An Inevitable “Marriage March”? A Survey of the “Arbiter of Religious Dogma” in Canadian Case Law

2016 ◽  
Vol 45 (2) ◽  
pp. 127-145
Author(s):  
Dia Dabby
Keyword(s):  
Decision Making ◽  
Discourse Analysis ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Religious Doctrine ◽  
Decision Making Capacity ◽  
The Supreme Court ◽  
Canadian Context ◽  
Religious Dogma ◽  
Religion In Canada

“Arbiter of religious dogma,” first expressed by the Supreme Court of Canada in Syndicat Northcrest v. Amselem ([2004] 2 SCR 551), has had a lasting and pervasive effect on the Canadian lawscape. Developed in an effort to remove the State (and therefore Court apparatus) from a decision-making capacity in questions related to religious doctrine, this expression has become an inevitable mantra when discussing issues related to religion in Canada. This article argues, however, that the presence of this expression should not be understood as the end of a conversation, but rather, the beginning of a novel one on the legitimacy of religion in law. Through discourse analysis, this article will endeavor to suggest that this “marriage march” between law and religion is inevitable in the Canadian context.

Adjudication, Policy-Making and the Supreme Court of Canada: Lessons From the Experience of the United States

1989 ◽  
Vol 22 (2) ◽  
pp. 313-336 ◽  
Author(s):  
Christopher P. Manfredi
Keyword(s):  
United States ◽  
Decision Making ◽  
Supreme Court ◽  
Policy Making ◽  
Political Legitimacy ◽  
The United States ◽  
Supreme Court Of Canada ◽  
Decision Making Capacity ◽  
The Supreme Court ◽  
Broad Form

AbstractThis article explores the relevance of studies of judicial policy-making in the United States to the decision-making of the Supreme Court of Canada under the Canadian Charter of Rights and Freedoms. The article suggests that literature concerning the political legitimacy of judicial policy-making is minimally relevant, since a broad form of judicial review appears to be well established in Charter jurisprudence. The literature on institutional decision-making capacity has greater relevance, since the Canadian Court faces the same information-processing constraints as its American counterpart. The article concludes by suggesting that attempts to overcome problems of institutional capacity may produce additional questions of political legitimacy.

The concept of human dignity in the case-law of the Supreme Court of Canada on Charter Equality Rights

2021 ◽  
Vol 30 (5) ◽  
pp. 118-137
Author(s):  
Tatiana Vasilieva ◽  
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Supreme Court ◽  
Human Dignity ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Equality Rights ◽  
The Supreme Court ◽  
Additional Burden ◽  
The Impact

This article explores the evolution of the Supreme Court of Canada’s approach to the application of the concept of human dignity in constitutional equality cases. Traditionally, in human rights cases, this concept serves only to strengthen the argument, to show that the violation affects the person’s intrinsic worth. It is only in Canada and in South Africa that there is experience in applying the concept as a criterion for identifying discrimination. In 1999, in Law v. Canada, the Supreme Court recognized the purpose of Article 15(1) of the Canadian Charter of Rights and Freedoms of 1982 to be the protection of human dignity and stated that discrimination must be established based on assessment of the impact of a program or law on human dignity. However, in 2008, in R. v. Kapp, the Court noted that the application of the concept of human dignity creates difficulties and places an additional burden of prove on the plaintiff. It is no coincidence that victims of discrimination have preferred to seek protection before human rights tribunals and commissions, where the dignity-based test is not used. Subsequently, the Supreme Court of Canada rejected the use of the concept of human dignity as a criterion for identifying discrimination. The unsuccessful experience of applying the concept of human dignity as legal test has demonstrated that not every theoretically correct legal construction is effective in adjudication.

Recent Developments in Canadian Aboriginal Law: Overview of Case Law and of Certain Principles of Aboriginal Law

2008 ◽  
Vol 10 (3) ◽  
pp. 319-350
Author(s):  
Patricia Ochman
Keyword(s):  
Supreme Court ◽  
Indigenous Peoples ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
The Supreme Court ◽  
Key Concepts ◽  
Recent Developments ◽  
Aboriginal Law

AbstractThe author reviews the most recent judgments rendered by the Supreme Court of Canada and certain provincial courts, in order to provide an update in the sphere of Aboriginal law practice in Canada, destined mainly for foreign lawyers and academics. Throughout the review of those recent judgments, the author provides an overview of certain key principles and concepts of Canadian Aboriginal law. Besides providing an overview of recent judgments in the sphere of Aboriginal law, the author seeks to illustrate how meaningful the protection and recognition of Aboriginal rights and treaty rights are in practice, through the overview of key concepts and principles of Canadian Aboriginal law and how they were recently interpreted by Canadian courts. The author briefly addresses Canada's vote against the adoption of the U.N. Declaration on the Rights of Indigenous Peoples.

And Then There Was One: Freedom of Religion in Canada – the Incredible Shrinking Concept

2008 ◽  
Vol 10 (2) ◽  
pp. 197-204 ◽  
Author(s):  
Margaret H Ogilvie
Keyword(s):  
Human Rights ◽  
Legal Protection ◽  
Supreme Court Of Canada ◽  
Freedom Of Conscience ◽  
Human Rights Protection ◽  
Rights Protection ◽  
The Supreme Court ◽  
Human Rights Act ◽  
Religion In Canada ◽  
Constitutional Protections

Defining religion for the purposes of constitutional or human rights protection is a challenge shared by UK and Canadian courts in this era after the enactment of the Human Rights Act 1988 and the Canadian Charter of Rights and Freedoms 1985, respectively: neither defines what is to be protected. Canadian courts have been impressed with this task since 1982 and, unsurprisingly, the Supreme Court of Canada (SCC) has considered the content and scope of section 2(a), the fundamental right to freedom of conscience and religion, on a number of occasions, most recently in Syndicat Northcrest v Amselem. The outcome in Amselem is a salutary reminder that, for post-modern courts, religion can be whatever they want it to be, and, indeed, be nothing in particular, which merits protection or not at the whim of these courts. In Amselem, a 5–4 majority of the SCC reduced religion for Charter purposes to any beliefs which the complainant calls religion and persuades a court to be sincerely held. A court then has the discretion to decide whether to extend legal protection to those beliefs (and their allegedly offensive practice) without giving credible reasons beyond the complainant's sincere belief in them. Amselem may, therefore, be of considerable interest to British lawyers regarding the potential lurking within ostensibly generous constitutional protections for religion ultimately to reduce religion to nonsense undeserving of legal protection.

scholarly journals Undisclosed probing into decision-making capacity: a dilemma in secondary care

2021 ◽  
Vol 22 (1) ◽  
Author(s):  
Sandip Talukdar
Keyword(s):  
Decision Making ◽  
Ethical Dilemma ◽  
Secondary Care ◽  
Case Law ◽  
Healthcare Systems ◽  
Shared Decision ◽  
Main Text ◽  
Psychiatric Examination ◽  
Therapeutic Engagement ◽  
Decision Making Capacity

Abstract Background The assessment of patients’ decision-making capacity is ubiquitous in contemporary healthcare. This paper examines the ethics of undisclosed probing of capacity by psychiatrists. The discussion will refer to the law in England and Wales, though the highlighted issues are likely to be relevant in similar jurisdictions. Main text Decision-making capacity is a private attribute, and patients may not necessarily be aware that one of their personal abilities is being explored. Routine exploration of capacity has not historically been a part of psychiatric examination, but it is now difficult to avoid during psychiatric interview.Ethical practice and shared decision-making require patients to be aware that their decision-making may be evaluated by the doctor at some point, and the potential implications of an objective professional conclusion of incapacity. Case law directs that patients should be informed about any assessment of their decision-making ability, though the extent to which this has translated into practice is unclear. However, explanation about the assessment may cause a patient to react negatively, which may impede therapeutic engagement and constitute an ethical dilemma. It is argued that in the absence of systemic measures, professionals should retain the discretion to decide whether a particular patient should be informed about the impending probe into their decision-making ability, or not. In the latter instance, concealment of information about the assessment or its purpose should be subject to the caveats and safeguards associated with any recourse to therapeutic exception. Conclusion The necessity to mandatorily inform patients about assessment of their capacity introduces a novel ethical dilemma for psychiatrists. The negotiation of this dilemma should not be the prerogative of the clinician, and requires systemic initiatives to ensure universal awareness of patients about the possibility of their capacity being assessed during their journeys through healthcare systems.

scholarly journals The Supreme Court of Canada, the House of Lords, the Judicial Committee of the Privy Council, and Administrative Law

1969 ◽  
pp. 5
Author(s):  
D. H. Clark
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Administrative Law ◽  
Supreme Court Of Canada ◽  
Privy Council ◽  
House Of Lords ◽  
Mumbo Jumbo ◽  
The Supreme Court ◽  
The Law ◽  
The Individual

The Supreme Court of Canada's contribution to the jurisprudence of administra tive law has been weak and fitful, erratic and lacking in attention to the principles of its own previous decisions. Failure to articulate points of distinction between its decisions has led to uncertainty in the law. The speaker suggested that the insufficiency of the Court's reasoning and the inadequacy of its citation might be reduced if judgments were more often delivered by more members of the Court thus increasing the individual research and writing of the Court so that its earlier fcmons would be kept in view and the case law developed more coherently. Furthermore, the Court should foUow the House of Lords in not considering itself bound by ds own decisions. The speaker regretted the Court's tendency to take mechanically conceptualise approach to substantive administrative law issues- if Canadian courts are to keep pace with those of other jurisdictions, the Supreme Court of Canada cannot continue to use outworn mumbo-jumbo as substitute for identifyltZtJ «»*"*»* societal interests that are the stuff of /hefPe?kfr aho discussed and compared the contributions of the House of Lords and of the Judicial Committee of the Privy Council. Although it has fewer members the House of Lords has more dissenters in administrative law decisions than the Supreme Court of Canada, (whereas the Privy Council until 1966 could not have dissent). While the S.C.C. has been inconsistent and weak, the Privy Council has been consistent and weak. Although there have been occasional achievements, between 1951 and 1971 the Privy Council rendered series of regressive decisions that impaired coherent development of the administrative law in England and in the Commonwealth. ReidZhh^ i*' f" H0USe °f Lof* under the influenc* of the late Lord h^'^nuJf has enjoyed as most creative °n TegreSSiVe period inPrivy relation Council to public decisions> law si™ However *• earlyhaknZd 1960's mnnt rxiicc ft ££Icrt has*eenperfo

scholarly journals The role of case law in judicial decision-making: A sociological perspective

Sociologija ◽  
2015 ◽  
Vol 57 (4) ◽  
pp. 593-619
Author(s):  
Tilen Stajnpihler
Keyword(s):  
Decision Making ◽  
Legal Status ◽  
Case Law ◽  
The Body ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
The Supreme Court ◽  
Citation Practices ◽  
The Republic

The article attempts to verify a common conception that has by now become an integral part of legal culture in civil law jurisdictions, namely, the conception that despite its unresolved legal status, case law (i.e. the body of past judicial decisions) is widely used by the courts when they are justifying their interpretative choices. For this purpose, an exploratory empirical study of court citation practices was conducted. The study focused on a sample of the officially reported decisions of the Supreme Court of the Republic of Slovenia and the appellate (Higher) courts on civil matters in 2011 that were publicly accessible on the official internet database of the Slovene courts. The aim of the study, which provides the first systematic outline of the use of case law in the judicial decision making process within the Slovene legal system, was to verify whether case law in fact constitutes an important factor in judicial decision-making. It did so by focusing on the extent and the manner in which Slovene courts refer to case law, as these may be inferred from the reasoning of their decisions.

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