A Tale of Two Immunities: Judicial and Prosecutorial Immunities in Canada

1969 ◽  
pp. 468
Author(s):  
J. M. Law
Keyword(s):  
Public Policy ◽  
Supreme Court ◽  
Common Law ◽  
Judicial Independence ◽  
Supreme Court Of Canada ◽  
The Supreme Court

The author discusses and analyzes some recent decisions emanating from the Supreme Court of Canada on the question of judicial and prosecutorial immunities Canada. The analysis is, first, undertaken with particular attention given to pre-existing judicial precedent at common law. Next, public policy reasons for and the need for judicial immunity, and its derivative in the form of prosecutorial immunity, are canvassed. Professor Law then looks to the evolving principle of judicial independence, which itself provides the policy underpinnings for judicial immunities, in order to explain the phenomena of judicial and prosecutorial immunities. Finally, these immunities, as defined by the Supreme Court of Canada, are discussed from a constitutional perspective.

11. Illegality

2020 ◽  
pp. 405-434
Author(s):  
Jack Beatson ◽  
Andrew Burrows ◽  
John Cartwright
Keyword(s):  
Public Policy ◽  
Supreme Court ◽  
Final Section ◽  
Common Law ◽  
The Supreme Court ◽  
The Common ◽  
Restraint Of Trade

This chapter considers what counts as illegality and the effect of illegality on a contract (and consequent restitution). The approach of the Courts to illegality has been transformed for the better, and simplified, by the Supreme Court in Patel v Mirza in 2016. Illegal conduct, tainting a contract, can vary widely from serious crimes (eg murder) to relatively minor crimes (eg breach of licensing requirements) through to civil wrongs and to conduct that does not comprise a wrong but is contrary to public policy. As regards the effect of illegality, where a statute does not deal with this, the common law approach is now to apply a range of factors. A final section of the chapter examines contracts in restraint of trade.

Nevsun Resources Ltd. v. Araya et al. (S.C.C.)

2020 ◽  
Vol 59 (5) ◽  
pp. 747-810
Author(s):  
Russell Hopkins
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Common Law ◽  
Supreme Court Of Canada ◽  
Customary International Law ◽  
The Supreme Court

In a judgment delivered on February 28, 2020, the Supreme Court of Canada held (by majority, 7–2) that Canadian common law does not contain an all-encompassing doctrine of non-justiciability based on foreign acts of state; and (by a narrower majority, 5–4) that alleged breaches of customary international law (CIL) arguably provide a novel cause of action in tort. The court held that claims against a Canadian mining corporation related to alleged violations at a mine in Eritrea could proceed to trial.

scholarly journals Elected Judges Lead to Less Partial Judges

Federalism-E ◽  
2018 ◽  
Vol 19 (1) ◽  
Author(s):  
Jack Murphy
Keyword(s):  
Supreme Court ◽  
Research Question ◽  
Balance Of Power ◽  
Judicial Independence ◽  
Supreme Court Of Canada ◽  
The People ◽  
The Supreme Court ◽  
Good Government ◽  
Head Of Government ◽  
Inappropriate Relationships

Canada’s government structure has long used the idea of Peace, Order, and Good government to justify the selection and subsequent terms of long political majorities and appointed justices.  This paper will be addressing the research question: should the justices of the Supreme Court of Canada be elected to increase Canadian democratic values or should they remain appointed?  Currently the Supreme Court of Canada is selected by the Governor General on the advice of the Prime Minister.   In answering this research question this paper will weigh to the pros and cons of both the current judiciary system and a judiciary section based on elections in order to prove that Supreme Court of Canada justices should stay appointed. A crucial factor in the selection of supreme court judges is the idea of judicial independence. Justices are not elected in order to ensure that there is no partisanship or inappropriate relationships between the judiciary and the legislature. It is argued that this is null and void as a result of the fact that the judges are effectively chosen by the head of government.  In the Canadian system, there lies an important balance between the executive, legislative, and judicial branches; this balance of power relies heavily on the Supreme Court being a non-partisan last check on any bills that reach it from the House. This is contrasted by the fact that the Supreme Court of Canada has last say on a plethora of issues that affect the lives of all Canadians and Canada is a constitutional monarchy, meaning that the power is always supposed to be derived from the people. Any power of government in Canada must trace its power back to the people for it to be considered legitimate.  After a compare and contrast of the effect that electing the Supreme Court of Canada will have on the judicial independence and the federal balance of power it is hypothesised that the Supreme Court of Canada should continue as an appointed body.

Revisiting pure economic loss: lessons to be learnt from the Supreme Court of Canada?

Legal Studies ◽  
2005 ◽  
Vol 25 (1) ◽  
pp. 49-71 ◽  
Author(s):  
Paula Giliker
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Economic Loss ◽  
Supreme Court Of Canada ◽  
Two Stage ◽  
Pure Economic Loss ◽  
The Supreme Court ◽  
Recent Developments ◽  
The Common ◽  
Difficult Area

This article examines the treatment of pure economic loss claims in England and Canada. The two jurisdictions have much in common. Starting from the same case sources, the common law of each system has struggled to deal with claims for negligently-incurred pure economic loss. Yet, the systems diverged in the 1990s when the Canadian Supreme Court refused to follow the lead of Murphy v Brentwood DC and reiterated its adherence to the Anns two-stage test. It is submitted that, in view of recent developments which suggest the gradual convergence of the two systems, English law should carefully examine the categorisation approach adopted by the Canadian courts. The current English position is far from clear, and the Canadian model is capable of bringing transparency and greater clarity to this difficult area of law.

scholarly journals The Principle of Good Faith in Contractual Performance: A Scottish-Canadian Comparison

2019 ◽  
Vol 23 (3) ◽  
pp. 301-331
Author(s):  
Hector MacQueen ◽  
Shannon O'Byrne
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Good Faith ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
The Subject ◽  
The Common

In 2014 the Supreme Court of Canada in Bhasin v Hrynew formally but cautiously acknowledged good faith as a general organising principle of contractual performance at common law and that the principle largely manifests by way of implied terms and through the new duty of honesty. Rejecting English recalcitrance on the subject, the SCC concluded that recognising a good faith principle makes the common law less unsettled and piecemeal, more coherent and just. The article suggests that the limitations placed on the good faith principle by the SCC make its potential adoption in Scotland offer more opportunity than risk, especially in relation to the exercise of contractual discretions and contractual remedies.

scholarly journals A Triumph of Liberalism: The Supreme Court of Canada and the Exclusion of Evidence

1969 ◽  
pp. 299 ◽  
Author(s):  
Julianne Parfett
Keyword(s):  
Criminal Justice ◽  
Supreme Court ◽  
Legal System ◽  
Justice System ◽  
Common Law ◽  
Supreme Court Of Canada ◽  
Causal Connection ◽  
The Supreme Court ◽  
The Common ◽  
The Cost

The common law has historically defined self- incrimination narrowly. Using Packer's models of the criminal justice system as a framework, the article examines the Supreme Court of Canada's interpretations of s. 24(2) of the Charter. The Court has expanded the definitions of both self incrimination and remoteness. The author argues that s. 24(2) has ceased to be a remedy requiring the balancing of interests and has become a quasi- automatic rule of exclusion, which promotes individual rights at the cost of victim's rights. Further, in the Court's zeal to protect the integrity of the system, there is no allowance made for the seriousness of the breach, the consequences of the exclusion, or the causal connection between the breach and any evidence obtained. The author argues that this has resulted in a justice system more concerned with police behaviour than with the pursuit of truth. Instead, either the exclusionary rule must be used to foster a balance of individual and communitarian rights, or other more imaginative remedies should be crafted from s. 24(2) to protect the integrity of the legal system.

scholarly journals Equitable Compensation for Breach by Fact-Based Fiduciaries: Tentative Thoughts on Clarifying Remedial Goals

1969 ◽  
Vol 37 (1) ◽  
pp. 95
Author(s):  
Jeff Berryman
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Punitive Damages ◽  
Supreme Court Of Canada ◽  
Breach Of Contract ◽  
Distinctive Features ◽  
The Supreme Court ◽  
The Common

The Supreme Court of Canada has purported to distinguish the approach to quantifying equitable compensation from that applied to the quantification of damages in common law for breach of contract or tort. In particular, the rules associated with causation and remoteness and the application of evidential presumptions has dominated this discourse. In this comment the author suggests that these distinctions are adding to conceptual muddling of the fiduciary relationship and that it would be better for the court to embrace totally the sophisticated analytical rules of the common law rather than recreate new rules in equity. Further, he argues that the distinctive features of the fiduciary relationship would be better recognized through the application of punitive damages rather than the distortion of compensation principles.

scholarly journals The Eve Decision — A Common Law Perspective

2019 ◽  
Vol 18 (3) ◽  
pp. 657-675 ◽  
Author(s):  
Edward W. Keyserlingk
Keyword(s):  
Supreme Court ◽  
Prince Edward Island ◽  
Common Law ◽  
Medical Procedures ◽  
Supreme Court Of Canada ◽  
Mentally Disabled ◽  
The Supreme Court ◽  
Parens Patriae ◽  
The Law ◽  
Do So

By its decision in the Eve case, the Supreme Court of Canada clarified and settled the law in at least two important respects. From now on, provincial statutes can only be used to authorize guardians to permit involuntary contraceptive sterilizations if their wording clearly and explicitly so provides. The Prince Edward Island statute in question did not do so. Secondly, though the Court's parens patriae jurisdiction is of unlimited scope and does extend to cases involving medical procedures, it cannot serve as the basis for authorizing non-therapeutic sterilizations. By ruling out the applicability of parens patriae, and by insisting that judges are not able to deal adequately with such cases, the Supreme Court may have strengthened the case for new legislation in this area. The writer argues that such legislation should provide for access to contraceptive sterilization for the mentally disabled, and the needed safeguards to protect those unable to consent or refuse from the imposition of sterilization in the interests of parties other than themselves.

Horizontal Effect and Caboose Constitutionalism

2018 ◽  
Author(s):  
Jud Mathews
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Protective Action ◽  
Private Law ◽  
Supreme Court Of Canada ◽  
Private Party ◽  
The Supreme Court ◽  
The Common

This chapter picks up the story where the previous chapter left off, showing how the Supreme Court of Canada initially made a show of rejecting the application of the Charter of Rights and Freedoms to private law relationships in Dolphin Delivery. But at the same time, the Court left itself room to interpret the common law to comport with Charter values. In the years since, litigants have pressed the Court to use this power to meet their normative demands, and the Court has done so on many occasions. At the same time, the Court has showed solicitude for legislative initiatives, often using the Charter to shape private-party obligations to one other only after the legislature has taken some rights-protective action in that area, in a strategy that might be called caboose constitutionalism.

scholarly journals Former corporate managers, fiduciary obligations, and the public policy in favor of competition

2005 ◽  
Vol 31 (4) ◽  
pp. 1095-1124
Author(s):  
Bruce Welling
Keyword(s):  
Public Policy ◽  
Supreme Court ◽  
Common Law ◽  
Supreme Court Of Canada ◽  
Legal Analysis ◽  
Corporate Managers ◽  
The Public ◽  
Fiduciary Obligations

In common law sytstems corporate managers owe fiduciary obligations to their corporations. This has complicated the legal analysis of competitive business activities by former corporate managers, particularly since the 1974 Supreme Court of Canada decision in Canaero. Other former corporate employees have long been allowed to compete with their ex-employers, so long as they do not use their ex-employers' property or breach terms of any contracts restraining their business activities. Attempts to contract to restrain future competitive business activities have long been restricted by the public policy in favor of competition. Former corporate managers can also be sued in Equity : the remedy is for an accounting of profits or for equitable damages. The judicial analysis of these equitable actions has been mystified by the "corporate opportunity doctrine" and the mistaken notion that a fiduciary obligation can survive resignation from the fiduciary position that created the obligation. A review of the basics exposes the errors and shows that equitable accounting and equitable damages remedies are also subject to the public policy in favor of competition, but that the calculation is more complicated than in contracts.

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