scholarly journals From the Rule of Law to Responsible Government: Ontario Political Culture and the Origins of Canadian Statism

2006 ◽  
Vol 23 (1) ◽  
pp. 86-119 ◽  
Author(s):  
Paul Romney
Keyword(s):  
Political Culture ◽  
The United States ◽  
Cultural Continuity ◽  
Supreme Court Of Canada ◽  
Upper Canada ◽  
British Rule ◽  
Responsible Government ◽  
The Supreme Court ◽  
Upper Canadian ◽  
The Individual

Abstract It is a commonplace that the Canadian political culture is more “conservative” or “statist” than the American. This trail is usually explained in terms of cultural continuity, the underlying idea being thai Canada was formed from a congeries of cultural fragments which esteemed paternalistic collectivism and deplored American “liberalism” and “individualism,” and that this initial bias, reinforced as it was by fear of the United States, affected even liberal thought. This paper approaches the Canadian political culture from the opposite direction. Focussing on Ontario, it traces Canadian statism to the transformation of Upper Canadian Reform ideology by the contingencies of domestic history. A fundamental inconsistency within Whig constitutionalism — the hegemonic ideology of the English stale and as such the ideological foundation of British rule in Upper Canada — was crucial to that transformation. In proclaiming the existence of indefeasible constitutional principles, but setting no limit to Parliament's power to legislate in derogation of those principles. Whig constitutionalism permitted contradictions between “the constitution” and “the law.” Upper Canadian Reformers were especially sensitive to this inconsistency because of the apparent failure of legally established institutions to function according to constitutional precept. The imperial failure to remedy these functional defects impelled leading Reformers to forsake Whig constitutionalism for the ideology of responsible government. The circumstances of the struggle for responsible government fostered the apotheosis of the community and imparted a special authority to the common will as expressed in legislation. This development promoted a drift from constitutionalism towards legalism in relations between the state and the individual, but because it was the provincial, not the “national” community that was thus exalted, constitutionalism remained predominant in federal- provincial relations. The persistence of this cultural dualism is evident from a comparison of the decisions of the Supreme Court of Canada in Morgentaler's cases with its decision in the Patriation Reference.

Attitudes, Precedents and Cultural Change: Explaining the Citation of Foreign Precedents by the Supreme Court of Canada

2001 ◽  
Vol 34 (2) ◽  
pp. 377-399 ◽  
Author(s):  
C. L. Ostberg ◽  
Matthew E. Wetstein ◽  
Craig R. Ducat
Keyword(s):  
Supreme Court ◽  
Cultural Change ◽  
The United States ◽  
Convergence Theory ◽  
Supreme Court Of Canada ◽  
Political Leaders ◽  
Policy Convergence ◽  
The Supreme Court ◽  
Citation Practices ◽  
The Individual

Policy convergence theory suggests that political leaders of societies will often emulate policy solutions that work in other settings. Yet political leaders can also reject policy alternatives, leading to policy divergence. This study explores the extent to which policy convergence (and/or divergence) takes place in the legal setting of citation practices by the Supreme Court of Canada. The authors examine the Court's practice of citing authorities from other countries, particularly the United States. The findings echo earlier works that have found increasing citation of US case law since the adoption of the Canadian Charter of Rights and Freedoms in 1982. The justices of the Canadian Supreme Court continue to devote considerable attention to the legal doctrines of other countries' courts, particularly when they are confronted with Charter disputes. Thus, convergence theory gets some qualified support when applied to the Canadian Supreme Court's citation practices. The authors provide several complementary explanations for this evidence of policy emulation, suggesting that it stems from the individual attitudes of justices, from the litigation strategies pursued by groups and from broader societal values that the justices adhere to in their rulings. As such, foreign citation patterns of justices on the Supreme Court of Canada should not only be of interest to public law scholars, but to political scientists generally.La théorie sur la convergence des politiques soutient que les dirigeants des sociétés imitent souvent les solutions politiques qui ont fait leur preuve dans d'autres contextes. Les dirigeants peuvent également, cependant, rejeter les alternatives politiques menant à des divergences. Cette étude examine la portée de la convergence (ou des divergences) des politiques dans le cadre des pratiques de citation de la Cour suprême du Canada, lorsque celles-ci concernent les autorités de d'autres pays, les États-Unis en particulier. Ses conclusions rejoignent celles de travaux antérieurs qui ont constaté une augmentation des citations des lois américaines depuis l'adoption de la Charte canadienne des droits et libertés, en l982. Les juges de la Cour Suprême du Canada continuent d'accorder une attention importante aux doctrines légales des cours des autres pays, en particulier lorsqu'ils sont confrontés à des contestations de la Charte. Donc la théorie de la convergence est confirmée dans une certaine mesure par les pratiques de citation de la Cour suprême du Canada. L'article fournit plusieurs explications complémentaires de cette politique d'imitation, suggérant qu'elle origine des attitudes individuelles des juges, des stratégies de contestation utilisées par les groupes et, plus largement, des valeurs sociétales auxquelles se référent les juges dans leurs décisions. Par conséquent, les patterns de citation des jurisprudences étrangères de la Cour suprême du Canada devraient intéressé, non seulement les chercheurs en droit public, mais les spécialistes de la science politique en général.

scholarly journals R. v. Imperial Tobacco Ltd.: More Restrictions on Public Authority Tort Liability

2012 ◽  
Vol 50 (1) ◽  
pp. 157
Author(s):  
Lewis N. Klar, Q.C.
Keyword(s):  
Supreme Court ◽  
Public Authority ◽  
Duty Of Care ◽  
Supreme Court Of Canada ◽  
Upper Canada ◽  
Tort Liability ◽  
Public Authorities ◽  
The Supreme Court ◽  
Regulatory Functions

Since 2001, it has become very difficult for claimants to successfully sue public authorities for their negligent conduct, particularly in relation to their regulatory functions. This primarily has been due to the refined duty of care formula established by the Supreme Court of Canada in Cooper v. Hobart and Edwards v. Law Society of Upper Canada. As a result of their 2011 R. v. Imperial Tobacco Ltd. decision, the Supreme Court of Canada has restricted even further the ability of private claimants to successfully sue governments for their regulatory failures.

Repeat Litigators and Agenda Setting on the Supreme Court of Canada

2002 ◽  
Vol 35 (4) ◽  
pp. 811-833 ◽  
Author(s):  
Roy B. Flemming ◽  
Glen S. Krutz
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Statistical Models ◽  
Comparative Research ◽  
The United States ◽  
Supreme Court Of Canada ◽  
High Courts ◽  
The Supreme Court ◽  
Selection Of

The expanding public policy role of high courts heightens concerns over whether societal and political inequalities affect the outcomes of litigation. However, comparative research on this question is limited. This article assesses whether status inequalities between parties and differences in the experience and resources of attorneys influence the selection of cases for judicial review in the Supreme Court of Canada. A series of statistical models reveal that governments are more likely than other parties to influence whether leave is granted but that the experience and resources of lawyers, unlike in the United States, have little impact. The decentralized, low volume and high access features of the Canadian process may explain this finding.

The Emergence and Development of Intellectual Property Law in Canada

2017 ◽  
Author(s):  
Daniel Gervais
Keyword(s):  
Intellectual Property ◽  
Common Law ◽  
Civil Law ◽  
The United States ◽  
Supreme Court Of Canada ◽  
Complex Relationship ◽  
Canadian Law ◽  
The Supreme Court ◽  
Important Trading Partner ◽  
The Impact

This chapter reviews the emergence of intellectual property (IP) norms in the areas of copyright, trademarks, patents, and designs in Canadian law from the early days of the Dominion’s complex relationship with British IP statutes and policy to a time of progressive independence from those statutes. It then reviews more recent changes, some of which were made to bring Canada’s laws into line with major international registration systems. Canada has also been ready to experiment with variations on IP themes. This is visible both in statutes and in decisions by the Supreme Court of Canada. The impact of the bijural nature of Canada’s legal system and its proximity to the United States are also discussed: Canada has integrated civil law notions into an edifice constructed mostly of common law bricks, and must confront demands from its most important trading partner in adapting its intellectual property framework.

scholarly journals Settling the Fisheries: Pre-Confederation Crown Policy in Upper Canada and the Supreme Court's decisions in R. v. NIKAL and LEWIS

2014 ◽  
Vol 31 (1) ◽  
pp. 87-172
Author(s):  
Peggy J. Blair
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Upper Canada ◽  
Aboriginal Rights ◽  
Fishing Rights ◽  
The Supreme Court ◽  
The Subject

Although a casual reading of the Supreme Court of Canada's decisions in R. v. Nikal and R. v. Lewis might suggest otherwise, this article will argue that Court's decisions in two recent British Columbia aboriginal fishing cases do not apply in Ontario. In doing so, it will be shown that the Supreme Court of Canada relied on evidence of historic Crown policies towards aboriginal fishing rights in Upper Canada in the absence of appropriate context as to when, how and why those policies evolved. As a result, the Court wrongly concluded that fisheries could not be the subject of exclusive aboriginal rights.

The Charter in the Supreme Court of Canada: The Importance of Which Judges Hear an Appeal

1991 ◽  
Vol 24 (2) ◽  
pp. 289-307 ◽  
Author(s):  
Andrew D. Heard
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
The Individual ◽  
Practical Impact

AbstractA traditional focus on the collective, institutional operation of the Supreme Court of Canada has obscured the practical impact on the Charter of Rights of the personal views held by the individual members of the Court. A study of all the Charter cases decided by the Supreme Court from 1983 to 1989 reveals a profound divergence of opinions within the Court. The differences are seen not only in each judge's overall support for Charter claims but also in the patterns of agreement between bilateral pairings of judges who have heard the same cases. The use of subsets of judges to sit on panels to hear Charter cases has meant that both the outcome of Charter cases and the content of our rights have depended to a large extent upon which judges happened to sit on the panels that heard the cases.

Democracy and the Freedom of Speech: Rethinking the Conflict between Liberty and Equality

2013 ◽  
Vol 26 (2) ◽  
pp. 293-311 ◽  
Author(s):  
Yasmin Dawood
Keyword(s):  
Supreme Court ◽  
Campaign Finance ◽  
The United States ◽  
The Other ◽  
Supreme Court Of Canada ◽  
Competing Values ◽  
Political Equality ◽  
Normative Claim ◽  
The Supreme Court ◽  
The U.S

This article re-examines the distinction between the libertarian approach and the egalitarian approach to the regulation of campaign finance. The conventional approach (as exemplified by the work of Owen Fiss and Ronald Dworkin) is to reconcile the competing values of liberty and equality. By contrast, this article advances the normative claim that democracies should seek to incorporate both the libertarian and the egalitarian approaches within constitutional law. I argue that instead of emphasizing one value over the other, the ideal position is one that simultaneously recognizes the values of liberty and equality despite the irreconcilable tension between them. Rather than choosing one value over the other, or reconciling these values by redefining them, I claim that it is vital to maintain the tension between liberty and equality by instantiating the conflict in law. Democracy is better served when the law contains an explicit tension between these foundational values.After setting forth this normative framework, I then apply it to the campaign finance decisions of the Supreme Courts of the United States and Canada, respectively. I make two main claims. First, I argue that although the libertarian/egalitarian distinction is usually presented as a binary choice, the laws of a given jurisdiction often simultaneously display both libertarian and egalitarian characteristics. For this reason, I claim that the libertarian/egalitarian distinction is better conceived of as a “libertarian-egalitarian spectrum.” Second, I argue that in recent years, the U.S. Supreme Court and the Supreme Court of Canada, respectively, have privileged one value—liberty or equality—at the expense of the other. The U.S. Supreme Court has over-emphasized the value of liberty (most notably in its Citizens United decision), with the result that political equality is markedly undermined. By the same token, the Supreme Court of Canada’s commitment to equality has become too one-sided in recent cases (Harper and Bryan), with the result that there are significant impairments to free speech liberties. I argue that both of these approaches are detrimental to democratic participation and governance. Finally, this article offers a preliminary proposal for how courts and legislatures can allow for the conflict between liberty and equality to be instantiated in law.

scholarly journals Russian old believers in Alaska : linguistic and cultural continuity of traditionalist refugees

2015 ◽  
Author(s):  
◽  
April Renee Bass
Keyword(s):  
United States ◽  
American Culture ◽  
The United States ◽  
Cultural Continuity ◽  
Language And Culture ◽  
Individual Level ◽  
Old Believers ◽  
South Central ◽  
Population Maintenance ◽  
The Individual

For two centuries, Russian Old Believers existed as religious refugees in search of a permanent and tolerant home; one group of Old Believers made their way to the United States. However, while these Old Believers found religious refuge in a nation with vacillating tolerance of religious freedom, they encountered new complications of cultural and linguistic pressures and temptations to assimilate -- particularly for their children. In an attempt to continue passing on the language and culture they had preserved from the 17thcentury, a few families established a geographically isolated, closed community in South Central Alaska (SCAK) that grew into a Village with different ways of adapting to the American culture outside. In evaluating how well SCAK Old Believers have maintained 17th-century traditional (i.e., passed from parent to child) language and culture I found that: 1.) the community has surpassed the third-generation language shift paradigm that most refugees and immigrants to the United States succumb to; 2.) overt expressions of religiosity quantifiably distinguish Old Believers from their non-Old Believer counterparts in the Village, which indicates that high-fidelity transmission still occurs; and 3.) traditional transmission is still positively influencing community retention (i.e., population maintenance). Additionally, I found that significant Village events initiated specific differences in adaptations to the surrounding American culture at the individual level that had interesting effects on strategies and behavior at the group level. Not only is this research a significant contribution to further clarifying human behavior and cultural evolution. This research and these findings are timely and relevant as social justice for refugees and immigrants are at the forefront of many current national and global sociopolitical conversations. The SCAK Old Believers demonstrate that it is possible to maintain linguistic and cultural heritage within a dominant postindustrialized society, and their case reinforces the importance of choice for refugees and the value of life without fear.

scholarly journals Growing Pains and Other Things: The Supreme Court of Canada and the Supreme Court of the United States

2019 ◽  
Vol 17 (4) ◽  
pp. 753-796
Author(s):  
Edward G. Hudon
Keyword(s):  
United States ◽  
Supreme Court ◽  
The United States ◽  
Supreme Court Of Canada ◽  
Supreme Courts ◽  
Starting Point ◽  
Growing Pains ◽  
The Supreme Court ◽  
History Of

This article is in part a book review and in part a study of two institutions. In it, the author compares the origin and growth of the Supreme Court of Canada and of the Supreme Court of the United States. He uses Professors James G. Snell and Frederick Vaughan's The Supreme Court of Canada: History of the Institution as a starting point, and he compares various aspects of the two Supreme Courts. He points out similarities in the problems that the two have confronted since the beginning, and he indicates the manner in which these problems have been resolved by each.

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