Canadian Supreme Court Research Articles

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.

RobertSchertzer, The Judicial Role in a Diverse Federation. Lessons from the Supreme Court of Canada, Toronto: University of Toronto Press, 2016, 338 pp. £55.00 (hbk).

Nations and NationalismVolume 23, Issue 4 p. 994-996 Book Review Robert Schertzer, The Judicial Role in a Diverse Federation. Lessons from the Supreme Court of Canada, Toronto: University of Toronto Press, 2016, 338 pp. £55.00 (hbk). Alex Schwartz, Alex Schwartz University of Hong KongSearch for more papers by this author Alex Schwartz, Alex Schwartz University of Hong KongSearch for more papers by this author First published: 06 September 2017 https://doi.org/10.1111/nana.12334Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Volume23, Issue4October 2017Pages 994-996 RelatedInformation

Just a click away? Jurisdiction and virtually carrying on business in Canada

With millions of daily online transactions, internet business or e-commerce is a key feature of modern life. Yet despite its ubiquity, the Canadian law on taking jurisdiction in disputes flowing from these transactions has fallen behind the commercial realities. In particular, it is unclear when Canadian common law courts may assert jurisdiction over defendants who are “virtually carrying on business” in a province. While the Supreme Court of Canada in Club Resorts Ltd v Van Breda ostensibly promoted a new era of certainty and predictability for the law of jurisdiction, the court’s decision does anything but in the internet context. Van Breda’s rule, formulated as a “presumptive connecting factor”, that a Canadian court may assert jurisdiction over an extraterritorial defendant who is “carrying on business” in the province is particularly problematic in internet cases. The rule is uncertain and inconstantly applied, consequently imposing costs on businesses, consumers and the Canadian court system. In light of these challenges, this article critically examines how lower courts, since Van Breda, have interpreted what it means to be virtually carrying on business and proposes an open-ended flexible test constrained by the economic benefits principle.

SAADATI v. MOORHEADCase No. 36703; 2017 SCC 28 (Supreme Court of Canada, June 2, 2017)

Gaming Law ReviewVol. 21, No. 7 Case Analyses and CasesSAADATI v. MOORHEADCase No. 36703; 2017 SCC 28 (Supreme Court of Canada, June 2, 2017)Published Online:1 Sep 2017https://doi.org/10.1089/glr2.2017.2176AboutSectionsView articleView Full TextPDF/EPUB Permissions & CitationsPermissionsDownload CitationsTrack CitationsAdd to favorites Back To Publication ShareShare onFacebookTwitterLinked InRedditEmail View articleFiguresReferencesRelatedDetails Volume 21Issue 7Sep 2017 InformationCopyright 2017, Mary Ann Liebert, Inc.To cite this article:SAADATI v. MOORHEADCase No. 36703; 2017 SCC 28 (Supreme Court of Canada, June 2, 2017).Gaming Law Review.Sep 2017.514-526.http://doi.org/10.1089/glr2.2017.2176Published in Volume: 21 Issue 7: September 1, 2017PDF download

The Time Has Come: Standard of Review in Canadian Administrative Law

This paper explores standard of review in Canadian administrative law. Part I reviews the organizing principles distilled by the Supreme Court of Canada. Part II examines some of the recent cases that have plagued and perplexed practitioners in this field. Part III considers how our understanding of legislative supremacy and the rule of law – the seemingly omnipresent source of tension in this area of law – has matured over time. Part IV explores how a contextual standard of review for reasonableness could operate in a principled yet practical way.

Supreme Court of Canada upholds worldwide interlocutory injunction against Google

In Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, a majority of the Supreme Court of Canada upheld a worldwide interlocutory injunction against Google that required it to globally de‑index the webpages of a defendant in a separate intellectual property infringement proceeding.

Facebook’s forum selection clause not ‘liked’ by Supreme Court of Canada

In Douez v. Facebook, Inc., 2017 SCC 33, a majority of the Supreme Court of Canada held Facebook’s forum selection clause, which required that all disputes be litigated in Santa Clara County (California), unenforceable.

Delegated Legislation: The Tangled World of Grounds and Standards of Review

This paper considers the current state of judicial review of delegated legislation in Canada as it has been most recently articulated in a series of decisions of the Supreme Court of Canada. The paper begins by considering the application of the standard of review analysis – or not – to the judicial review of delegated legislation and the inconsistent treatment of municipal by-laws and professional regulations, on the one hand, and regulations of the executive branch, on the other. It then considers how the three interpretive principles that the Supreme Court in its decision in Katz Group outlined as the cornerstones for the judicial review of delegated legislation have been applied in recent cases. Finally, it argues for the application of the standard of review analysis to all delegated legislation, including the potential for applying a reasonableness standard that amalgamates the traditional grounds of review into this standard, as the Court has already done in relation to municipal by-laws and professional regulations.

Language Rights and the Political Compromise Doctrine

This article considers the progress of language rights jurisprudence in the Supreme Court of Canada. Specifically, it will focus on the Supreme Court’s interpretation of section 133 of the Constitution Act, 1867, with a view toward exploring the problem of judicial bilingualism. It will begin by examining language rights in their historical context. Thereafter, it will consider the Court’s approach to the interpretation of section 133 in light of the political compromise doctrine. It will conclude by arguing that the Court’s jurisprudence under the doctrine is inconsistent with the purpose of language rights guarantees and should be overruled.

Business Corporations as Religious Freedom Claimants in Canada

On a few occasions, members of the Supreme Court of Canada have suggested a business corporation could not initiate a claim based on the right to religious and conscientious freedom. The Victorian Court of Appeal in Australia has come to this conclusion more directly. On the other hand, the US Supreme Court has held that, in at least some circumstances, a business corporation can be an appropriate religious freedom claimant. The argument for categorically denying a corporation’s religious freedom claims usually rests on a conception of what the corporation is: as an artificial person, a corporation simply cannot hold the requisite religious or conscientious belief to ground such a claim. The purpose of this article is to provide two bases upon which the business corporations’ incapacity to assert religious freedom claims in Canada might be rethought. First, this article argues that attributing a religious belief to a corporation is consistent with the way that Canadian law attributes other sorts of intentional states to corporations. Though Canadian law does, in general, hold to a theory that the corporation is a legal fiction, it is a fiction that includes the capacity to intend the consequences of its actions for legal purposes. Second, it argues that the courts might approach religious freedom in a manner analogous to how the Supreme Court has approached other constitutional rights, such as expressive freedom. When faced with claims by corporations, this approach focuses not on the nature of a corporation but on how to best serve the purposes underlying the right. Such an approach could support allowing business corporations to make religious freedom claims, while leaving open the possibility that any infringement proven could be justified under s 1 of the Charter.

The Tortious Liability of Directors and Officers to Third Parties in Common Law Canada

The law regarding the tortious liability of corporate directors and officers to third parties remains conflicted. One line of authority, adopted in Alberta, provides that liability is rare in the context of torts committed in a corporate capacity, and it largely closes the door on liability for ordinary negligence. A competing line of authority, however, contends that tortious liability is common. Signalling a different approach, Justice Slatter of the Alberta Court of Appeal provides a policy-based stance that accounts for the importance of both tort law and corporate law principles to the question of liability for ordinary negligence. Beyond offering balance, Justice Slatter’s approach has the benefit of aligning with pronouncements from the Supreme Court of Canada regarding directors’ and officers’ liability in negligence to third parties. This article outlines the current authorities in the area, concluding that Justice Slatter’s judgment provides a clear and principled way forward.

Canada boosts protection for patent holders

The Supreme Court of Canada has strengthened patent protection and intellectual property rights for brand-name-drug makers. It has also likely removed a Canadian bargaining chip in the upcoming renegotiation of the North American Free Trade Agreement with Mexico and the U.S. The top court’s June 30 ruling overturns what’s known in legal circles as the promise doctrine. This allowed invalidation of a Canadian drug patent if a court found the pharmaceutical didn’t live up to every promise a company made in the patent application about the effects of the drug. Canada used this legal doctrine to invalidate 26 patents on 22 medicines during the past decade, says U.S.-based Pharmaceutical Research & Manufacturers of America, which represents brand-name-drug makers. “This ruling means Canada got rid of a standard that kept out low-quality patents,” says Richard Gold, a law professor and intellectual property expert at McGill University. He’s a member of the

Acomodo razonable en Canadá y discriminación indirecta en Europa como garantía del principio de igualdad

Este artículo lleva a cabo un estudio comparado entre la noción de acomodo razonable desarrollada por el Tribunal Supremo de Canadá y la de discriminación indirecta utilizada por el Tribunal Europeo de Derechos Humanos, aplicadas ambas en contextos multiculturales como garantía del principio de igualdad. El análisis del recorrido jurisprudencial de ambos tribunales, a través de casos que pueden considerarse paradigmáticos, permite estudiar el criterio de razonabilidad. Se ahonda así en los límites de estos instrumentos como, por una parte, la carga excesiva y el interés preponderante del Estado, y por otra, la proporcionalidad y el margen de apreciación estatal. Con ello, se apuesta por la necesidad inaplazable de articular políticas de gestión de la diferencia que hagan de ella un valor positivo, en lugar de un problema a gestionar. Al mismo tiempo, se aboga por conceptos que permitan llegar a la igualdad efectiva en el uso y disfrute de los derechos, fortaleciendo la pluralidad democrática que requieren las sociedades actuales.

An inconsistency in the Canadian law of adverse possession? Nelson (City) v Mowatt 2017 SCC 8

ABSTRACTIn Nelson (City) v Mowatt 2017 SCC 8, the Supreme Court of Canada held that the inconsistent use test forms no part of the law of British Columbia. This note surveys and critiques the Court’s reasoning, and argues that the spirit of the decision should be followed in the other provinces. Using the law of Ontario as a case study, it argues that the existence of the inconsistent use test is contrary to both legal history and precedent.

The Ambiguity of Constitutional Silence on State Secession in Nigeria: Looking Beyond Politics of Compassion and Prejudice

Before putting my thoughts together in this article, I had to distance myself from nationalistic prejudice as Nigerian from the Southwestern part of the country, but proffer legal reasoning to tackle the conundrum surrounding the secession of Biafra from Nigeria. In my pursuit of clarity, I believe Biafra can secede from Nigeria, but this is contingent on legal and moral hurdles to overcome in the context of a nascent Nigerian political system. This article is a bifurcated academic reasonings, illustrating a moral argument to justify Nigeria’s political unity rather than its disintegration, and a legal argument drawing its content, context and culture from the current Nigerian constitution, and tenets of international law to state that secession is a question not answered by Nigerian domestic laws; moreover, international law gives little definitive position on it, save—the principle of self-determination. The Movement for the Actualization of the Sovereign State of Biafra (MASSOB), is currently spearheading resurgence of (Biafra), a defunct secessionist state that existed from 30 May 1967-January 1970 in eastern Nigeria. However, the current constitution of Nigeria is silent on state secession, just as international law does not recognize secession as an identified right. It does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their parent state. Secession succeeds or fails not on what international law says, it depends on the success of an entity making the secession move. The fulcrum of this article is a synthesis of principles of constitutional interpretation to understand why the 1999 constitution of Nigeria is silent on state secession, and how the ambiguity arising from this silence can be resolved in the context of the current Biafra secession move. This article peruses some tools of constitutional interpretation by giving utmost deference to the cautionary dictum of Justice Marshal in McCulloch v. Maryland, who posits it is a constitution we are expounding, therefore great caution must be sought while interpreting its content. This article argues that non-express prohibition of state secession in the constitution does not make it permissive for entities to breakaway unilaterally. It appears framers of the constitution intend political continuity and survival of the nation as a single entity rather than its disintegration. This article concludes that in the affirmative, Nigeria has a state responsibility to provide self-determination to her people, however, self-determination is not necessarily secession; especially where internal self-determination has been availed social groups and enclaves in Nigeria. It postulates alternatives to handling political grievances from the standpoint of constitutionalism. The decision of the Canadian Supreme Court in RE: SECESSION OF QUEBEC is used in this article to amplify the core factors justifying a move for secession on the argument that an entity's right to self-determination is impeded. Some of these factors discussed in this scholarship are-political oppression, threat of genocide, and human rights violations.

The Ambiguity of Constitutional Silence on State Secession in Nigeria: Looking Beyond Politics of Compassion and Prejudice.

Before putting my thoughts together in this article, I had to distance myself from nationalistic prejudice as Nigerian from the Southwestern part of the country, but proffer legal reasoning to tackle the conundrum surrounding the secession of Biafra from Nigeria. In my pursuit of clarity, I believe Biafra can secede from Nigeria, but this is contingent on legal and moral hurdles to overcome in the context of a nascent Nigerian political system. This article is a bifurcated academic reasonings, illustrating a moral argument to justify Nigeria’s political unity rather than its disintegration, and a legal argument drawing its content, context and culture from the current Nigerian constitution, and tenets of international law to state that secession is a question not answered by Nigerian domestic laws; moreover, international law gives little definitive position on it, save—the principle of self-determination. The Movement for the Actualization of the Sovereign State of Biafra (MASSOB), is currently spearheading resurgence of (Biafra), a defunct secessionist state that existed from 30 May 1967-January 1970 in eastern Nigeria. However, the current constitution of Nigeria is silent on state secession, just as international law does not recognize secession as an identified right. It does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their parent state. Secession succeeds or fails not on what international law says, it depends on the success of an entity making the secession move. The fulcrum of this article is a synthesis of principles of constitutional interpretation to understand why the 1999 constitution of Nigeria is silent on state secession, and how the ambiguity arising from this silence can be resolved in the context of the current Biafra secession move. This article peruses some tools of constitutional interpretation by giving utmost deference to the cautionary dictum of Justice Marshal in McCulloch v. Maryland, who posits it is a constitution we are expounding, therefore great caution must be sought while interpreting its content. This article argues that non-express prohibition of state secession in the constitution does not make it permissive for entities to breakaway unilaterally. It appears framers of the constitution intend political continuity and survival of the nation as a single entity rather than its disintegration. This article concludes that in the affirmative, Nigeria has a state responsibility to provide self-determination to her people, however, self-determination is not necessarily secession; especially where internal self-determination has been availed social groups and enclaves in Nigeria. It postulates alternatives to handling political grievances from the standpoint of constitutionalism. The decision of the Canadian Supreme Court in RE: SECESSION OF QUEBEC is used in this article to amplify the core factors justifying a move for secession on the argument that an entity's right to self-determination is impeded. Some of these factors discussed in this scholarship are-political oppression, threat of genocide, and human rights violations.

Same Pod, Different Peas: The Vienna Convention on the Law of Treaties in Australian and Canadian Courts

What role do the rules of interpretation in Articles 31 and 32 of the Vienna Convention on the Law of Treaties have to play as a potential agents of systemic integration and a coherent international legal system? Part of the answer lies in an examination of the practice of domestic courts which are increasingly called upon to undertake the task of interpreting treaties. This paper compares the practice of two superior courts – the Supreme Court of Canada and the High Court of Australia – in their approaches to the interpretation of international legal norms and their use of the interpretative principles in Articles 31 and 32. Despite the theoretical idea that the VCLT rules will, or should, encourage consistency of interpretation amongst varied interpreters, potential for divergences in interpretative technique (let alone outcome) remains. While both courts identify international law as a single system, and promote the role of Articles 31 and 32 as a means of ensuring uniformity of treaty application, historically the practise of the Supreme Court and High Court has been far from consistent, either internally or vis-a-vis each other. However, as the international law experience of these domestic courts grows, so too there appears to be an emerging consensus as to the preferred interpretative approach.

The Not-So-Bright Line Rule: Lingering Questions about Lawyers' Duty of Avoid Conflicting Interests Following CN Railway v. McKercher

CN Railway v McKercher presented the Supreme Court of Canada with the opportunity to clarify the “bright line” rule governing lawyers’ duty of loyalty to current clients, and set limits that would guide the profession in assessing potential conflicts of interest. Unfortunately, the Court did not take sufficient advantage of this opportunity. Although the decision injects some further clarity into the bright line rule, many questions remain with respect to its proper application. The Court introduced new uncertainties into the law by holding that the bright line rule is of limited scope, without providing practical guidance as to how this scope is constrained. Although the Court listed factors for lower courts to consider when asked to disqualify counsel for a breach of the rule, it neglected to apply this analysis to the facts before it. Finally, it is not clear that the rule as formulated appropriately targets the risk of impaired representation – the rule remains both overbroad and under-inclusive. These lingering questions will be left for the lower courts to resolve, and one hopes that further clarity will emerge in future cases.

The Judicial Role in a Diverse Federation: Lessons from the Supreme Court of Canada, by Robert Schertzer

The Judicial Role in a Diverse Federation: Lessons from the Supreme Court of Canada, by Robert Schertzer

Women and (their) children: wrongs, rights and relationships

ABSTRACTAs of the turn of the twenty-first century, a pregnant woman appears to be excluded from the Canadian private law of civil wrongs when it comes to any wrongfully inflicted harm on her own foetus. This article revisits and examines the images of pregnancy and maternity represented in the judgments in Dobson v. Dobson, a 1999 decision of the Supreme Court of Canada. Against the backdrop of contemporary discussions about surrogacy, the images put forth in Dobson – namely, the expecting woman, the autonomous woman and the woman as mother – represent more generally the co-existing and often entangled pictures with which the law grapples whenever pregnancy and maternity are at stake. This essay explores how we might imagine a more child-focused reflection of issues like those presented in Dobson. Without insisting on the applicability of children’s rights as set out in conventions or charters, it is possible to include the interests and perspective of children in a nuanced analysis of law’s engagement with pregnancy and maternity that does not compromise or erode women’s rights or interests. Indeed, a recognition of children’s interests in this context permits a juridical recognition of, and reconciling with, the complex and diverse realities of pregnancy and maternity.