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The actio libera in causa doctrine, as originally formulated by various Enlightenment philosophers, concerns the imputation of responsibility to actors for actions unfree in themselves, but free in their causes. Like our Enlightenment counterparts, contemporary philosophers of criminal law, as well as most Western legal systems (both common law and civil), allow that persons can be responsible for acts that are not free when performed, provided they were free in their causes. The actio libera doctrine allows us to impute unfree actions to persons, provided they were responsible for causing the conditions of unfreedom that characterizes those actions when performed. This doctrine seems to be instantiated in a great many actual legal practices. But I argue that we must distinguish between two importantly different understandings of the doctrine itself and its application in law. On the one hand, the actio libera doctrine allows us to waive the voluntariness requirement that is generally needed for criminal liability. On the other hand, it disallows defendants to appeal to defences they would otherwise be entitled to use to block liability, if they culpably created the conditions of their own defence. The first case involves rules of imputation, while the second concerns culpability, and justifying the actio libera doctrine therefore faces different challenges in the two cases.

On June 8, 2020 the Ontario Attorney General Doug Downey said that the Crown would be seeking leave to appeal Sullivan & Chan to the Supreme Court of Canada. 12 This is a time of opportunity in the intoxication/NMDA sphere. The Supreme Court will (likely) have an opportunity to define this defence and requisite elements, and/or Parliament will have an opportunity to redraft s. 33.1 to bring much needed clarity. This comment will give some thoughts on the appeal of Sullivan & Chan, and the state of intoxication and automatism going forward examining both the voluntariness and the mens rea required.

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Larticle 52 de la Loi constitutionnelle de 1982 «rend inoperantes les dispositions incompatibles de toute autre regle de droit». Deux visions diamétralement opposees concernant les effets juridiques des declarations dinvalidite prononcees en vertu de cette disposition se sont recemment affrontees. Selon la premiere approche, les declarations dinvalidite constituent des jugements in rem. Sous reserve dun appel, la declaration simpose au corpus legislatif, efface de fait la disposition en question et est opposable a tous. Selon la seconde approche, les effets dune declaration dinvalidite est regie par la regle habituelle de la stare decisis. Si lon ne doit pas prendre les decisions du meme ordre de juridiction a la legere, celles-ci nen sont pas pour autant formellement contraignantes. Dans cet article, ¡'auteur fait valoir que la theorie de la non-conformite soustendant le controle judiciaire des lois constitue un fondement permettant de conclure que les declarations d'invalidite sont similaires a d'autres decisions portant sur une loi. En vertu de cette theorie, le controle judiciaire d'une loi constitue une tache habituelle des tribunaux qui consiste a resoudre une incoherence entre des textes legislatifs. La Cour supreme a laisse entendre que sa doctrine portant sur les declarations formelles d'invalidite etait porteuse de consequences radicales. Il est difficile de concilier ces consequences avec Revolution historique du controle judiciaire au Canada ou le texte et la structure de la Constitution. La theorie de la non-conformite propose que les regles applicables aux effets juridiques des decisions portant sur les questions de droit devraient s'appliquer aux decisions portant sur un controle judiciaire : la regle habituelle de la stare decisis s'applique. Section 52 of the Constitution Act, 1982 provides that any law inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. Two opposing views on the legal effects of declarations of invalidity made under this provision have recently come into conflict. On the first view, declarations of invalidity are judgments in rem. Subject to an appeal a declaration binds the statute book, effectively erases the offending provision and is opposable to all. On the second view, the effects of a declaration of invalidity is governed by the ordinary rules of stare decisis. Coordinate decisions are not to be departed from lightly, but are not strictly binding. This article argues that the repugnancy theory of judicial review of legislation supports the conclusion that declarations of invalidity are similar to other determinations of law. Under this theory, the judicial review of legislation is an ordinary judicial task consisting in the resolution of a conflict between legal authorities. The Supreme Court has suggested radical consequences under its doctrine of formal declarations of invalidity. Those consequences are difficult to reconcile with the history of judicial review in Canada or the text and structure of the Constitution. The repugnancy theory suggests that the rules governing the legal effects of determinations of questions of law should govern determinations on judicial review: the ordinary rules of stare decisis govern.

"Scholars have addressed at length the 'what' of judicial review under a bill of rights - scrutinizing legislation and striking it down - but neglected the 'how'. Adopting an internal legal perspective, Robert Leckey addresses that gap by reporting on the processes and activities of judges of the highest courts of Canada, South Africa and the United Kingdom as they apply their relatively new bills of rights. Rejecting the tendency to view rights adjudication as novel and unique, he connects it to the tradition of judging and judicial review in the Commonwealth and identifies respects in which judges' activities in rights cases genuinely are novel - and problematic. Highlighting inventiveness in rights adjudication, including creative remedies and guidance to legislative drafters, he challenges classifications of review as strong or weak. Disputing claims that it is modest and dialogic, he also argues that remedial discretion denies justice to individuals and undermines constitutional supremacy"-- Provided by publisher.

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This article proposes a new interpretation of section 52 of the Constitution Act, 1982. It argues that the legal effect of this provision depends on the type of unconstitutionality at issue. On the one hand, subsection 52(1) governs substantive conflicts between constitutional and legislative norms by rendering inoperative legislation that is incompatible with the supreme law. On the other hand, subsection 52(3) requires the observance of the procedural rules prescribed by the Constitution. Legislative measures that contravene this procedural criterion are ultra vires and, as a result, invalid. This article further attempts to clarify the effects of declarations of unconstitutionality on third parties as well as their temporal operation. It contends that declaratory judgments of unconstitutionality are in rem in nature. Such declarations bind parties to the litigation and third parties alike by virtue of the principle of res judicata, subject to rare exceptions. The general scope of declarations of unconstitutionality allows courts to adjust the temporal operation of the law deemed unconstitutional, notably to maintain the security and stability of legal relationships.

"The Law of Judicial Precedent is the first hornbook-style treatise on the doctrine of precedent in more than a century. It is the product of 13 distinguished coauthors, 12 of whom are appellate judges whose professional work requires them to deal with precedents daily. Together with their editor and coauthor, Bryan A. Garner, the judges have thoroughly researched and explored the many intricacies of the doctrine as it guides the work of American lawyers and judges. The treatise is organized into nine major topics, comprising 93 blackletter sections that elucidate all the major doctrines relating to how past decisions guide future ones in our common-law system. The authors' goal was to make the book theoretically sound, historically illuminating, and relentlessly practical. The breadth and depth of research involved in producing the book will be immediately apparent to anyone who browses its pages and glances over the footnotes: it would have been all but impossible for any single author to canvass the literature so comprehensively and then distill the concepts so cohesively into a single authoritative volume. More than 2,500 illustrative cases discussed or cited in the text illuminate the points covered in each section and demonstrate the law's development over several centuries. The cases are explained in a clear, commonsense way, making the book accessible to anyone seeking to understand the role of precedents in American law. Never before have so many eminent coauthors produced a single lawbook without signed sections, but instead writing with a single voice. Whether you are a judge, a lawyer, a law student, or even a nonlawyer curious about how our legal system works, you're sure to find enlightening, helpful, and sometimes surprising insights into our system of justice." --publisher's description.