Colonization through Disclosure: Confidential Records, Sexual Assault Complainants and Canadian Law

2001 ◽  
Vol 10 (3) ◽  
pp. 315-346 ◽  
Author(s):  
Lise Gotell
Keyword(s):  
Sexual Assault ◽  
Supreme Court ◽  
Legislative Reform ◽  
Canadian Experience ◽  
Sexual Violation ◽  
Canadian Law ◽  
The Supreme Court ◽  
Relative Status

This article explores the Canadian experience of widened access to sexual assault complainants' private records. It dissects legal developments from the mid-1990s, when the Canadian Supreme Court established a liberalized disclosure regime in the landmark O'Connor decision. A legislative reform passed in 1997 that sought to establish a stricter regime was recently upheld and at the same time weakened by the Supreme Court in Mills. The article contends that access to complainants' records stands as a critical example of how a liberal legalistic discourse of sexual assault is extending its hegemony by colonizing and silencing, in particular, feminist and therapeutic discourses. At issue is the relative status of legal 'Truth' and dissonant and emergent feminist narratives, as well as our ability to understand and speak about sexual violation outside of the narrow confines of law.

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.

Appointments to the Supreme Court of Canada

2018 ◽  
pp. 231-241
Author(s):  
Peter McCormick
Keyword(s):  
Supreme Court ◽  
Prime Minister ◽  
Law School ◽  
Supreme Court Of Canada ◽  
Judicial Appointments ◽  
Canadian Experience ◽  
The Supreme Court

This essay traces the genesis of the Supreme Court of Canada under the Supreme Court Act of 1875, and the appointment procedure as described in it. The essay argues that the widening of the pool, where consultation for judicial appointments is made, has resulted in the appointment of persons with diverse credentials. The author describes how a reformed procedure for appointments involves the Prime Minister and the Minister of Justice consulting various Chief Justices, law school deans, and provincial justice ministers to solicit names of potential appointees. The Canadian experience demonstrates variations in appointment mechanisms for broad-based consultation even in the absence of a commission model. The author, however, rues that most innovations in the appointments process have been short-lived, with a general shift to a more secretive process for appointments.

scholarly journals Ahani v. Canada: A Persuasive Dialogue within the Courts

Refuge ◽  
2003 ◽  
pp. 120-129
Author(s):  
Adrian Di Giovanni
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Canadian Law ◽  
The Supreme Court ◽  
The Status ◽  
Peremptory Norms

This paper is a comment on Ahani v. Canada (OCA). Canadian courts are presently involved in a dialogue over the role of international law domestically. The courts’ own grappling with various norms of international law, however, has helped to clarify and reinforce the status of these norms. In Baker v. Canada, the Supreme Court gave a new prominence to the “persuasive approach” of applying international law. Ahani demonstrates that while the persuasive approach has begun to be internalized into Canadian law, the courts are still at odds with how persuasive international law should be. To complicate this account, the Supreme Court’s discussion in Suresh of peremptory norms of international law demonstrates that an over-emphasis on the “persuasive” approach can in fact weaken the role of international law domestically. At the same time, the dialogue within the courts is linked to a much more general dialogue. The importance of cases such as Ahani ultimately stretches beyond the domestic context.

scholarly journals Be careful what you promise: Proprietary estoppel in Cowper-Smith v Morgan

2018 ◽  
Author(s):  
Jason Chin
Keyword(s):  
British Columbia ◽  
Property Rights ◽  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Canadian Experience ◽  
The Supreme Court ◽  
The Law ◽  
Court Of Appeal

Proprietary estoppel provides one of equity’s most powerful remedies. Estoppel is an equitable doctrine which arises when one party acts on the reliance of the promise of another. The promise and corresponding reliance creates a quasi-contract with reliance acting as an alternative to the consideration usually required in contracts. Proprietary estoppel is distinct from other equitable estoppels in that a proprietary estoppel can act as a ‘sword’ and form the basis of a cause of action. If all of the parts of proprietary estoppel are made out, a court can modify or create property rights to satisfy the equity.With regard to the Canadian experience, the Court of Appeal for Ontario recently noted that proprietary estoppel has received “somewhat uneven treatment in Canada.” It is within this context that the Court of Appeal for British Columbia split on the proper scope for the Supreme Court of Canada. In Cowper-Smith v Morgan, the Supreme Court of Canada has both clarified the test for — and arguably expanded the scope of — proprietary estoppel in the context of promises exchanged between children over their mother’s care during her lifetime. The fact that a party lacks an interest in the disputed property at the time of the promise does not negate the obligation of fulfilling the promise. Instead, when the party responsible for the expectation has or acquires sufficient interest in the property, proprietary estoppel will attach to that interest and protect the equity. This article will discuss the law of proprietary estoppel in other jurisdictions and how the Supreme Court of Canada has infused this remedy with greater flexibility to satisfy the equity.

12. Concepts and Contexts

Land Law ◽  
2017 ◽  
Author(s):  
Ben McFarlane ◽  
Nicholas Hopkins ◽  
Sarah Nield
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Court Ruling ◽  
Land Law ◽  
Supreme Court Ruling ◽  
Legislative Reform ◽  
Private Rights ◽  
The Supreme Court ◽  
The Impact

This chapter explores some of the wider issues raised by the rules applying to private rights to use land, along with the nature of the challenges faced by judges and Parliament when deciding how best to develop those rules. It begins by discussing the importance of concepts and contexts in land law, as well as the tension between concepts and contexts and the effect of different judicial approaches to land law. It then considers the relative merits of judicial and legislative reform of land law and goes on to examine the impact of statutory reform, particularly of registration statutes, in land law. It also assesses the impact of human rights and regulation on land law, citing the Supreme Court ruling in Scott v Southern Pacific Mortgages Ltd (2015), before concluding with an analysis of the role of non-doctrinal approaches in evaluating land law.

The Supreme Court rectifies a wrong turn in Canadian law

2017 ◽  
Vol 17 (1) ◽  
pp. 144-151
Author(s):  
Mohammud Jaamae Hafeez-Baig ◽  
Jordan English
Keyword(s):  
Supreme Court ◽  
Canadian Law ◽  
The Supreme Court

Niqabs in Canadian Courts:R v NS

2013 ◽  
Vol 15 (3) ◽  
pp. 334-343 ◽  
Author(s):  
M H Ogilvie
Keyword(s):  
Sexual Assault ◽  
Supreme Court ◽  
Muslim Woman ◽  
Supreme Court Of Canada ◽  
Practical Utility ◽  
Trial Judges ◽  
The Supreme Court ◽  
Sexual Assault Case ◽  
Actual Decision

InR v NSthe Supreme Court of Canada (SCC) was asked to consider a straightforward question: must a Muslim woman remove a niqab (face covering leaving only the eyes showing) when giving evidence in a sexual assault case in which she is the complainant. Two justices said ‘yes’; one said ‘almost always, no’; and the majority said ‘maybe yes, maybe no – it depends’. The matter was then returned to the preliminary inquiry judge to make the actual decision, which could still be subject again to appeal to the SCC. The court divided on the three available answers to the question: yes, no and maybe. The division, however, leaned in favour of requiring removal of the niqab because the reasons for judgment favouring ‘maybe’ were concurred in in the result by those favouring removal. In the end, the court did not give a clear answer to the question, but rather provided a four-part test for trial judges who must continue to make the decision, subject to appeal. The practical utility of this response may be doubted.

On the breach: Identifying infringements of section 35 rights

2021 ◽  
Author(s):  
Kerry Wilkins
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Substitution Effects ◽  
Supreme Court Of Canada ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
Canadian Law ◽  
The Supreme Court ◽  
Inclusive Approach ◽  
Critical Scrutiny

Section 35 of the Constitution Act, 1982, the Supreme Court of Canada has said, protects existing Aboriginal and treaty rights from unjustified infringement at the hands of federal and provincial legislatures and governments. To give meaningful effect to section 35’s protection, we need, therefore, to understand what counts as infringement of such rights and why. The Supreme Court’s own jurisprudence to date on this question, alas, disappoints; it does not withstand close critical scrutiny. This article calls attention to several shortcomings and inconsistencies in that jurisprudence and proposes for initial consideration a more inclusive approach to infringement identification, one that draws a sharper distinction between the infringement and justification inquiries. Adoption of such an approach, however, could have unwelcome substitution effects, prompting cautious courts to be more selective when asked to authenticate future claims of Aboriginal right, more penurious when construing the constitutionally protected scope of particular treaty or Aboriginal rights and/or more generous to governments during the justification inquiry. If the goal is to optimize the protection that Canadian constitutional law affords to treaty and Aboriginal rights, we shall need to be mindful of the interdependence among the authentication, infringement, and justification inquiries, and we shall need to understand much more clearly than we currently do just where the outer limits are beyond which mainstream Canadian law cannot, or will not, countenance Indigenous ways and why.

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