scholarly journals Building a Law of Human Rights: Roncarelli v. Duplessis in Canadian Constitutional Culture

2011 ◽  
Vol 55 (3) ◽  
pp. 437-460
Author(s):  
Eric M. Adams
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Intellectual History ◽  
Law School ◽  
Supreme Court Of Canada ◽  
Bill Of Rights ◽  
The Supreme Court ◽  
Constitutional Culture ◽  
History Of

This article reveals how audiences, especially in anglophone Canada, initially received and interpreted Roncarelli v. Duplessis as a case, above all, about human rights. Ignoring the judgment’s myriad complexities, commentators eagerly situated the case within the Supreme Court of Canada’s “implied bill of rights” jurisprudence then taking shape. Part of the reason for the emphasis on Roncarelli’s rights can be traced to the manner in which Frank Scott and Louis Stein argued the case, and the language of rights employed by Justice Ivan Rand’s iconic judgment. But Roncarelli’s meaning also took shape in press accounts and editorials, radio broadcasts, case comments, and law school lectures. Exploring these often-neglected sources, this article exposes the role of constitutional culture in creating jurisprudential meaning. In turn, it also calls for greater recognition of the pre-Charter Supreme Court of Canada in contributing to Canada’s intellectual history of rights.

The Supreme Court and Civil Liberties

1969 ◽  
pp. 58
Author(s):  
W. S. Tarnopolsky
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Civil Liberties ◽  
Supreme Court Of Canada ◽  
Bill Of Rights ◽  
The Supreme Court ◽  
Fundamental Freedoms ◽  
Important Direction

To what extent has the Supreme Court of Canada tended to promote human rights and protect fundamental freedoms? This question is examined by looking at the bases on which the Supreme Court can protect civil liberties. In decisions prior to 1950 the author finds that the Supreme Court was not protective of "egalitarian" civil liberties. With respect to "political" civil liberties, the author finds the majority judgments of the Supreme Court of Canada of the 1950's inspiring. The enactment of the Canadian Bill of Rights in 1960 provided an important direction to the Court to protect civil liberties. The author feels that the Supreme Court has not yet satisfac torily responded to this direction. However, the Drybones decision recognized the constitutional status of the Bill of Rights and the author supports the argument that it is constitutional instrument.

The Role of the Judge in Advancing Human Rights - Knight Errant or Slot Machine Automation?

1988 ◽  
Vol 57 (1) ◽  
pp. 29-46
Author(s):  
Justice Michael Kirby
Keyword(s):  
United States ◽  
Human Rights ◽  
Supreme Court ◽  
Common Law ◽  
The United States ◽  
Bill Of Rights ◽  
The Supreme Court ◽  
Long Time ◽  
Protection Of Human Rights

AbstractIn this paper, the author deals with the "role" of judges in "advancing" human rights. He cautions that the needs of different countries will vary. He starts with a reference to the recent failure of Judge Robert Bork to secure confirmation to the Supreme Court of the United States. Bork had been a long time proponent of judicial restraint in the interpretation of the Bill of Rights, urging that protection of human rights should normally be left to the democratically accountable branches of government - the executive and the legislature. After reviewing the theoretical and practical arguments for and against judicial restraint, the author states his own conclusions. These are that, especially where there is a constitutional charter of rights and particularly in common law countries, judges have an inescapable function in developing the law. Their decisions necessarily advance their view of human rights. In human rights cases, they may nowadays receive assistance from international statements of human rights and the jurisprudence developing around such statements. The author appeals for an international approach but acknowledges that this will be difficult for lawyers, traditionally jurisdiction bound. But he warns that there are limits to the activism of the judiciary in controversial human rights cases. Judges themselves do well to recognise these limits both for their legitimacy and their effectiveness. An important modern challenge to the judiciary is that of resolving this dilemma between the pressures for restraint and the urgency of action.

The concept of human dignity in the case-law of the Supreme Court of Canada on Charter Equality Rights

2021 ◽  
Vol 30 (5) ◽  
pp. 118-137
Author(s):  
Tatiana Vasilieva ◽  
Keyword(s):  
South Africa ◽  
Human Rights ◽  
Supreme Court ◽  
Human Dignity ◽  
Case Law ◽  
Supreme Court Of Canada ◽  
Equality Rights ◽  
The Supreme Court ◽  
Additional Burden ◽  
The Impact

This article explores the evolution of the Supreme Court of Canada’s approach to the application of the concept of human dignity in constitutional equality cases. Traditionally, in human rights cases, this concept serves only to strengthen the argument, to show that the violation affects the person’s intrinsic worth. It is only in Canada and in South Africa that there is experience in applying the concept as a criterion for identifying discrimination. In 1999, in Law v. Canada, the Supreme Court recognized the purpose of Article 15(1) of the Canadian Charter of Rights and Freedoms of 1982 to be the protection of human dignity and stated that discrimination must be established based on assessment of the impact of a program or law on human dignity. However, in 2008, in R. v. Kapp, the Court noted that the application of the concept of human dignity creates difficulties and places an additional burden of prove on the plaintiff. It is no coincidence that victims of discrimination have preferred to seek protection before human rights tribunals and commissions, where the dignity-based test is not used. Subsequently, the Supreme Court of Canada rejected the use of the concept of human dignity as a criterion for identifying discrimination. The unsuccessful experience of applying the concept of human dignity as legal test has demonstrated that not every theoretically correct legal construction is effective in adjudication.

Judgment of the Supreme Court of Canada of February 28, 2020, on Nevsun v. Araya: a “quiet revolution” in the assessment of the status of corporations under public international law?

2021 ◽  
Vol 11 (2) ◽  
pp. 25-39
Author(s):  
Vera Rusinova ◽  
Olga Ganina
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
International Law ◽  
Supreme Court Of Canada ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Public International Law ◽  
The Supreme Court ◽  
International Human

The article analyses the Judgment of the Supreme Court of Canada on the Nevsun v. Araya case, which deals with the severe violations of human rights, including slavery and forced labor with respect of the workers of Eritrean mines owned by a Canadian company “Nevsun”. By a 5 to 4 majority, the court concluded that litigants can seek compensation for the violations of international customs committed by a company. This decision is underpinned by the tenets that international customs form a part of Canadian common law, companies can bear responsibility for violations of International Human Rights Law, and under ubi jus ibi remedium principle plaintiffs have a right to receive compensation under national law. Being a commentary to this judgment the article focuses its analysis on an issue that is of a key character for Public International Law, namely on the tenet that international customs impose obligations to respect human rights on companies and they can be called for responsibility for these violations. This conclusion is revolutionary in the part in which it shifts the perception of the companies’ legal status under International Law. The court’s approach is critically assessed against its well-groundness and correspondence to the current stage of International law. In particular, the authors discuss, whether the legal stance on the Supreme Court of Canada, under which companies can bear responsibility for violations of International Human Rights Law is a justified necessity or a head start.

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.

Appointments to the Supreme Court of Canada

2018 ◽  
pp. 231-241
Author(s):  
Peter McCormick
Keyword(s):  
Supreme Court ◽  
Prime Minister ◽  
Law School ◽  
Supreme Court Of Canada ◽  
Judicial Appointments ◽  
Canadian Experience ◽  
The Supreme Court

This essay traces the genesis of the Supreme Court of Canada under the Supreme Court Act of 1875, and the appointment procedure as described in it. The essay argues that the widening of the pool, where consultation for judicial appointments is made, has resulted in the appointment of persons with diverse credentials. The author describes how a reformed procedure for appointments involves the Prime Minister and the Minister of Justice consulting various Chief Justices, law school deans, and provincial justice ministers to solicit names of potential appointees. The Canadian experience demonstrates variations in appointment mechanisms for broad-based consultation even in the absence of a commission model. The author, however, rues that most innovations in the appointments process have been short-lived, with a general shift to a more secretive process for appointments.

scholarly journals Uloga institucije ombudsmena i sudova u sudskim postupcima povodom slučajeva diskriminacije u Bosni i Hercegovini

2019 ◽  
Vol 56 (3) ◽  
pp. 667-683
Author(s):  
Mirza Čaušević
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Bosnia And Herzegovina ◽  
General Information ◽  
Direct Discrimination ◽  
The Supreme Court ◽  
The Law ◽  
Court Proceedings ◽  
The Individual

When reading the article’s title, it is important to emphasize the role and importance of the Institution of the Ombudsman for Human Rights of Bosnia and Herzegovina, the most important national institution for the protection of human rights and fundamental freedoms. Consequently, according to the logic of thinking, it can be clearly concluded that the most important segment of action, above mentioned national institution, is to prevent or eliminate all forms of indirect and direct discrimination. Accordingly, the author decided, in addition to introductory and concluding considerations, to divide the article into four (4) parts. The first part of the article entitled “Theoretical Determination of Discrimination” provides general information on the concept, different forms and types of discrimination in accordance with the Law on Prohibition of Discrimination in Bosnia and Herzegovina. Unlike the first, in the second part of the article “The Role of the Ombudsman in the Probation of Discrimination Proceedings”, the Ombudsman aims to present the legal position of the ombudsman in court proceedings, with the mandatory indication of the conditions for initiating the proceedings on his own behalf, representing the individual and intervening in the ongoing proceedings. Through practical examples, the author seeks to emphasize the importance, role and importance of the ombudsman in court proceedings. Subsequently, in the third part of the “Role of Courts in the Probation of Discrimination Proceedings”, the author concentrates that, by using the Law on Prohibition of Discrimination, he presents court judgments that discriminate the education system of the Central Bosnia and Herzegovina Canton (non) discriminatory on the basis of the existing segregation in so called. “Two schools under one roof”. Thus, this section primarily analyzes the rejection of the aforementioned claims. Finally, in the fourth (working) section entitled “The Probation of Discrimination Proceeding before the Supreme Court of the Federation of Bosnia and Herzegovina”, the author presents positive and negative examples in the work of the Supreme Court of FBiH, and above all clarifies the process of proving discrimination before this court instance. The aim of this paper is to investigate the legal background of the Institution of the Ombudsman for Human Rights in Bosnia and Herzegovina, as well as judicial instances from the aspect of domestic (national) law, while, on the other hand, special attention is devoted to the actions of the FBiH Supreme Court in cases of discrimination.

The Declaration of Independence as a Transitional Constitution: The Case of Israel

2016 ◽  
Vol 8 (1) ◽  
pp. 57-89 ◽  
Author(s):  
Michal Tamir
Keyword(s):  
Human Rights ◽  
Transitional Justice ◽  
Judicial Review ◽  
Bill Of Rights ◽  
Declaration Of Independence ◽  
Human Rights Regime ◽  
The Supreme Court ◽  
History Of ◽  
Constitutional Regime ◽  
Constitutional Revolution

In the two decades since Israel’s constitutional revolution, the Basic Laws have come to enjoy normative supremacy and demonstrate efficacy by enabling judicial review of the legislative and the executive branches. Yet, they have not assumed an integrative role in the Israeli society. In terms of their substance, the Basic Laws are incomplete in scope. In terms of the procedure leading up to their enactment, they lack public legitimacy. This can be attributed, at least in part, to the fact that the Supreme Court was the key political actor responsible for retroactively upgrading the Basic Laws from regular laws to constitutional norms. This paper argues that the only document in the history of Israel possessing the potential to fulfill an integrative role was the Declaration of Independence. Due to its intrinsic ‘transitional’ characteristics and the unique socio-political circumstances surrounding its drafting, this founding document could and should have been perceived as a transitional constitution. This transitional constitution established Israel’s basic values and opened the way for an incremental constitutional process that continued with the enactment of the Basic Laws, and that will culminate only with the drafting of a full constitution. However, owing in part to the narrow conception of transitional justice, the Declaration was never interpreted as such. This historical error could have been corrected in 1994 as the identical principle clause of Israel’s two Human Rights Basic Laws—which constitute Israel’s (partial) Bill of Rights—declared that the human rights regime in Israel should be “respected in the spirit of the Declaration of Independence”. Yet, this opportunity was once again not seized. This failure carries unfortunate consequences for the Israeli constitutional regime since unlike the Basic Laws, which enjoy formal normative supremacy yet nonetheless suffer from legitimacy deficiencies, the Declaration bears the potential to fulfill an integrative constitutional function.

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.

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