scholarly journals Constitutional Protection of Fundamental Freedoms in the Decisions of the Supreme Court of Canada

2020 ◽  
Vol 58 (6) ◽  
pp. 523-531
Author(s):  
Joanna Uliasz ◽  
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Constitutional Protection ◽  
The Supreme Court ◽  
Fundamental Freedoms

scholarly journals Children in Pornography after Sharpe

2005 ◽  
Vol 43 (2) ◽  
pp. 327-350 ◽  
Author(s):  
Janine Benedet
Keyword(s):  
Supreme Court ◽  
Freedom Of Expression ◽  
Child Pornography ◽  
Criminal Code ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
Constitutional Protection ◽  
The Supreme Court ◽  
Definition Of

In its recent decision in R. v. Sharpe, the majority of the Supreme Court of Canada upheld the Criminal Code provisions prohibiting the possession and making of child pornography, subject to two exceptions. Despite a narrow construction of the definition of child pornography and a broad reading of the statutory defences, the majority found that prohibiting individuals from making and possessing some kinds of child pornography was an unjustifiable limit on the freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. The dissent would have upheld the legislation in its entirety. This article argues that the majority of the Court erred in considering the value of freedom of expression in a detached and abstract manner. Operating in this abstract plane led the Court to approve two significant exceptions on the basis of hypothetical examples of overbreadth, without considering the reality of the exceptions as they relate to documented child pornography cases. As a result, the Court extended constitutional protection to some categories of material that are clearly harmful to children. This result should make us sceptical of the use in Charter cases of broad reading in remedies that create complex judicial amendments with unexamined consequences.

The Supreme Court and Civil Liberties

1969 ◽  
pp. 58
Author(s):  
W. S. Tarnopolsky
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Civil Liberties ◽  
Supreme Court Of Canada ◽  
Bill Of Rights ◽  
The Supreme Court ◽  
Fundamental Freedoms ◽  
Important Direction

To what extent has the Supreme Court of Canada tended to promote human rights and protect fundamental freedoms? This question is examined by looking at the bases on which the Supreme Court can protect civil liberties. In decisions prior to 1950 the author finds that the Supreme Court was not protective of "egalitarian" civil liberties. With respect to "political" civil liberties, the author finds the majority judgments of the Supreme Court of Canada of the 1950's inspiring. The enactment of the Canadian Bill of Rights in 1960 provided an important direction to the Court to protect civil liberties. The author feels that the Supreme Court has not yet satisfac torily responded to this direction. However, the Drybones decision recognized the constitutional status of the Bill of Rights and the author supports the argument that it is constitutional instrument.

scholarly journals Fiduciary Relationship as Contemporary Colonialism

2012 ◽  
Vol 3 (2) ◽  
pp. 98-115
Author(s):  
Christina Yui Iwase
Keyword(s):  
North America ◽  
Supreme Court ◽  
Aboriginal Peoples ◽  
Supreme Court Of Canada ◽  
Aboriginal Rights ◽  
Constitutional Protection ◽  
The Supreme Court ◽  
Recent Tendency

Aboriginal rights as inherent rights deriving from Aboriginal peoples’ historical occupation of North America (i.e. sovereignty) are recognized and affirmed in Section 35(1) of the Canadian Constitution Act, 1982. Despite the fact that this constitutional protection recognizes the sui generis nature of the Crown-Aboriginal relationship, there is a recent tendency in the Supreme Court of Canada to comprehend Aboriginal rights by characterizing the Crown-Aboriginal relationship as fiduciary. This paper discusses the danger of recognizing Aboriginal rights through the lens of a Crown-Aboriginal fiduciary relationship. This type of recognition entails: (1) authorizing excessive fiduciary discretion by the Crown, as opposed to focusing on its obligations; (2) failing to reflect the Aboriginal perspective on Aboriginal rights, which are derived from Aboriginal sovereignty; (3) fundamentally distorting the nature of Aboriginal rights by creating a myth that Aboriginal rights were created by the Canadian constitution; and (4) as a result, creating vulnerability on the Aboriginal side by making Aboriginal peoples tacitly consent to the Crown’s de facto sovereignty. If the Court’s characterization of the Crown-Aboriginal fiduciary relationship remains as it is now, the gap between the Crown’s understanding of Aboriginal rights and that of Aboriginal peoples may constitute a form of contemporary colonialism.

scholarly journals Privacy: A Review and Critique of the Literature

2016 ◽  
Author(s):  
Richard Bruyer
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Constitutional Protection ◽  
Political Concept ◽  
The Supreme Court ◽  
Common Understanding

It seems trite to say privacy is valuable. The Supreme Court of Canada has emphasized that privacy is worthy of constitutional protection. Scholars tend to agree that privacy is a fundamental moral and political concept. The consensus appears to end, however, when privacy in theory approaches privacy in practice. As a broad and evanescent concept, opinions differ as to what interests or values the protection of privacy is designed to achieve. The prevailing conceptions of privacy — six of which have been identified — fall prey to substantive criticisms from which, the author contends, they cannot recover. First, they suffer from intuitionism. That is, they offer an intuitive approach of what makes things "private" and incorrectly assume that we all approach privacy with a common understanding of the concept, or concepts, that the term "privacy" expresses. Further, the standing conceptions of privacy depend upon and serve the concept of privacy as liberty which itself is flawed. "Liberty" is seen as a form of licence, protecting — in its most crude form—an individual's right to do as he or she pleases. So viewed, it is not particularly surprising to see privacy attacked when competing "liberty" issues are at stake. Given the substantial criticisms with the prevailing conceptions of privacy, it may be worthwhile to reconsider the present paradigm against which privacy is conceived. It may be that privacy is better conceived of as an equality issue, not a liberty issue. The focus should shift away from conceptualizing privacy as a prerequisite for preventing invasions of various liberty interests to one of "maintaining conditions " that will make the exercise of those liberty interests possible. By limiting the ambit of privacy, we may indeed strengthen it.

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