scholarly journals A Triumph of Liberalism: The Supreme Court of Canada and the Exclusion of Evidence

1969 ◽  
pp. 299 ◽  
Author(s):  
Julianne Parfett
Keyword(s):  
Criminal Justice ◽  
Supreme Court ◽  
Legal System ◽  
Justice System ◽  
Common Law ◽  
Supreme Court Of Canada ◽  
Causal Connection ◽  
The Supreme Court ◽  
The Common ◽  
The Cost

The common law has historically defined self- incrimination narrowly. Using Packer's models of the criminal justice system as a framework, the article examines the Supreme Court of Canada's interpretations of s. 24(2) of the Charter. The Court has expanded the definitions of both self incrimination and remoteness. The author argues that s. 24(2) has ceased to be a remedy requiring the balancing of interests and has become a quasi- automatic rule of exclusion, which promotes individual rights at the cost of victim's rights. Further, in the Court's zeal to protect the integrity of the system, there is no allowance made for the seriousness of the breach, the consequences of the exclusion, or the causal connection between the breach and any evidence obtained. The author argues that this has resulted in a justice system more concerned with police behaviour than with the pursuit of truth. Instead, either the exclusionary rule must be used to foster a balance of individual and communitarian rights, or other more imaginative remedies should be crafted from s. 24(2) to protect the integrity of the legal system.

Revisiting pure economic loss: lessons to be learnt from the Supreme Court of Canada?

Legal Studies ◽  
2005 ◽  
Vol 25 (1) ◽  
pp. 49-71 ◽  
Author(s):  
Paula Giliker
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Economic Loss ◽  
Supreme Court Of Canada ◽  
Two Stage ◽  
Pure Economic Loss ◽  
The Supreme Court ◽  
Recent Developments ◽  
The Common ◽  
Difficult Area

This article examines the treatment of pure economic loss claims in England and Canada. The two jurisdictions have much in common. Starting from the same case sources, the common law of each system has struggled to deal with claims for negligently-incurred pure economic loss. Yet, the systems diverged in the 1990s when the Canadian Supreme Court refused to follow the lead of Murphy v Brentwood DC and reiterated its adherence to the Anns two-stage test. It is submitted that, in view of recent developments which suggest the gradual convergence of the two systems, English law should carefully examine the categorisation approach adopted by the Canadian courts. The current English position is far from clear, and the Canadian model is capable of bringing transparency and greater clarity to this difficult area of law.

scholarly journals The Principle of Good Faith in Contractual Performance: A Scottish-Canadian Comparison

2019 ◽  
Vol 23 (3) ◽  
pp. 301-331
Author(s):  
Hector MacQueen ◽  
Shannon O'Byrne
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Good Faith ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
The Subject ◽  
The Common

In 2014 the Supreme Court of Canada in Bhasin v Hrynew formally but cautiously acknowledged good faith as a general organising principle of contractual performance at common law and that the principle largely manifests by way of implied terms and through the new duty of honesty. Rejecting English recalcitrance on the subject, the SCC concluded that recognising a good faith principle makes the common law less unsettled and piecemeal, more coherent and just. The article suggests that the limitations placed on the good faith principle by the SCC make its potential adoption in Scotland offer more opportunity than risk, especially in relation to the exercise of contractual discretions and contractual remedies.

scholarly journals Equitable Compensation for Breach by Fact-Based Fiduciaries: Tentative Thoughts on Clarifying Remedial Goals

1969 ◽  
Vol 37 (1) ◽  
pp. 95
Author(s):  
Jeff Berryman
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Punitive Damages ◽  
Supreme Court Of Canada ◽  
Breach Of Contract ◽  
Distinctive Features ◽  
The Supreme Court ◽  
The Common

The Supreme Court of Canada has purported to distinguish the approach to quantifying equitable compensation from that applied to the quantification of damages in common law for breach of contract or tort. In particular, the rules associated with causation and remoteness and the application of evidential presumptions has dominated this discourse. In this comment the author suggests that these distinctions are adding to conceptual muddling of the fiduciary relationship and that it would be better for the court to embrace totally the sophisticated analytical rules of the common law rather than recreate new rules in equity. Further, he argues that the distinctive features of the fiduciary relationship would be better recognized through the application of punitive damages rather than the distortion of compensation principles.

Horizontal Effect and Caboose Constitutionalism

2018 ◽  
Author(s):  
Jud Mathews
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Protective Action ◽  
Private Law ◽  
Supreme Court Of Canada ◽  
Private Party ◽  
The Supreme Court ◽  
The Common

This chapter picks up the story where the previous chapter left off, showing how the Supreme Court of Canada initially made a show of rejecting the application of the Charter of Rights and Freedoms to private law relationships in Dolphin Delivery. But at the same time, the Court left itself room to interpret the common law to comport with Charter values. In the years since, litigants have pressed the Court to use this power to meet their normative demands, and the Court has done so on many occasions. At the same time, the Court has showed solicitude for legislative initiatives, often using the Charter to shape private-party obligations to one other only after the legislature has taken some rights-protective action in that area, in a strategy that might be called caboose constitutionalism.

scholarly journals Directing Traffic at the Crossroads of Criminal Justice and Mental Health: Conditional Sentencing after the Judgment in Knoblauch

1969 ◽  
pp. 788
Author(s):  
Julian V. Roberts ◽  
Simon Verdun-Jones
Keyword(s):  
Mental Health ◽  
Criminal Justice ◽  
Mental Disorders ◽  
Supreme Court ◽  
Criminal Justice System ◽  
Justice System ◽  
Supreme Court Of Canada ◽  
Mentally Disordered Offenders ◽  
Mentally Disordered ◽  
The Supreme Court

The issue of conditional sentencing in relation to mentally disordered offenders was recently addressed by the Supreme Court of Canada in R. v. Knoblauch. This article examines the context in which the Knoblauch decision was made by reviewing the incidence of mental disorders in correctional populations and the criminal justice system s response. The authors explore Knoblauch's implications on the conditional sentencing regime as a whole and its use as a sentencing tool for dealing with mentally disordered offenders.

scholarly journals Self-Defence and Consent: The Use of Common Law Developments in Canadian Criminal Code Analysis

1994 ◽  
Vol 32 ◽  
pp. 484
Author(s):  
M. Anne Stalker
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Criminal Code ◽  
Supreme Court Of Canada ◽  
Code Analysis ◽  
The Supreme Court ◽  
Canadian Criminal Code ◽  
The Common ◽  
Court Of Appeal ◽  
Self Defence

The author examines the interaction between the Criminal Code and the common law in relation to two areas of law recently handled by both the Alberta Court of Appeal and the Supreme Court of Canada

Inside the Judicial Mind: Exploring Judicial Methodology in the Mixed Legal System of Quebec

2013 ◽  
pp. 1-20 ◽  
Author(s):  
Rosalie Jukier
Keyword(s):  
Supreme Court ◽  
Legal System ◽  
Justice System ◽  
Influential Factors ◽  
Institutional Setting ◽  
Supreme Court Of Canada ◽  
Civil Justice ◽  
Procedural Law ◽  
The Supreme Court ◽  
Civil Justice System

This article explores judicial methodology in the mixed legal system of Quebec and examines, in particular, how the nature of its legal system as a mixed legal system influences the judicial methodology of its judges, especially with respect to the de facto use of precedent. Features of the mixity, including the institutional setting of Quebec courts as courts of inherent jurisdiction, the nature of Quebec’s civil justice system and procedural law, as well as the judicial role and the effect of a supreme precedential authority (in the Supreme Court of Canada) are examined in turn as influential factors.

scholarly journals Invalidity and Retrospectivity under the Irish and Canadian Constitutions

2011 ◽  
Vol 15 (1, 2 & 3) ◽  
pp. 2006
Author(s):  
Ailbhe O'Neill
Keyword(s):  
Supreme Court ◽  
Legal System ◽  
Early Stage ◽  
Common Law ◽  
Supreme Court Of Canada ◽  
Constitutional Interpretation ◽  
Temporal Effect ◽  
The Supreme Court

The question of the temporal effect of a finding that a statute is unconstitutional has arisen in a number of common law jurisdictions. In any legal system that allows its superior courts to strike down legislation, certain practical problems will inevitably emerge. This article explains this aspect of Irish constitutional interpretation and compares the manner in which these difficulties have been addressed under the Canadian and Irish constitutions. It notes that the Supreme Court of Canada was required to address these practical problems directly at an early stage and thus developed a more doctrinally coherent approach to findings of constitutional invalidity than the Irish Supreme Court. The article goes on to analyze a recent decision of the Irish Supreme Court that has highlighted the difficulties with the approach adopted in that legal system and concludes with some reflections on the relative merits of the Canadian approach to findings of invalidity.

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