scholarly journals Instrumental Rationality and General Deterrence

2019 ◽  
pp. 53
Author(s):  
Colton Fehr
Keyword(s):  
Supreme Court ◽  
Instrumental Rationality ◽  
Supreme Court Of Canada ◽  
General Deterrence ◽  
Canadian Charter ◽  
The Supreme Court ◽  
Rationally Connected ◽  
The Relationship

The Supreme Court of Canada concluded in R. v. Nur that the use of general deterrence in sentencing is not “rationally connected”to its objective of lowering crime levels. Although this conclusion was drawn in the Charter section 1 context, its logic applies with equal force at the section 7 stage of analysis. As a law bearing no rational connection to its purpose is arbitrary, the author contends that judicial reliance on general deterrence in sentencing runs afoul of section 7 of the Canadian Charter of Rights and Freedoms. This conclusion is significant not only because it would forestall judicial use of general deterrence, but also for what it reveals about the relationship between the instrumental rationality principles. Commentators maintain that the Supreme Court’s “individualistic” approach to instrumental rationality resulted in the arbitrariness principle becoming subsumed by overbreadth. Yet, challenging the general deterrence provisions with overbreadth is not possible given the discretion given to judges to avoid its unnecessary application. The fact that a law can be arbitrary but not overbroad provides support for the Supreme Court’s insistence upon keeping the principles distinct. It also, however, requires that the Supreme Court adjust its position with respect to its method for proving arbitrariness.

Part V Rights and Freedoms, B Rights and Freedoms under the Charter, Ch.39 Equality and Anti-discrimination: The Relationship between Government Goals and Finding Discrimination in Section 15

2017 ◽  
Author(s):  
Lawrence Sonia
Keyword(s):  
Supreme Court ◽  
Complete Separation ◽  
Supreme Court Of Canada ◽  
Government Action ◽  
Canadian Charter ◽  
Doctrinal Development ◽  
Substantive Equality ◽  
The Supreme Court ◽  
The Relationship

This chapter considers the effect of section 1, the “justification” section of the Canadian Charter, on the doctrinal development of section 15, the equality section. It begins by describing the development of the section 15 substantive equality analysis, including the claim of a conceptually complete separation from the section 1 analysis of state justification. The chapter then identifies some features of section 15 which suggest that this separation is less than complete, including the existence of section 15(2), and anxieties over constraining government action. The chapter then turns to three post-2001 cases in which the Supreme Court of Canada found discrimination under the Charter but then held that discrimination was “justified” through section 1, and asks what these cases might reveal about the symbolic significance of a finding of discrimination and the Court’s struggle with institutional competence concerns in equality claims.

Reconciling Rights and Federalism during Review of the Charter of Rights and Freedoms: The Supreme Court of Canada and the Centralization Thesis, 1982 to 1999

2001 ◽  
Vol 34 (2) ◽  
pp. 321-355 ◽  
Author(s):  
James B. Kelly
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
Administration Of Justice ◽  
Canadian Federalism ◽  
The Supreme Court ◽  
The Relationship ◽  
Provincial Autonomy

This article considers the relationship between rights and federalism in the Supreme Court of Canada's review of cases invoking the Canadian Charter of Rights and Freedoms. It considers whether the Supreme Court of Canada has compromised provincial autonomy by establishing Canada-wide standards in provincial areas of jurisdiction. It suggests that the centralization thesis associated with judicial review on Charter grounds is inconclusive, and combining several processes under the rubric of centralization, it misrepresents the Charter's effect on Canadian federalism and provincial autonomy. Further, the centralization thesis has lost much momentum during the course of Charter review, and, as a result, is a limited approach to understanding the relationship between rights and federalism in Canada. Specifically, the Supreme Court of Canada has demonstrated sensitivity to federalism in its Charter jurisprudence, most evident in a complex jurisprudence that has served to offset the centralization thesis and its implications for provincial autonomy. This threepart federalism jurisprudence is federalism as gatekeeper, an explicit federalism jurisprudence and an implicit federalism jurisprudence, which is most evident in the relationship between criminal rights and provincial responsibility for the administration of justice. This article demonstrates that the Court's approach to Charter review has seen a reconciliation between rights and federalism, most evident in the declining importance of the centralization thesis and the growing importance of the three-part federalism jurisprudence during Charter review. This sensitivity to federalism has existed since the beginning of the Court's Charter jurisprudence but has largely been overshadowed by the dominance of the centralization thesis in the Charter debate.

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.

Party Capability Theory and Appellate Success in the Supreme Court of Canada, 1949–1992

1993 ◽  
Vol 26 (3) ◽  
pp. 523-540 ◽  
Author(s):  
Peter McCormick
Keyword(s):  
United States ◽  
Supreme Court ◽  
Data Base ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
The Supreme Court ◽  
Different Types ◽  
Party Capability ◽  
Appeal Courts ◽  
Different Levels

AbstractNow that the advent of the Canadian Charter of Rights and Freedoms has made the fact of judicial power so obvious, it is important to develop the conceptual vocabulary for describing and assessing this power. One such concept that has been applied to the study of United States and British appeal courts is the notion of “party capability theory,” which suggests that different types of litigant will enjoy different levels of success, as both appellant and respondent. Using a data base derived from all reported decisions of the Supreme Court of Canada between 1949 and 1992, this article applies party capability theory to the performance of Canada's highest court, and compares the findings with similar studies of American and British courts.

scholarly journals Mr. Suresh and the Evil Twin

Refuge ◽  
2002 ◽  
pp. 15-22
Author(s):  
Audrey Macklin
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
National Security ◽  
September 11 ◽  
The State ◽  
Supreme Court Of Canada ◽  
Wide Scope ◽  
Canadian Charter ◽  
The Supreme Court ◽  
Substantial Risk

In Suresh v. Minister of Citizenship and Immigration and Ahani v. MCI, the Supreme Court of Canada declared that removing a refugee accused of terrorism to a country where he or she would face a substantial risk of torture or similar abuse would virtually always violate the individual’s rights under s. 7 of the Canadian Charter of Rights and Freedoms. While the Court deserves praise for vindicating fundamental human rights over competing claims of national security, coming so close on the heels of September 11, the victory is in certain respects more apparent than real. Given the strong endorsement of judicial deference to the exercise of Ministerial discretion in national security matters, the Court leaves the state wide scope to circumvent the spirit of the judgment while adhering to its letter.

scholarly journals L'effectivité des décisions de justice en droit public interne [constitutionnel]

2005 ◽  
Vol 26 (4) ◽  
pp. 995-1003
Author(s):  
Louis-Philippe Pigeon
Keyword(s):  
Supreme Court ◽  
Public Law ◽  
Supreme Court Of Canada ◽  
Public Authorities ◽  
Canadian Charter ◽  
Judicial Decisions ◽  
The Supreme Court ◽  
High Degree ◽  
Political Character ◽  
Limited Scope

In practice, no question ever arises respecting the effectiveness of judicial decisions in matters of public law. Whether or not a judgment is technically executory is of no importance. There is such a high degree of respect for the decisions of the courts, specially those of the Supreme Court of Canada, that public authorities practically never feel free to seek a way out of compliance with a judicial pronouncement. Remedial powers of the courts are entrenched under the Canadian Charter of Rights and Freedoms and the Constitution is declared to be the supreme law of Canada. There is thus very limited scope for governmental action in defiance of court orders. The only specific provision for such action appears to be a section of the Extradition Act authorizing the Minister of Justice to refuse to surrender a fugitive if he determines that the latter's offence is of a political character.

scholarly journals How the Charter Has Failed Non-citizens in Canada: Reviewing Thirty Years of Supreme Court of Canada Jurisprudence

2013 ◽  
Vol 58 (3) ◽  
pp. 663-728 ◽  
Author(s):  
Catherine Dauvergne
Keyword(s):  
Supreme Court ◽  
Time Frame ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
The Supreme Court

This article reviews the Supreme Court of Canada’s treatment of claims by non-citizens since the introduction of the Canadian Charter of Rights and Freedoms. While the early decisions in Singh and Andrews were strongly supportive of rights for non-citizens, the subsequent jurisprudence has been strikingly disappointing. This study shows that the decline in rights protections for non-citizens is a predictable consequence of some of the Court’s early interpretative positions about the Charter. This study considers all Supreme Court of Canada decisions in the thirty-year time frame. The analysis is rounded out by a consideration of cases that were not granted leave and cases that engage directly with an issue of non-citizens’ rights even where a non-citizen was not a party. The concluding section shows that non-citizens in Canada now have less access to rights protections than do non-citizens in some key comparator countries.

The Charter of Rights and Freedoms: Undermining Parliamentary Sovereignty and Federalism

Federalism-E ◽  
2019 ◽  
Vol 20 (1) ◽  
pp. 57-65
Author(s):  
Joshua Nahmias
Keyword(s):  
Supreme Court ◽  
Attorney General ◽  
Political Environment ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
The Public ◽  
Public Purse ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
Core Concepts

This article explores the Canadian Charter of Rights and Freedoms and its role in altering two core concepts of Canadian democracy: parliamentary sovereignty and federalism. The author argues that the Charter has undermined these concepts through the empowerment of Canada's judiciary, namely the Supreme Court of Canada. The article explores ways in which the powers of parliament have been superseded by the courts, specifically through the establishment of "charter proofing," parliament's loss of power over the "public purse," and the erosion of the provinces' policy autonomy. Ultimately, the article seeks to demonstrate that the Charter has "legalized" Canadian politics to the extent that the judiciary unwieldy an unacceptable amount of power in Canada's political environment. Cases explored in the essay include Morgentaler v. the Queen (1988), Schachter v. Canada (1992), and Attorney-General of Québec v. Association of Québec Protestant School Boards (1984).

Sign in / Sign up

Export Citation Format

Share Document