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COURT JUSTICES, 1985-2013 Jean-Christophe Bédard-Rubin
Paper prepared for the 2018 CPSA Annual Conference – Please do not cite nor circulate without permission HOW MUCH FRENCH DO THEY SPEAK ANYWAY? A BILINGUALISM INDEX FOR SUPREME COURT JUSTICES, 1985-2013 Jean-Christophe Bédard-Rubin & Tiago Rubin Draft paper prepared for the CPSA 2018 Annual Conference. Please do not cite nor circulate without permission. Mandatory bilingualism for Supreme Court judges tantalizes Canadian politics for at least ten years now. The advocates of judicial bilingualism have repeatedly tried (and failed) to enshrine into law the requirement for Supreme Court justices to be functionally bilingual, i.e. the ability to “read materials and understand oral argument without the need for translation or interpretation in French and English”. For them, integrating mandatory bilingualism as a legislative requirement in the appointment process is a panacea. Their opponents argue that language proficiency in French should not be a sine qua non condition for Supreme Court justiceship and that requiring it would prevent excellent candidates from being appointed. However, despite the fact that empirical statements abound on both sides, there is very little empirical evidence regarding the actual impact of unilingualism and bilingualism on Canadian judicial institutions and simply no evidence whatsoever about its impact on individual judges’ behavior. Building on our ongoing research on judicial bilingualism, in this paper we try to evaluate the level of bilingualism of individual justices. What our findings suggest is that the behavior of Francophone and Anglophone bilinguals is influenced by the linguistic competency of their colleagues. Our findings also suggest that some Anglophone justices that are deemed to be bilinguals do not behave very differently from their unilingual colleagues. -
Carissima Mathen*
C h o ic es a n d C o n t r o v e r sy : J udic ia l A ppointments in C a n a d a Carissima Mathen* P a r t I What do judges do? As an empirical matter, judges settle disputes. They act as a check on both the executive and legislative branches. They vindicate human rights and civil liberties. They arbitrate jurisdictional conflicts. They disagree. They bicker. They change their minds. In a normative sense, what judges “do” depends very much on one’s views of judging. If one thinks that judging is properly confined to the law’s “four comers”, then judges act as neutral, passive recipients of opinions and arguments about that law.1 They consider arguments, examine text, and render decisions that best honour the law that has been made. If judging also involves analysis of a society’s core (if implicit) political agreements—and the degree to which state laws or actions honour those agreements—then judges are critical players in the mechanisms through which such agreement is tested. In post-war Canada, the judiciary clearly has taken on the second role as well as the first. Year after year, judges are drawn into disputes over the very values of our society, a trend that shows no signs of abating.2 In view of judges’ continuing power, and the lack of political appetite to increase control over them (at least in Canada), it is natural that attention has turned to the process by which persons are nominated and ultimately appointed to the bench. -
The Honourable Justice Louis Lebel**
A COMMON LAW OF THE WORLD? THE RECEPTION OF CUSTOMARY INTERNATIONAL LAW IN THE CANADIAN COMMON LAW* The Honourable Justice Louis LeBel** INTRODUCTION In an increasingly globalized world, the importance of international law to our domestic legal system continues to grow. This growth is both exponential and multi- dimensional. International law had been traditionally concerned with relations between states and about the status and action of international organizations. But today, not only is international law having a greater impact than ever on the state of domestic law, it also influences more areas of domestic law than ever. These areas include human rights, labour law, commercial law, intellectual property law, immigration and refugee law, and criminal law, to name but a few. In this paper, I intend to focus on the means by which customary international law exerts its influence on the Canadian domestic legal culture. As will be discussed in greater detail below, customary international law is developed by state practice and the recognition of the legally binding nature of this practice, while other parts of international law are grounded in treaties and other multilateral instruments, which reflect the contractual activities of states and organizations. I will address some intricacies of this process. Before I do so, however, I will use again an analogy which, at least for the classical music lovers, may be of some assistance to understand the issues of interaction of international and domestic law. A number of years ago, I co-wrote an article describing how the reception of international law into the Canadian legal order could be usefully compared to two distinct classical musical styles. -
Paul J. Lawrence Fonds PF39
FINDING AID FOR Paul J. Lawrence fonds PF39 User-Friendly Archival Software Tools provided by v1.1 Summary The "Paul J. Lawrence fonds" Fonds contains: 0 Subgroups or Sous-fonds 4 Series 0 Sub-series 0 Sub-sub-series 2289 Files 0 File parts 40 Items 0 Components Table of Contents ........................................................................................................................Biographical/Sketch/Administrative History .........................................................................................................................54 .......................................................................................................................................................................................................................................................................................................................................................................................................................... ........................................................................................................................Scope and Content .........................................................................................................................54 ......................................................................................................................................................................................................................................................................................................................................................................................................................... -
Institutional Legitimacy, Strategic Decision Making and the Supreme Court of Canada
Between Activism and Restraint: Institutional Legitimacy, Strategic Decision Making and the Supreme Court of Canada by Vuk Radmilovic A thesis submitted in conformity with the requirements for the degree of Doctor of Philosophy Graduate Department of Political Science University of Toronto Copyright by Vuk Radmilovic (2011) Between Activism and Restraint: Institutional Legitimacy, Strategic Decision Making and the Supreme Court of Canada Vuk Radmilovic Doctor of Philosophy Political Science University of Toronto (2011) ABSTRACT: Over the last couple of decades or so, comparative public law scholars have been reporting a dramatic increase in the power and influence of judicial institutions worldwide. One obvious effect of this “judicialization of politics” is to highlight legitimacy concerns associated with the exercise of judicial power. Indeed, how do courts attain and retain their legitimacy particularly in the context of their increasing political relevance? To answer this question I develop a novel theory of strategic legitimacy cultivation. The theory is developed through an application of the institutionalist branch of the rational choice theory which suggests that institutional structures, rules, and imperatives provide behavioural incentives and disincentives for relevant actors who respond by acting strategically in order to attain favourable outcomes. The theory shows that courts cultivate legitimacy by exhibiting strategic sensitivities to factors operating in the external, political environment. In particular, legitimacy cultivation requires courts to devise decisions that are sensitive to the state of public opinion, that avoid overt clashes and entanglements with key political actors, that do not overextend the outreach of judicial activism, and that employ politically sensitive jurisprudence. The theory is tested in the context of the Supreme Court of Canada through a mixed-method research design that combines a quantitative analysis of a large number of cases, case-study approaches, and cross- policy comparisons. -
SCAI Annual Report 2014-2015
2014-2015 ANNUAL REPORT National Advisory Committee In 2014-2015, the Supreme Court Advocacy Institute completed its eighth year The Honourable Frank Iacobucci, of service, during which it continued to provide counsel appearing for argument C.C., Q.C., Chairperson before the Supreme Court of Canada with rigorous practice sessions. The The Honourable Gérald V. La Forest, C.C., Q.C., Honorary Institute’s advocacy program aims to increase the effectiveness and quality of Chairperson advocacy before the Court by simulating for counsel the experience of oral The Honourable Peter Cory, C.C., argument before the highest court. A panel of seasoned Supreme Court C.D. Q.C., Honorary Chairperson advocates listens to counsel’s argument and offers candid and constructive The Honourable John C. Major, C.C., Q.C., Honorary Chairperson feedback to help maximize counsel’s opportunity to present informative and effective oral submissions. The Honourable Michel Bastarache, C.C., Honorary Chairperson The Honourable Louise Charron, During the past year, the Institute provided free, non-partisan advocacy sessions C.C., Honorary Chairperson in approximately 49% of cases before the Court, including in 74% of appeals The Honourable Ian Binnie, C.C., from Quebec, 61% from Ontario, and 27% from British Columbia. Counsel from Q.C., Honorary Chairperson both government and private practice used the Institute’s advocacy program in a The Honourable Marie Deschamps, C.C., Honorary Chairperson wide range of civil and criminal appeals. They included both seasoned advocates and first-time counsel before the Court. The Honourable Morris J. Fish, Q.C., Honorary Chairperson The Honourable Louis LeBel, Sixty-six (66) lawyers donated their time as advocacy advisors for their Honorary Chairperson colleagues, offering advice based on their own experience before the Court. -
The Supreme Court of Canada and the Judicial Role: an Historical Institutionalist Account
THE SUPREME COURT OF CANADA AND THE JUDICIAL ROLE: AN HISTORICAL INSTITUTIONALIST ACCOUNT by EMMETT MACFARLANE A thesis submitted to the Department of Political Studies in conformity with the requirements for the degree of Doctor of Philosophy Queen’s University Kingston, Ontario, Canada November, 2009 Copyright © Emmett Macfarlane, 2009 i Abstract This dissertation describes and analyzes the work of the Supreme Court of Canada, emphasizing its internal environment and processes, while situating the institution in its broader governmental and societal context. In addition, it offers an assessment of the behavioural and rational choice models of judicial decision making, which tend to portray judges as primarily motivated by their ideologically-based policy preferences. The dissertation adopts a historical institutionalist approach to demonstrate that judicial decision making is far more complex than is depicted by the dominant approaches within the political science literature. Drawing extensively on 28 research interviews with current and former justices, former law clerks and other staff members, the analysis traces the development of the Court into a full-fledged policy-making institution, particularly under the Charter of Rights and Freedoms. This analysis presents new empirical evidence regarding not only the various stages of the Court’s decision-making process but the justices’ views on a host of considerations ranging from questions of collegiality (how the justices should work together) to their involvement in controversial and complex social policy matters and their relationship with the other branches of government. These insights are important because they increase our understanding of how the Court operates as one of the country’s more important policy-making institutions. -
International Law Matures Within the Canadian Legal System: Araya Et Al V Nevsun Resources Ltd
INTERNATIONAL LAW MATURES WITHIN THE CANADIAN LEGAL SYSTEM: ARAYA ET AL V NEVSUN RESOURCES LTD H Scott Fairley* Contents Introduction . 193 1 . Some Necessary Background: Actionable Customary International Law? . 195 2 . The Courts Below . 196 A) At the Threshold: Defeating the “Plain and Obvious” Test . 196 B) On Appeal: Recognizing the Concept of Actionable “Transnational” Law . 198 3 . A Divided-But-Definitive Supreme Court . 201 A) The Definitive Demise of Act of State? . 201 B) Majority Recognition of Customary International Law-Based Torts . 203 C) Minority Retrenchment on the Frontiers of Justiciability . 205 4 . Conclusion and Prospectus . 210 Introduction A little over a decade ago, I commented in the pages of this Review on the Supreme Court of Canada’s decision in Hape v The Queen.1 There, I focused, as did the majority of the Court in that case, on the role and status of customary international law within the Canadian legal system. Justice Lebel, writing for a bare majority of the Court, 5 to 4, at long last unambiguously affirmed what had been conventional wisdom within the Canadian international law community that “the doctrine of adoption operates in Canada such that prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting * Partner, Cambridge LLP, Toronto. The author gratefully acknowledges the research assistance of Emma Cavatassi, Student-at-Law (2020), and Associate, Cambridge LLP (Burlington), and Margarita Dvorkina, Associate, Cambridge LLP (Toronto) in the preparation of this comment. Any errors that remain are mine alone. 1 2007 SCC 26 [Hape]; See H Scott Fairley, “International law comes of age: Hape v the Queen,” (2008) 87 Can B Rev 229 [Hape Comment]. -
The Mclachlin Court by Numbers
The McLachlin Court by Numbers Stephen Bindman February 2013 HERE COME DA JUDGE 1 The Right Honourable Madam Chief Justice Beverley McLachlin, P.C. Appointed: March 30, 1989 Retirement: September 7, 2018 2 The Honourable Mr. Justice Louis LeBel Appointed: January 7, 2000 Retirement: November 30, 2014 3 The Honourable Mr. Justice Morris J. Fish Appointed: August 5, 2003 Retirement: November 16, 2013 4 The Honourable Justice Rosalie Silberman Abella Appointed: August 30, 2004 Retirement: July 1, 2021 5 The Honourable Mr. Justice Marshall Rothstein Appointed: March 1, 2006 Retirement: December 25, 2015 6 The Honourable Mr. Justice Thomas Albert Cromwell Appointed: December 22, 2008 Retirement: May 5, 2027 7 The Honourable Mr. Justice Michael J. Moldaver Appointed: October 21, 2011 Retirement: December 23, 2022 8 The Honourable Madam Justice Andromache Karakatsanis Appointed: October 21, 2011 Retirement: October 3, 2030 9 The Honourable Mr. Justice Richard Wagner Appointed: October 5, 2012 Retirement: April 2, 2032 10 Average age and experience at appointment of justices on the Supreme Court of Canada, 1970-2006 Source: Songer. (2008) The Transformation of the Supreme Court of Canada. University of Toronto Press: Toronto. 11 NEW KIDS ON THE BLOCK 12 Decisions written by Mr. Justice Moldaver and heard on appeal by the Supreme Court of Canada Case name and citation Disposition Involvement of Moldaver J.A. R. v. V. Y., 2011 Appeal Moldaver J.A. wrote SCC 22 Dismissed dissenting reasons of the Court of Appeal Celanese Canada Inc. v. Murray Appeal Allowed Moldaver J.A. wrote the Demolition Corp., 2006 SCC 36, decision of the Court of [2006] 2 S.C.R. -
2016-2017 YEAR in REVIEW in 2016-2017, the Supreme Court Advocacy Institute Completed Its Tenth Year of Operation, During Which
2016-2017 YEAR IN REVIEW National Advisory Committee In 2016-2017, the Supreme Court Advocacy Institute completed its tenth year of The Honourable Frank Iacobucci, Chairperson operation, during which it continued to provide counsel appearing for argument C.C., Q.C., The Honourable Gérald V. La Forest, before the Supreme Court of Canada with rigorous practice sessions. The Honorary Chairperson C.C., Q.C., Institute’s advocacy program aims to increase the effectiveness and quality of The Honourable Peter Cory, C.C., advocacy by simulating for counsel the experience of oral argument before the Honorary Chairperson C.D. Q.C., highest court. A panel of seasoned Supreme Court advocates hears counsel’s The Honourable John C. Major, C.C., Honorary Chairperson Q.C., argument and offers candid and constructive feedback to assist counsel in The Honourable Michel Bastarache, making their oral submissions effective and helpful to the Court. Honorary Chairperson C.C., The Honourable Louise Charron, Honorary Chairperson Demand for the Institute’s advocacy program is high. Over the past year, the C.C., The Honourable Ian Binnie, C.C., Institute provided free, non-partisan advocacy sessions in 40% of cases before Honorary Chairperson Q.C., the Court. Participation rates were particularly high in Ontario (where 57% of The Honourable Marie Deschamps, Honorary Chairperson appeals benefitted from the Institute’s services) and Alberta (where 57% of C.C., appeals benefitted from the Institute’s services). The Institute’s advocacy The Honourable Morris J. Fish, C.C., Honorary Chairperson Q.C., program was used for a wide range of appeals in civil and criminal matters, by The Honourable Louis LeBel, C.C., counsel working in private practice as well as in government, and by seasoned Honorary Chairperson advocates as well as first-time counsel before the Court. -
A Chief and Court in Transition: the Wagner Court and the Constitution
Osgoode Hall Law School of York University Osgoode Digital Commons Articles & Book Chapters Faculty Scholarship 2019 A Chief and Court in Transition: The Wagner Court and the Constitution Jamie Cameron Osgoode Hall Law School of York University, [email protected] Source Publication: Forthcoming in Constitutional Cases 2018 (Supreme Court Law Reports; fall 2019-winter 2020) Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/scholarly_works Part of the Law Commons Repository Citation Cameron, Jamie, "A Chief and Court in Transition: The Wagner Court and the Constitution" (2019). Articles & Book Chapters. 2764. https://digitalcommons.osgoode.yorku.ca/scholarly_works/2764 This Article is brought to you for free and open access by the Faculty Scholarship at Osgoode Digital Commons. It has been accepted for inclusion in Articles & Book Chapters by an authorized administrator of Osgoode Digital Commons. 1 A Chief and Court in Transition: The Wagner Court and the Constitution Professor Jamie Cameron* Introduction On December 17, 2017 and, after little more than five years as a puisne judge, Richard Wagner became Canada’s 18th chief justice.1 Only William Ritchie and Bora Laskin rose to office more expeditiously.2 When appointed, Justice Wagner was less well known than Beverley McLachlin, who served ten years on the Court before becoming chief justice.3 Between 1989 and 2000, she was a vigorous jurist, writing frequently and at times fearlessly. In part because her jurisprudence moved unpredictably between liberal and conservative outcomes, her decisions were much discussed, if imperfectly understood. By contrast, those commenting on Justice Wagner’s appointment were hard pressed to cite a body of work, and focused instead on his reputation as a collegial, fair-minded, and hardworking member of the Court.4 An incoming chief justice will often speak of his goals and aspirations for the Court, and Richard Wagner was no different. -
SUPREME COURT of CANADA 2014 Policy Maker of the Year
DECEMBER 2014 SUPREME COURT OF CANADA 2014 Policy Maker of the Year Benjamin Perrin analyses the Court’s most significant rulings of the past 12 months Stanley Hartt examines the concept of ‘judge-made law’: is it fact or fiction? Also in this issue: Christian Leuprecht calls for a national discussion on how we can detain terrorist threats while still protecting civil liberties; Dwight Newman and Brian Lee Crowley on social licence, what it means, its limitations and its implications for resource development; Dwight Newman on whether governments should use legal tools to support development when facing continuing protests; and Brian Lee Crowley calls on middle powers to do more to defend liberal democratic values as the US takes a diminished role on the world stage. Published by the Macdonald-Laurier Institute Published by the Macdonald-Laurier Institute Brian Lee Crowley, Managing Director, [email protected] PublishedBrianJames Lee Anderson, byCrowley, the Macdonald-LaurierManaging Director, Editor, [email protected] Policy Institute James Anderson, Managing Editor, Inside Policy Contributing writers: Brian Lee Crowley, Managing Director, [email protected] James Anderson,Contributing Managing writers: Editor, Inside Policy ThomasThomas S. Axworthy S. Axworthy Tom FlanaganAndrew Griffith Audrey Laporte Benjamin PerrinMike Priaro Thomas S. Axworthy ContributingAndrew Griffith writers: Benjamin Perrin Donald Barry Chrystia Freeland Ian Lee Richard Remillard Donald Barry Stanley H. Hartt Mike Priaro Ken CoatesThomasDonald BarryS. Axworthy Guy Giorno StanleyAndrew H. HarttGriffithMeredith MacDonald MikeBenjamin Priaro Perrin Robin V. Sears Brian Lee CrowleyKen Coates Stephen GreenePaul KennedyJanice MacKinnon Colin RobertsonMunir Sheikh KenDonald Coates Barry PaulStanley Kennedy H. Hartt ColinMike Robertson Priaro Laura Dawson Andrew Griffith Linda Nazareth Alex Wilner Brian Lee Crowley Audrey Laporte Roger Robinson Elaine DepowBrian KenLee Crowley Coates Stanley H.