scholarly journals Les ordonnances de dédommagement et de restitution en droit pénal canadien

2005 ◽  
Vol 20 (3) ◽  
pp. 603-623
Author(s):  
Jacques Gagné
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Attorney General ◽  
Criminal Code ◽  
Supreme Court Of Canada ◽  
The Supreme Court ◽  
Victims Of Crime ◽  
Legislative Changes ◽  
Court Of Appeal ◽  
Limited Scope

This paper examines the constitutional law issue raised before the Supreme Court of Canada in the case of R. v. Anne Zelensky and the T. Eaton Co. Ltd. and the Attorney General of Canada, decided on May 1, 1978. Having discussed the judgment of the Manitoba Court of Appeal, the author proceeds to support the majority decision of the Supreme Court, as expressed by the Chief Justice, viz. that the provision for compensation orders in subsection 653(1) of the Criminal Code is intra vires the federal Parliament as part of the sentencing process. The paper then proceeds to draw a comparison between compensation orders under subsection 653(1) and probation orders under paragraph 663(2) e) of the same Code. Differences in the nature of these two classes of orders are brought out. In view of the limited scope for application of subsection 653(1) the author suggests a number of legislative changes. These changes would remove all the constitutional difficulties inherent in the present drafting of the subsection. They would also fashion a more efficient instrument for compensating victims of crime, while preserving the original purpose of rehabilitating the offender.

scholarly journals Self-Defence and Consent: The Use of Common Law Developments in Canadian Criminal Code Analysis

1994 ◽  
Vol 32 ◽  
pp. 484
Author(s):  
M. Anne Stalker
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Criminal Code ◽  
Supreme Court Of Canada ◽  
Code Analysis ◽  
The Supreme Court ◽  
Canadian Criminal Code ◽  
The Common ◽  
Court Of Appeal ◽  
Self Defence

The author examines the interaction between the Criminal Code and the common law in relation to two areas of law recently handled by both the Alberta Court of Appeal and the Supreme Court of Canada

Constitutional Law in 1949–1950

1951 ◽  
Vol 45 (1) ◽  
pp. 86-109
Author(s):  
Robert J. Harris
Keyword(s):  
United States ◽  
Supreme Court ◽  
Constitutional Law ◽  
Attorney General ◽  
The United States ◽  
Circuit Court ◽  
Court Of Appeals ◽  
The Supreme Court

There were two changes in the personnel of the Supreme Court during the 1949 term. Attorney General Tom C. Clark was sworn in as an Associate Justice to succeed the late Justice Frank Murphy on August 24, 1949, after his nomination by President Truman had been approved on August 19 by a vote of 73 to 8. Judge Sherman Minton of the United States Circuit Court of Appeals was nominated to be an Associate Justice on September 15, 1949, to succeed Justice Wiley Rutledge. His nomination was approved by the Senate on October 4 by a vote of 48 to 16, and he was sworn in on October 12. During much of the term Justice Douglas was absent as the result of an accident incurred during the preceding summer recess. The loss of Justices Murphy and Rutledge greatly weakened the liberal alignment of the Court and very positively influenced the decision of a number of doubtful cases contrary to precedents of a recent date.

Chieftaincy jurisdication and the muddle of constitutional interpretation in Ghana

1998 ◽  
Vol 42 (1) ◽  
pp. 37-63 ◽  
Author(s):  
A. K. P. Kludze
Keyword(s):  
Supreme Court ◽  
Attorney General ◽  
Constitutional Interpretation ◽  
High Court ◽  
The Supreme Court ◽  
Bar Association ◽  
Court Of Appeal

The Supreme Court of Ghana, in The Ghana Bar Association v. The Attorney General, has unanimously decided that, even under the 1992 Constitution, High Court and the Court of Appeal have no jurisdiction in chieftaincy matters. Even if this decision itself is correct, it is nevertheless premised on highly questionable legal propositions and dicta which strike at the foundations of several otherwise settled principles and canons of construction.

scholarly journals Alberta's Court of Next-to-Last Resort: Appeals from the Alberta Court of Appeal to the Supreme Court of Canada, 1970-1990

1969 ◽  
pp. 861
Author(s):  
Peter McCormick
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Success Rates ◽  
The Supreme Court ◽  
The Law ◽  
Statistical Survey ◽  
Court Of Appeal

This paper reports the results of a statistical survey of the success rates of appeals to the Supreme Court of Canada. Appeals from all provinces were examined, but in his analysis Professor McCormick focuses on the Alberta Court of Appeal. The variables he discusses include the geographic and political composition of the Supreme Court, the mix of cases from different areas of the law, the length of experience of Court of Appeal judges, and the presence or absence of dissenting opinions.

scholarly journals Be careful what you promise: Proprietary estoppel in Cowper-Smith v Morgan

2018 ◽  
Author(s):  
Jason Chin
Keyword(s):  
British Columbia ◽  
Property Rights ◽  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Canadian Experience ◽  
The Supreme Court ◽  
The Law ◽  
Court Of Appeal

Proprietary estoppel provides one of equity’s most powerful remedies. Estoppel is an equitable doctrine which arises when one party acts on the reliance of the promise of another. The promise and corresponding reliance creates a quasi-contract with reliance acting as an alternative to the consideration usually required in contracts. Proprietary estoppel is distinct from other equitable estoppels in that a proprietary estoppel can act as a ‘sword’ and form the basis of a cause of action. If all of the parts of proprietary estoppel are made out, a court can modify or create property rights to satisfy the equity.With regard to the Canadian experience, the Court of Appeal for Ontario recently noted that proprietary estoppel has received “somewhat uneven treatment in Canada.” It is within this context that the Court of Appeal for British Columbia split on the proper scope for the Supreme Court of Canada. In Cowper-Smith v Morgan, the Supreme Court of Canada has both clarified the test for — and arguably expanded the scope of — proprietary estoppel in the context of promises exchanged between children over their mother’s care during her lifetime. The fact that a party lacks an interest in the disputed property at the time of the promise does not negate the obligation of fulfilling the promise. Instead, when the party responsible for the expectation has or acquires sufficient interest in the property, proprietary estoppel will attach to that interest and protect the equity. This article will discuss the law of proprietary estoppel in other jurisdictions and how the Supreme Court of Canada has infused this remedy with greater flexibility to satisfy the equity.

scholarly journals JUDICIALIZAÇÃO E ATIVISMO JUDICIAL EM PERSPECTIVA: UMA ANÁLISE A PARTIR DAS EXPERIÊNCIAS DAS SUPREMAS CORTES DO BRASIL E DO CANADÁ

2020 ◽  
Vol 1 (54) ◽  
pp. 425
Author(s):  
Edith Maria Barbosa RAMOS ◽  
Pedro Trovão do ROSÁRIO ◽  
Sara Barros Pereira de MIRANDA
Keyword(s):  
Supreme Court ◽  
Constitutional Law ◽  
Scientific Basis ◽  
Fundamental Rights ◽  
Supreme Court Of Canada ◽  
Judicial Activism ◽  
Scientific Journals ◽  
Supreme Courts ◽  
The Supreme Court ◽  
Theoretical Construction

RESUMOA presente pesquisa por escopo analisar os fenômenos da judicialização e do ativismo judicial a partir das experiências da Suprema Corte do Canadá e do Supremo Tribunal Federal brasileiro. Observou-se que, em ambos os países, tem havido, nas últimas décadas, uma contínua expansão da autoridade do Poder Judiciário e da sua atuação em temáticas de natureza política até então abordadas apenas pelos Poderes Legislativo e Executivo, o que pode ser evidenciado a partir da análise das decisões proferidas pelas Cortes Supremas dos dois países. Apesar das diferenças na arquitetura constitucional, ambas as Cortes atuam como condutoras do processo de expansão alcance do poder de suas estruturas judiciárias. O presente artigo foi desenvolvido a partir de levantamento bibliográfico em artigos obtidos em diferentes bancos de dados e indexadores, publicados na integra em português e inglês, acessados de forma gratuita. Foram selecionadas revistas científicas na área do Direito Constitucional Comparado com extratos elevados, qualis A e B. Utilizou-se, ainda, dados constantes em documentos oficiais e na legislação pertinente com recorte epistemológico e científico fundado na construção teórica contemporânea dos Direitos Fundamentais. PALAVRAS-CHAVE: Judicialização; Ativismo Judicial; Suprema Corte do Canadá; Supremo Tribunal Federal brasileiro. ABSTRACTThis research by scope analyzes the phenomena of judicialization and judicial activism from the experiences of the Supreme Court of Canada and the Brazilian Supreme Court. It has been observed that, in both countries, there has been, in the last decades, a continuous expansion of the authority of the Judiciary Power and its action in themes of a political nature hitherto addressed only by the Legislative and Executive Powers, which can be evidenced by from the analysis of the decisions of the Supreme Courts of both countries. Despite differences in constitutional architecture, both courts act as drivers of the process of expanding the power of their judicial structures. This article was developed from a bibliographic survey in articles obtained in different databases and indexers, published in full in Portuguese and English, accessed for free. Scientific journals were selected in the area of Constitutional Law Compared with high extracts, qualis A and B. It was also used data in official documents and relevant legislation with epistemological and scientific basis based on the contemporary theoretical construction of Fundamental Rights. KEYWORDS: Judicialization; Judicial activism; Supreme Court of Canada; Brazilian Supreme Court.

scholarly journals L'effectivité des décisions de justice en droit public interne [constitutionnel]

2005 ◽  
Vol 26 (4) ◽  
pp. 995-1003
Author(s):  
Louis-Philippe Pigeon
Keyword(s):  
Supreme Court ◽  
Public Law ◽  
Supreme Court Of Canada ◽  
Public Authorities ◽  
Canadian Charter ◽  
Judicial Decisions ◽  
The Supreme Court ◽  
High Degree ◽  
Political Character ◽  
Limited Scope

In practice, no question ever arises respecting the effectiveness of judicial decisions in matters of public law. Whether or not a judgment is technically executory is of no importance. There is such a high degree of respect for the decisions of the courts, specially those of the Supreme Court of Canada, that public authorities practically never feel free to seek a way out of compliance with a judicial pronouncement. Remedial powers of the courts are entrenched under the Canadian Charter of Rights and Freedoms and the Constitution is declared to be the supreme law of Canada. There is thus very limited scope for governmental action in defiance of court orders. The only specific provision for such action appears to be a section of the Extradition Act authorizing the Minister of Justice to refuse to surrender a fugitive if he determines that the latter's offence is of a political character.

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.

The Charter of Rights and Freedoms: Undermining Parliamentary Sovereignty and Federalism

Federalism-E ◽  
2019 ◽  
Vol 20 (1) ◽  
pp. 57-65
Author(s):  
Joshua Nahmias
Keyword(s):  
Supreme Court ◽  
Attorney General ◽  
Political Environment ◽  
Supreme Court Of Canada ◽  
Canadian Charter ◽  
The Public ◽  
Public Purse ◽  
Parliamentary Sovereignty ◽  
The Supreme Court ◽  
Core Concepts

This article explores the Canadian Charter of Rights and Freedoms and its role in altering two core concepts of Canadian democracy: parliamentary sovereignty and federalism. The author argues that the Charter has undermined these concepts through the empowerment of Canada's judiciary, namely the Supreme Court of Canada. The article explores ways in which the powers of parliament have been superseded by the courts, specifically through the establishment of "charter proofing," parliament's loss of power over the "public purse," and the erosion of the provinces' policy autonomy. Ultimately, the article seeks to demonstrate that the Charter has "legalized" Canadian politics to the extent that the judiciary unwieldy an unacceptable amount of power in Canada's political environment. Cases explored in the essay include Morgentaler v. the Queen (1988), Schachter v. Canada (1992), and Attorney-General of Québec v. Association of Québec Protestant School Boards (1984).

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