scholarly journals Clerking at the Supreme Court of Canada

1994 ◽  
Vol 33 (1) ◽  
pp. 58 ◽  
Author(s):  
Mitchell McInnes ◽  
Janet Bolton ◽  
Natalie Derzko
Keyword(s):  
Supreme Court ◽  
Coming Of Age ◽  
Supreme Court Of Canada ◽  
Judicial Process ◽  
The People ◽  
The Supreme Court ◽  
History Of ◽  
The Law ◽  
Using Data ◽  
Law Clerks

This article takes an in-depth look at the law clerks and the role they play at the Supreme Court of Canada. Such an examination both informs prospective clerks on the nature of the position and promotes a better general understanding of how the judicial process operates at this level. The authors begin their analysis by looking at the history of the law clerks at the Supreme Court. Although the functions of the clerks have changed little since their introduction in 1968, the clerkship program has evolved with a changing Supreme Court, contributing to the institutions "coming of age." The authors then shift their attention to examining the present clerkship program. The article first reveals the manner in which the clerks are selected by the Court. Using data collected by a questionnaire sent to clerks of the 1991-93 terms, the authors also attempt to convey, in a general way, some sense of the people who have served at the Court in recent years. Next, the major functions performed by the clerks are described. While the clerks do have a great deal of responsibility, the authors dispel much of the criticism directed at United States Supreme Court clerks by stating that the law clerks at the Supreme Court of Canada do not have an improper degree of authority. The authors conclude that the clerking experience benefits both the clerks themselves and the procedures of the Court. As such, the law clerks are an entrenched and indispensable part of the judicial process at the Supreme Court of Canada.

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.

scholarly journals Judicial Review, Judicial Revisionism and Judicial Responsibility

2019 ◽  
Vol 17 (1-2) ◽  
pp. 169-216
Author(s):  
Brian A. Langille
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Early Years ◽  
Supreme Court Of Canada ◽  
New Era ◽  
Second Best ◽  
Labour Relations ◽  
The Supreme Court ◽  
History Of ◽  
The Law

Judicial review of the decisions of labour relations boards has been a nagging problem for the Supreme Court of Canada for decades. The decision of the Court in Le Syndicat des Employés de Production du Québec et de L’Acadie v. Canada Labour Relations Board et al. provides an opportunity for and indeed provokes review of the work of the Court in dealing with this recurring problem. This essay begins by placing in perspective the concrete issue posed in the L’Acadie decision. But the particular facts of that case are used only as a vehicle to explore the nature of the problem of judicial review of labour decisionmakers and the history of the Court's handling of it. A fundamental thesis of this essay is that the Court's work can be best understood as comprising two distinct periods, the early years (pre-1979) and the new era (1979-1984?). This essay articulates the view that during the early years the Court developed a law of judicial review which was wholly inadequate both in functional and doctrinal terms. In the new era the Court simplified and reformed the law of judicial review of labour boards and labour arbitrators. It is only from the perspective of the Court's previous handling of the issue that the decision in L’Acadie can be truly understood. When so viewed the decision is perfectly inadequate. The case creates a new distinction based upon the old confusion of “jurisdiction”. This essay then develops the view that no theory of judicial review which revolves around the notion of “jurisdiction” can ever satisfactorily deal with the issues presented. In this respect the Court's own cases from the “new era” represent a much more sensible, if still a second best approach. Finally, suggestions for a legislative solution to the problem posed by L’Acadie are briefly explored.

The Pakistan Federal Shariat Court, Section 4 of the Muslim Family Laws Ordinance, and the Orphaned Grandchild

2002 ◽  
Vol 9 (1) ◽  
pp. 70-82 ◽  
Author(s):  
Lucy Carroll
Keyword(s):  
Supreme Court ◽  
Middle Eastern ◽  
Appellate Court ◽  
The People ◽  
The Supreme Court ◽  
The Law ◽  
Personal Law ◽  
Law Of Succession ◽  
Muslim Family

AbstractSection 4 of the Pakistan Muslim Family Laws Ordinance, 1961, dramatically altered the law of succession applicable to Muslims by granting to the orphaned grandchild(ren) the share that their deceased parent would have taken had s/he survived the propositus. The principle of representation incorporated in the Pakistani solution contrasts with the compulsory bequest relied upon by several Middle Eastern countries to deal with the same problem, although arguably representation more closely reflects the experience and expectations of the people of Pakistan. Nearly two decades later, the Federal Shariat Court was established and endowed with jurisdiction to declare a law contrary to "the Injunctions of Islam" and thus void. Some laws, however, were specifically exempted from the Court's jurisdiction; falling within this category is "Muslim Personal Law." A 1981 decision of the appellate Court (the Shariat Bench of the Supreme Court) held that the provisions of the Muslim Family Laws Ordinance were included within the phrase "Muslim Personal Law," and were thus outside the jurisdiction of the Federal Shariat Court. This position was reversed by another decision of the appellate Court in 1993, and the provisions of the Ordinance were immediately challenged on the basis of their alleged divergence from the "Injunctions of Islam." This essay reviews the provisions of section 4 of the Ordinance and examines the decision of the Shariat Court as regards this particular provision.

“Acting Directly on the People”

2019 ◽  
pp. 142-155
Author(s):  
David S. Schwartz
Keyword(s):  
Civil War ◽  
Supreme Court ◽  
Race Relations ◽  
Legal Tender ◽  
Interstate Commerce ◽  
Paper Money ◽  
Legislative Authority ◽  
The People ◽  
The Supreme Court ◽  
History Of

Post–Civil War nationalism meant a partial but significant reversion to prewar constitutionalism, recognizing federal legislative authority over “every foot of American soil” and implementing the antebellum Whig-nationalist economic agenda, but allowing states to retain, or regain control over race relations. The Supreme Court upheld the constitutionality of internal improvements, but declined to embrace implied commerce powers, suggesting instead (as in Gibbons v. Ogden) that the question involved the definition of interstate commerce as an enumerated power. The Court seemed to want to confine McCulloch v. Maryland to taxation, banking, and currency matters. The Legal Tender Cases, which relied on McCulloch to uphold the federal power to issue paper money, were a watershed in the history of implied powers, and were recognized as such at the time by many commentators. Yet the Supreme Court over the ensuing decade and a half seemed unwilling to follow through on McCulloch’s full implications.

scholarly journals Feu la D.C.D. L'arrêt Miller et la peine de mort

2005 ◽  
Vol 18 (2-3) ◽  
pp. 567-576
Author(s):  
Henri Brun
Keyword(s):  
Supreme Court ◽  
Death Penalty ◽  
Supreme Court Of Canada ◽  
Bill Of Rights ◽  
Right To Life ◽  
The Supreme Court ◽  
The Subject ◽  
The Law ◽  
The Right ◽  
First Time

The Miller case, decided by the Supreme Court of Canada on October 5, 1976, puts the death penalty under the light of the Canadian Bill of Rights which formulates the right to life and the right to protection against cruel and unusual treatment or punishment. The following comment on the case relates to the interpretation given specific clauses of the Bill of Rights by the Court on that occasion. But it stresses especially the law that flows from the case about the compelling weight of the Bill of Rights over acts of Parliament enacted after the Bill came into force. In Miller, the Supreme Court expressed itself on the subject for the first time.

scholarly journals Was the Supreme Court right to change the law on the right to a speedy trial?

2017 ◽  
Vol 26 (3) ◽  
pp. 1
Author(s):  
Leonid Sirota
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Reasonable Time ◽  
Canadian Charter ◽  
The Supreme Court ◽  
The Law ◽  
The Right ◽  
Speedy Trial

In R v Jordan, the Supreme Court of Canada held, by a 5-4 majority and over the vigorous disagreement of the concurrence, that criminal prosecutions in which a trial does not conclude by a set deadline will be presumed to breach the right to be tried within a reasonable time, protected by section 11(b) of the Canadian Charter of Rights and Freedoms. The acceptable length of proceedings set out in the decision is of 18 months from the day charges are laid for cases that proceed without a preliminary inquiry, and 30 months otherwise. The Crown can still show that exceptional circumstances outside of its control have arisen and can explain — and excuse — a case taking longer than that, but unless it does so, a stay of proceedings will be the automatic consequence of such delay. Meanwhile, an accused will be able to show that delay below these ceilings is unconstitutionally unreasonable, but only by demonstrating not only that the delay is “markedly” greater than reasonable, but also that he or she diligently sought to have the case heard sooner.

scholarly journals MENAKAR PROGRESIFITAS LEMBAGA PERADILAN DALAM MEWUJUDKAN DEMOKRASI BERINTEGRITAS

2018 ◽  
Vol 12 (2) ◽  
pp. 2102-2117
Author(s):  
Alda Rifada Rizqi
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Legal Positivism ◽  
The People ◽  
The Supreme Court ◽  
The Will ◽  
The Law ◽  
Corrupt Behavior

Democracy with integrity will be realized if carried out in accordance with the will of the people as holders of sovereignty, the KPU (Komisi Pemilihan Umum) as the election organizer has the authority to make regulations that support a better democracy. KPU (Komisi Pemilihan Umum) Regulation No. 20 of 2018 as evidence that the KPU is committed to participating in preventing corrupt behavior. It was considered to have been considered as an effort to protect the interests of the people, but the regulation was submitted to a judicial review at the Supreme Court. Then, based on legal-formal considerations and based on the legal positivism of the Supreme Court, the request for the test is granted. The decision distanced itself from progressive legal values that justified the denial of what was regulated in legislation in order to put forward the values of public justice, because basically the law was made to fulfill human interests, accommodating the will of the people for the sake of order.

scholarly journals Elected Judges Lead to Less Partial Judges

Federalism-E ◽  
2018 ◽  
Vol 19 (1) ◽  
Author(s):  
Jack Murphy
Keyword(s):  
Supreme Court ◽  
Research Question ◽  
Balance Of Power ◽  
Judicial Independence ◽  
Supreme Court Of Canada ◽  
The People ◽  
The Supreme Court ◽  
Good Government ◽  
Head Of Government ◽  
Inappropriate Relationships

Canada’s government structure has long used the idea of Peace, Order, and Good government to justify the selection and subsequent terms of long political majorities and appointed justices.  This paper will be addressing the research question: should the justices of the Supreme Court of Canada be elected to increase Canadian democratic values or should they remain appointed?  Currently the Supreme Court of Canada is selected by the Governor General on the advice of the Prime Minister.   In answering this research question this paper will weigh to the pros and cons of both the current judiciary system and a judiciary section based on elections in order to prove that Supreme Court of Canada justices should stay appointed. A crucial factor in the selection of supreme court judges is the idea of judicial independence. Justices are not elected in order to ensure that there is no partisanship or inappropriate relationships between the judiciary and the legislature. It is argued that this is null and void as a result of the fact that the judges are effectively chosen by the head of government.  In the Canadian system, there lies an important balance between the executive, legislative, and judicial branches; this balance of power relies heavily on the Supreme Court being a non-partisan last check on any bills that reach it from the House. This is contrasted by the fact that the Supreme Court of Canada has last say on a plethora of issues that affect the lives of all Canadians and Canada is a constitutional monarchy, meaning that the power is always supposed to be derived from the people. Any power of government in Canada must trace its power back to the people for it to be considered legitimate.  After a compare and contrast of the effect that electing the Supreme Court of Canada will have on the judicial independence and the federal balance of power it is hypothesised that the Supreme Court of Canada should continue as an appointed body.

scholarly journals Recent Developments in the Law of Equitable Remedies: What Canada Can Do For You

2002 ◽  
Vol 33 (1) ◽  
pp. 51 ◽  
Author(s):  
Jeff Berryman
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Specific Performance ◽  
Recent Developments ◽  
The Law

The Supreme Court of Canada has clearly enunciated a distinct equity jurisprudence for Canada. This paper discusses certain aspects of the most recent developments particularly in the area of equitable remedies. The recent "explosion" in the use of Anton Piller decisions is charted, and where appropriate, analogous Commonwealth decisions are discussed. The use of Injunctive remedies is canvassed, as well as specific performance.

scholarly journals Alberta's Court of Next-to-Last Resort: Appeals from the Alberta Court of Appeal to the Supreme Court of Canada, 1970-1990

1969 ◽  
pp. 861
Author(s):  
Peter McCormick
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Success Rates ◽  
The Supreme Court ◽  
The Law ◽  
Statistical Survey ◽  
Court Of Appeal

This paper reports the results of a statistical survey of the success rates of appeals to the Supreme Court of Canada. Appeals from all provinces were examined, but in his analysis Professor McCormick focuses on the Alberta Court of Appeal. The variables he discusses include the geographic and political composition of the Supreme Court, the mix of cases from different areas of the law, the length of experience of Court of Appeal judges, and the presence or absence of dissenting opinions.

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