scholarly journals A Decade Later: The Legacy of the Supreme Court of Canada's Health Services Decision on Workers' Rights

2019 ◽  
Vol 10 (1) ◽  
Author(s):  
Brad Walchuk
Keyword(s):  
Human Rights ◽  
Health Services ◽  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Constitutional Rights ◽  
Canadian Charter ◽  
The Past ◽  
The Supreme Court ◽  
The Impact ◽  
Financial Penalty

The year 2017 marked the ten-year anniversary of the Health Services case, a precedent-setting decision by the Supreme Court of Canada that ruled collective bargaining is protected by the Canadian Charter of Rights and Freedoms. This article explores the impact and legacy of BC Health Services, and finds that while workers’ constitutional rights have been expanded under the Charter over the past decade, governments nevertheless continue to violate these rights. It concludes that the legacy of the case is not an enhanced level of protection for these rights to be enjoyed fully, but rather that the default option has been and will continue to be a financial penalty for the state in instances in which they violate workers’ rights.  KEYWORDS  labour rights; Canadian Charter of Rights and Freedoms; human rights; health services

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.

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 An Exemption for Sincere Believers: The Challenge of Alberta v. Hutterian Brethren of Wilson Colony

2011 ◽  
Vol 56 (3) ◽  
pp. 719-750
Author(s):  
Sara Weinrib
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Religious Beliefs ◽  
Critical Role ◽  
Religious Practices ◽  
Supreme Court Of Canada ◽  
General Application ◽  
Canadian Charter ◽  
The Supreme Court ◽  
Strict Reading

In Alberta v. Hutterian Brethren of Wilson Colony, the Supreme Court of Canada reconfigured its approach to section 1 of the Canadian Charter of Human Rights and Freedoms by holding that the final step of the R. v. Oakes test—the requirement of proportionality between a measure’s salutary and deleterious effects—provided the critical framework for its analysis. The author suggests that the Court’s emphasis on the last step of the Oakes test was not the most appropriate response to the specific minimal impairment argument Alberta presented. Alberta argued that the reason it could not safely offer an exemption from its licence photo requirement to Hutterites who objected to photos on religious grounds was because Syndicat Northcrest v. Amselem restricted government inquiries into the sincerity of religious beliefs. Ontario intervened in support of Alberta’s concerns. Although the Court did not address this minimal impairment argument, the author argues that it reflects an unnecessarily strict reading of how Amselem’s guidelines would apply in this context. In support, the author presents an exemption that would have cohered with Amselem and achieved Alberta’s safety objectives. The author then argues more broadly that the provinces’ concerns in Hutterian Brethren demonstrate the critical role the minimal impairment step of the Oakes test plays in generating solutions to clashes between laws of general application and minority religious practices. The Court’s new emphasis on the proportionate effects test, in contrast, may unfortunately discourage both parties from formulating potentially innovative alternatives.

scholarly journals Interpretation of Equality of Rights in the Canadian Charter of Rights and Freedoms and the Practice of the Canadian Supreme Court

2020 ◽  
Vol 11 ◽  
pp. 67-72
Author(s):  
Tatyana A. Vasilyeva ◽  
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Decisive Role ◽  
Supreme Court Of Canada ◽  
Constitutional Review ◽  
Canadian Charter ◽  
Human Rights Protection ◽  
Equality Rights ◽  
The Supreme Court ◽  
The Right

The Canadian system of human rights protection is an original one. The Supreme Court of Canada is one of the most influential constitutional review bodies in the field of human rights. At the time of its adoption, the Canadian Charter of rights and freedoms had the broadest catalog of equality rights in Western countries, formed on the basis of the Bill of rights and provincial human rights codes case-law, as well as the activities of political movements and groups of equality advocates who played a decisive role in its drafting. In Canada, a distinction is made between the enumerated in Charter and analogous grounds of discrimination established by court. The plaintiffs may claim differences on the basis of the enumerated or analogous grounds, or indicate the necessity to establish new analogous grounds. Article 15 (the right to equality) is recognized as one of the most conceptually complex provisions of the Charter. It is aimed at ensuring equality in the process of law drafting and implementation, as well as protecting human dignity. The Supreme Court of Canada is considering the provisions of the first part 1 of article 15, which enshrines the right to equality, and part 2 of this article, which provides for affirmative actions to assist disadvantaged groups as interrelated, reflecting the understanding of equality according to which affirmative actions are considered not as an exception, but as one of its best manifestations.

scholarly journals The Labour Relations and the Canadian Charter; the aftermath of the first decisions

2019 ◽  
Vol 19 (4) ◽  
pp. 895-907
Author(s):  
J. Maurice Cantin
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Labour Law ◽  
Canadian Charter ◽  
Labour Relations ◽  
The Supreme Court ◽  
The Right ◽  
The Impact

The Charter was introduced at a time when there was no real demand for its existence. In this article, the author reviews the origin of the Charter and examines the impact on labour law of the initial decisions rendered by our Courts. He examines more particularly some of the first Charter decisions emanating from the Supreme Court of Canada. He writes that the Charter may have a damaging effect on labour law especially in relation to the right to strike and to picket. He concludes that the Charter is ill-suited for use in the labour relations domain.

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 The Impact of the Voting Rights Act on American Political Parties

1994 ◽  
Vol 14 ◽  
pp. 565-575
Author(s):  
Howard A. Scarrow
Keyword(s):  
Political Parties ◽  
Supreme Court ◽  
Voting Rights ◽  
Voting Rights Act ◽  
Legal Standards ◽  
The Past ◽  
The Supreme Court ◽  
The Impact

The weakening of American political parties has been a theme featured in the writings of political scientists for the past several decades. This essay is addressed to developments which may further that decline-developments which have undermined the very purpose which American political parties are said to serve. I refer to legal standards which were established by the Supreme Court in 1964, and which have since been expanded by the Court and then incorporated into the Voting Rights Act of 1965 and its amendment in 1982.

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.

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.

Sign in / Sign up

Export Citation Format

Share Document