scholarly journals Unique Public Duties of Care: Judicial Activism in the Supreme Court of Canada

2016 ◽  
Author(s):  
Bruce Feldthusen
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Judicial Activism ◽  
The Supreme Court ◽  
Open Discussion ◽  
The Government

Typically, government liability in tort depends on whether the government in question, through legislation, has consented to be held liable for its otherwise tortious acts. However, the Supreme Court of Canada has behaved in an activist manner by ignoring or eviscerating this legislation, altering and expanding what governments can be held liable for. This article explains how this process has occurred, providing five specific examples where unique public duties of care were created. An open discussion is needed about whether the Supreme Court ought to continue doing this and, if so, on what basis. This article starts that discussion.

scholarly journals JUDICIALIZAÇÃO E ATIVISMO JUDICIAL EM PERSPECTIVA: UMA ANÁLISE A PARTIR DAS EXPERIÊNCIAS DAS SUPREMAS CORTES DO BRASIL E DO CANADÁ

2020 ◽  
Vol 1 (54) ◽  
pp. 425
Author(s):  
Edith Maria Barbosa RAMOS ◽  
Pedro Trovão do ROSÁRIO ◽  
Sara Barros Pereira de MIRANDA
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Scientific Basis ◽  
Fundamental Rights ◽  
Supreme Court Of Canada ◽  
Judicial Activism ◽  
Scientific Journals ◽  
Supreme Courts ◽  
The Supreme Court ◽  
Theoretical Construction

RESUMOA presente pesquisa por escopo analisar os fenômenos da judicialização e do ativismo judicial a partir das experiências da Suprema Corte do Canadá e do Supremo Tribunal Federal brasileiro. Observou-se que, em ambos os países, tem havido, nas últimas décadas, uma contínua expansão da autoridade do Poder Judiciário e da sua atuação em temáticas de natureza política até então abordadas apenas pelos Poderes Legislativo e Executivo, o que pode ser evidenciado a partir da análise das decisões proferidas pelas Cortes Supremas dos dois países. Apesar das diferenças na arquitetura constitucional, ambas as Cortes atuam como condutoras do processo de expansão alcance do poder de suas estruturas judiciárias. O presente artigo foi desenvolvido a partir de levantamento bibliográfico em artigos obtidos em diferentes bancos de dados e indexadores, publicados na integra em português e inglês, acessados de forma gratuita. Foram selecionadas revistas científicas na área do Direito Constitucional Comparado com extratos elevados, qualis A e B. Utilizou-se, ainda, dados constantes em documentos oficiais e na legislação pertinente com recorte epistemológico e científico fundado na construção teórica contemporânea dos Direitos Fundamentais. PALAVRAS-CHAVE: Judicialização; Ativismo Judicial; Suprema Corte do Canadá; Supremo Tribunal Federal brasileiro. ABSTRACTThis research by scope analyzes the phenomena of judicialization and judicial activism from the experiences of the Supreme Court of Canada and the Brazilian Supreme Court. It has been observed that, in both countries, there has been, in the last decades, a continuous expansion of the authority of the Judiciary Power and its action in themes of a political nature hitherto addressed only by the Legislative and Executive Powers, which can be evidenced by from the analysis of the decisions of the Supreme Courts of both countries. Despite differences in constitutional architecture, both courts act as drivers of the process of expanding the power of their judicial structures. This article was developed from a bibliographic survey in articles obtained in different databases and indexers, published in full in Portuguese and English, accessed for free. Scientific journals were selected in the area of Constitutional Law Compared with high extracts, qualis A and B. It was also used data in official documents and relevant legislation with epistemological and scientific basis based on the contemporary theoretical construction of Fundamental Rights. KEYWORDS: Judicialization; Judicial activism; Supreme Court of Canada; Brazilian Supreme Court.

scholarly journals The Truth About Canadian Judicial Activism

2011 ◽  
Vol 15 (1, 2 & 3) ◽  
pp. 2006
Author(s):  
Sanjeev Anand
Keyword(s):  
Supreme Court ◽  
Attorney General ◽  
Supreme Court Of Canada ◽  
Judicial Activism ◽  
State Action ◽  
The People ◽  
The Supreme Court ◽  
Recent Conference ◽  
Elected Representatives ◽  
Societal Preferences

The topic of judicial activism in Canada generates considerable disagreement. At a recent conference, retired Supreme Court of Canada Justice John Major stated that “there is no such thing as judicial activism in Canada.”1 In 2001, speaking in his capacity as the Canadian Alliance’s Justice critic, the current federal Minister of Justice and Attorney General, Vic Toews, told Parliament that the Supreme Court has “engaged in a frenzy of constitutional experimentation that resulted in the judiciary substituting its legal and societal preferences for those made by the elected representatives of the people . . . [producing] legal and constitutional anarchy.”2 One prominent constitutional scholar fears that the debate on judicial activism in Canada has begun to produce excessive judicial deference that allows legislatures and officials to act without scrutiny by the judiciary concerning the effects of state action on vulnerable minorities.

scholarly journals Judicial Nullification of Statutes under the Charter of Rights and Freedoms, 1982-1988

1969 ◽  
pp. 396 ◽  
Author(s):  
F. L. Morton ◽  
G. Solomon ◽  
I. McNish ◽  
D. W. Poulton
Keyword(s):  
Statistical Analysis ◽  
Supreme Court ◽  
Policy Making ◽  
Minority Rights ◽  
Supreme Court Of Canada ◽  
Judicial Activism ◽  
Judicial Interpretation ◽  
The Supreme Court ◽  
Legislative Policy ◽  
Court Of Appeal

This study assesses the effect of the Charter of Rights on legislative policy-making. Unlike earlier studies limited to the Charter decisions of the Supreme Court of Canada, this study identifies and analyzes all reported federal and provincial Court of appeal decisions from 1982 through 1988 in which a statute was declared invalid, in whole or in part. The authors discuss which Charter rights result in the most ' 'nullifications "of statutes, and judicial activism under the Charter, using a statistical analysis to support their assertions. The study also finds that the Charter has had a greater substantive effect on provincial jurisdiction, than on federal creating a tension between provincial rights and minority rights which can be moderated or exacerbated by different modes of judicial interpretation.

scholarly journals The supreme court of Canada and the offender’s right to be transferred to serve his sentence in Canada: interpreting the international transfer of offenders act in light of Canada’s national and international human rights obligations

2013 ◽  
Vol 6 (2) ◽  
pp. 102-123
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Supreme Court ◽  
Emergency Preparedness ◽  
Public Safety ◽  
Federal Court ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Academic Publications ◽  
The Usa ◽  
The Government ◽  
The Right

ABSTRACT In September 2013 in the case of Divito v Canada (Public Safety and Emergency Preparedness) the Supreme Court of Canada dealt with the issue of whether section 6(1) of the Canadian Charter of Rights and Freedoms, the Charter, which grants Canadians the right to enter Canada was violated in a case where the Minister of Public Safety and Emergency Preparedness declined to consent to the transfer of a Canadian citizen to serve his sentence in Canada where the sentencing state had consented to the transfer. Another issue was whether sections 8(1) and 10(1)(a) and 10(2)(a) of the International Transfer of Offenders Act, which granted the Minister the discretion to consent or not to consent to the transfer, were contrary to section 6(1) of the Charter. In resolving the above issues, the Court referred to its earlier jurisprudence, academic publications and international law. Although the Court agreed with the government that the appeal was moot because the appellant had left the USA by the time it was heard, it held that it retained “a residual discretion to decide the merits of a moot appeal if the issues raised are of public importance” and that this case was one of public importance because “[t]he issues are likely to recur in the future and there is some uncertainty resulting from conflicting decisions in the Federal Court.” The purpose of this article is to highlight the interpretative tools invoked by the court and the implications of the judgement.

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.

scholarly journals THE DUNMORE DEPARTURE: SECTION 1 AND VULNERABLE GROUPS

2011 ◽  
Vol 13 (1 & 2) ◽  
pp. 2003
Author(s):  
Caroline Libman
Keyword(s):  
Supreme Court ◽  
Occupational Group ◽  
Agricultural Workers ◽  
Vulnerable Groups ◽  
Supreme Court Of Canada ◽  
Labour Relations ◽  
The Supreme Court ◽  
Complete Exclusion ◽  
The Government ◽  
First Time

In the recent decision Dunmore v. Ontario (A.G.),1 the Supreme Court of Canada held that the complete exclusion of agricultural workers from Ontario’s Labour Relations Act2 was a violation of section 2(d) of the Charter3 that could not be justified under section 1. Dunmore was a novel case; as Bastarache J. noted in the introduction to the majority decision, it represented “the first time” the Court had been called on to review “the total exclusion of an occupational group from a statutory labour relations regime, where that group is not employed by the government and has demonstrated no independent ability to organize.”

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