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Can fifty percent plus one break up a country?

This episode tackles the most existential question in Canadian law as Albertans vote on whether to begin the legal process toward a binding referendum on separation.

Hosts Gavin Tighe and Stephen Thiele examine the Supreme Court of Canada's landmark 1998 Reference re Secession of Quebec, the clarity requirement, and the duty to negotiate that would follow a clear vote.

They challenge whether a simple majority should be enough to dissolve a federation, explore how Alberta's immigration questions engage Charter of Rights and Freedoms mobility rights, and consider the constitutional weight of Indigenous treaty relationships in any secession.

Listeners will come away with a sharper understanding of constitutional law in Canada, the tensions of Canadian federalism, and why Western alienation deserves serious attention.
Listen For:

13:15 What framework did the Supreme Court set in the Secession Reference?
14:57 Should fifty percent plus one be enough to break up Canada?
17:09 How does voter turnout affect whether a secession vote is clear?
22:58 Do Alberta's "Albertans first" questions engage Charter mobility rights?
24:23 How would Indigenous treaty rights complicate a province's secession from Canada?

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Gardiner Roberts website | Gavin email | Stephen email

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Is there a constitutional right to a bike lane, and who gets to decide?

Gavin Tighe and Stephen Thiele analyze Cycle Toronto v. Ontario, the landmark Ontario Court of Appeal decision that overturned a lower court ruling blocking the removal of Toronto's Bloor, Yonge, and University bike lanes.

Writing for a unanimous panel, Justice Grant Huscroft held that section 7 of the Charter of Rights and Freedoms imposes no positive duty on government to fund safety measures, and that withdrawing a state benefit is not a constitutional deprivation.

The hosts examine its sharp rebuke of judicial policymaking, its rejection of the arbitrariness and gross disproportionality findings, and the reliance on advocacy-driven expert evidence.

Listeners will understand the line between constitutionality and wisdom in Canadian law, and why this precedent may be headed to the Supreme Court of Canada.

Listen For:

4:31 Why did the Court of Appeal say something has gone wrong?

7:22 Is removing a government benefit a deprivation under section 7?

14:25 How did advocacy-driven expert evidence undermine the application judge's ruling?

18:20 Why did the Court reject arbitrariness and gross disproportionality findings?

20:58 Could judicial policymaking fuel greater use of the notwithstanding clause?

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Gardiner Roberts website | Gavin email | Stephen email

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What happens when a jury is offered only two verdicts and neither one fits?

Gavin Tighe and Stephen Thiele step outside their usual lane to examine the hung jury that ended the murder trial of Lindsay Clancy, the Massachusetts mother charged with killing her three young children.

After five weeks of evidence and seven days of deliberation in Plymouth County Superior Court, eleven jurors favoured acquittal while one held out, forcing a mistrial.

Gavin and Stephen unpack why a hung jury is not an acquittal, whether a fair retrial is possible after saturation media coverage, and why Massachusetts requires prosecutors to prove sanity.

They then contrast the American all-or-nothing framework with the Canadian legal system's infanticide offence under section 233 of the Criminal Code, a graduated option that may have broken the deadlock.

It is comparative legal commentary Canada rarely hears.

Listen For:

8:06 Is a hung jury an acquittal, and can Clancy be retried?

9:33 Can Lindsay Clancy receive a fair retrial after pervasive publicity?

11:15 Why must Massachusetts prosecutors prove sanity beyond a reasonable doubt?

14:55 How has all-or-nothing charging shaped past US maternal filicide cases?

18:48 How would Canada's section 233 infanticide offence have changed the verdict?

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Gardiner Roberts website | Gavin email | Stephen email