scholarly journals After Labaye: The Harm Test of Obscenity, the New Judicial Vacuum, and the Relevance of Familiar Voices

2009 ◽  
Vol 46 (3) ◽  
pp. 741 ◽  
Author(s):  
Richard Jochelson
Keyword(s):  
Supreme Court ◽  
Freedom Of Expression ◽  
Tolerance Test ◽  
Supreme Court Of Canada ◽  
Obscenity Law ◽  
The Supreme Court ◽  
Tolerance Approach ◽  
Lower Courts ◽  
The Subject ◽  
Community Standards

In R. v. Labaye, the Supreme Court of Canada finally retired the community standards of tolerance test of obscenity. The test had been the subject of much academic critique, a matter that reached its zenith in the period following Little Sisters Book and Art Emporium v. Canada (Minister of Justice), in which a gay and lesbian bookshop contested the procedures and legislative regime of customs officials in detaining its imports. The engagement in the literature on the efficacy of the community standards test that followed was often heated, always interesting, and ultimately unresolved. To date, we have not seen any clarifying applications of the newly proposed harm test by the Supreme Court, nor have we seen a profound articulation in any lower courts. Subsequently, the academic discussion has slowed to a crawl. In this article, the author reviews four accounts of the community standards test that were prominent following Little Sisters, and asks if the newly proposed Labaye standard meets their concerns. The Labaye case provides much fodder for the previous critics and supporters of a community standards of tolerance approach to analyze. After a critical analysis of the new Labaye test, the author concludes that the concerns have not been muted by the retirement of the community standards test, even if the voices have been. The engaged voices heard in the aftermath of Little Sisters should not hold back and they should not abandon the work to be done in obscenity law and freedom of expression discourse generally.

scholarly journals Czy przebaczenie niweczy skutki uprzedniego wydziedziczenia?

2017 ◽  
Vol 21 ◽  
pp. 143-153
Author(s):  
Anna Moskal
Keyword(s):  
Supreme Court ◽  
Civil Law ◽  
Civil Code ◽  
Inheritance Law ◽  
Dominant Position ◽  
Legal Nature ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Subject ◽  
Made In

Does forgiveness nullify the effects of previous disinheritance? The legal nature of forgiveness is the subject of passionate debates among the representatives of civil law doctrine. According to the dominant position in the literature, forgiveness is an act of affection or its manifested expression of forgiveness of the perpetrator of experienced injustice and related to this grudge. This institution has been applied three times in the Civil Code — once with the donation agreement, twice in regulations of inheritance law. Article 1010 § 1 provides that a testator cannot disinherit eligible for legal portion if he forgave him. The wording of the above article indicates that accomplishment of disinheritance in case if testator eligible for legal portion has previously forgiven. The legislator did not, however, determine the effects of forgiveness in relation to previous disinheritance. In the act of 1971, the Supreme Court accepted that such forgiveness would automatically nullify the effects of disinheritance, and could be made in any form. In recent years, lower courts have begun to question the Supreme Court's position, and judges increasingly refer to the critical statements of numerous doctrines. As it was rightly stated, admitting the possibility of invoking the forgiveness made after disinheritance poses a serious threat to the realization of the testator’s will, who, by forgiving, does not necessarily want to revoke the effects of his previous disinheritance. The postulate of de lege ferenda is, according to the author of the article, giving of freedom of judging the effects of forgiveness to the courts and each examination of the forgiving testator’s will on the possible abatement of the consequences of previous disinheritance.]]>

scholarly journals RESPONSABILIDADE EM FACE DE PIQUETE NA JURISPRUDÊNCIA NORTE-AMERICANA

2019 ◽  
Vol 1 (54) ◽  
pp. 499
Author(s):  
Edilton MEIRELES
Keyword(s):  
United States ◽  
Supreme Court ◽  
Freedom Of Expression ◽  
United States Supreme Court ◽  
The United States ◽  
The Supreme Court ◽  
Deductive Method ◽  
The Face ◽  
The Subject ◽  
The Right

RESUMONeste trabalho tratamos do direito de manifestação em piquetes e da responsabilidade que possa advir desses atos em face da jurisprudência da Suprema Corte dos Estados Unidos da América. A partir da análise das principais decisões da Suprema Corte se pode concluir que, de modo geral, os participantes do piquete não respondem quando agem de forma não ilegal. Está sedimentado, no entanto, o entendimento de que o organizador do piquete responde pelos atos dos participantes. A pesquisa desenvolvida se justifica enquanto estudo comparativo e diante do pouco debate existente no Brasil a respeito do tema. Na pesquisa foi utilizado o método dedutivo, limitada à ciência dogmática do direito, com estudo de casos apreciados pelo judiciário. PALAVRAS-CHAVES: Responsabilidade; Piquete; Estados Unidos; Suprema Corte; Liberdade De Expressão. ABSTRACTIn this work we deal with the right of demonstration in pickets and the responsibility that may arise from these acts in the face of the jurisprudence of the Supreme Court of the United States of America. From the analysis of the Supreme Court's main decisions it can be concluded that, in general, the picket participants do not respond when they act in a non-illegal way. It is settled, however, the understanding that the picket organizer responds by the acts of the participants. The research developed is justified as a comparative study and in view of the little debate that exists in Brazil regarding the subject. In the research was used the deductive method, limited to the dogmatic science of law, with study of cases appreciated by the judiciary.KEYWORDS: Responsibility; Picket; United States; Supreme Court; Freedom Of Expression.

scholarly journals Feu la D.C.D. L'arrêt Miller et la peine de mort

2005 ◽  
Vol 18 (2-3) ◽  
pp. 567-576
Author(s):  
Henri Brun
Keyword(s):  
Supreme Court ◽  
Death Penalty ◽  
Supreme Court Of Canada ◽  
Bill Of Rights ◽  
Right To Life ◽  
The Supreme Court ◽  
The Subject ◽  
The Law ◽  
The Right ◽  
First Time

The Miller case, decided by the Supreme Court of Canada on October 5, 1976, puts the death penalty under the light of the Canadian Bill of Rights which formulates the right to life and the right to protection against cruel and unusual treatment or punishment. The following comment on the case relates to the interpretation given specific clauses of the Bill of Rights by the Court on that occasion. But it stresses especially the law that flows from the case about the compelling weight of the Bill of Rights over acts of Parliament enacted after the Bill came into force. In Miller, the Supreme Court expressed itself on the subject for the first time.

scholarly journals Settling the Fisheries: Pre-Confederation Crown Policy in Upper Canada and the Supreme Court's decisions in R. v. NIKAL and LEWIS

2014 ◽  
Vol 31 (1) ◽  
pp. 87-172
Author(s):  
Peggy J. Blair
Keyword(s):  
British Columbia ◽  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Upper Canada ◽  
Aboriginal Rights ◽  
Fishing Rights ◽  
The Supreme Court ◽  
The Subject

Although a casual reading of the Supreme Court of Canada's decisions in R. v. Nikal and R. v. Lewis might suggest otherwise, this article will argue that Court's decisions in two recent British Columbia aboriginal fishing cases do not apply in Ontario. In doing so, it will be shown that the Supreme Court of Canada relied on evidence of historic Crown policies towards aboriginal fishing rights in Upper Canada in the absence of appropriate context as to when, how and why those policies evolved. As a result, the Court wrongly concluded that fisheries could not be the subject of exclusive aboriginal rights.

Analogies of harm: excess, expression, and obscenity in Margaret Atwood’s Bodily Harm and the Supreme Court of Canada decision R v Butler

1970 ◽  
Vol 32 (1-2) ◽  
pp. 23-42
Author(s):  
Benjamin Authers
Keyword(s):  
Supreme Court ◽  
Freedom Of Expression ◽  
Well Being ◽  
Supreme Court Of Canada ◽  
The Novel ◽  
Individual Freedom ◽  
Bodily Harm ◽  
The Supreme Court ◽  
National Good

Thinking through Margaret Atwood’s 1981 novel Bodily Harm and the 1992 Supreme Court of Canada case R v Butler, this article examines a Canadian discussion about the excessiveness of the freedom of expression to which obscenity has been key. For Atwood, expression is central to Bodily Harm’s narrative of personal, political revelation. Yet it is also at the root of a discourse of harm that Atwood elucidates throughout the novel as she incorporates pornography into an expansive analogic continuity of violence. In Butler, the Supreme Court curtails obscenity in the name of equality and collective well-being, even as it continues to view expression as a valuable individual freedom and a national good. In each text freedom of expression both is and is not safeguarded; in each, the freedom can be conceived of and celebrated, but its excessive possibilities must also be contained.

scholarly journals L'affaire des « champignons magiques »

2005 ◽  
Vol 24 (2) ◽  
pp. 427-438
Author(s):  
Antoine Manganas
Keyword(s):  
Supreme Court ◽  
Chemical Substance ◽  
Supreme Court Of Canada ◽  
Strict Interpretation ◽  
The Supreme Court ◽  
Lower Courts ◽  
The Moment ◽  
Drug Traffic ◽  
The Way

Following a number of acquittals based on a strict interpretation of the terms of the Food and Drugs Act, the Supreme Court of Canada recently had to determine, in Dunn, if a mushroom containing « psilocybin » was a restricted drug despite the fact that the legislation was referring only to the chemical substance and not to the plant itself The Supreme Court found that the text was clear and that the fact that « psilocybin » may be contained within a mushroom does not destroy its character as a restricted drug. Drug traffic must naturally be condemned, but that is not the problem for the moment. The problem is that the Supreme Court of Canada adopted, in Dunn, the rule of the liberal interpretation of a penal statute despite the fact that, not so long ago, it chose a different approach when dealing with a different statute. We are critical of both the way the inferior courts treated the cases before them and the way the legislator treated the problem. We think that it was possible for the lower courts to find the accused guilty of attempting to commit the offense. We think also that it was possible for the legislator to anticipate those situations and take some precautions by deliberately adopting a text capable of embracing these cases.

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.

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 “Third Parties” and Democracy 2.0

2015 ◽  
Vol 60 (2) ◽  
pp. 253-293 ◽  
Author(s):  
Léonid Sirota
Keyword(s):  
Political Parties ◽  
Supreme Court ◽  
Business Models ◽  
Freedom Of Expression ◽  
Political Process ◽  
Third Parties ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Regulatory Approach ◽  
Set Up

Although the Supreme Court of Canada has described freedom of political, and especially electoral, debate as the most important aspect of the protection of freedom of expression in Canada, no debate in Canadian society is so regulated as that which takes place during an electoral campaign. Parliament has set up—and the Supreme Court has embraced—an “egalitarian model” of elections, under which the amount of money participants in that debate can spend to make their views heard is strictly limited. “Third parties”―those participants in pre-electoral debate who are neither political parties nor candidates for office―are subject to especially strict expense limits. In addition to limiting the role of money in politics, this regulatory approach was intended to put political parties front and centre at election time. This article argues that changes since the development of the “egalitarian model” have undermined the assumptions behind it and necessitate its re-examination. On the one hand, since the 1970s, political parties have been increasingly abandoning their role as essential suppliers in the marketplace of ideas to the actors of civil society, such as NGOs, unions, and social movements. On the other hand, over the last few years, the development of new communication technologies and business models associated with “Web 2.0” has allowed those who wish to take part in pre-electoral debate to do so at minimal or no cost. This separation of spending and speech means that the current framework for regulating the pre-electoral participation of third parties is no longer sufficient to maintain political parties’ privileged position in pre-electoral debate. While the current regulatory framework may still have benefits in limiting (the appearance of) corruption that can result from the excessive influence of money on the political process, any attempts to expand it to limit the online participation of third parties must be resisted.

scholarly journals Redetermination of a Claim to Be a Convention Refugee; A Review of the Jurisprudence

2019 ◽  
Vol 15 (3) ◽  
pp. 609-643
Author(s):  
Roger Cantin
Keyword(s):  
Supreme Court ◽  
Advisory Committee ◽  
Federal Court ◽  
Supreme Court Of Canada ◽  
Judicial Interpretation ◽  
Refugee Status ◽  
Determination Process ◽  
The Supreme Court ◽  
The Subject ◽  
Definition Of

The refugee determination process under the Immigration Act, 1976 comprises many steps which have been the subject of judicial interpretation. An individual claiming to be a “Convention refugee” in Canada will first be examined under oath with regard to his claim. The Refugee Status Advisory Committee will study the transcript of this examination. After obtaining the advice of the Committee, the Minister of Employment and Immigration will determine whether or not the claimant is a “Convention refugee”. Should this determination be negative, the person concerned will have the choice to apply to the Immigration Appeal Board for a redetermination of his claim. At this stage, the Board will grant an oral hearing to the applicant and render a decision thereafter if it is of the opinion that there are reasonable grounds to believe that he could prove that he is a “Convention refugee”. If no oral hearing is granted, the Board will determine that the applicant is not a “Convention refugee”. The Federal Court and the Supreme Court of Canada have had a considerable input in the interpretation of the provisions relating to this refugee determination process, including the wording of the definition of “Convention refugee”. This paper limits itself to a review of the decisions rendered by these courts.

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