5. The Supreme Court of Canada: The Concept of Cooperative Federalism and Its Effect on the Balance of Power

2017 ◽  
pp. 135-164 ◽  
Keyword(s):  
Supreme Court ◽  
Balance Of Power ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Cooperative Federalism

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.

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.

Judgment of the Supreme Court of Canada of February 28, 2020, on Nevsun v. Araya: a “quiet revolution” in the assessment of the status of corporations under public international law?

2021 ◽  
Vol 11 (2) ◽  
pp. 25-39
Author(s):  
Vera Rusinova ◽  
Olga Ganina
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
International Law ◽  
Supreme Court Of Canada ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
International Human Rights ◽  
Public International Law ◽  
The Supreme Court ◽  
International Human

The article analyses the Judgment of the Supreme Court of Canada on the Nevsun v. Araya case, which deals with the severe violations of human rights, including slavery and forced labor with respect of the workers of Eritrean mines owned by a Canadian company “Nevsun”. By a 5 to 4 majority, the court concluded that litigants can seek compensation for the violations of international customs committed by a company. This decision is underpinned by the tenets that international customs form a part of Canadian common law, companies can bear responsibility for violations of International Human Rights Law, and under ubi jus ibi remedium principle plaintiffs have a right to receive compensation under national law. Being a commentary to this judgment the article focuses its analysis on an issue that is of a key character for Public International Law, namely on the tenet that international customs impose obligations to respect human rights on companies and they can be called for responsibility for these violations. This conclusion is revolutionary in the part in which it shifts the perception of the companies’ legal status under International Law. The court’s approach is critically assessed against its well-groundness and correspondence to the current stage of International law. In particular, the authors discuss, whether the legal stance on the Supreme Court of Canada, under which companies can bear responsibility for violations of International Human Rights Law is a justified necessity or a head start.

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