Canadian Supreme Court Decision Research Articles

THE REVISED CANADIAN TEST FOR THE EXCLUSION OF UNCONSTITUTIONALLY OBTAINED EVIDENCE

Although South African courts have relied on Canadian law to interpret section 35(5) of the Constitution, they have also been hesitant to do so, since the previous Canadian approach clearly had its shortcomings. The Canadian Supreme Court's decision in R v Grant has now addressed these problems by putting forward an approach that is less rigid and more simplistic to apply. The new test reflects properly the main motivation behind a constitutionally entrenched exclusionary rule and thereby provides a sound theoretical basis for the application of such a rule. Because their new approach has brought the South African and Canadian tests closer together, more stands to be gained from future Canadian decisions in this regard. Perhaps the most important aspect of the Grant decision is that it shows why it is unnecessary to treat the two legs of the South African rule as separate tests. There should in principle be only one test: namely whether the admission of unconstitutionally obtained evidence would be detrimental to the administration of justice.

The Right to Assisted Dying: Constitutional Jurisprudence and Its Impact in Canada, Germany and Austria

Abstract Many states are grappling with the regulation of assistance in suicide and ending the life of another upon their request. Initially punishable in most countries, a growing number of jurisdictions have now introduced permissive frameworks decriminalising, to varying degrees, rendering assistance in dying. Other countries, however, have proceeded with the criminal prohibition and several courts have upheld the lawfulness of the respective criminal laws during human rights and constitutional challenges. Yet, the Supreme Court of Canada in 2015, the German Federal Constitutional Court in February 2020 and the Austrian Constitutional Court in December 2020 have respectively declared unconstitutional and void national criminal laws prohibiting rendering assistance in dying. This article first outlines the criminal law framework relating to assisted dying in Canada, Germany and Austria. It subsequently analyses the judgments before pondering their impact on the legal landscape in the three countries. The article concludes that while the Canadian Supreme Court decision appears to have had a significant impact on the introduction of subsequent legislation in Canada, the effects of the Constitutional Courts’ judgments seem much more subdued in Germany and are yet to unfold in Austria.

Becoming a medical assistance in dying (MAiD) provider: an exploration of the conditions that produce conscientious participation

The availability of willing providers of medical assistance in dying (MAiD) in Canada has been an issue since a Canadian Supreme Court decision and the subsequent passing of federal legislation,...

The Continuing Relevance of Private International Law and Its Challenges: Judicial Jurisdiction and Forum Access—The Search for Predictable Rules

In this paper for a 2018 NYU Conference on “The Continuing Relevance of Private International Law and Its Challenges”, Professor Silberman surveys recent developments in judicial jurisdiction in the United States. Her overall thesis is that the Supreme Court is striving to develop predictable rules on judicial jurisdiction. To that end, she highlights the dramatic change in U.S. general jurisdiction resulting from the Supreme Court’s 2014 decision in Daimler AG v. Bauman. Professor Silberman also discusses the Court’s later 2017 decision in Bristol-Myers Squibb v. Superior Court, which put certain limitations on assertions of specific jurisdiction, and draws attention to the potential impact of Bristol-Myers on nationwide class action litigation as that issue continues to develop in the lower courts. Professor Silberman also offers her views as to how the 2014 Supreme Court decision in Walden v. Fiore may affect jurisdiction in internet-defamation cases, and adds a comparative perspective with discussions of the recent ECJ decision in Bolagsupplysningen OU v. Svensk Handel AB and the recent Canadian Supreme Court decision in Haaretz.com v. Goldhar.

Wishing you won’t be here: Medical assistance in dying for psychiatric patients

Summary The Canadian Supreme Court's decision in Carter v. Canada conceivably allows depressed psychiatric patients without a terminal physical illness to claim that they meet the criteria for physician-assisted death. Bill C-14, aka the Medical Assistance in Dying Act (MAiD), conceivably does not: patients suffering from mental illness are supposedly not facing an impending death from their disorder that is reasonably foreseeable. Specific concerns have been raised about major depression as hopelessness and suicidal thinking are symptoms. If psychiatric patients are candidates for MAiD, then concerns about incurability, appreciation, and voluntariness could be met by a “conservative” oversight regime that requires extra safeguards and sufficient evidence to offset them. It should require: 1) substantive clinical evidence that treatments have failed, and 2) substantive narrative evidence of how patients evaluate the risk of premature death. As per 1), it is argued that treatment refusal will not by itself determine incurability. An approach for 2) is proposed that uses methods derived from narrative psychotherapy. This narrative approach uses therapeutic techniques to inform assessments of suicidal risk, but in collaborative ways that can sustain hope. Aside from adding first-person evidence to the clinical file, it might better enable patients to articulate the extent to which they appreciate the risk of premature death. It might also enable patients to re-evaluate their wish for MAiD. More to the point, it affords patients who profess a wish to die an opportunity to express themselves and be listened to that many of them claim they want to have.

A Human Rights Perspective of Assisted Suicide: Accounting for Disparate Jurisprudence.

This article critically examines the decision of the New Zealand High Court in Seales v Attorney-General [2015] NZHC 1239, which rejected the claim that that country's blanket ban on assisted suicide violated various rights enshrined in the New Zealand Bill of Rights. That outcome runs contrary to the Canadian Supreme Court's decision in Carter v Canada (Attorney General) [2015] 1 SCR 331. This disparity in result arose despite overt similarities between the rights documents in each of the jurisdictions and, more significantly, notwithstanding the fact that the trial judge in Seales placed heavy reliance upon the decision in Carter. With two new challenges to the blanket ban on assisted suicide in England and Wales progressing through the lower courts, and given proposed amendments to the ban in both New Zealand and its antipodean neighbours - the Australian states of Victoria and New South Wales - it is a propitious time to consider the reasons for the disparate outcomes in Seales and Carter. This article will demonstrate that the trial judge's reasoning in Seales was wanting in a number of important respects, particularly in terms of the characterisation of the objective of the blanket ban. These limitations undermine the decision's utility as authority both domestically and internationally. This is particularly important given the high likelihood that reference will be made to the decision during debate in the New Zealand Parliament regarding amendments to the ban in that country and the possibility that the Legislatures in Victoria and New South Wales, as well as the English courts hearing the current challenges to the ban in that jurisdiction will, particularly given the shared common law background, refer to the judgment in Seales.

Competitive Effects and Efficiencies: The Canadian Supreme Court's Decision in Tervita

Competitive Effects and Efficiencies: The Canadian Supreme Court's Decision in Tervita

Cyberbullying: Should Schools choose between Safety and Privacy?

In this theoretical article, we explore the tangled messiness of the application of human rights versus the 21st-century monster called "cyberbullying" in schools and focus on some of the challenges schools face daily. The research will reveal that cyberbullying victims were almost twice as likely to attempt suicide as youth who had not experienced cyberbullying, which implies that this is a phenomenon schools ought not to take lightly. We argue that everyone has a right to the freedom of expression, including in cyberspace, and begin by exploring how legal principles evolved in an attempt to deal with the limitations placed on an individual's right to freedom of expression. As we are about to reveal, though, matters become even more complicated when this freedom of expression relates to cyberspace, a space where users might have an expectation of privacy and even enjoy a state of anonymity. Clearly, the right to privacy and the right to freedom of expression need to be balanced and respected should school authorities be called upon to identify and discipline a cyberbully. This balancing act is one that needs to be investigated and carefully expounded upon, and is an issue that has not yet been sufficiently addressed in South Africa. Seeing that countries such as the United States of America and Canada have attempted to deal with this issue, it would be prudent to discuss the strides these countries have made, the challenges they have faced, and the insights they have gained, in an attempt to alert South Africa to the complex issues cyberbullying could raise. Working from this premise, this article will focus on the right to privacy, specifically in relation to Bill C-13 recently passed in Canada and the resultant Canadian Supreme Court decision in the case R v Spencer, a case that shed further light on the issue of privacy in cyberspace. We conclude the discussion by highlighting several potential pitfalls legislation such as Bill C-13 could create, and ask that constitutionally sound legal remedies be developed without delay to assist South African school governing bodies in the arduous task of having to deal with cyberbullying, to ensure that they are not faced with the question as to whether their learners' safety or privacy should come first.

Securitizing Canadian Federalism: The Supreme Court of Canada and the Proposed Canadian Securities Reform Act

The pending Canadian Supreme Court decision on the constitutionality of the Canadian Securities Reform Act (CSRA) promises to greatly clarify or maddeningly muddle the division of powers between Canada’s provinces and federal government. Yet, two characteristics of the Court should be emphasized. The Court has avoided drawing bright lines regarding the federal government’s commerce power and weighs political factors in defining provincial and federal authorities. Furthermore, this analysis highlights the benefits of not subjecting the CRSA to a full commerce analysis. If the Court faithfully applies the General Motors test it will either (1) lay down a firm rule permitting a mandatory federal securities regulator that may be politically impossible to implement or (2) murky the rules regarding the federal government’s commerce powers. But a third option exists: the Court can justify the CSRA without forcing a definitive answer on whether a federal securities regulation would trump provincial law through the Peace, Order and Good Governance clause. While this may not satisfy supporters of bright-line rules when it comes to Canadian federalism, such an approach seems to follow proclivities of the Court and reflect Canada’s historical approach to federalism.

Under the Radar: Stealth Development of Two-Tier Healthcare in Canada

The shocked reaction of commentators to the recent Canadian Supreme Court decision (Chaoulli v. Quebec) overturning Quebec's ban on private healthcare insurance is difficult to square with the facts and policy options realistically open to provincial governments. The problem is that rhetoric has centred on preserving a single-tier universal system that has never existed in the form its supporters imagine. Meanwhile, quasi-private agencies and healthcare entrepreneurs have been improvising private care options, either ignored or abetted by governments. Consequently, policy and practice have become increasingly divergent. Supporters of Canadian-style medicare can only hope that the Chaoulli decision will force clearer-headed policy re-appraisal. Towards that end, this paper argues that provincial governments ought to focus more on robust regulation of already existing, privately financed healthcare, including the commissioning of care by Workers' Compensation Boards.

Is Rationing Right For Americans?

Is Rationing Right For Americans?

Challenging statutory limitations on children's education rights: a re-examination of the Canadian Supreme Court Decision inAuton

The 2004 Supreme Court of Canada decision in Auton concerns the right of autistic children to access services held by their parents to be essential to their children's ability to participate as members of a democratic society. It is argued that the child's right to have his or her basic developmental needs met is a constitutionally protected one. Having those developmental needs met engages both education and health rights. In Auton the parents had sought funding for the service at issue from the Ministry of Health, the Ministry of Children and Families (which dealt with mental health services and other particular support programs for the families of disabled children) as well as from the Ministry of Education. The case raises central questions regarding the very nature of education and the constitutionality of a discretionary power of government to set out statutory limitations upon fundamental human rights including education rights.

The Impact of Legal Mobilization and Judicial Decisions: The Case of Official Minority-Language Education Policy in Canada for Francophones Outside Quebec

The article investigates the impact of legal mobilization and judicial decisions on official minority-language education (OMLE) policy in the Canadian provinces outside Quebec, using the “factor-oriented” and “dispute-centered” theories of judicial impact developed by U.S. scholars. The Canadian Supreme Court's decision in Mahé v. Alberta (1990), which broadly interpreted Section 23 of the Charter of Rights to include management and control of OMLE programs and schools, along with federal funding to the provinces to implement OMLE policy, are important to explaining OMLE policy change as predicted by the factor-oriented approach. The dispute-centered approach, on the other hand, helps us understand how the Charter of Rights and judicial decisions shaped the goals and discourse of Francophone groups in the policy process and, more instrumentally, provided opportunity structures that Francophone groups exploited effectively. The article concludes that both approaches to explaining judicial impact could be accommodated within an institutional model of judicial impact that construes institutions as state actors, as sets of rules, and as frameworks of meaning and interpretation. Such an approach would allow for the development of a more comparative model of judicial impact.

Whatever Happened to Canadian Children's Equality Rights? A Reconsideration of the Eaton Special Education Case

This paper reconsiders the Canadian Supreme Court Decision in Eaton and examines its implications for the equality rights of Canadian children in general. The suggestion is made that a 'best interest of the child' standard cannot be met if it involves the violation of fundamental Charter rights. Segregated special education placement, when against the wishes of the parents or guardians and with no s. 1 justification, it is argued, is unconstitutional. The latter gives rise to violations of equality provisions with regard to the student's freedom of association, the right to personal autonomy in decision-making for parents in regards to their child's education, as well as, in some cases, security of the person insofar as the psychological, social and cognitive development of the disabled child is concerned. Such an exclusion from the mainstream, if imposed, it is suggested, does not generally meet the test for 'reasonableness' in accommodation consistent with Charter guarantees. The presumption in favor of...

Relevance, Conduction and Canada's Rape-Shield Decision

I examine a Canadian Supreme Court decision concerning the constitutionality of Canada's 1982 rape-shield legislation, and suggest how material from the decision might profitably be used in an informal-logic class in connection with the topics of relevance and conductive argument. I also consider theoretical matters related to the decision: first I develop two analyses of what I call an argument from 'unchasteness' and connect them to George Bowles's theory of propositional relevance; then I present Trudy Govier with a problem in response to which she might revise her account of a conductive argument in a way I describe.