scholarly journals Seeking More Than Truth: A Rationalization of the Principled Exception to the Hearsay Rule

2011 ◽  
Vol 48 (3) ◽  
pp. 753 ◽  
Author(s):  
Shawn Moen
Keyword(s):  
Decision Makers ◽  
Supreme Court Of Canada ◽  
Flexible Approach ◽  
Trial Procedure ◽  
The Supreme Court ◽  
Hearsay Rule ◽  
Hearsay Evidence ◽  
Pluralist Approach ◽  
Communicative Role

Canadian treatment of hearsay evidence has changed significantly in the preceding 20 years. Since 1990, the Supreme Court of Canada has adopted a more flexible approach to hearsay evidence through the development of the "principled exception." In this article, the author examines the purpose of evidence law and trial procedure from three different perspectives: as a tempered "truth-seeking" process, as a medium to communicate the acceptability of verdicts, and as a tool to regulate the epistemic and ethical conduct of decision-makers. He suggests that these three purposes are complementary and examines the principled exception to the hearsay rule using this pluralist approach. Overall, the author concludes that while the principled exception is primarily directed at promoting "truth-seeking," the necessity criterion and the current procedural format are also designed to enhance the communicative role of the trial process and to assist in the deliberation by the adjudicator. As such, the principled approach has been designed to seek more than the "truth."

Repeat Litigators and Agenda Setting on the Supreme Court of Canada

2002 ◽  
Vol 35 (4) ◽  
pp. 811-833 ◽  
Author(s):  
Roy B. Flemming ◽  
Glen S. Krutz
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Statistical Models ◽  
Comparative Research ◽  
The United States ◽  
Supreme Court Of Canada ◽  
High Courts ◽  
The Supreme Court ◽  
Selection Of

The expanding public policy role of high courts heightens concerns over whether societal and political inequalities affect the outcomes of litigation. However, comparative research on this question is limited. This article assesses whether status inequalities between parties and differences in the experience and resources of attorneys influence the selection of cases for judicial review in the Supreme Court of Canada. A series of statistical models reveal that governments are more likely than other parties to influence whether leave is granted but that the experience and resources of lawyers, unlike in the United States, have little impact. The decentralized, low volume and high access features of the Canadian process may explain this finding.

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.

Part VI Constitutional Theory, D The Role of Constitutional Principles in Canadian Constitutional Law, Ch.47 Constitutional Principles in the Secession Reference

2017 ◽  
Author(s):  
Leclair Jean
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Constitutional Theory ◽  
Supreme Court Of Canada ◽  
Constitutional Order ◽  
The Supreme Court ◽  
Over Time ◽  
Constitutional Changes ◽  
Political Compromises

In Reference Re Secession of Quebec, 1998, the Supreme Court of Canada concluded that the unwritten constitutional principles of federalism and democracy dictated that the clear repudiation of the existing constitutional order and the clear expression of the desire to pursue secession by the population of a province gave rise to a reciprocal obligation on all parties to the federation to negotiate constitutional changes to respond to that desire. To understand this astonishing decision, the author first examines how, over time, in Canada and Quebec, issues of identity(ies), constitutional law, and democracy came to be formulated in absolutist terms, making political compromises next to impossible. Only then does he analyse the Supreme Court’s decision and attempts to explain why the latter chose to decide as it did.

Intergovernmental Relations‘ Third Wheel: The Role of the Supreme Court in an Era of Collaborative Federalism

Federalism-E ◽  
2009 ◽  
Vol 10 (1) ◽  
pp. 1-15
Author(s):  
Allison O‘Beirne
Keyword(s):  
Supreme Court ◽  
Intergovernmental Relations ◽  
Supreme Court Of Canada ◽  
Division Of Powers ◽  
The Supreme Court ◽  
The Way

The Supreme Court of Canada has an absolutely undeniable role in intergovernmental relations. As the country‘s only constitutionally entrenched body charged with the resolution of division-of-powers disputes, its decisions and rulings are always certain to influence the way in which governments interact with each other. Recently, however, the Supreme Court has come to be less highly regarded as a method of resolving the disputes that arise between governments [...]

Judicial Activism and Judicial Independence: Implications of the Charter of Rights and Freedoms for the Reference Procedure and Judicial Service on Commissions of Inquiry.

1990 ◽  
Vol 5 ◽  
pp. 95-110
Author(s):  
Kenneth M. Holland
Keyword(s):  
Civil Rights ◽  
Judicial Independence ◽  
Royal Commission ◽  
Supreme Court Of Canada ◽  
The Past ◽  
The Supreme Court ◽  
Commissions Of Inquiry ◽  
And Function ◽  
Fundamental Values

Over the past five years the Supreme Court of Canada has addressed on three occasions the implications of the 1982Charter of Rights and Freedomsfor the principle of judicial independence. The justices agree that the Court's new role as guardian of constitutionally entrenched civil rights and liberties demands an expansion in its immunity from legislative and executive influence. The hoary principle of judicial independence can no longer be confined to such individual elements as security of salary and tenure but must encompass an institutional element, “reflected in [a court's] institutional or administrative relationships to the executive and legislative branches of government.” The “modern understanding of judicial independence,” according to Chief Justice Brian Dickson, recognizes that the Canadian judiciary is no longer confined to the resolution of disputes in individual cases but plays the role of “protector of theConstitutionand the fundamental values embodied in it—rule of law, fundamental justice, equality, preservation of the democratic process, to name perhaps the most important.” It is not enough, therefore, to ensure the impartiality of judges in individual cases. Courts must “be completely separate in ‘authority and function’ from all other branches of government.” Accordingly, the Court ruled in a 1989 case that a royal commission of inquiry cannot compel judges involved in a matter being investigated to testify as to the reasons for their judicial decision.

Self-determination—Canada—Quebec—right to secede under constitutional law and public international law—role of international law in Canadian courts

1999 ◽  
Vol 93 (2) ◽  
pp. 519-525 ◽  
Author(s):  
Bernard H. Oxman ◽  
Stephen J. Toope
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Constitutional Law ◽  
Democratic Legitimacy ◽  
Supreme Court Of Canada ◽  
Federal Authority ◽  
Unilateral Declaration ◽  
Legal Context ◽  
The Supreme Court

Re Reference by Governor in Council Concerning Certain Questions Relating to Secession of Quebec from Canada.Supreme Court of Canada, August 20, 1998.In an attempt to clarify the legal context in which continuing Canadian constitutional conundrums arise, the federal executive referred three questions to the Supreme Court of Canada regarding the legality under both Canadian constitutional law and international law of a potential unilateral declaration of independence by the Province of Quebec. The Court declared that unilateral secession is not permitted under either Canadian constitutional law or international law. The “underlying principles that animate” the Canadian Constitution preclude secession, even though there is no specific text prohibiting the dismantling of the Canadian state. However, if Quebecers were to vote yes to secession by “a clear majority on a clear question,” democratic legitimacy would be conferred on the secessionist project and a constitutional obligation to negotiate would arise binding the other provinces and the federal authority.

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