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Anthropologists in the Canadian Courts

Elizabeth Cassell

in Law and Anthropology: Current Legal Issues Volume 12

European settlers in the mid-19th century laid claim to the majority of the Gitksan and Wet'suwet'en land, although the land was never conquered, ceded, or signed away under the treaty process that ... More

European settlers in the mid-19th century laid claim to the majority of the Gitksan and Wet'suwet'en land, although the land was never conquered, ceded, or signed away under the treaty process that prevailed in the other provinces of the Canadian Confederation. In order to establish a claim to the lands to which they have been entitled since time immemorial, all indigenous peoples of British Columbia must enter a tortuous land claims process. In 1984, frustrated by the long delays in the negotiation process, which only permitted two land claims to be heard at a time, 51 Hereditary Chiefs of Houses of the Gitksan and Wet'suwet'en peoples decided to bring their case to court in order to establish their claim through litigation rather than through negotiation. This chapter first evaluates the evidence submitted on behalf of the Gitksan and Wet'suwet'en, and then considers the effect of the proceedings on the Aboriginal people affected by the decisions handed down as the case proceeded through the trial and appeal processes. It then considers whether it is appropriate for anthropologists to appear as expert witnesses, and what, if anything, can be done to ensure that Aboriginal evidence is treated with the respect it deserves in the Canadian Courts.Less

Canada

Phillip M Saunders

in The Privileges and Immunities of International Organizations in Domestic Courts

This chapter examines the influence of transnational dialogue on the development of the Canadian law to date, and in particular the prospects and possible pitfalls with regard to its further ... More

This chapter examines the influence of transnational dialogue on the development of the Canadian law to date, and in particular the prospects and possible pitfalls with regard to its further application in the future. It first summarizes the principles which govern the application of international law in Canadian courts, including the manner in which courts have employed transnational dialogues in the process. Second, it outlines the statutory instruments under which international organization immunity in Canada is primarily structured, and provides an overview of current practice. This is followed by a review of the jurisprudence dealing with the personality, privileges, and immunities of international organizations in Canada. Finally, some suggestions are offered as to the relevance and appropriateness of transnational judicial dialogue and its likely future impact.Less

Canada: From Privy Council to Supreme Court

Steven Gow Calabresi

in The History and Growth of Judicial Review, Volume 1: The G-20 Common Law Countries and Israel

This chapter assesses the emergence of judicial review in Canada. Canadian judicial review emerged as a direct result of federalism and separation of powers umpiring by the Judicial Committee of the ... More

This chapter assesses the emergence of judicial review in Canada. Canadian judicial review emerged as a direct result of federalism and separation of powers umpiring by the Judicial Committee of the Privy Council (JCPC), which was Canada’s highest court from the adoption of the British North America Act in 1867 until Canada ended appeals to the JCPC in 1949. There was also, as Ran Hirschl would argue, an element of elite hegemonic entrenchment by imperial British colonial elites in the retention of the JCPC as the highest court of appeals in Canada from the creation of the Supreme Court of Canada in 1875 until Canada abolished appeals to the JCPC in 1949. Some Canadian elites tried and failed to end JCPC judicial review in Canadian cases in 1875. Canadian judicial review from 1867 to 1982 was exclusively concerned with federalism and separation of powers judicial umpiring because Canada had no constitutional Bill of Rights until 1982. There are thus two founding moments in the judicial review of legislation in Canadian history: firstly, the period from 1867 to 1982 when Canadian federalism and separation of powers law took shape as a result of federalism and separation of powers umpiring; and, secondly, the period from 1982 to the present, when the Supreme Court of Canada began vigorously enforcing the Canadian Charter of Rights and Freedoms. The emergence of judicial review from 1982 down to the present day is partly a rights from wrongs phenomenon, and it is partly the result of constitutional borrowing from the United States’s Warren Court.Less

Habeas Corpus and the Canadian Charter of Rights and Freedoms

Robert J. Sharpe

in The Reality of International Law: Essays in Honour of Ian Brownlie

This chapter provides a brief outline of the Canadian Charter of Rights and Freedoms in 1982. It analyses the method of rights protection this charter mandates and evaluates how certain specific ... More

This chapter provides a brief outline of the Canadian Charter of Rights and Freedoms in 1982. It analyses the method of rights protection this charter mandates and evaluates how certain specific rights and freedoms guaranteed by the Charter relate to the subject of the law of habeas corpus. It suggests that this Canadian Charter has significantly enhanced the law-making powers of Canadian courts and has moved Canada in the direction of a due process model of criminal law.Less

Law, Convention, and Prerogative

T. R. S. Allan

in Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism

The royal prerogative remains an important legal source of governmental power in the modem constitution. In legal theory, ministers and judges are appointed under the prerogative. As inherent powers ... More

The royal prerogative remains an important legal source of governmental power in the modem constitution. In legal theory, ministers and judges are appointed under the prerogative. As inherent powers of the executive government, originating in those of the medieval kings, their definition remains unsettled. There are residual powers to act in defence of the realm against both external aggression and internal strife. The existence of the royal prerogative seemed to contradict Dicey's conception of the rule of law. He attempted to overcome the contradiction by resort to an account of ‘constitutional morality’. Meanwhile, the Canadian Supreme Court accepted that the main purpose of constitutional conventions is to ensure that the legal framework of the Constitution would be operated in accordance with the prevailing constitutional values or principles of the period.Less

The Canadian Charter of Rights and Freedoms: Sexual Orientation under Section 15(1)

Robert Wintemute

in Sexual Orientation and Human Rights

The Canadian Supreme Court, at the time of writing this book, had yet to decide a case of sexual orientation discrimination under the Canadian Charter of Rights and Freedoms and Section 15(1). In ... More

The Canadian Supreme Court, at the time of writing this book, had yet to decide a case of sexual orientation discrimination under the Canadian Charter of Rights and Freedoms and Section 15(1). In 1969, following the lead of England and Wales in the Sexual Offences Act 1967 and using very similar language, Canada amended the Criminal Code provisions dealing with so-called ‘buggery’ (which applied to both same-sex and opposite-sex anal intercourse) and ‘gross indecency’ (which applied to sexual acts between any two persons, and therefore potentially to all sexual activity between men or between women, and to opposite-sex oral intercourse). This chapter examines the criteria that should be used to identify ‘analogous grounds’ of discrimination under Section 15(1) and looks at two potential criteria: analogous grounds as either ‘immutable statuses’ or ‘fundamental choices’.Less

Enhancing Constitutional Self-Understanding through Comparative Law: An Empirical Study of the Use of Foreign Case Law by the Supreme Court of Canada (1982–2013)

Gianluca Gentili

in Courts and Comparative Law

Since the adoption of the 1982 Charter of Rights and Freedoms (Charter), the Supreme Court of Canada (SCC or Court) has established itself as one of the most progressive constitutional judges ... More

Since the adoption of the 1982 Charter of Rights and Freedoms (Charter), the Supreme Court of Canada (SCC or Court) has established itself as one of the most progressive constitutional judges worldwide. It fostered an openness to foreign legal sources typical of a common law high court, and prompted the Court to refer to an even broader range of foreign jurisdictions. This chapter presents an empirical analysis of the Court’s decisions issued during the first 32 years of application of the Charter, between 1982 and 2013, providing evidence supporting the view that the SCC, in deciding constitutional cases and interpreting the newly enacted Charter, has consistently considered other jurisdictions. Referring to cases decided by American, Australian, British, and European courts, the Court has established its Charter jurisprudence by drawing critical inspiration from foreign judicial decisions and adapting their legal principles to the unique features of Canada’s legal system and society.Less

Introduction: The Specificities of Contested Secessions

Neera Chandhoke

in Contested Secessions: Rights, Self-determination, Democracy, and Kashmir

Liberal theorists tend to deny the right of secession to illiberal groups. Yet, whereas the group might well be the ‘wrong’ one, the cause for which it seeks to secede might just be the ‘right one’, ... More

Liberal theorists tend to deny the right of secession to illiberal groups. Yet, whereas the group might well be the ‘wrong’ one, the cause for which it seeks to secede might just be the ‘right one’, notably injustice. Deny the right of secession and the group is denied justice. Grant illiberal groups the right of secession, and there is very real danger that the state it establishes might be illiberal to a high degree. The objective of the introduction is to build into liberal theories of secession the experience of contested secessions, so that normative questions can be asked of these cases as well. During the process of addressing these questions, additional factors that mediate the context and the text need to be registered, the moral implications of these factors noted, and theories of secession accordingly adjusted. The second part of the introduction introduces six constitutive dimensions of the Kashmir issue.Less

The Abusive Borrowing of Political Constitutionalism and Weak-Form Judicial Review

Rosalind Dixon and David Landau

in Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy

This chapter explores the abusive borrowing of an important set of concepts associated with political constitutionalism, or the idea that political institutions such as legislatures, rather than ... More

This chapter explores the abusive borrowing of an important set of concepts associated with political constitutionalism, or the idea that political institutions such as legislatures, rather than courts, should be chiefly charged with interpreting and enforcing the constitution. It shows how regimes in Hungary and Poland have relied heavily (and erroneously) on these theories to justify attacks on their judiciaries without seeking to develop the set of political and social preconditions which would be necessary for political forms of constitutional interpretation to make sense. It also shows how allies of Prime Minister Benjamin Netanyahu, in Israel, have (so far unsuccessfully) attempted to import the ‘weak-form’, dialogic, or New Commonwealth model of judicial review instantiated in Canada, which allows for a legislative override, in a context where the chief goal was immunizing the Prime Minister from ongoing criminal prosecution.Less

“A spinster and a syringe”: Debating Test-Tube Babies

in Reproduction by Design: Sex, Robots, Trees, and Test-Tube Babies in Interwar Britain

This chapter approaches the issues discussed in this book in a roundabout fashion by exploring a relatively obscure Canadian court case. It addresses the ways in which commentators in the interwar ... More

This chapter approaches the issues discussed in this book in a roundabout fashion by exploring a relatively obscure Canadian court case. It addresses the ways in which commentators in the interwar years attributed enormous social significance to a rarely employed but simple form of medical treatment. The Orford trial is introduced. From the mid-1930s onward, the British tabloids started to report on “test-tube babies” in the United States. A number of writers had defended artificial insemination as a form of positive eugenics. In the 1940s, nothing could rival artificial insemination in better representing reproduction by design. In so doing, it dramatically showed the splitting of sex and reproduction. In the first half of the twentieth century when the procedure was only emerging, it was predictable that its defenders would seek to portray it in the most conservative of hues.Less