Oakes (Luc Tremblay and Gregoire Webber eds., 2009), a collection celebrating the 20th anniversary of the Supreme Court of Canada's leading judgment on proportionality and limits on rights guaranteed by the Canadian Charter of Rights and Freedoms. The essay reflects on language in Canadian constitutional law, both the importance of the words used in talk about rights and the challenges of bilingualism. Sustaining scholarly reflection and dialogue in English and French, based on the equally authentic English and French versions of constitutional sources, remains difficult. The essay also reflects on the disjuncture between the legislative judgment in Oakes - the Court set out, prospectively, a test of general application for constitutional proportionality analysis - and the traditional conception of the judge's role in the common law tradition. Fidelity to that tradition would have inclined the judges, more modestly, to allow rules to emerge from the resolution of concrete disputes over time. Peculiarly, the question as to how judges, formed in the common law tradition, might interpret and apply a written constitution seems not to figure among the concerns of those who declare themselves the standard bearers of the so-called common law constitution.