Part IV Federalism, A Federalism in Canada, Ch.18 From Dualism to Cooperative Federalism and Back?: Evolving and Competing Conceptions of Canadian Federalism

2017 ◽  
Author(s):  
Gaudreault-DesBiens Jean-François ◽  
Poirier et Johanne
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Case Law ◽  
Empirical Reality ◽  
Canadian Federalism ◽  
The Supreme Court ◽  
The Law ◽  
Cooperative Federalism ◽  
The Impact

This chapter documents the evolution from a dualist—“watertight compartments”—conception of Canadian federalism, to one that must acknowledge an increased number of intergovernmental cooperative ventures. It first examines Canada’s fundamentally dualist federal architecture before looking at the empirical reality of cooperative federalism which frequently challenges this structural dualism. It then considers how the rise of cooperative federalism influenced the evolution of the interpretive doctrines underpinning the law of Canadian federalism. Finally, it analyses the normative strength and scope of cooperative federalism, concluding that the impact of cooperative federalism in Canadian constitutional law remains tamed by the dualist conception of federalism that still underlies the Supreme Court of Canada’s federalism case law.

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.

Slovo of the National School of Judges of Ukraine

2021 ◽  
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Case Law ◽  
Judicial Reform ◽  
Council Of Europe ◽  
Judicial Practice ◽  
National School ◽  
The Supreme Court ◽  
Grand Chamber ◽  
The Impact

The special edition of the national professional scientific and practical legal magazine “The Slovo of the National School of Judges of Ukraine” was published, which contains reports delivered at the online conference "Ensuring the unity of judicial practise: the legal positions of the Grand Chamber of the Supreme Court and standards of the Council of Europe", held on the occasion of the third anniversary of the Grand Chamber of the Supreme Court. time of thematic sessions and webinars for judges of each of the courts of cassation in the Supreme Court, as well as joint sessions for judges of different jurisdictions at the end of 2020. The National School of Judges of Ukraine held these events together with the Supreme Court and in synergy with the Council of Europe projects "Support to Judicial Reform in Ukraine", "Further Support for Ukraine's Implementation in the Context of Article 6 of the European Convention on Human Rights", USAID New Justice Program, OSCE Project Coordinator in Ukraine. These are projects that support various aspects of judicial reform in Ukraine, compliance with Council of Europe standards and recommendations, offering best practices from member states to help make priorities in the national reform process. The conference and training events were attended by more than 550 participants - judges of the Supreme Court, other courts, leading Ukrainian and foreign experts, representatives of the legal community. Trainers and all structural subdivisions of the National School of Judges of Ukraine were involved, the training activities of which were identified by the CCEJ in one of its conclusions as one of the important tools to ensure the unity of judicial practice. Programs of activities included reports on the role of the Grand Chamber of the Supreme Court in ensuring the unity of judicial practice and the impact on the legal system; unity of judicial practice in the context of standards - improving access to justice in Ukraine: removing procedural obstacles and ensuring the right to an impartial court, approaches to identifying cases of minor complexity and cases of significant public interest or exceptional importance for a party in the context of access to court of cassation: practice the supreme courts of the member states of the Council of Europe and the European Court of Human Rights; key positions of the Supreme Court - application of the provisions of the procedural codes on the grounds for transferring the case to the Chamber, the joint chamber or the Supreme Court, the impact of its decisions on legislative activity, ensuring the specialization of courts and judges, the practice of the Supreme Court of the Supreme Court on administrative cases, the practice of considering cases of disciplinary liability of judges, conclusions on the rules of criminal law, review of court decisions in criminal proceedings in exceptional circumstances; the impact of the case law of the European Court of Human Rights on the case law of national courts and the justification of court decisions and the "balance of rights" in civil cases in its practice, the development of the doctrine of human rights protection; ECtHR standards on evidence and the burden of proof, the conclusions of the CCEJ and their reflection in judicial practice; judicial rule-making in the activities of European courts of cassation, etc. The issues raised are analyzed in the Ukrainian and international contexts from report to report, which, we hope, will be appreciated by every lawyer - both practitioners and theorists. As well as the fact that the depth of disclosure of each of the topics through the practice of application serves the development of law and contributes to the formation of the unity of judicial practice of the Supreme Court, the creation of case law is a contribution to rulemaking and lawmaking. The conversion of intellectual discourse into the practice of Ukrainian courts is an important step towards strengthening public confidence in the judiciary. And here the unifying force of the Supreme Court can be especially important, as the Chairman of the Supreme Court Valentyna Danishevska rightly remarked, speaking about the expectations of the society.

Glosa aprobująca do wyroku Sądu Najwyższego z dnia 16 listopada 2017 r., V CSK 81/17

2021 ◽  
pp. 413-424
Author(s):  
Krzysztof Świątczak
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Legal Person ◽  
Personal Interest ◽  
The Supreme Court ◽  
The Law ◽  
Starting A Business

In the judgment of November 16, 2017, Ref. V. CSK 81/17, the Supreme Court ruled that starting a business in the form of running a go-go club in the commune does not violate its good name, even if some activities in its activity are contrary to the law. In addition, there are no grounds to distinguish the personal interest of a legal person in the form of a credible image. The purpose of this opinion is to evaluate the above resolution of the Supreme Court. The author intends to compare the judgment of the Supreme Court with the views of representatives of the doctrine of Polish judicial law and previous case-law.

O caso Enka Insaat v. Insurance Company Chubb e a questão relativa à lei aplicável à cláusula arbitral: entre a lex contractus e a Lei da Sede

2021 ◽  
Vol 3 (5) ◽  
pp. 159-194
Author(s):  
Nadia de Araujo ◽  
Caio Gomes de Freitas
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
Insurance Company ◽  
Party Autonomy ◽  
The Supreme Court ◽  
The Law ◽  
The Uk ◽  
The Way

When negotiating a contract, parties usually establish that future and eventual disputes arising out and related to the performance of their obligations shall be resolved by arbitration. Such a choice, a clear expression of the principle of party autonomy, is embedded in a contractual clause, commonly referred to as arbitration agreement. The way by which the agreement is written and, to some extent, how it is construed can, and most commonly will, result in extensive and costly disputes. In the UK, the Supreme Court has recently decided a case related to the construction of an arbitration agreement, specifically to the law applicable to its validity, scope and effectiveness. According to the Court, in the absence of an express choice made by the parties, the system of law chosen to govern the substance of the contract will apply to the validity and scope of the agreement to arbitrate. Where no such choice is expressly or implied made by the parties, it will be the law of the seat of arbitration since it represents the system of law most closely connected to the agreement. This article reviews the case-law and provides some relevant excerpts of the case.

Introduction

2018 ◽  
Author(s):  
Lucas A. Powe
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Local State ◽  
Court Cases ◽  
Law And Politics ◽  
The Supreme Court ◽  
Entire Nation ◽  
Constitutional Adjudication ◽  
The Impact

This book examines the impact of Supreme Court cases from Texas on the entire nation. It argues that the most important Supreme Court cases have originated in Texas, which help explain why it is Texas and not California that provides breadth and depth to constitutional adjudication. Texas litigants, lawyers, politicians, and judges all play important roles in the underlying interplay of law and politics at the local, state, and national levels. In all its facets, Texas offers a window to all constitutional law and the Supreme Court. The book shows that Texas's impact literally started at the beginning by precipitating a debate over national powers and then a war with Mexico, and that the fraught relationship between Texas, the nation, the Constitution, and the Supreme Court in the century and a half since Texas v. White has produced more constitutional law than any other state.

6. The Doctrine of Judicial Precedent

2019 ◽  
pp. 160-195
Author(s):  
James Holland ◽  
Julian Webb
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Case Law ◽  
Stare Decisis ◽  
Legal Principles ◽  
Legal Problems ◽  
The Supreme Court ◽  
Pure Case ◽  
The Impact ◽  
Court Of Appeal

This chapter examines the use of case law to solve legal problems. In the study and practice of law we seek to analyse legal principles; and the ‘principles’ in English law are derived from pure case law or from case law dealing with statutes. The discussions cover the idea of binding precedent (stare decisis); establishing the principle in a case; the mechanics of stare decisis; whether there are any other exceptions to the application of stare decisis to the Court of Appeal that have emerged since 1944; whether every case has to be heard by the Court of Appeal before it can proceed to the Supreme Court; precedent in the higher courts; other courts; and the impact of human rights legislation.

scholarly journals Private Prosecutions in Mauritius: Clarifying Locus Standi and Making the Director of Public Prosecutions more Accountable

2017 ◽  
Vol 10 (1) ◽  
pp. 1-34
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Supreme Court ◽  
Case Law ◽  
African Countries ◽  
Locus Standi ◽  
Statutory Requirement ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Law ◽  
The Right

Case law shows that private prosecutions have been part of Mauritian law at least since 1873. In Mauritius there are two types of private prosecutions: private prosecutions by individuals; and private prosecutions by statutory bodies. Neither the Mauritian constitution nor legislation provides for the right to institute a private prosecution. Because of the fact that Mauritian legislation is not detailed on the issue of locus standi to institute private prosecutions and does not address the issue of whether or not the Director of Public Prosecutions has to give reasons when he takes over and discontinues a private prosecution, the Supreme Court has had to address these issues. The Mauritian Supreme Court has held, inter alia, that a private prosecution may only be instituted by an aggrieved party (even in lower courts where this is not a statutory requirement) and that the Director of Public Prosecutions may take over and discontinue a private prosecution without giving reasons for his decision. However, the Supreme Court does not define “an aggrieved party.” In this article the author takes issue with the Court’s findings in these cases and, relying on legislation from other African countries, recommends how the law could be amended to strengthen the private prosecutor’s position.

Teaching Constitutional Law Using Real-life Examples: An Example from the Practice of Assent to Bills Passed by the National Assembly After the Tenure of Office of the President and the Assembly

2020 ◽  
Vol 7 (2) ◽  
pp. 140-151
Author(s):  
Chukwuka Onyeaku ◽  
Tonye Clinton Jaja
Keyword(s):  
Supreme Court ◽  
Federal Republic ◽  
Constitutional Law ◽  
Real Life ◽  
Case Law ◽  
Legislative Process ◽  
National Assembly ◽  
The Supreme Court ◽  
The Subject

As a matter of tradition and necessity, teachers of constitutional law within Nigeria (and elsewhere) are often compelled to refer to case law to provide illustrations of principles of constitutional law as enshrined in the constitution of the Federal Republic of Nigeria, 1999 (as amended). However, in some instances, where the said constitution does not provide explicit provisions, teachers of constitutional law are compelled to cite foreign case law as persuasive precedents. Still there are instances wherein there are neither foreign case law nor indigenous case law as precedents. In such situations, teachers of constitutional law are compelled to examine existing case law and relevant legislation until there is a pronouncement from either the Supreme Court or an alteration of the constitution by the National Assembly. One such situation is the subject of the analysis in this article: the situation whereby a president provides assent to bills after the expiration of the tenure of the National Assembly. As legislative tradition, the last session of each Chambers of the Nigeria’s National Assembly culminating each legislative term is usually a valedictory Session. Accordingly, Thursday, 6 June 2019 witnessed the last Session of the eighth National Assembly. As the president transmitted a Proclamation letter terminating the term of the eighth National Assembly inaugurated on 9 June 2015, it becomes paramount to examine the legal and constitutional implications of bills passed by the eighth National Assembly between 2016 and 2018 and up to 5 June 2019, which were assented to by the president after the tenure of the Assembly and office of the president. Thus, this article examines the constitutionality or otherwise of assenting to bills passed by the National Assembly and assented to by the president after the expiration of tenure of their offices. The article argues that the provisions of the 1999 Constitution had been violated when the president signed into law bills passed by the eighth National Assembly after the tenure of office of the president and the eighth National Assembly. It concludes that bills rejected by the president will require another legislative process of being passed into law again by the same Assembly or subsequent one before it can be assented to by the president. Failure to follow this constitutional process will render the assent unconstitutional.

The Impact of the Basic Law: Human Dignity and Liberty on the Law of Criminal Procedure and Evidence

1999 ◽  
Vol 33 (3) ◽  
pp. 678-719 ◽  
Author(s):  
Eliahu Harnon
Keyword(s):  
Supreme Court ◽  
Human Dignity ◽  
Criminal Procedure ◽  
Social Background ◽  
Basic Law ◽  
The Supreme Court ◽  
The Law ◽  
Constitutional Right ◽  
Law Of Evidence ◽  
The Impact

In March 1992, Israel's Parliament, the Knesset, enacted Basic Law: Human Dignity and Liberty. Some believe that this Basic Law has created a constitutional revolution in Israel, while others feel this view to be exaggerated. In any event, there is general agreement that the Basic Law, with its 13 brief sections, has effected many significant changes in numerous areas of law.It is well known that criminal procedure and some parts of the law of evidence are particularly sensitive to constitutional changes. To what extent is this also true in Israel as a consequence of the Basic Law and interpretations given to it?More particularly, what precisely does the Basic Law say, and what has the Supreme Court inferred from the principles of human dignity and liberty beyond the express provisions of the Basic Law? What influence does the Basic Law exert on new legislation and indeed on legislation preceding the enactment of the Basic Law itself? May one expect that the Supreme Court will adopt the idea that the Basic Law embodies an exclusionary rule of evidence obtained in breach of a constitutional right? These, and other relevant questions, will be discussed below. First, however, we shall refer briefly to the legal and social background of the Basic Law.

scholarly journals The Impact of the Supreme Court of Canada on Intergovernmental Relations

Federalism-E ◽  
2018 ◽  
Vol 19 (1) ◽  
Author(s):  
Benjamin Goldlist
Keyword(s):  
Supreme Court ◽  
Intergovernmental Relations ◽  
Democratic Legitimacy ◽  
Supreme Court Of Canada ◽  
Political Resources ◽  
Canadian Federalism ◽  
The Supreme Court ◽  
Constitutional Adjudication ◽  
The Impact

The role of the Supreme Court in the practice of Canadian federalism, specifically the extent of its power and the effects of that power, is a hotly contested issue in Canadian political science. While some scholars have argued that the Court has taken on too political of a role that must be restricted, this paper develops the Court as a constitutional ‘umpire,’ whose rulings serve the important, but limited, functions of allocating political resources to incentivize negotiation, and establishing jurisdictional boundaries for said negotiations, leaving specific policy decisions to political, as opposed to legal, actors. Concerning the net outcome of the Court’s jurisprudence on the distribution of legislative powers, this paper illustrates the Court’s overall balancing approach, with grants of power to one level of government met with increases in authority to the other, in all major policy areas. Thus, ultimately shown to embrace both a limited and impartial approach to constitutional adjudication, the Court has done much to enhance its democratic legitimacy and constitutional utility.

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