2 Canada: From Privy Council to Supreme Court

2007 ◽  
Author(s):  
Hogg Peter W
Keyword(s):  
North America ◽  
Supreme Court ◽  
Separation Of Powers ◽  
Supreme Court Of Canada ◽  
Aboriginal Rights ◽  
Legislative History ◽  
British North America ◽  
American Colonies ◽  
The United Kingdom ◽  
British North American

Canada has no single document that is customarily described as ‘the constitution’. The closest approximation of such a document is the Constitution Act 1867, which was originally named the British North America Act 1867. This is a statute of the United Kingdom Parliament that created the new Dominion of Canada by uniting three of the colonies of British North America and by providing the for the admission of all the other British North American colonies and territories. This chapter presents an overview of Canada's constitution and discusses its interpretation, the Supreme Court of Canada, separation of powers, problems of constitutional interpretation, interpretation of the residuary clause, interpretation of the Charter of Rights, interpretation of Aboriginal rights, interpretation of judicial independence, sources of interpretation, constitution as statute, legislative history, modes of interpretation, originalism, unwritten constitutional principles, influences on interpretation, dialogue between the Court and legislatures, presumption of constitutionality, and formalism and creativity.

scholarly journals L'étanchéité de l'A.A.N.B. est-elle menacée?

2005 ◽  
Vol 18 (2-3) ◽  
pp. 383-396
Author(s):  
Jean-Charles Bonenfant
Keyword(s):  
North America ◽  
Supreme Court ◽  
Supreme Court Of Canada ◽  
German Federal Republic ◽  
Privy Council ◽  
Stare Decisis ◽  
British North America ◽  
The Supreme Court ◽  
Distribution Of Powers ◽  
Canada Limited

In his opinion in John A. MacDonald, Railquip Enterprises Ltd and Vapor Canada Limited, Chief Justice Laskin commented that in the future it might be necessary to reconsider the 1937 Labour Conventions Decision which established the « watertight compartments » doctrine applicable to the implementation of treaties concluded by Canada. According to this doctrine as it was set forth by the Privy Council, the fact that Canada can enter into treaties with other countries does not mean that the Federal Parliament of Canada can legislate contrary to the distribution of powers provided for by sections 91 and 92 of the British North America Act. In his article, Professor Bonenfant recalls the criticism which the Privy Council evoked, particularly that which appeared in the June, 1937, issue of The Canadian Bar Review. If the Supreme Court of Canada wishes to revise the decision of the Privy Council, it will not be hampered by the rule of stare decisis. But, Professor Bonenfant writes, whatever the judicial solution may be, it would probably be better to follow the example of other countries, particularly the example provided by article 32 of the Constitution of the German Federal Republic, and seek a political solution. In this domain as in others, if federalism has failed in Canada, he writes that it is perhaps because the interpretation of Canada's Constitution has been left to the intellectual virtuosity of the members of the Privy Council and of the Supreme Court.

Canada: From Privy Council to Supreme Court

2021 ◽  
pp. 183-228
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Direct Result ◽  
Supreme Court Of Canada ◽  
Privy Council ◽  
Canadian History ◽  
British North America ◽  
Court Of Appeals ◽  
The Supreme Court

This chapter assesses the emergence of judicial review in Canada. Canadian judicial review emerged as a direct result of federalism and separation of powers umpiring by the Judicial Committee of the Privy Council (JCPC), which was Canada’s highest court from the adoption of the British North America Act in 1867 until Canada ended appeals to the JCPC in 1949. There was also, as Ran Hirschl would argue, an element of elite hegemonic entrenchment by imperial British colonial elites in the retention of the JCPC as the highest court of appeals in Canada from the creation of the Supreme Court of Canada in 1875 until Canada abolished appeals to the JCPC in 1949. Some Canadian elites tried and failed to end JCPC judicial review in Canadian cases in 1875. Canadian judicial review from 1867 to 1982 was exclusively concerned with federalism and separation of powers judicial umpiring because Canada had no constitutional Bill of Rights until 1982. There are thus two founding moments in the judicial review of legislation in Canadian history: firstly, the period from 1867 to 1982 when Canadian federalism and separation of powers law took shape as a result of federalism and separation of powers umpiring; and, secondly, the period from 1982 to the present, when the Supreme Court of Canada began vigorously enforcing the Canadian Charter of Rights and Freedoms. The emergence of judicial review from 1982 down to the present day is partly a rights from wrongs phenomenon, and it is partly the result of constitutional borrowing from the United States’s Warren Court.

Piracy in Colonial North America

2020 ◽  
Author(s):  
Mark G. Hanna
Keyword(s):  
North America ◽  
New England ◽  
North American ◽  
18Th Century ◽  
Historical Narrative ◽  
British North America ◽  
American Colonies ◽  
The North ◽  
The Pacific ◽  
British North American

Historians of colonial British North America have largely relegated piracy to the marginalia of the broad historical narrative from settlement to revolution. However, piracy and unregulated privateering played a pivotal role in the development of every English community along the eastern seaboard from the Carolinas to New England. Although many pirates originated in the British North American colonies and represented a diverse social spectrum, they were not supported and protected in these port communities by some underclass or proto-proletariat but by the highest echelons of colonial society, especially by colonial governors, merchants, and even ministers. Sea marauding in its multiple forms helped shape the economic, legal, political, religious, and cultural worlds of colonial America. The illicit market that brought longed-for bullion, slaves, and luxury goods integrated British North American communities with the Caribbean, West Africa, and the Pacific and Indian Oceans throughout the 17th century. Attempts to curb the support of sea marauding at the turn of the 18th century exposed sometimes violent divisions between local merchant interests and royal officials currying favor back in England, leading to debates over the protection of English liberties across the Atlantic. When the North American colonies finally closed their ports to English pirates during the years following the Treaty of Utrecht (1713), it sparked a brief yet dramatic turn of events where English marauders preyed upon the shipping belonging to their former “nests.” During the 18th century, colonial communities began to actively support a more regulated form of privateering against agreed upon enemies that would become a hallmark of patriot maritime warfare during the American Revolution.

scholarly journals Fiduciary Relationship as Contemporary Colonialism

2012 ◽  
Vol 3 (2) ◽  
pp. 98-115
Author(s):  
Christina Yui Iwase
Keyword(s):  
North America ◽  
Supreme Court ◽  
Aboriginal Peoples ◽  
Supreme Court Of Canada ◽  
Aboriginal Rights ◽  
Constitutional Protection ◽  
The Supreme Court ◽  
Recent Tendency

Aboriginal rights as inherent rights deriving from Aboriginal peoples’ historical occupation of North America (i.e. sovereignty) are recognized and affirmed in Section 35(1) of the Canadian Constitution Act, 1982. Despite the fact that this constitutional protection recognizes the sui generis nature of the Crown-Aboriginal relationship, there is a recent tendency in the Supreme Court of Canada to comprehend Aboriginal rights by characterizing the Crown-Aboriginal relationship as fiduciary. This paper discusses the danger of recognizing Aboriginal rights through the lens of a Crown-Aboriginal fiduciary relationship. This type of recognition entails: (1) authorizing excessive fiduciary discretion by the Crown, as opposed to focusing on its obligations; (2) failing to reflect the Aboriginal perspective on Aboriginal rights, which are derived from Aboriginal sovereignty; (3) fundamentally distorting the nature of Aboriginal rights by creating a myth that Aboriginal rights were created by the Canadian constitution; and (4) as a result, creating vulnerability on the Aboriginal side by making Aboriginal peoples tacitly consent to the Crown’s de facto sovereignty. If the Court’s characterization of the Crown-Aboriginal fiduciary relationship remains as it is now, the gap between the Crown’s understanding of Aboriginal rights and that of Aboriginal peoples may constitute a form of contemporary colonialism.

scholarly journals The Many Meanings of Judicial Independence: Examples from British North America

2018 ◽  
Vol 33 (1) ◽  
Author(s):  
Jim Phillips
Keyword(s):  
North America ◽  
Local Control ◽  
Legal History ◽  
Judicial Independence ◽  
British North America ◽  
American Colonies ◽  
Constitutional Principle ◽  
British North American ◽  
The 1960S ◽  
The Many

This article argues that there will not be an ‘end of turns’, but that the turn to contextual legal history in the 1960s remains the most potent, enduring turn the discipline has undergone. The varying meaning of judicial independence in nineteenth-century British North America illustrates this. It represented and was influenced by grand constitutional principle, the struggle for colonial autonomy, local control over public finances, and judicial fear of popular involvement in the removal process. Contextualism and complexity is examined here through the lens of judicial independence in three British North American colonies – the colonists worked within the essential paradigm of the inherited British Constitution.

Judicial Independence in British North America, 1825–67: Constitutional Principles, Colonial Finances, and the Perils of Democracy

2016 ◽  
Vol 34 (3) ◽  
pp. 689-742
Author(s):  
Jim Phillips
Keyword(s):  
North America ◽  
Prince Edward Island ◽  
Judicial Independence ◽  
The Other ◽  
Upper Canada ◽  
Lower Canada ◽  
British North America ◽  
American Colonies ◽  
British North American ◽  
First Time

It is well known that “formal” judicial independence—appointment on good behavior rather than at pleasure—was established in Britain with the 1701 Act of Settlement, and, like many other aspects of the English constitution, not exported to the colonies of either the First or the Second Empire. Its absence formed one of the allegations against the crown in the American Declaration of Independence, and the Constitution of the New Republic accordingly included a federal judicial independence provision. British imperial policy in North America after the Revolution regarding judges continued as before, so that formal judicial independence was not established until 1834, and then only in Upper Canada (now Ontario). In the other three principal British North American colonies this was later still. What is now Quebec (Lower Canada) received good behavior appointments in 1843, and Nova Scotia in 1848. In the other colonies that joined the Canadian Confederation in 1867 (New Brunswick) or within a few years afterwards (British Columbia, Manitoba, and Prince Edward Island), good behavior appointments were introduced for the first time only when the colony joined Confederation.

SOME PEDIATRIC PRESCRIPTIONS FROM THE FIRST MEDICAL BOOK PUBLISHED IN NORTH AMERICA (1708)

PEDIATRICS ◽  
1978 ◽  
Vol 61 (6) ◽  
pp. 934-934
Author(s):  
T. E. C.
Keyword(s):  
Breast Milk ◽  
North America ◽  
New Born ◽  
American Colonies ◽  
Born Child ◽  
Medical Book ◽  
Falling Sickness ◽  
Lay Reader ◽  
British North American ◽  
The Brain

Nicholas Culpeper (1616-1654) is the author of the first medical book published in the British North American colonies.1 The book, published in Boston in 1708, more than 50 years after the author's death, and titled The English Physician, is a small (approximately 3 x 5 inches) publication of only 94 pages, meant for the lay reader, and contains some of the author's "Choicest Secrets in the Art of Physick."2 Some of Culpeper's prescriptions under Children's Infirmities are these: To prevent the Falling Sickness, and Convulsions Take of red Coral in powder 10 Grains, give it in Breast milk to a new Born Child, for the first Food it takes after its Birth. It mightly strengthens the Brain. To make them Teeth easily Take pure Capons Grease well clarified, as much as a Nutmeg, twice as much Honey, then mix them together three or four times in a day anoint the Gums when they are teething. Against Agues and Fevers, coming by pain in breeding of Teeth, or otherwise. Take one spoonful of Ungent Populeon, two spoonfuls of Oyl of Roses, mix them, then before the Fire anoint the Childs bowing places of his Arms, Legs, soles of its Feet, Fore-head and Temples, twice a Day, Chasing it well with a warm Hand. Against the Worms Take Myrrh and Aloes of each alike, finely powdered; and with a few drops of Chymical Oyl of Wormwood, or Savin, with a little Turpentine, mix them, and make them up for a Plaister for the Childs Navel.

Colonial Quakerism

2020 ◽  
pp. 267-290
Author(s):  
Andrew R. Murphy ◽  
Adrian Chastain Weimer
Keyword(s):  
North America ◽  
Rhode Island ◽  
Legal Systems ◽  
Strong Ties ◽  
British North America ◽  
American Colonies ◽  
The Law ◽  
Anglo American

Highly mobile and often confrontational, Quakers came into frequent conflict with magistrates in the Anglo-American colonies. As they endured fines, whippings, and banishment, Quakers put pressure on emerging colonial legal systems, which they denounced as anti-Christian and unjust. In the ‘Quaker colonies’, however, the movement looked quite different. Quakers in West Jersey and Pennsylvania adapted to the roles of organizing institutions and enforcing the law. Across British North America, Quakers maintained strong ties to London. They increasingly developed networks across colonies as well, especially among meetings in Barbados, Maryland, Pennsylvania, and Rhode Island.

The Canadian-American Reciprocity Treaty of 1855 to 1866

1968 ◽  
Vol 28 (4) ◽  
pp. 598-623 ◽  
Author(s):  
Lawrence H. Officer ◽  
Lawrence B. Smith
Keyword(s):  
United States ◽  
North America ◽  
Free Trade ◽  
Coastal Waters ◽  
The United States ◽  
Free Access ◽  
British North America ◽  
British North American ◽  
Atlantic Coastal ◽  
St Lawrence River

The Reciprocity Treaty between the British North American Provinces (Canada) and the United States was ratified in February 1855 and terminated in March 1866. It provided for free trade in all natural products, free access for United States fisheries to the Atlantic coastal waters of British North America, and access to the St. Lawrence River for American vessels under the same tolls as native vessels.

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.

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