Canadian Supreme Court Research Articles

Reconsidering Creed: Exchanging Secularism for Genuine Pluralism in Canadian Human Rights Discourse

In the case of SL v Commission scolaire des Chenes, the Supreme Court of Canada adopted a more nuanced approach to the role of religion in public life than it had in many previous decisions. It recognized that, while absolute neutrality does not exist, the role of the state was to remain as neutral as possible by “show[ing] respect for all postures towards religion, (...) while taking into account the competing constitutional rights of the affected individuals”. This more pluralistic approach is an improvement on previous decisions that affirmed the need for a secular public sphere in which religion took a back seat (or from which it was excluded altogether). Although the decision has its weaknesses, it also has important ramifications for creed-based human rights policy. Religion should not be seen as a problem to be accommodated, as it is often viewed in European human rights jurisprudence. It should instead be seen as a valuable and equal contributor to the richness of our public life, with a place in our schools, workplaces and other ‘public spaces’ along with other claims to the good and the true. The forthcoming update to the Ontario Human Rights Commission’s Policy on creed and the accommodation of religious observances should reflect this pluralism and show “respect for all postures towards religion”. To privatize religion in the name of a false neutrality would be oppressive and a betrayal of our society’s deepest liberal ideals.

Songer Donald, Johnson Susan, Ostberg C. L. and Wetstein Matthew Law, Ideology, and Collegiality. Judicial Behaviour in the Supreme Court of Canada. Montreal and Kingston: McGill-Queen’s University Press, 2012. 223 pp.

Donald Songer, Susan Johnson, C. L. Ostberg and Matthew Wetstein Law, Ideology, and Collegiality. Judicial Behaviour in the Supreme Court of Canada. Montreal and Kingston: McGill-Queen’s University Press, 2012. 223 pp. - Volume 29 Issue 2

In a Landmark Trilogy, Supreme Court of Canada Allows Indirect Purchasers to Sue for Competition Act Violations

In three highly anticipated decisions, the Supreme Court of Canada has held that indirect purchasers can commence class action lawsuits in Canada. The three decisions, Pro-Sys Consultants Ltd. v. Microsoft Corporation, Sun-Rype Products Ltd. v. Archer Daniels Midland Company and Infineon Technologies AG v. Option consommateurs, not only allow indirect purchasers to sue for damages for violations of the Competition Act, but also reinforce the low evidentiary burden at the certification stage of class proceedings.

Decolonization and Canada’s ‘Idle No More’ Movement

Canada’s ‘Idle No More’ movement ignited over concern about Prime Minister Stephen Harper’s abuse of majority status to enact laws that undermine democratic rights and environmental protection. With a philosophy that corresponds to international human rights principles, the movement galvanized public opinion and forged stronger alliances with the settler population. Ironically, Indigenous peoples are currently better situated than Canadians to challenge the lack of public consultation and violation of democratic principles that have come to light. The Supreme Court of Canada has recently confirmed that there is a duty to consult aboriginal peoples on issues that affect their rights, and several court actions have now been mounted on this basis. The goal of correcting endemic injustices and reinvigorating democracy will require a full re-evaluation of Canada’s colonial past and of the institutional format used to dispossess Indigenous peoples. Idle No More’s iconic flash-mob round dances suggest there is a new generation ready to take on this challenge.Keywords: British colonialism, monarchy, democracy, Indigenous, law, rights, sovereigntyCitation: Arctic Review on Law and Politics, vol. 4, 2/2013 pp. 181–206. ISSN 1891-6252

The Pursuit of Environmental Justice in the McLachlin Court

This paper examines the jurisprudence of the Supreme Court of Canada under Chief Justice McLachlin in terms of its implications for environmental justice. It examines specifically how the Court’s decisions influence the promotion of environmental justice, the government’s role as a trustee for environmental values, access to justice (in the environmental context), participatory decision-making, and the precautionary principle.

Unauthorized Dispositions of Trust Property: Tracing in Quebec Law

The trustee of a Quebec trust is an administrator of the property of others, with full administration. As such, he holds a wide range of powers over the trust property; typically, his powers will exceed his authority, in the sense that it will be possible for him to make unlawful dispositions of the trust property. In such a case, he will be liable of course, but sometimes, particularly if the trustee is insolvent or absent, it will be important to understand the effects of the unauthorized dispositions on the trust property. For example, it may be possible for beneficiaries or other interested parties to annul a disposition of trust property; in this way, the property may be restored to the trust patrimony. Somewhat more difficult is the case in which the trustee has improperly disposed of trust property in exchange for some other property, in an attempt to misappropriate trust assets and turn them to his own benefit. If it is not possible to annul the disposition, might it be possible to claim that the proceeds of this unauthorized disposition are themselves held in trust? This paper examines the extent to which the idea of real subrogation can be used to protect the trust patrimony. Although the Supreme Court of Canada has suggested that Quebec law does not have a general principle of real subrogation, the author argues that this principle has a role to play in protecting universalities of law and that it can appropriately be invoked in the context of unauthorized dispositions of trust property.

Ezokola v Canada: Citizenship and Immigration, 2013 SCC 40 * Supreme Court of Canada

Ezokola v Canada: Citizenship and Immigration, 2013 SCC 40 * Supreme Court of Canada

Pension Fiduciaries and Public Responsibilities: Emerging Themes in the Law

As society increasingly faces governance challenges, recognition is growing that a longer-term and more systemic view of fiduciary obligations is needed. This article reviews the singular efforts of the Supreme Court of Canada to develop a broader conceptual framework for such duties. Looking beyond Canada, we then consider, in the context of pension fund governance and administration, steps that might be taken to address and mitigate liability in respect of such duties. We also consider the trajectory of the law and how it appears to be positioning pension fiduciaries with public responsibilities that could alter legal and governance precepts.

The Importance of Family Resemblance: 'Series of Transactions' after Copthorne

The concept of a series of transactions was a key issue in the Supreme Court of Canada’s decision in Copthorne Holdings Ltd. v. Canada. In light of that decision, this article reviews previous commentary on the topic and suggests a new approach based on the concept of family resemblance. Family resemblance recognizes that there are no core aspects that are the same in every series captured by a provision of the Income Tax Act. Rather, a series should be defined in relation to the purpose of the anti-avoidance provision in issue and the stylized set of transactions that Parliament was attempting to capture. Where there is a sufficient family resemblance between the stylized series and the transactions carried out, a series should be found. This concept is applied to both specific anti-avoidance rules and the general anti-avoidance rule. The article suggests how the Act could be clarified through amendments inspired by the concept of family resemblance.

Choice of Law For Tort in Canada: Reasons for Change

Since 1994 the Canadian common law choice-of-law rule for tort claims has been that such claims are, in virtually all cases, governed by the law of the place of the tort. That choice-of-law rule was controversial when it was established and it remains so to this day. Controversial rules demand periodic reconsideration. Furthermore, as we approach the twentieth anniversary of the adoption of this rule, more recent developments should prompt us to question whether a change is now warranted. The current rule was formulated by the Supreme Court of Canada in Tolofson v Jensen. In that case the court had the opportunity to revisit the then-current Canadian rule for choice of law for tort: the double actionability rule adopted by McLean v Pettigrew, which required a plaintiff to show that the defendant's conduct was actionable under both the law of the place of the tort and the law of the forum. The court rightly held that the double actionability rule was unsustainable, in particular as concerned its mandatory application of the law of the forum. It replaced that rule with one applying the lex loci delicti, the law of the place of the tort.

Privacy, Surveillance and the Democratic Dialogue

Hogg and Bushell (1997) in their seminal piece Charter Dialogue, characterized the relationship between the courts and legislature as conversation, one that contributes to a democratic dialogue. This was done in response to critics such as Mandel (1989) who criticized the judiciary for being activist and trying to exert supremacy over the legislature. Through an analysis of several Supreme Court of Canada (‘SCC’) cases, Hogg and Bushell (1997) were arguing that in cases where a law or its provisions were struck down for non-compliance with the Charter, the legislature would subsequently respond to the SCC with a follow-up piece of legislation that would pass constitutional muster and still serve its original purpose.What this paper attempts to do is apply Hogg and Bushell’s (1997) democratic dialogue theory to SCC cases involving warrantless electronic surveillance. As our lives become more dependent on technological innovations, so too does the state’s dependence on technology increase in order to conduct criminal investigations. The personal information that can be revealed through seemingly innocuous information such as electricity consumption records or thermal imaging can reveal intimate details about an individual’s life, and lead to criminal consequences which is particularly alarming for individuals’ privacy rights. Dialogue theory can offer valuable insight as to how privacy rights are being affected in relation to certain investigative technologies, and through an analysis of specific case law, I hope to demonstrate that democratic dialogue plays an active role in creating a balanced approach to warrantless electronic surveillance, and protecting individual’s privacy rights.

R v Ryan and the Expanded Use of Duress

This is a paper examining the issues surrounding the case of R v Ryan. It was written and submitted prior to the decision of the Supreme Court of Canada being released.

Niqabs in Canadian Courts:R v NS

InR v NSthe Supreme Court of Canada (SCC) was asked to consider a straightforward question: must a Muslim woman remove a niqab (face covering leaving only the eyes showing) when giving evidence in a sexual assault case in which she is the complainant. Two justices said ‘yes’; one said ‘almost always, no’; and the majority said ‘maybe yes, maybe no – it depends’. The matter was then returned to the preliminary inquiry judge to make the actual decision, which could still be subject again to appeal to the SCC. The court divided on the three available answers to the question: yes, no and maybe. The division, however, leaned in favour of requiring removal of the niqab because the reasons for judgment favouring ‘maybe’ were concurred in in the result by those favouring removal. In the end, the court did not give a clear answer to the question, but rather provided a four-part test for trial judges who must continue to make the decision, subject to appeal. The practical utility of this response may be doubted.

A Review of the Book Titled 'Judicial Independence in Context, Edited by Adam Dodek and Lorne Sossin'

The bar and the bench throughout the world would agree that there are, among others, two main problems that call to be addressed, namely, the Content of Judicial Independence and the context of the Judicial Independence. Thoughts are offered mostly in abstract terms though the more needed are the thoughts which are concrete, substantial and challenges encountered in the carrier of a Judge. Judicial Independence in Context is a collection of essays by leading scholars, lawyers, and judges that examines both the theory and practice of judicial independence in Canada and around the world. There are 22 Contributors of whom Peter W. Hog, Lori Sterling & Sean Hanley, and Lorne Sossin have excellently assessed the legacy of the Supreme Court of Canada’s controversial land mark decision in the Provincial Judges Reference.The other contributors namely, Graem G. Michell, Benjamine Alarie and Andrew Green, Jacob Ziegel addressed the need for institutional reform in Canada outside the salary remuneration setting in the areas of court administration and judicial appointments. The book also examined linkages between judicial independence and issues such as diversity, social context education for judges, public criticism of judges, public policy, and technology. Other contributions examine issues of judicial independence in the United Kingdom, the Unites States, South Africa, Israel, and Pakistan.

Governing from the bench: the Supreme Court of Canada and the judicial role

Introduction 1 Studying Judicial Behaviour 2 The Evolution of the Court and Its Justices 3 Setting the Stage: Exploring Court Processes Leading to Decisions 4 The Decision: Collegiality, Conflict, and Consensus 5 A Question of Competence: Examining Judicial Policy Making 6 The Court in Government and Society: Dialogue, Public Opinion, and the Media Conclusion Notes Bibliography Index

Aboriginal Title in Canada: Site-Specific or Territorial?

This paper addresses the issue of Aboriginal title to land, and the relationship I see between Indigenous law and the common law in this context. In my understanding, there have been three judicial approaches to Aboriginal title: 1. A purely proprietary approach, based on occupation of land and the effect given to occupation by the common law (common law Aboriginal title). 2. An Indigenous law approach, whereby Aboriginal title arises from and is defined by pre-existing Indigenous law (Indigenous law title). 3. A territorial approach, whereby Aboriginal title is derived from both common law and Indigenous law and has governmental dimensions (territorial Aboriginal title). I am going to describe each of these, and then offer some critical comments on the Supreme Court of Canada’s decision in R. v. Marshall; R. v. Bernard and the British Columbia Court of Appeal’s more recent decision in William v. British Columbia (the Tsilhqot'in Nation case).

My Place Or Yours? SCC Sets New And Improved Test For Jurisdiction In Canada

ON APRIL 18, 2012, the Supreme Court of Canada (SCC) changed the real and substantial test for determining when a Canadian court is allowed to take jurisdiction over a foreign (extra-provincial or international) defendant. This decision is good news for Canadian and foreign companies. The new test confirms that the real and substantial must be an objective factual connection to the court's territory, and the SCC dearly held that subjective notions of fairness to the plaintiff' are not part of the test. The SCC's decision arose from the appeal of two cases, which were heard together: Club Resorts Ltd. v. Breda and Club Resorts Ltd. v. Charron; (collectively, Van Breda-Charron). (1) This paper will explain the new Breda-Charron test for jurisdiction in Canada and highlight its potential effect upon litigants--domestic and foreign--in legal proceedings in Canada. For context, this paper will commence with a summary of the facts of the Breda and Charron cases. This paper will then describe the law of jurisdiction in most of the provinces of Canada that existed prior to the Breda and Charron cases and follow with a discussion of the SCC's derision establishing this new test for assumed jurisdiction. The final section of this paper will examine how the Breda-Charron test has been applied by subsequent motions and appeal courts in the nine months following the release of that decision up through the end of 2012. I. Facts of Breda and Charron From a jurisdictional perspective, the material facts of Breda and Charron were similar. A. Breda The defendant, Club Resorts Limited (CRL), is a Cayman Islands-based company which carries on business as a resort operator in Cuba, among other places. The defendant, Rene Denis, an Ottawa-based travel agent, operated a business of arranging for racquet-sport professionals to be hired by CRL to work at resorts in Cuba. Mr. Denis received compensation for this service from both CRL and the racquet sport professional. In 2003, Mr. Denis arranged for the plaintiff, Viktor Berg, to work as a tennis professional for CRL at the Superclubs Breezes Jibacoa Resort in Cuba, which was managed by CRL. In return, CRL provided accommodation and other services at the resort for Mr. Berg and a guest. In 2003, Mr. Berg and his common law spouse, the plaintiff Morgan Breda, travelled to the resort in Cuba. On the first day of their trip, Ms. Breda tried to perform some exercises on a metal structure on the beach. The structure collapsed, and Ms. Breda suffered a spinal cord injury that rendered her paraplegic. After spending a few days at a hospital in Cuba, Ms. Breda returned to Canada. Rather than going to her pre-accident home in Ontario, Ms. Breda went to Calgary, Alberta where her family lived. Subsequently, Ms. Breda and Mr. Berg moved together to British Columbia; they never returned to Ontario. In May 2006, Ms. Breda and Mr. Berg issued a lawsuit in the Ontario Superior Court against several defendants, including Mr. Denis and CRL. The action was framed in breach of contract and the tort of negligence. B. Charron In January 2002, Dr. Charron and his wife, the plaintiff Mrs. Charron, purchased a vacation package through an Ontario-based travel agent, the defendant Bel Air Travel Group Ltd. (Bel Air). The package was assembled and sold by an Ontario-based tour operator, the defendant Hola Sun Holidays, Ltd. (Hola Sun). It was an all-inclusive vacation package at the Breezes Costa Verde Resort in Cuba. The package included scuba diving, among other things. The Costa Verde Resort property was owned by a Cuban corporation, the defendant Gaviota S.A. (Gaviota), and it was managed by the defendant CRL. The scuba diving activity was provided and conducted by another Cuban corporation, the defendant Marina Gaviota (Marina Gaviota), and its two employees--the defendants Andres Ricardo (the dive boat captain) and Leonardo Ricardo (the scuba diving instructor). …

Democracy and the Freedom of Speech: Rethinking the Conflict between Liberty and Equality

This article re-examines the distinction between the libertarian approach and the egalitarian approach to the regulation of campaign finance. The conventional approach (as exemplified by the work of Owen Fiss and Ronald Dworkin) is to reconcile the competing values of liberty and equality. By contrast, this article advances the normative claim that democracies should seek to incorporate both the libertarian and the egalitarian approaches within constitutional law. I argue that instead of emphasizing one value over the other, the ideal position is one that simultaneously recognizes the values of liberty and equality despite the irreconcilable tension between them. Rather than choosing one value over the other, or reconciling these values by redefining them, I claim that it is vital to maintain the tension between liberty and equality by instantiating the conflict in law. Democracy is better served when the law contains an explicit tension between these foundational values.After setting forth this normative framework, I then apply it to the campaign finance decisions of the Supreme Courts of the United States and Canada, respectively. I make two main claims. First, I argue that although the libertarian/egalitarian distinction is usually presented as a binary choice, the laws of a given jurisdiction often simultaneously display both libertarian and egalitarian characteristics. For this reason, I claim that the libertarian/egalitarian distinction is better conceived of as a “libertarian-egalitarian spectrum.” Second, I argue that in recent years, the U.S. Supreme Court and the Supreme Court of Canada, respectively, have privileged one value—liberty or equality—at the expense of the other. The U.S. Supreme Court has over-emphasized the value of liberty (most notably in itsCitizens Uniteddecision), with the result that political equality is markedly undermined. By the same token, the Supreme Court of Canada’s commitment to equality has become too one-sided in recent cases (HarperandBryan), with the result that there are significant impairments to free speech liberties. I argue that both of these approaches are detrimental to democratic participation and governance. Finally, this article offers a preliminary proposal for how courts and legislatures can allow for the conflict between liberty and equality to be instantiated in law.

Symposium Honoring Justice Ruth Bader Ginsburg

I must, at outset, disclose my multiple partiality ... I have been an unconditional admirer of Justice Ginsburg and her jurisprudence since she was appointed to Supreme Court of United States Since older, a fortiori our respective backgrounds as early career women in law offer a lot of similarity, and I was myself second woman to sit on Supreme Court of Canada Further disclosure: Justice Ginsburg and I share a passion: opera and a fate (or is it a curse?)--dissents. Her vision of equality and, in particular, gender justice has inspired many. I am one of those Gender justice is part and parcel of much larger issue: that of equality. A discussion about equality must start with question: why is equality so important both for law and people? The answer for me is simple: inequality is injustice, it is negation of human dignity My own definition of gender equality is extraordinary notion that women are human beings entitled to same respect, consideration and opportunities as other members of society That definition applies, mutatis mutandis, to all those subject to discrimination by reason of their ethnicity, sexual orientation, religion, social status, etc. (1) Justice Brennan said it this way: Human relations are extremely complex and the law is there to serve ... realization of man's ends, ultimate and 'immediate ... realization of human dignity through full opportunity and eradication of bias.' (2) Full opportunity for women is a theme that resonates more than once in Justice Ginsburg's jurisprudence. (3) It does resonate also in Canadian Supreme Court jurisprudence based on Section 15 of Charter of Rights and Freedoms, which does not parallel vague and laconic language of Fourteenth Amendment of United States Constitution guaranteeing all persons right to protection under law. Instead, it is clearly elicited in Section 15 of Canadian Charter of Rights and Freedoms that: 15: (1) Every individual is before and under law and has fight to protection and benefit of law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, color, religion, sex, age or mental or physical disability. (4) I must add that Canadian women were obviously sensitive to language of equality provisions of Charter and lobbied for broader language, for distinctions based on sex to be subject to a stringent review, and for inclusion of a general statement of equality between men and women. Their proposed wording was accepted and now forms part of Section 15(1) of Charter. (5) Contrary to jurisprudence under Fourteenth Amendment that had developed separate but equal standard since Plessy v. Ferguson, (6) Supreme Court of Canada rejected this approach and opted at outset for a large and purposive interpretation of Charter, adopting Lord Sankey's metaphor in Person's Case (7) of a constitution as a living tree, (8) which Court reiterated as recently as December 22, 2011. (9) I am aware that this metaphor does not make for unanimity among justices of United States Supreme Court. Justice Breyer and Aharon Barak's controversial views on role of judge in a democracy, (10) as well as their references to foreign jurisprudence, (11) are not widely accepted (Justices Ginsburg and Breyer excepted). Canada has readily embraced such views without any controversy. Many constitutions, particularly those of more recent vintage such as those of India, South Africa, and Canada, have used as their model framework set out in Universal Declaration (12) and international human rights conventions, (13) rather than civil liberties model found in United States Bill of Rights. The Court, in its first decision under Section 15 of Charter in Andrews v. …

'Race' Definition Run Amuck: 'Slaying the Dragon of Eskimo Status' Before the Supreme Court of Canada, 1939

In April 1939, the Supreme Court of Canada ruled that "Eskimos" were "Indians" within the Canadian constitutional framework. Though a renowned anthropologist testified to the "racial distinctness" of "Eskimos," the all-white judges of the court struggled to define "race." The case arose out of a jurisdictional dispute over whether the provincial or federal government should pay for relief aid for the Inuit in northern Quebec. The Inuit community was neither consulted nor represented as an "interested party" at the hearing. When the Eskimo Reference was heard by the Supreme Court, conflicting anthropological evidence demonstrated the discipline's struggle to scientifically measure and distinguish races. The Court decided that "Eskimos" were legally "Indians" based largely on decades-old correspondence between federal government officials about providing relief aid to an Eskimo community. They concluded that the Fathers of Confederation must have intended for all Aboriginal peoples living in Canada upon colonization to be considered Indians. Notably, the Court avoided the question of how to categorize race in law.