scholarly journals Une doctrine d'abus de procédure revigorée en droit pénal canadien

2005 ◽  
Vol 24 (3) ◽  
pp. 673-698
Author(s):  
Rachel Grondin
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Supreme Court Of Canada ◽  
Legal Process ◽  
Canadian Charter ◽  
American Experience ◽  
The Supreme Court ◽  
The Individual ◽  
Abuse Of Law ◽  
The U.S

This article examines the doctrine of abuse of process in Canadian criminal law in the light of two recent events, the decision of the Supreme Court of Canada in Amato c. R. and the adoption of the Canadian Charter of Rights and Freedoms. The consideration of Amato v. R. in the firts part of the article shows that the majority of judges of the Supreme Court support the existence of the doctrine of abuse of law, and their reasons for this are examined. The effects of the Charter upon such a doctrine is demonstrated in the second part. The American experience is cited, showing the interrelationship of the U.S. Constitution and the doctrine of abuse of process. This is followed by a comparative table of Canadian cases in which the procedure was halted either because of the doctrine or by virtue of the Charter, particularly s. 24(1) which permits judges to stay proceedings for reasons of infringement or denial of guaranteed rights or freedoms. The article concludes that the doctrine has not been superceded by the Charter, but rather that it plays an important role par ailed to it : the former protects the integrity of the legal process while the latter safeguards the rights of the individual.

scholarly journals Recent Developments in Italian Constitutional-Criminal Law

1969 ◽  
pp. 427
Author(s):  
Alberto Cadoppi
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Constitutional Law ◽  
Criminal Responsibility ◽  
Legal Rights ◽  
Constitutional Court ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
The Supreme Court ◽  
Recent Developments

This article compares Italian "Constitutional- Criminal" law under Italy's Constitution with the development of legal rights in Canada under the Canadian Charter of Rights and Freedoms. The author explains the "constitutional approach'' to criminal law in Italy, which is a complex web of principles which govern the criminal law by defining the concepts of "crime" and "criminal responsibility". Professor Cadoppi then examines various aspects of "constitutional-criminal "law as it has been developed by legal scholars, and the extent to which this approach has been accepted by the Italian Constitutional Court. The legal rights found in "constitutional-criminal" law are thought to be extendable to Canadian constitutional law, given the broad language of section 7 of the Canadian Charter of Rights. The author notes that the Supreme Court of Canada has given the Canadian Charter an expansive interpretation comparable to the Italian ' 'constitutional-criminal'' law approach, and uses this parallel to show that Canadian and Italian courts are moving toward a vision of a new criminal law in which ' 'fundamental justice'' will prevail.

scholarly journals Le contrôle des prix et des revenus au Canada

2009 ◽  
Vol 52 (3) ◽  
pp. 271-310
Author(s):  
Richard G. Lipsey
Keyword(s):  
Supreme Court ◽  
Economic Crisis ◽  
Supreme Court Of Canada ◽  
Traditional Methods ◽  
The Supreme Court ◽  
The U.S

Abstract This paper is a summary of the Legal Factum submitted by the Canadian Labor Congress to the Supreme Court of Canada. It intends to demonstrate the irrelevance of the Anti-Inflationnary Act of October 1975. Three main questions are dealt with. First, was there an economic crisis in October 1975? Analysing various sets of data, the paper concludes that, by no stretch of imagination, could October 1975 be called an economic crisis. Second, was there a policy crisis in the sense that traditional methods had been tried and failed? It establishes here that no serious attempt had been made to contain inflation by traditional fiscal and monetary tools by October 1975. Third, what results can be expected from income policies? This part gives a summary of the voluminous evidence for the U.K. and the U.S., and concludes that the evidence of other incomes policies is that their effects on slowing the rate of inflation are small and often transitory.

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.

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.

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.

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.

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