scholarly journals R. V. SHARPE AND THE DEFENCE OF ARTISTIC MERIT

2011 ◽  
Vol 12 (1, 2 & 3) ◽  
pp. 2001
Author(s):  
June Ross
Keyword(s):  
Supreme Court ◽  
Child Pornography ◽  
Criminal Code ◽  
Supreme Court Of Canada ◽  
Legal Proceedings ◽  
Judicial Decisions ◽  
The Supreme Court ◽  
Artistic Merit ◽  
The Impact

The impact of judicial decisions is sometimes most significant and most controversial in relation to matters that were not at the forefront in the legal proceedings. The decision in R. v. Sharpe1 may be such a case. In this decision, the Supreme Court of Canada upheld, with minor qualifications, the offence of private possession of child pornography under section 163.1 of the Criminal Code.2 The case was argued and resolved largely as an issue of privacy — could the prohibition on child pornography extend to private possession, while remaining within constitutional limits?

scholarly journals Children in Pornography after Sharpe

2005 ◽  
Vol 43 (2) ◽  
pp. 327-350 ◽  
Author(s):  
Janine Benedet
Keyword(s):  
Supreme Court ◽  
Freedom Of Expression ◽  
Child Pornography ◽  
Criminal Code ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
Constitutional Protection ◽  
The Supreme Court ◽  
Definition Of

In its recent decision in R. v. Sharpe, the majority of the Supreme Court of Canada upheld the Criminal Code provisions prohibiting the possession and making of child pornography, subject to two exceptions. Despite a narrow construction of the definition of child pornography and a broad reading of the statutory defences, the majority found that prohibiting individuals from making and possessing some kinds of child pornography was an unjustifiable limit on the freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. The dissent would have upheld the legislation in its entirety. This article argues that the majority of the Court erred in considering the value of freedom of expression in a detached and abstract manner. Operating in this abstract plane led the Court to approve two significant exceptions on the basis of hypothetical examples of overbreadth, without considering the reality of the exceptions as they relate to documented child pornography cases. As a result, the Court extended constitutional protection to some categories of material that are clearly harmful to children. This result should make us sceptical of the use in Charter cases of broad reading in remedies that create complex judicial amendments with unexamined consequences.

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 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.

scholarly journals L'effectivité des décisions de justice en droit public interne [constitutionnel]

2005 ◽  
Vol 26 (4) ◽  
pp. 995-1003
Author(s):  
Louis-Philippe Pigeon
Keyword(s):  
Supreme Court ◽  
Public Law ◽  
Supreme Court Of Canada ◽  
Public Authorities ◽  
Canadian Charter ◽  
Judicial Decisions ◽  
The Supreme Court ◽  
High Degree ◽  
Political Character ◽  
Limited Scope

In practice, no question ever arises respecting the effectiveness of judicial decisions in matters of public law. Whether or not a judgment is technically executory is of no importance. There is such a high degree of respect for the decisions of the courts, specially those of the Supreme Court of Canada, that public authorities practically never feel free to seek a way out of compliance with a judicial pronouncement. Remedial powers of the courts are entrenched under the Canadian Charter of Rights and Freedoms and the Constitution is declared to be the supreme law of Canada. There is thus very limited scope for governmental action in defiance of court orders. The only specific provision for such action appears to be a section of the Extradition Act authorizing the Minister of Justice to refuse to surrender a fugitive if he determines that the latter's offence is of a political character.

scholarly journals Highway Properties - Look Both Ways Before Crossing

1969 ◽  
pp. 477
Author(s):  
Gordon Sustrik
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
The Impact

This article discusses the impact and effect that the Supreme Court of Canada decision in the Highway Properties case has had on leases and landlord-and-tenant law. The remedies that a landlord has available for breach of a lease are examined as well as the doctrine of surrender by operation of law and the duty to mitigate. The author questions the classification of a lease as a contract versus a conveyance of an estate in land.

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

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 SHARPE’S PERVERSE AESTHETIC

2011 ◽  
Vol 12 (1, 2 & 3) ◽  
pp. 2001
Author(s):  
Shannon Bell
Keyword(s):  
Sexual Activity ◽  
Freedom Of Expression ◽  
Child Pornography ◽  
Visual Representations ◽  
Criminal Code ◽  
Supreme Court Of Canada ◽  
Reasonable Person ◽  
The Supreme Court ◽  
Dominant Characteristic ◽  
Visual Materials

Robin Sharpe1 was charged with possession of child pornography under section 163.1 of the Criminal Code.2 He argued that the section violated his freedom of expression under the Canadian Charter of Rights and Freedoms.3 The Supreme Court of Canada found that the provision prohibited the possession of visual representations that a reasonable person would view as depictions of explicit sexual activity with a person under the age of eighteen. The Court found that the sexual nature of the representations must be determined objectively. That is, it must be the “dominant characteristic.”4 In addition, the Court found that the section prohibited possession of written or visual materials that actively induce or encourage sexual acts with children.5

scholarly journals Collective Bargaining and the Charter: Assessing the Impact of American Judicial Doctrines

2005 ◽  
Vol 46 (4) ◽  
pp. 722-750
Author(s):  
Donald D. Carter ◽  
Thomas McIntosh
Keyword(s):  
Collective Bargaining ◽  
Supreme Court ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
The Impact ◽  
Fundamental Values

This study analyses the impact of American judicial doctrines upon recent Charter decisions relating to Canada's collective bargaining laws. The first section of the paper explores the constitutional foundations of the Canadian and American labour regimes in terms of the fundamental values entrenched in their respective constitutional arrangements. The second section of the paper is an overview of the Charter era labour regime as it has been articulated by the Canadian judiciary and, in particular, by the Supreme Court of Canada. It is the mixed results of this part of the investigation that led us to some tentative conclusions about the impact upon Canadian courts of American judicial influences.

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