scholarly journals Kahkewistahaw First Nation v Taypotat – Whither Section 25 of the Charter?

2016 ◽  
Vol 25 (2) ◽  
pp. 39
Author(s):  
Jennifer Koshan ◽  
Jonnette Watson Hamilton
Keyword(s):  
Supreme Court ◽  
Potential Application ◽  
First Nation ◽  
Recent Case ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Missed Opportunity

The Supreme Court of Canada has to date delivered eight Charter equality decisions in an Aboriginal context. In the most recent case, Kahkewistahaw First Nation v Taypotat, the Court unanimously dismissed Louis Taypotat’s challenge to his community’s election code requirement that members of the First Nation running for election as Chief or Band Councillor have a Grade 12 education or its equivalent.We contend that the absence of a section 25 analysis in Taypotat was a missed opportunity, particularly because Taypotat is the only section 15(1) decision of the Supreme Court with an Aboriginal government as respondent. In the following part, we review the Court’s approach to section 25 and the potential application of section 25 in Taypotat. We conclude with a plea to litigators and the courts to move section 25 jurisprudence forward.

The great canadian juice war

1999 ◽  
Vol 58 (2) ◽  
pp. 265-293
Author(s):  
David Freedman
Keyword(s):  
Supreme Court ◽  
Tomato Juice ◽  
Recent Case ◽  
Supreme Court Of Canada ◽  
The Supreme Court

IN the recent case of Cadbury Schweppes Inc. v. FBI Foods Inc. (1999) 167 D.L.R. (4th) 577, the Supreme Court of Canada considered the case of an action for breach of confidence involving “Clamato” juice (a mixture of clam broth and tomato juice). For the uninitiated, Clamato juice is mixed with vodka, oregano and Worcestershire sauce to become a “Bloody Caesar”, a drink popular with Canadians but apparently few others.

scholarly journals The PHS Case and Federalism-Based Alternatives to Charter Activism

2013 ◽  
Vol 22 (1) ◽  
pp. 85
Author(s):  
Dwight Newman
Keyword(s):  
Injection Site ◽  
Supreme Court ◽  
Community Services ◽  
Recent Case ◽  
Supreme Court Of Canada ◽  
Federal Minister ◽  
Present Discussion ◽  
Downtown Eastside ◽  
The Supreme Court ◽  
Legal Consequences

In the recent case of Canada (AG) v PHS Community Services (PHS, often called the Insite Decision), the Supreme Court of Canada purported to offer a case-specific decision limited to Vancouver’s Insite injection facility. The decision saw the Court declare that the Federal Minister of Health could not decline to continue an exemption from narcotics provisions for the Insite Clinic, which provided an injection site for narcotics users in Downtown Eastside Vancouver. Despite the Court’s claim to want a case-specific decision, I argue in the present discussion that by basing their decision on section 7 of the Charter, rather than using the alternative federalism argument that was available, the Court adopted a more activist route with more disruptive future legal consequences.

scholarly journals “Sexualized Online Bullying” Through an Equality Lens: Missed Opportunity in AB v. Bragg?

2014 ◽  
Vol 59 (3) ◽  
pp. 709-737 ◽  
Author(s):  
Jane Bailey
Keyword(s):  
Supreme Court ◽  
Central Issue ◽  
Supreme Court Of Canada ◽  
Free Press ◽  
Online Bullying ◽  
The Supreme Court ◽  
Per Se ◽  
Interim Measure ◽  
Missed Opportunity ◽  
Structural Inequalities

In AB v. Bragg, the Supreme Court of Canada ruled that fifteen-year-old AB should be allowed to use a pseudonym in seeking an order to disclose the identity of her online attacker. By framing the case as one pitting the privacy interests of a youthful victim of sexualized online bullying against principles protecting the free press and open courts, the SCC approached but ultimately skirted the central issue of equality. Without undermining the important precedent that AB achieved for youthful targets of online sexualized bullying, the author explores the case as a missed opportunity to examine the discriminatory tropes and structural inequalities that undergird the power of this kind of bullying. Viewed through an equality lens, enhanced access to pseudonymity for targets is not necessarily about privacy per se, but rather an interim measure to respond to the equality-undermining effects of sexualized online bullying—a privacy mechanism in service of equality.

scholarly journals Conservation Controversy: Sparrow, Marshall, and the Mi’kmaq of Esgenoôpetitj

2011 ◽  
Vol 2 (4) ◽  
Author(s):  
Sarah J King
Keyword(s):  
Supreme Court ◽  
First Nations ◽  
First Nation ◽  
Scientific Management ◽  
Supreme Court Of Canada ◽  
Management Problem ◽  
Treaty Rights ◽  
The Supreme Court ◽  
Fisheries Policy ◽  
The Government

This paper explores the interplay between the Sparrow and Marshall decisions of the Supreme Court of Canada, and the sovereigntist and traditionalist convictions of the Mi’kmaq of the Esgenoôpetitj/Burnt Church First Nation, as expressed in the conservationist language of the Draft for the Esgenoopotitj First Nations (EFN) Fishery Act (Fisheries Policy). With the Supreme Court of Canada’s decision in Sparrow, conservation became an important justification available to the Canadian government to support its regulatory infringement on aboriginal and treaty rights. Ten years later, in Marshall, the Court recognized the treaty rights of the Mi’kmaq to a limited commercial fishery. The EFN Fishery Act, written to govern the controversial post-Marshall fishery in Esgenoôpetitj (also known as the Burnt Church First Nation) demonstrates that for the Mi’kmaq, scientific management, traditional knowledge, sovereignty and spirituality are understood in a holistic philosophy. The focus placed on conservation by the courts, and the management-focused approach taken by the government at Esgenoôpetitj have led to government policy which treats conservation simply as a resource access and management problem. Conservation, which the Court deems “uncontroversial” in Sparrow, is a politically loaded ideal in post-Marshall Burnt Church.

Does theCharterFloat? The Application of theCanadian Charter of Rights and Freedoms to Canada’s Policing of High Seas Fisheries

2011 ◽  
Vol 48 ◽  
pp. 179-213
Author(s):  
Drew Tyler
Keyword(s):  
Supreme Court ◽  
Potential Application ◽  
Supreme Court Of Canada ◽  
Canadian Government ◽  
Canadian Charter ◽  
Foreign State ◽  
The Supreme Court ◽  
Majority Judgment ◽  
State Territory ◽  
High Seas

SummaryThe majority judgment of the Supreme Court of Canada inR v Hapeheld that, in general, theCanadian Charter of Rights and Freedomsdoes not apply to Canadian government agents when they are acting in foreign state territory. This comment considers whether this rule should extend to high seas interdictions, by Canadian agents, of foreign-flagged vessels. In particular, it considers the potential application of theCharterto Canada’s policing of high seas fisheries. It concludes that the legal regimes governing high seas fisheries are sufficiently distinct from those pertaining to state territory, that the rule inHapeshould not apply to high seas interdictions, and that the Charter should therefore apply to Canada’s high seas fisheries policing activities.

scholarly journals RELIGION AND LAW IN R V NS: FINDING SPACE TO RE-THINK THE BALANCING ANALYSIS

2015 ◽  
Vol 32 (1) ◽  
pp. 25
Author(s):  
Blair Major
Keyword(s):  
Supreme Court ◽  
Critical Reflection ◽  
Recent Case ◽  
Supreme Court Of Canada ◽  
Starting Point ◽  
Religion And Law ◽  
The Supreme Court ◽  
Meaningful Engagement

In this article, the author argues against the balancing approach used in the recent case of the Supreme Court of Canada R v NS (2012).  It is argued that this approach inhibits critical reflection on the complex philosophical issues that underlie the decision, and that it closes itself off to meaningful engagement with diverse perspectives.  These arguments are developed by reflecting on the idea of incommensurability and on Alasdair MacIntyre’s theory of tradition.  The author concludes that this analysis provides a starting point for developing an approach that has greater capacity for critical reflection and is more capable of embracing diversity. L'auteur critique l'approche utilisée dans la récente décision de la Cour Suprême du Canada R c NS (2012), laquelle se fondait sur la recherche d'un équilibre entre la liberté de religion et l'équité du procès. Sa critique – fondée sur l'idée d'incommensurabilité et la théorie de tradition d'Alisdair MacIntyre – démontre que l'approche retenue par la Cour Suprême limite l'analyse critique de questions philosophiques complexes que sous-tendent la décision, et refuse d'aborder sérieusement des perspectives diverses. L'analyse de l'auteur offre un point de départ pour développer une approche dotée d'une plus grande capacité pour la réflexion critique et promet de mieux incorporer la diversité.

scholarly journals Le contrôle judiciaire des erreurs de droit en présence d'une clause privative

2005 ◽  
Vol 23 (1) ◽  
pp. 5-20
Author(s):  
Patrice Garant ◽  
Sylvio Normand
Keyword(s):  
New Brunswick ◽  
Supreme Court ◽  
Rule Of Law ◽  
Case Law ◽  
Administrative Law ◽  
Recent Case ◽  
Supreme Court Of Canada ◽  
Court Cases ◽  
The Rule Of Law ◽  
The Supreme Court

Administrative Tribunals have jurisdiction to deal with questions of law. In the exercise of such jurisdiction they may sometimes make mistakes in the construction of the statutes, regulations or other instruments. Even in the presence of a privative clause, an inferior tribunal should not be the supreme interpret of the law. It is one of the requirements of the « rule of law » that the Superior Court should have a supervisory « droit de regard ». Traditionally, only errors of law going to jurisdiction were out of the shield of the privative clause ; the Superior Courts used to restrain their intervention only after charactarizing the alleged error as « jurisdictional error of law ». Two difficulties came to arise from the approach about whether there exists an error of jurisdiction or one « merely » of law. Firstly, who can tell whether there is a genuine error of law. Secondly, what criteria transmute in the minds of Superior Court Judges an error into one of jurisdiction. The recent case law convinces us of the necessity of a different approach in order to achieve some clarity in this field of Administrative law. Mr. Justice Dickson of the Supreme Court of Canada hints at it in the Nispawin and the New Brunswick Liquor Corporation cases. This approach would put an end to the confusion that still prevail in other Supreme Court cases like Blanco or Labrecque. The distinction between errors of law going to jurisdiction and « merely » errors of law is unrational and so unpracticable that it should be abandoned and replaced by what we suggest in the following lines... Mr. Justice Robert Reid of the Ontario Divisional Court has also expressed the same concern in a remarquable judgment.

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