Judicial Discretion and Fundamental Justice: Sexual Assault in the Supreme Court of Canada

1999 ◽  
Vol 47 (3) ◽  
pp. 489 ◽  
Author(s):  
Christopher P. Manfredi ◽  
Scott Lemieux
Keyword(s):  
Sexual Assault ◽  
Supreme Court ◽  
Judicial Discretion ◽  
Supreme Court Of Canada ◽  
The Supreme Court

Niqabs in Canadian Courts:R v NS

2013 ◽  
Vol 15 (3) ◽  
pp. 334-343 ◽  
Author(s):  
M H Ogilvie
Keyword(s):  
Sexual Assault ◽  
Supreme Court ◽  
Muslim Woman ◽  
Supreme Court Of Canada ◽  
Practical Utility ◽  
Trial Judges ◽  
The Supreme Court ◽  
Sexual Assault Case ◽  
Actual Decision

InR v NSthe Supreme Court of Canada (SCC) was asked to consider a straightforward question: must a Muslim woman remove a niqab (face covering leaving only the eyes showing) when giving evidence in a sexual assault case in which she is the complainant. Two justices said ‘yes’; one said ‘almost always, no’; and the majority said ‘maybe yes, maybe no – it depends’. The matter was then returned to the preliminary inquiry judge to make the actual decision, which could still be subject again to appeal to the SCC. The court divided on the three available answers to the question: yes, no and maybe. The division, however, leaned in favour of requiring removal of the niqab because the reasons for judgment favouring ‘maybe’ were concurred in in the result by those favouring removal. In the end, the court did not give a clear answer to the question, but rather provided a four-part test for trial judges who must continue to make the decision, subject to appeal. The practical utility of this response may be doubted.

Judicial Discretion as Political Choice: The Supreme Court of Canada's Costs Awarding Power

2018 ◽  
Vol 51 (4) ◽  
pp. 929-947
Author(s):  
Emmanuelle Richez ◽  
Erin Crandall
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
Original Data ◽  
Access To Justice ◽  
Judicial Discretion ◽  
Supreme Court Of Canada ◽  
Discretionary Power ◽  
Data Set ◽  
Public Interest Litigation ◽  
The Supreme Court

AbstractThis article analyzes an important discretionary power of the Supreme Court of Canada, the ability to award costs. With the use of an original data set, we explore trends in costs awarding in public interest litigation at the Supreme Court from 1970 to 2012. Our findings suggest that, over time, the Court has tended to favour nongovernment parties over government parties where the former are less likely to pay costs when they lose and more likely to receive costs when they win. In these cases, costs orders were more likely to benefit public interest litigants, such as nongovernmental organizations, than individual litigants and businesses. Together, these findings suggest a sensitivity to access to justice concerns when making costs orders, though some may argue that this sensitivity by the Court does not extend far enough.

scholarly journals MADE YOU LOOK: NIQABS, THE MUSLIM CANADIAN CONGRESS, AND R V NS

2013 ◽  
Vol 31 (1) ◽  
pp. 67
Author(s):  
Fathima Cader
Keyword(s):  
Sexual Assault ◽  
Sexual Violence ◽  
Supreme Court ◽  
Present Article ◽  
Muslim Women ◽  
Supreme Court Of Canada ◽  
Agression Sexuelle ◽  
The Supreme Court ◽  
Clash Of Civilisations ◽  
Grand Public

R v NS was the first Canadian case to involve a niqab-wearing sexual assault complainant. At the Supreme Court of Canada, the Muslim Canadian Congress [MCC] was especially vocal in arguing it would be un-Canadian to allow NS to testify while wearing a niqab. This paper sets out to investigate the MCC’s depictions of Muslim women, Muslim men, and the mainstream public, with specific attention paid to the details of the MCC’s “clash of civilisations” framing, its impact on the Court’s reasons, and its implications for women combatting sexual violence. R c NS a été la première cause canadienne où une plaignante, victime d’une agression sexuelle, portait le niqab. Dans ses interventions devant la Cour suprême du Canada, le Congrès musulman canadien [CMC] a souligné avec beaucoup d’insistance qu’il serait anti-canadien de permettre à NS de témoigner en portant son niqab. Le présent article vise à briser les stéréotypes que le CMC a véhiculé dans ses arguments concernant les femmes musulmanes, les hommes musulmans et le grand public, et porte une attention spéciale aux particularités de la conception par le CMC du « choc des civilisations », leur impact sur les motifs de la Cour et leurs conséquences pour les femmes qui luttent contre la violence sexuelle.

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.

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