scholarly journals Was the Supreme Court right to change the law on the right to a speedy trial?

2017 ◽  
Vol 26 (3) ◽  
pp. 1
Author(s):  
Leonid Sirota
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Reasonable Time ◽  
Canadian Charter ◽  
The Supreme Court ◽  
The Law ◽  
The Right ◽  
Speedy Trial

In R v Jordan, the Supreme Court of Canada held, by a 5-4 majority and over the vigorous disagreement of the concurrence, that criminal prosecutions in which a trial does not conclude by a set deadline will be presumed to breach the right to be tried within a reasonable time, protected by section 11(b) of the Canadian Charter of Rights and Freedoms. The acceptable length of proceedings set out in the decision is of 18 months from the day charges are laid for cases that proceed without a preliminary inquiry, and 30 months otherwise. The Crown can still show that exceptional circumstances outside of its control have arisen and can explain — and excuse — a case taking longer than that, but unless it does so, a stay of proceedings will be the automatic consequence of such delay. Meanwhile, an accused will be able to show that delay below these ceilings is unconstitutionally unreasonable, but only by demonstrating not only that the delay is “markedly” greater than reasonable, but also that he or she diligently sought to have the case heard sooner.

scholarly journals Feu la D.C.D. L'arrêt Miller et la peine de mort

2005 ◽  
Vol 18 (2-3) ◽  
pp. 567-576
Author(s):  
Henri Brun
Keyword(s):  
Supreme Court ◽  
Death Penalty ◽  
Supreme Court Of Canada ◽  
Bill Of Rights ◽  
Right To Life ◽  
The Supreme Court ◽  
The Subject ◽  
The Law ◽  
The Right ◽  
First Time

The Miller case, decided by the Supreme Court of Canada on October 5, 1976, puts the death penalty under the light of the Canadian Bill of Rights which formulates the right to life and the right to protection against cruel and unusual treatment or punishment. The following comment on the case relates to the interpretation given specific clauses of the Bill of Rights by the Court on that occasion. But it stresses especially the law that flows from the case about the compelling weight of the Bill of Rights over acts of Parliament enacted after the Bill came into force. In Miller, the Supreme Court expressed itself on the subject for the first time.

The Compensation of Wrongful Pregnancy in Québec Civil Law

1999 ◽  
Vol 14 (01) ◽  
pp. 61-82
Author(s):  
Louise Langevin
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
Analytical Framework ◽  
Child Rearing ◽  
Supreme Court Of Canada ◽  
Reproductive Autonomy ◽  
Canadian Charter ◽  
The Supreme Court ◽  
The Right ◽  
The Cost

AbstractThe Supreme Court of Canada has recognized the right to reproductive autonomy for women based on the right to liberty protected by section 7 of the Canadian Charter of Rights and Freedoms. Thus, it is a woman's choice whether to have children. It follows, therefore, that in the case of a violation of her reproductive autonomy, a woman has a right to compensation. It is in light of these principles that I analyze the wrongful pregnancy cases in Québec civil law. From a feminist analytical framework, I posit that Québec courts have effectively denied women the right to reproductive autonomy by awarding compensation for the cost of child-rearing only in cases where a difficult economic situation is evidenced by the parents. In so doing, the courts have not only refused to fully compensate women for the injuries caused to them, but they continue to reproduce the dominant pronatalist ideology in reproductive matters. This judicial reaction to cases of wrongful pregnancy is another example of the gendered dimension of law.

scholarly journals Interpretation of Equality of Rights in the Canadian Charter of Rights and Freedoms and the Practice of the Canadian Supreme Court

2020 ◽  
Vol 11 ◽  
pp. 67-72
Author(s):  
Tatyana A. Vasilyeva ◽  
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Decisive Role ◽  
Supreme Court Of Canada ◽  
Constitutional Review ◽  
Canadian Charter ◽  
Human Rights Protection ◽  
Equality Rights ◽  
The Supreme Court ◽  
The Right

The Canadian system of human rights protection is an original one. The Supreme Court of Canada is one of the most influential constitutional review bodies in the field of human rights. At the time of its adoption, the Canadian Charter of rights and freedoms had the broadest catalog of equality rights in Western countries, formed on the basis of the Bill of rights and provincial human rights codes case-law, as well as the activities of political movements and groups of equality advocates who played a decisive role in its drafting. In Canada, a distinction is made between the enumerated in Charter and analogous grounds of discrimination established by court. The plaintiffs may claim differences on the basis of the enumerated or analogous grounds, or indicate the necessity to establish new analogous grounds. Article 15 (the right to equality) is recognized as one of the most conceptually complex provisions of the Charter. It is aimed at ensuring equality in the process of law drafting and implementation, as well as protecting human dignity. The Supreme Court of Canada is considering the provisions of the first part 1 of article 15, which enshrines the right to equality, and part 2 of this article, which provides for affirmative actions to assist disadvantaged groups as interrelated, reflecting the understanding of equality according to which affirmative actions are considered not as an exception, but as one of its best manifestations.

scholarly journals The Labour Relations and the Canadian Charter; the aftermath of the first decisions

2019 ◽  
Vol 19 (4) ◽  
pp. 895-907
Author(s):  
J. Maurice Cantin
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Labour Law ◽  
Canadian Charter ◽  
Labour Relations ◽  
The Supreme Court ◽  
The Right ◽  
The Impact

The Charter was introduced at a time when there was no real demand for its existence. In this article, the author reviews the origin of the Charter and examines the impact on labour law of the initial decisions rendered by our Courts. He examines more particularly some of the first Charter decisions emanating from the Supreme Court of Canada. He writes that the Charter may have a damaging effect on labour law especially in relation to the right to strike and to picket. He concludes that the Charter is ill-suited for use in the labour relations domain.

scholarly journals THE CHARTER REVOLUTION: IS IT UNDEMOCRATIC?

2011 ◽  
Vol 12 (1, 2 & 3) ◽  
pp. 2001 ◽  
Author(s):  
Peter W. Hogg
Keyword(s):  
Interest Groups ◽  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
University Of Calgary ◽  
The Supreme Court ◽  
Democratic Dialogue ◽  
The Law ◽  
The University ◽  
Law Making

A new book on the Canadian Charter of Rights and Freedoms by two professors from the University of Calgary, F.L. Morton and Rainer Knopff, is entitled The Charter Revolution and the Court Party.1 By the “Charter revolution” the authors refer to the active law- making role assumed by the Supreme Court of Canada since the adoption of the Charter of Rights in 1982.2 By the “Court Party” they refer to a cluster of interest groups promoting Charter rights through litigation.3 The thesis of the book is that these groups have been successful in obtaining changes in the law from the Supreme Court of Canada that could not have been achieved in the representative legislative assemblies. That, they argue, is wrong because it is “undemocratic.”4 I agree that there has been a Charter revolution. I also agree that there is a Court Party, but I will argue that the cluster of interest groups using litigation as their strategy is much broader than the authors acknowledge. I also agree that the effects of these two phenomena have not been wholly beneficial, but I argue that, on the whole, the result is one that enhances rather than usurps a democratic dialogue.

scholarly journals A Choice among Values: Theoretical and Historical Perspectives on the Defence of Necessity

1969 ◽  
pp. 848 ◽  
Author(s):  
Benjamin L. Berger
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Historical Perspectives ◽  
Theoretical Approaches ◽  
A Value ◽  
Canadian Law ◽  
The Supreme Court ◽  
History Of ◽  
The Law ◽  
The Way

The author explores various theoretical approaches to the defence of necessity, rejecting both excusatory conceptions of the defence and those based on the notion of moral involuntariness. Rather, the author argues that necessity is properly understood as a justificatory defence based on a lack of moral blameworthiness. After extensively surveying the history of the defence in Canadian law, the author critiques the way in which the Supreme Court of Canada has restricted the defence. He contrasts the current Canadian approach with the treatment of the defence in other jurisdictions and concludes that Canadian law would be served best by a robust defence of necessity, which would acknowledge that, in some circumstances, pursuit of a value of greater worth than the value of adherence to the law can be justified.

The Right to Assisted Dying: Constitutional Jurisprudence and Its Impact in Canada, Germany and Austria

ICL Journal ◽  
2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Kerstin Braun
Keyword(s):  
Supreme Court ◽  
Supreme Court Decision ◽  
Constitutional Court ◽  
Supreme Court Of Canada ◽  
Assisted Dying ◽  
Constitutional Courts ◽  
The Supreme Court ◽  
Federal Constitutional ◽  
The Right ◽  
Constitutional Jurisprudence

Abstract Many states are grappling with the regulation of assistance in suicide and ending the life of another upon their request. Initially punishable in most countries, a growing number of jurisdictions have now introduced permissive frameworks decriminalising, to varying degrees, rendering assistance in dying. Other countries, however, have proceeded with the criminal prohibition and several courts have upheld the lawfulness of the respective criminal laws during human rights and constitutional challenges. Yet, the Supreme Court of Canada in 2015, the German Federal Constitutional Court in February 2020 and the Austrian Constitutional Court in December 2020 have respectively declared unconstitutional and void national criminal laws prohibiting rendering assistance in dying. This article first outlines the criminal law framework relating to assisted dying in Canada, Germany and Austria. It subsequently analyses the judgments before pondering their impact on the legal landscape in the three countries. The article concludes that while the Canadian Supreme Court decision appears to have had a significant impact on the introduction of subsequent legislation in Canada, the effects of the Constitutional Courts’ judgments seem much more subdued in Germany and are yet to unfold in Austria.

scholarly journals Private Prosecutions in Mauritius: Clarifying Locus Standi and Making the Director of Public Prosecutions more Accountable

2017 ◽  
Vol 10 (1) ◽  
pp. 1-34
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
African Countries ◽  
Locus Standi ◽  
Statutory Requirement ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Law ◽  
The Right

Case law shows that private prosecutions have been part of Mauritian law at least since 1873. In Mauritius there are two types of private prosecutions: private prosecutions by individuals; and private prosecutions by statutory bodies. Neither the Mauritian constitution nor legislation provides for the right to institute a private prosecution. Because of the fact that Mauritian legislation is not detailed on the issue of locus standi to institute private prosecutions and does not address the issue of whether or not the Director of Public Prosecutions has to give reasons when he takes over and discontinues a private prosecution, the Supreme Court has had to address these issues. The Mauritian Supreme Court has held, inter alia, that a private prosecution may only be instituted by an aggrieved party (even in lower courts where this is not a statutory requirement) and that the Director of Public Prosecutions may take over and discontinue a private prosecution without giving reasons for his decision. However, the Supreme Court does not define “an aggrieved party.” In this article the author takes issue with the Court’s findings in these cases and, relying on legislation from other African countries, recommends how the law could be amended to strengthen the private prosecutor’s position.

Party Capability Theory and Appellate Success in the Supreme Court of Canada, 1949–1992

1993 ◽  
Vol 26 (3) ◽  
pp. 523-540 ◽  
Author(s):  
Peter McCormick
Keyword(s):  
United States ◽  
Supreme Court ◽  
Data Base ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
The Supreme Court ◽  
Different Types ◽  
Party Capability ◽  
Appeal Courts ◽  
Different Levels

AbstractNow that the advent of the Canadian Charter of Rights and Freedoms has made the fact of judicial power so obvious, it is important to develop the conceptual vocabulary for describing and assessing this power. One such concept that has been applied to the study of United States and British appeal courts is the notion of “party capability theory,” which suggests that different types of litigant will enjoy different levels of success, as both appellant and respondent. Using a data base derived from all reported decisions of the Supreme Court of Canada between 1949 and 1992, this article applies party capability theory to the performance of Canada's highest court, and compares the findings with similar studies of American and British courts.

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