scholarly journals Eyes Wide Shut: The Alberta Court of Appeal’s Decision in R. v. Arcand and Aboriginal Offenders

2011 ◽  
Vol 48 (4) ◽  
pp. 987
Author(s):  
Jonathan Rudin
Keyword(s):  
Appellate Court ◽  
Correctional Facilities ◽  
Lower Court ◽  
General Deterrence ◽  
Sentencing Decisions ◽  
Starting Point ◽  
The Supreme Court ◽  
Court Mandated ◽  
Aboriginal Offenders ◽  
Court Of Appeal

R. v. Arcand was no ordinary sentence appeal.  It was a reconsideration of four previous Alberta Court of Appeal sexual assault decisions.  It was an opportunity to discuss the significance of starting point sentences - essentially appellate court mandated starting points to be followed by lower court judges when issuing sentences for specific sub-categories of offences.  The decision also purports to provide a clear-eyed assessment of the problems with sentencing in Canada since the passage of Bill C-41 in 1996 and a way out of the morass of unprincipled sentencing decisions by lower judges that have eroded Canadians’ faith in the justice system itself.  However, there is something missing in the decision.  The force of the reasoning advanced in Arcand is strongly diminished by the Court of Appeal’s failure to advert to the Supreme Court of Canada's decision in R. v. Gladue and to the realities of Aboriginal overrepresentation in Canadian and, more specifically, Alberta correctional facilities.  Recognition of Gladue should lead to a reconsideration of the conclusions in Arcand on the issues of proportionality, Aboriginal concepts of sentencing, circumstances of the Aboriginal offender, general deterrence, and the way sentences reflect harm to victims.

The Present Law

2015 ◽  
Author(s):  
Michael Ashdown
Keyword(s):  
Supreme Court ◽  
Present State ◽  
Active Role ◽  
Starting Point ◽  
The Supreme Court ◽  
The Law ◽  
The Relationship ◽  
Court Of Appeal

The starting point for any consideration of the Re Hastings-Bass rule must now be the Pitt v Holt and Futter v Futter litigation, which culminated in the 2013 decision of the Supreme Court in both cases. The judgment of Lord Walker is the leading exposition of the rule, and is likely to remain so for some time. However, it is not helpful to read Lord Walker’s judgment in isolation. At first instance both Pitt v Holt and Futter v Futter were decided on the basis of law which seemed then to be well settled and entirely orthodox. However, unlike in any of the Re Hastings-Bass rule cases which preceded them, Her Majesty’s Revenue and Customs played an active role in the proceedings, and after the taxpayer succeeded at first instance in each case, obtained permission to appeal to the Court of Appeal. The present state of the law owes its shape largely to the judgment in that court of Lloyd LJ, in the first appellate decision on the Re Hastings-Bass rule, which reformulated the rule so as to accord with important principles of English equity and trusts concerning the relationship between trustees and beneficiaries, and the supervision of the court.

Criminal Law in Internal Conflict of Laws in Malaŵi

1985 ◽  
Vol 29 (2) ◽  
pp. 129-146 ◽  
Author(s):  
Matembo Nzunda
Keyword(s):  
Supreme Court ◽  
Executive Branch ◽  
Internal Conflict ◽  
Appellate Court ◽  
Criminal Jurisdiction ◽  
Appeal Court ◽  
The Supreme Court ◽  
The Government ◽  
Appeal Courts ◽  
Court Of Appeal

Malaŵi has two sets of courts which run completely parallel to each other. One set forms the Judicial Branch of the Government and consists of magistrates’ courts (which have original civil and criminal jurisdiction only), the High Court (which has unlimited original and appellate civil and criminal jurisdiction) and the Supreme Court of Appeal (which has original criminal jurisdiction for contempt of court but otherwise has appellate civil and criminal jurisdiction). The Supreme Court of Appeal is a final appellate court in this set of courts. These courts are here called Received Courts because they apply the received (English) common law as the basic law.The other set of courts is a section of the Ministry of Justice (which is part of the Executive Branch of the Government). The set consists of Traditional Courts of Grades A and B, the Traditional Appeal Courts (which hear and determine appeals from Traditional Courts of Grades A and B), District Traditional Courts, Regional Traditional Courts and the National Traditional Appeal Court (which hears and determines appeals from Traditional Appeal Courts, District Traditional Courts and Regional Traditional Courts). The civil and criminal jurisdiction of Traditional Courts is set out in the warrant establishing the Court and is supplemented from time to time by published ministerial orders under the authority of the Traditional Courts Act (the 1962 Act). The National Traditional Appeal Court is a final appellate court in this set of courts.

Obligations in Contract, Tort and Equity: Reliance, Responsibility, and the Moral Dimension: Essay in honour of Sir John McGrath

2021 ◽  
Vol 52 (3) ◽  
pp. 643-662
Author(s):  
Andrew Tipping
Keyword(s):  
Supreme Court ◽  
Legal System ◽  
Appellate Court ◽  
Valuable Contribution ◽  
Moral Dimension ◽  
Great Loss ◽  
Detailed Consideration ◽  
The Supreme Court ◽  
The Law ◽  
Court Of Appeal

I publish this essay to honour the memory of Sir John McGrath. I sat with Sir John for a number of years, first in the Court of Appeal and then in the Supreme Court. Professional respect soon turned into friendship. While we did not always agree, I always respected his views. They were carefully considered and fully researched. John gave detailed consideration to the opinions of others but was very much his own man when it came to his ultimate conclusion. His innate caution in departing from the well-trodden path was a valuable contribution in a final appellate court. Stability is an important feature of any legal system. And John provided that quality, but not at the expense of innovation when that was clearly desirable and could be achieved in a principled way. John's passing, so soon after his retirement, was a great loss, not only to his wife and family, but also to his many friends and colleagues, both in the law and beyond.

Vergangenheitspolitik durch Strafrecht

2021 ◽  
Author(s):  
Christian Pöpken
Keyword(s):  
Second World War ◽  
Crimes Against Humanity ◽  
Appellate Court ◽  
World War ◽  
Criminal Proceedings ◽  
National Socialist ◽  
Legal Proceedings ◽  
Starting Point ◽  
The Supreme Court ◽  
Second World

The criminal proceedings on National Socialist crimes conducted in German courts in the immediate aftermath of the Second World War have long stood in the shadow of the Nazi war-crime trials conducted by the Allies and the criminal proceedings, such as the Auschwitz trials in Frankfurt, conducted by Germany with renewed vigour from the end of the 1950s on. Focusing on the supreme court for the British zone of occupation (1947–50), this historical academic study shifts attention onto an important protagonist in the aforementioned earlier series of criminal prosecutions. Using a broad spectrum of sources as its starting point, it is the first to present and analyse in detail that the ruling on crimes against humanity pronounced by this court, which was the only German appellate court responsible for an entire occupied zone, signified a pioneering yet quickly forgotten contribution to the legal proceedings against Nazi injustices. As a result, it portrays the court as a significant player in an embattled policy for dealing with the past using criminal law and thus as an important part of contemporary legal history.

A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Sipho Stephen Nkosi
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Customary Law ◽  
Eastern Cape ◽  
High Court ◽  
Nelson Mandela ◽  
The Supreme Court ◽  
Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

The Right to Housing: Challenges Associated with the ‘Waiting List System’ Ekurhuleni Metropolitan Municipality V Various Occupiers, Eden Park Extension 5 2014 3 SA 23 (SCA)

2017 ◽  
Vol 30 (1) ◽  
pp. 112-121
Author(s):  
Shamier Ebrahim
Keyword(s):  
Supreme Court ◽  
Waiting Lists ◽  
The State ◽  
Waiting List ◽  
Allocation Process ◽  
The Supreme Court ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

The right to adequate housing is a constitutional imperative which is contained in section 26 of the Constitution. The state is tasked with the progressive realisation of this right. The allocation of housing has been plagued with challenges which impact negatively on the allocation process. This note analyses Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 51 which dealt with a situation where one of the main reasons provided by the Supreme Court of Appeal for refusing the eviction order was because the appellants subjected the unlawful occupiers to defective waiting lists and failed to engage with the community regarding the compilation of the lists and the criteria used to identify beneficiaries. This case brings to the fore the importance of a coherent (reasonable) waiting list in eviction proceedings. This note further analyses the impact of the waiting list system in eviction proceedings and makes recommendations regarding what would constitute a coherent (reasonable) waiting list for the purpose of section 26(2) of the Constitution.

Civil Jurisdiction, Settler Politics, and the Colonial Constitution, circa 1840-58

2008 ◽  
Vol 39 (3) ◽  
pp. 497 ◽  
Author(s):  
Damen Ward
Keyword(s):  
Lower Court ◽  
Parliamentary Debates ◽  
Early Colonial ◽  
Responsible Government ◽  
The Supreme Court ◽  
Competing Ideas ◽  
Politics And Law ◽  
The Relationship ◽  
Institutional Relationships

In early colonial politics, decisions about lower court jurisdiction often reflected competing ideas about the relationship between different parts and functions of government. In particular, court structure and jurisdiction could be seen as having important implications for the role and power of the governor. Appreciating the importance of jurisdiction as a way of defining, and arguing about, the distribution and exercise of political and legal authority in the colonial constitution allows connections to be drawn between different elements of settler politics in the 1840s and 1850s. The closing of the Court of Requests by Governor Grey in 1848, and the decisions of the Supreme Court judges in subsequent litigation, provide examples of this. Debate over the role of the governor in emerging systems of representative and responsible government after 1852 contributed to lower court jurisdiction remaining politically significant, particularly in relation to Māori.  This is shown by considering parliamentary debates about the Stafford ministry's 1858 proposals for resident magistrates' jurisdiction over "native districts". The politics of jurisdiction were part of wider contests about the establishment and consolidation of particular political and institutional relationships within the colonial constitution. This multi-faceted construction of government authority suggests a need to reconsider elements of Pākehā colonial politics and law.

scholarly journals The Potential Impact of Indigenous Rights on the International Law of Nationality

AJIL Unbound ◽  
2021 ◽  
Vol 115 ◽  
pp. 135-139
Author(s):  
Kirsty Gover
Keyword(s):  
International Law ◽  
Legal Status ◽  
Indigenous Rights ◽  
Supreme Court Of Canada ◽  
Constitutional Rights ◽  
The Supreme Court ◽  
Potential Impact ◽  
Human Rights Norms ◽  
Domestic Law ◽  
Court Of Appeal

International law has long recognized that the power of a state to identify its nationals is a central attribute of sovereignty and firmly within the purview of domestic law. Yet these boundaries may be shifting, in part due to the effect of international human rights norms. In 2011, citizenship scholar Peter Spiro asked, “[w]ill international law colonize th[is] last bastion of sovereign discretion?” Ten years later, this essay reframes the question, asking whether the international law of Indigenous Peoples’ rights will “decolonize” the discretion, by encouraging its exercise in ways that respect and enable Indigenous connections to their traditional land. It considers this possibility in light of two recent cases decided by courts in Australia and Canada, both of which ascribe a distinctive legal status to non-citizen Indigenous persons: Love v. Commonwealth, Thoms v Commonwealth (“Love-Thoms,” Australian High Court) and R. v. Desautel (“Desautel,” British Columbia Court of Appeal, currently on appeal before the Supreme Court of Canada). In each case, the court in question recognized that some Indigenous non-citizens have constitutional rights to remain within the state's territory (and perhaps also a correlative right to enter it), by virtue of their pre-contact ancestral ties to land within the state's borders.

scholarly journals Deservingness in Judicial Discourse. An Analysis of the Legal Reasoning Adopted in Dutch Case Law on Irregular Migrant Families’ Access to Shelter

2021 ◽  
pp. 1-10
Author(s):  
Lieneke Slingenberg
Keyword(s):  
Supreme Court ◽  
Legal Reasoning ◽  
Migrant Families ◽  
The Supreme Court ◽  
Judicial Discourse ◽  
Major Shift ◽  
New Interpretation ◽  
Irregular Migrant ◽  
Court Of Appeal

In September 2012, the Dutch Supreme Court upheld a judgment of the Hague Court of Appeal that the eviction from basic shelter of a mother and her minor children, who did not have legal residence in the Netherlands, was unlawful. This ruling was instigated by a radically new interpretation of the European Social Charter’s personal scope and caused a major shift in Dutch policy. This article provides a case study into the legal reasoning adopted by the Court of Appeal and the Supreme Court. It argues that, instead of relying on legal doctrinal reasoning for justifying the outcome, both courts referred to factors that the general public relies on to assess people’s deservingness of welfare. This finding raises fundamental questions about the relationship between human rights law and deservingness; and calls, therefore, for further research into the relevance of deservingness criteria in judicial discourse.

Transforming the Law on Psychiatric Lesions

2021 ◽  
Vol 2021 (2) ◽  
pp. 253-271
Author(s):  
Emile Zitzke
Keyword(s):  
Supreme Court ◽  
Expert Witnesses ◽  
The Supreme Court ◽  
Psychological Harm ◽  
The Law ◽  
Constitutional Right ◽  
Law Of Delict ◽  
Court Of Appeal ◽  
Made In

In this article, I trace the development in the law of delict of recognising general damages claims on account of psychiatric lesions with the aim of making suggestions on how to transform it. Using the tragic case of Michael Komape as a springboard for the discussion, I argue that even though the Supreme Court of Appeal has recently brought clarity on the law on psychiatric lesions, more transformative work still needs to be done. More specifically, this article contends that the constitutional right to bodily and psychological integrity might require us to rethink the high evidentiary threshold that courts have set for proving the element of harm in cases related to psychiatric lesions. I argue that this can be done in at least three ways: First, by very cautiously bringing about a development that would involve protecting victims of psychological harm whose expert witnesses are shown to be inadequate despite all other facts indicating the existence of a psychiatric lesion. Secondly, by lowering the requirement of “recognised psychiatric lesion” to “grievous mental injury”, in line with similar arguments made in England. Thirdly, and most controversially, by acknowledging that perhaps the time has come for our law to recognise claims for so-called “grief in the air”.

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