scholarly journals Life Among the Ruins: Section 91(24) After Tsilhqot'in and Grassy Narrows

2017 ◽  
Author(s):  
Kerry Wilkins
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Treaty Rights ◽  
The Supreme Court ◽  
Additional Protection ◽  
The Law

In two landmark 2014 decisions — Tsilhqot’in and Grassy Narrows — the Supreme Court of Canada held that section 35 of the Constitution Act, 1982, is all that protects existing Aboriginal and treaty rights from federal or provincial infringement: that such rights derive no additional protection from the doctrine of interjurisdictional immunity. This article examines that conclusion by criticizing the reasoning offered in its support, pointing out its unacknowledged doctrinal implications, and inviting a broader conversation about how the law should address them.

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 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.

Recent Developments in Canadian Aboriginal Law: Overview of Case Law and of Certain Principles of Aboriginal Law

2008 ◽  
Vol 10 (3) ◽  
pp. 319-350
Author(s):  
Patricia Ochman
Keyword(s):  
Supreme Court ◽  
Indigenous Peoples ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Treaty Rights ◽  
Aboriginal Rights ◽  
The Supreme Court ◽  
Key Concepts ◽  
Recent Developments ◽  
Aboriginal Law

AbstractThe author reviews the most recent judgments rendered by the Supreme Court of Canada and certain provincial courts, in order to provide an update in the sphere of Aboriginal law practice in Canada, destined mainly for foreign lawyers and academics. Throughout the review of those recent judgments, the author provides an overview of certain key principles and concepts of Canadian Aboriginal law. Besides providing an overview of recent judgments in the sphere of Aboriginal law, the author seeks to illustrate how meaningful the protection and recognition of Aboriginal rights and treaty rights are in practice, through the overview of key concepts and principles of Canadian Aboriginal law and how they were recently interpreted by Canadian courts. The author briefly addresses Canada's vote against the adoption of the U.N. Declaration on the Rights of Indigenous Peoples.

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.

scholarly journals Commentary on Papers Delivered on the Supreme Court of Canada and the Law of Obligations

1969 ◽  
pp. 160
Author(s):  
D. C. McDonald
Keyword(s):  
Supreme Court ◽  
Civil Code ◽  
Supreme Court Of Canada ◽  
Privy Council ◽  
Appellate Courts ◽  
Trial Judge ◽  
The Supreme Court ◽  
The Law ◽  
The Cost

The speaker noted that the Hon. Emmett Hall, for whom he was substituting, had had experience as trial judge, quality he considers desirable in the appellate courts. He then commented on some of the very early cases of the S.C.C., before proceeding to discussion of Dean Friaman's paper. The speaker discussed aspects in the development of the law relating to trespassers and occupier's liability. He was of the opinion that the S.C.C. was not as mechanistic in its approach to the law of tort as Dean Fridman thought it to be. In commenting on Dr. Beaudoin's presentation, Mr. Justice McDonald noted that the blame for the lack of weight given to French decisions in matters concerning the Quebec Civil Code droit de delits should not be attributed to the S.C.C. but to the Privy Council. In concluding, His Lordship observed that the process of applying for have to appeal to the S.C.C. deserves further study, since the present requirement that the Court dispose of applications for leave which are not accompanied by an oral submis sion increases the cost of appeal particularly for Western cases.

scholarly journals Interpreting Sui Generis Treaties

1997 ◽  
Vol 36 (1) ◽  
pp. 46 ◽  
Author(s):  
James (Sakej) Youngblood Henderson
Keyword(s):  
Supreme Court ◽  
Contextual Analysis ◽  
Supreme Court Of Canada ◽  
Constitutional Rights ◽  
Cognitive Diversity ◽  
Treaty Rights ◽  
The Supreme Court

This article explores the interpretive principle of sui generis treaties introduced by the Supreme Court of Canada since the repatriation of the Constitution in 1982. The article proceeds through an analysis of treaty rights as constitutional rights, contextual analysis of Indian Treaties, the intent of the treaty parties and the principles which govern the interpretation of treaty text. The author concludes that the principles articulated by the Supreme Court of Canada are an attempt to affirm and enhance Aboriginal worldviews and cognitive diversity within the Constitution of Canada.

scholarly journals Be careful what you promise: Proprietary estoppel in Cowper-Smith v Morgan

2018 ◽  
Author(s):  
Jason Chin
Keyword(s):  
British Columbia ◽  
Property Rights ◽  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Canadian Experience ◽  
The Supreme Court ◽  
The Law ◽  
Court Of Appeal

Proprietary estoppel provides one of equity’s most powerful remedies. Estoppel is an equitable doctrine which arises when one party acts on the reliance of the promise of another. The promise and corresponding reliance creates a quasi-contract with reliance acting as an alternative to the consideration usually required in contracts. Proprietary estoppel is distinct from other equitable estoppels in that a proprietary estoppel can act as a ‘sword’ and form the basis of a cause of action. If all of the parts of proprietary estoppel are made out, a court can modify or create property rights to satisfy the equity.With regard to the Canadian experience, the Court of Appeal for Ontario recently noted that proprietary estoppel has received “somewhat uneven treatment in Canada.” It is within this context that the Court of Appeal for British Columbia split on the proper scope for the Supreme Court of Canada. In Cowper-Smith v Morgan, the Supreme Court of Canada has both clarified the test for — and arguably expanded the scope of — proprietary estoppel in the context of promises exchanged between children over their mother’s care during her lifetime. The fact that a party lacks an interest in the disputed property at the time of the promise does not negate the obligation of fulfilling the promise. Instead, when the party responsible for the expectation has or acquires sufficient interest in the property, proprietary estoppel will attach to that interest and protect the equity. This article will discuss the law of proprietary estoppel in other jurisdictions and how the Supreme Court of Canada has infused this remedy with greater flexibility to satisfy the equity.

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