scholarly journals Fighting Human Smuggling or Criminalizing Refugees? Regimes of Justification in and around R v Appulonappa

2018 ◽  
Vol 33 (01) ◽  
pp. 21-39 ◽  
Author(s):  
David Moffette ◽  
Nevena Aksin
Keyword(s):  
Supreme Court ◽  
Asylum Seekers ◽  
Family Members ◽  
Sri Lankan ◽  
Human Smuggling ◽  
Mutual Aid ◽  
Criminal Offence ◽  
Refugee Protection ◽  
The Supreme Court ◽  
Pragmatic Sociology

AbstractFollowing the arrival of the MVOcean Ladyin 2009, four men were charged with human smuggling under s. 117 of theImmigration and Refugee Protection Actfor having helped Sri Lankan asylum seekers reach Canada. Section 117 made it a criminal offence to aid and abet the unauthorized entry of asylum seekers, including when this was done for humanitarian reasons, to help family members, or as a matter of mutual aid. The case made its way to the Supreme Court and, in 2015, the court ruled inR v Appulonappathat s. 117 was too broad, potentially criminalizing humanitarian workers and family members who help transport asylum seekers, and should be interpreted in a strict manner. This article draws from pragmatic sociology to study the regimes of justification mobilized by various actors involved in, and around,R v Appulonappabetween 2009 and 2015. It focuses on two sites of contestation that crystalized around divergent conceptions of fairness and safety, discussing how competing regimes of justification were used to advance stakeholder’s positions.

Canadian Exclusion Jurisprudence post-Febles

2021 ◽  
Author(s):  
Molly Joeck
Keyword(s):  
Supreme Court ◽  
Rule Of Law ◽  
Asylum Seekers ◽  
Refugee Status ◽  
The Rule Of Law ◽  
Refugee Protection ◽  
Refugee Law ◽  
The Supreme Court ◽  
The Status ◽  
International Refugee Law

Abstract This article examines the state of Canadian refugee law since the decision of the Supreme Court in Febles v Canada (Citizenship and Immigration) [2014] 3 SCR 431. Drawing upon an analysis of a set of decisions of the Immigration and Refugee Board, the administrative tribunal tasked with refugee status determination in Canada, the article seeks to determine whether administrative decision makers are heeding the guidance of Febles when excluding asylum seekers from refugee protection on the basis of serious criminality pursuant to article 1F(b) of the 1951 Convention relating to the Status of Refugees. In doing so, it examines the controversy around article 1F(b) since its inception across various jurisdictions and amongst academic commentators, situating Febles within that controversy in order to demonstrate that the Supreme Court’s reluctance to clearly set out the purpose underlying article 1F(b) is in step with a longstanding tendency to understand the provision as serving a gatekeeping function, that prevents criminalized non-citizens from obtaining membership in our society. It argues that by omitting to set out a clear and principled standard by which asylum seekers can be excluded from refugee protection pursuant to article 1F(b), the Supreme Court failed to live up to a thick understanding of the rule of law. It concludes by calling for a reassertion of the rule of law into exclusion decision making, both nationally and internationally, in order to ensure that the legitimacy of the international refugee law regime is maintained.

Appealing to Whom? Australia's ‘Appellate Jurisdiction’ Over Nauru

2007 ◽  
Vol 56 (3) ◽  
pp. 641-658
Author(s):  
Gregory Dale
Keyword(s):  
Supreme Court ◽  
Asylum Seekers ◽  
The Other ◽  
Law Reform ◽  
Question Mark ◽  
High Court ◽  
Perceived Utility ◽  
The Supreme Court ◽  
Significant Case ◽  
High Court Of Australia

A peculiar and unique agreement exists between Australia and Nauru, which has ensured that, since 1976, appeals may be brought from the Supreme Court of Nauru, an independent Republic, to the High Court of Australia by virtue of a bilateral treaty1 and statutes of the respective Parliaments.2 In 1998 and 1999 two High Court judgments left a question mark hanging over the constitutional validity of this appellate scheme.3 Furthermore, in 2001, the Australian Law Reform Commission (ALRC) expressed the view that Australia should terminate the agreement as the arrangement was of no perceived ‘utility’ to Australia.4 For 29 years only two rather trivial cases were appealed from the Supreme Court to Australia's High Court.5 In 2005 a much more significant case, Ruhani, 6 was appealed from Nauru to Australia. The case was not only significant in that it concerned the validity of the so-called ‘Pacific Solution’, which involved Australia holding asylum-seekers offshore in Nauru for the processing of their refugee claims, but it also raised doubts about the desirability of the offshore municipal model of foreign appeals. This article examines the latter of those issues, intending to demonstrate that the model of foreign appeal adopted in the Nauru Treaty is a compromised version of appeal in comparison with the other two more common models.

scholarly journals THE NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN “ON THE PRACTICE OF THE COURTS APPLYING THE CRIMINAL LAW IN CASES OF CRIMES RELATED TO VIOLATION OF THE RULES OF THE ROAD AND THE OPERATION OF VEHICLES” DATED JUNE 29, 2011, AND THE CRIMINAL LAW

2020 ◽  
pp. 69-75
Author(s):  
K.A. Bakishev
Keyword(s):  
Law Enforcement ◽  
Supreme Court ◽  
Criminal Law ◽  
Criminal Code ◽  
Criminal Offence ◽  
The Road ◽  
Regulatory Decision ◽  
The Supreme Court ◽  
Sufficient Degree ◽  
The Republic

The Concept of the legal policy of the Republic of Kazakhstan for the period from 2010 to 2020emphasizes that the criminal law must meet the requirements of legal accuracy and predictability ofconsequences, that is, its norms must be formulated with a sufficient degree of clarity and based on clearcriteria that exclude the possibility of arbitrary interpretation provisions of the law. Meanwhile, an analysisof the Criminal Code of the Republic of Kazakhstan shows that some articles on liability for road transportoffences are designed poorly. For example, Art. 346 of the Criminal Code of the Republic of Kazakhstan ischaracterized by a combination of formal and qualified corpus delicti, as well as two forms of guilt — intentand negligence; in Art. 351 of the Criminal Code of the Republic of Kazakhstan, the circle of subjects of thecriminal offence was significantly reduced due to the unjustified exclusion of drivers of non-mechanicalvehicles. As a result, the Supreme Court of the Republic of Kazakhstan in the regulatory decree «On thepractice of the courts applying the criminal law in cases of crimes related to violation of the rules of theroad and the operation of vehicles’ of June 29, 2011 made a number of errors and contradictions that led todifficulties in qualifying the criminal offence and the appointment criminal punishment. Taking into accountthe law-enforcement and legislative experience of Kazakhstan and other countries in the field of ensuringtraffic safety, the author proposes amendments and additions to the named regulatory decision of theSupreme Court of the Republic of Kazakhstan to improve its quality and improve law enforcement practice.

scholarly journals Les aléas de la fraude en droit criminel

2005 ◽  
Vol 27 (4) ◽  
pp. 813-851
Author(s):  
Pierre Rainville
Keyword(s):  
Supreme Court ◽  
Supreme Court Decision ◽  
Criminal Code ◽  
Court Decision ◽  
Mens Rea ◽  
Criminal Offence ◽  
Territorial Jurisdiction ◽  
The Supreme Court ◽  
Definition Of ◽  
The Impact

Even though section 338 Cr.C. appears in Part VIII of the Criminal Code entitled « Fraudulent transactions relating to Contracts and Trade », the criminal offence of fraud is of a much broader scope. The liberal interpretation received from the courts has transformed this crime into one of the widest and sometimes most unpredictable offences. The author first discusses Canada's territorial jurisdiction over international fraud in the light of the recent Libman case. He then proceeds to examine the impact of the Supreme Court decision in Vezina v. R. on the « deprivation » requirement in the definition of fraud. This text also concentrates on the objective-subjective mens rea dilemna and on a comparison of the constitutive elements of fraud, theft and false pretences. The author finally concludes that sections 320 and 338 Cr.C call out for immediate reform.

scholarly journals O przedmiocie ochrony prawnej przestępstwa paserstwa umyślnego

2020 ◽  
Vol 30 (4) ◽  
pp. 39-72
Author(s):  
Marta Zwierz
Keyword(s):  
Supreme Court ◽  
Legal Protection ◽  
Criminal Code ◽  
Criminal Offence ◽  
Legal Tradition ◽  
The Supreme Court ◽  
The Subject ◽  
Legal Arguments

This paper addresses the problem of classifying the criminal offence of handling stolen goods under the Polish Criminal Code of 1997. Referring to two separate and contradictory views about the crime, the study looks at both of them and attempts to define the subject of legal protection of that criminal offence in the Polish legal system. To this end, the paper also discusses a judgment of 26 June 2014 of the Polish Supreme Court (I KZP 8/14), in which the Supreme Court could not conclusively resolve the issue, creating even more doubts. The author questions the position of the Polish Supreme Court, arguing that it is not supported by either logical or legal arguments which would stem from the long-standing legal tradition. The author further argues that all problems arising from the determination of the good legally protected by the criminal offence as defined in Article 291(1) of the Polish Criminal Code result from the erroneous classification of criminal offences by the Polish lawmaker.

Acrimony over Sri Lanka’s Colombo Port City will grow

2021 ◽  
Keyword(s):  
Supreme Court ◽  
Sri Lankan ◽  
Belt And Road Initiative ◽  
Port City ◽  
China Policy ◽  
Content Type ◽  
The Supreme Court ◽  
Belt And Road

Significance Parliament passed a bill earlier in May authorising the president to form the commission after key amendments recommended by the Supreme Court were incorporated into the legislation. The Colombo Port City is a development that forms part of China’s Belt and Road Initiative. Impacts India will be wary of investing in the Colombo Port City. Sri Lankan imports from China will increase, helped by a recently agreed bilateral currency swap. The Rajapaksa government will remain popular with the country’s ethnic Sinhalese, Buddhist majority despite concerns about its China policy.

scholarly journals German Experience of Terminating Criminal Prosecution with the Imposition of Duties and Regulations on the Accused in the Context of the Russian Draft Law on Criminal Offence

2021 ◽  
Vol 15 (6) ◽  
pp. 775-785
Author(s):  
Aleksey Tarbagaev ◽  
Ludmila Maiorova ◽  
Yana Ploshkina
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Criminal Procedure ◽  
Criminal Prosecution ◽  
Constitutional Court ◽  
Presumption Of Innocence ◽  
Federal Republic Of Germany ◽  
Criminal Offence ◽  
Theoretical Approaches ◽  
The Supreme Court

The second attempt of the Supreme Court of the Russian Federation to introduce the concept of a criminal offence into Russian criminal and criminal procedure legislation widens the non-rehabilitating grounds for the termination of a criminal case or prosecution with the imposition of other criminal law measures: it is suggested that, in addition to a court fine, community work and partially paid work should also be introduced. This leads to certain problems, including problems with the presumption of innocence and the observance of the principle of justice. The authors turn to the German experience for a better understanding of the situation. Germany faced similar problems much earlier, when § 153а was introduced in the Criminal Procedure Code of the Federal Republic of Germany (CPC of the FRG); it provided for an opportunity to terminate criminal prosecution for criminal offences on the grounds of expediency with the imposition of duties and regulations on the accused, which are akin to criminal law measures under draft law № 1112019-7. Taking into consideration the theoretical approaches developed in Germany, the practice of the Constitutional Court of the FRG and the Supreme Court of the FRG, the authors examine the goals of introducing § 153а in the CPC of the FRG, the practice of its implementation, as well as the problem of terminating criminal prosecution on the grounds of expediency with the imposition of duties and regulations on the accused connected with the observance of the Constitution of the FRG, the presumption of innocence, the principles of justice, certainty, equality before law; they analyze the controversial legal nature of duties and regulations under § 153а in the CPC of the FRG. According to German criminal procedure law, the termination of criminal prosecution on the grounds of expediency with the imposition of duties and regulations on the accused is a right, and not a duty of the corresponding officers and agencies as it is, in fact, an alternative to criminal prosecution which makes it possible to terminate it at a certain stage when there are all the necessary legal grounds for criminal prosecution.

scholarly journals Charkaoui: Beyond Anti-Terrorism, Procedural Fairness, and Section 7 of the Charter

2011 ◽  
Vol 16 (1, 2 & 3) ◽  
pp. 2007
Author(s):  
James Stribopoulos
Keyword(s):  
Supreme Court ◽  
Procedural Fairness ◽  
September 11 ◽  
Public Attention ◽  
Refugee Protection ◽  
The Supreme Court ◽  
The Government ◽  
First Time

The Supreme Court of Canada’s unanimous decision in Charkaoui v. Canada1 has attracted much public attention. Perhaps most newswor- thy is the fact that these cases —challenges by three men to provisions of the Immigration and Refugee Protection Act (IRPA)2 under which they were detained — represent the first time since September 11, 2001 that the Supreme Court has delivered a defeat to the government in its anti- terrorism efforts.

scholarly journals Legalising assisted suicide: keeping sight of the fundamental issues: commentary on… crossing the rubicon?

2014 ◽  
Vol 20 (6) ◽  
pp. 378-379
Author(s):  
Robert Preston
Keyword(s):  
Human Rights ◽  
Social Policy ◽  
Supreme Court ◽  
Assisted Suicide ◽  
Policy Implications ◽  
European Convention ◽  
Assisted Dying ◽  
Criminal Offence ◽  
The Supreme Court ◽  
Criminal Intent

SummaryAssisting another person's suicide is a criminal offence in England and Wales, although the offence is rare and the law allows for charges not to be brought where there has been no criminal intent. Campaigners for ‘assisted dying’ want something else – a law licensing assisted suicide in advance for certain groups of people in certain circumstances. The present law has been challenged in the courts, hitherto unsuccessfully, as incompatible with article 8 of the European Convention on Human Rights. The Supreme Court has taken the view that, given its social policy implications, this is a matter that Parliament is better placed to consider than the courts.

Malpractice & Negligence: Cal. Supreme Court Clarifies Negligence Provisions under State’s Elder Abuse Act

1999 ◽  
Vol 27 (2) ◽  
pp. 203-203
Author(s):  
Kendra Carlson
Keyword(s):  
Health Care ◽  
Supreme Court ◽  
Health Care Providers ◽  
Elder Abuse ◽  
Skilled Nursing Facility ◽  
Pressure Sores ◽  
Care Providers ◽  
Nursing Facility ◽  
Skilled Nursing ◽  
The Supreme Court

The Supreme Court of California held, in Delaney v. Baker, 82 Cal. Rptr. 2d 610 (1999), that the heightened remedies available under the Elder Abuse Act (Act), Cal. Welf. & Inst. Code, §§ 15657,15657.2 (West 1998), apply to health care providers who engage in reckless neglect of an elder adult. The court interpreted two sections of the Act: (1) section 15657, which provides for enhanced remedies for reckless neglect; and (2) section 15657.2, which limits recovery for actions based on “professional negligence.” The court held that reckless neglect is distinct from professional negligence and therefore the restrictions on remedies against health care providers for professional negligence are inapplicable.Kay Delaney sued Meadowood, a skilled nursing facility (SNF), after a resident, her mother, died. Evidence at trial indicated that Rose Wallien, the decedent, was left lying in her own urine and feces for extended periods of time and had stage I11 and IV pressure sores on her ankles, feet, and buttocks at the time of her death.

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