THE Osgoode@125 INDEX
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The Four Courts of Sir Lyman Duff
THE FOUR COURTS OF SIR LYMAN DUFF RICHARD GOSSE* Vancouver I. Introduction. Sir Lyman Poore Duff is the dominating figure in the Supreme Court of Canada's first hundred years. He sat on the court for more than one-third of those years, in the middle period, from 1906 to 1944, participating in nearly 2,000 judgments-and throughout that tenure he was commonly regarded as the court's most able judge. Appointed at forty-one, Duff has been the youngest person ever to have been elevated to the court. Twice his appointment was extended by special Acts of Parliament beyond the mandatory retirement age of seventy-five, a recogni- tion never accorded to any other Canadian judge. From 1933, he sat as Chief Justice, having twice previously-in 1918 and 1924 - almost succeeded to that post, although on those occasions he was not the senior judge. During World War 1, when Borden considered resigning over the conscription issue and recommending to the Governor General that an impartial national figure be called upon to form a government, the person foremost in his mind was Duff, although Sir Lyman had never been elected to public office. After Borden had found that he had the support to continue himself, Duff was invited to join the Cabinet but declined. Mackenzie King con- sidered recommending Duff for appointment as the first Canadian Governor General. Duff undertook several inquiries of national interest for the federal government, of particular significance being the 1931-32 Royal Commission on Transportation, of which he was chairman, and the 1942 investigation into the sending of Canadian troops to Hong Kong, in which he was the sole commissioner . -
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. -
Canadian Law Library Review Revue Canadienne Des Bibliothèques Is Published By: De Droit Est Publiée Par: WINNER of the HUGH LAWFORD AWARD EMOND’S CRIMINAL LAW SERIES
CANADIAN LAW LIBRARY REVIEW REVUE CANADIENNE DES BIBLIOTHÈQUES DE DROIT VOLUME/TOME 44 (2019) No. 2 Hello, Edmonton! London calling... iclr.co.uk The authoritative source of English case law. ‖‖ CONTENTS / SOMMAIRE From the Editor Bibliographic Notes De la rédactrice Chronique bibliographique By Nancy Feeney President’s Message Le mot de la présidente Local and Regional Updates Mise à jour locale et régionale Featured Article By Jonathan Leroux Articles de fond Excerpt from Grace & Wisdom: “Chapter 6: The Conference Report Ontario Court” Rapport du conférence By Stephen G. McKenna Public Companies: Financing, Governance and Compliance By Stef Alexandru Reviews Recensions Edited by Kim Clarke and Elizabeth Bruton News From Further Afield Nouvelles de l’étranger The Canadian Law of Obligations: Private Law Notes from the UK for the 21st Century and Beyond By Jackie Fishleigh Reviewed by John K. Lefurgey Destroying the Caroline: The Frontier Raid That Letter from Australia By Margaret Hutchison Reshaped the Right to War Reviewed by Donata Krakowski-White The US Legal Landscape: News From Across the Border Law and the Whirligig of Time By Julienne E. Grant Reviewed by Katherine Laundy Mistake in Contracting Reviewed by Melanie R. Bueckert, LL.B., LL.M. Public Inquiries in Canada: Law and Practice Reviewed by Alexia Loumankis The Right to Life in Armed Conflict Reviewed by Ken Fox Hello, Edmonton! Social Media and Morality: Losing Our Self Control Reviewed by Sally Sax London calling... CITED AS Can L Libr Rev CITÉ Rev can bibl dr Canadian Law Library Review is published 4 times a year by the Revue canadienne des bibliothéques de droit est publiée 4 fois par iclr.co.uk Canadian Association of Law Libraries. -
The American Influence on Canadian Tort Law
THE AMERICAN INFLUENCE ON CANADIAN TORT LAW The Honourable Mr. Justice Allen M. Linden* This Article pays tribute to Gary Schwartz and other American tort schol- ars and judges for their contribution to the development of a distinctive Cana- dian tort law. Several examples of the direct influence of American tort law on Canadianjurisprudence are described as well as some instances where Cana- dian tort law has resisted the allure of U.S. developments. INTRODUCTION ............................................................ 407 I. THE SCHOLARS WHO BROUGHT AMERICAN IDEAS TO CANADA ........... 408 I. EARLY EXAMPLES OF THE IMPACT OF U.S. TORT LAW IN CANADA ......... 414 A . Products Liability ................................................. 414 B . R escue ........................................................... 4 17 1II. SOME RECENT EXAMPLES OF THE IMPACT OF U.S. TORT LAW IN C ANA DA .......................................................... 419 A . Punitive D am ages ................................................. 419 B. Pure Econom ic Loss ............................................... 421 C . O ther C ases ...................................................... 422 CONCLUSION .............................................................. 424 INTRODUCTION The first time I met Gary Schwartz was about fifteen years ago. I had read the many learned articles he had written and had been very much im- pressed by them. On one of my visits to California, I therefore telephoned him to invite him to lunch. He graciously accepted. Our conversation -
Communicating Effectively with Indigenous Clients
Lorna Fadden, PhD COMMUNICATING EFFECTIVELY WITH INDIGENOUS CLIENTS An Aboriginal Legal Services Publication Grave, Marble Island, “Dead Man’s Island,” Nunavut, 2014 Marble Island is sacred for Inuit. Visitors are expected to crawl ashore or, according to legend, will die exactly one year later. In 1719 the Knight Expedition set sail to look for the Northwest Passage and never returned - their remains were discovered on this island in 1767. Why an experienced explorer would perish with forty men in sight of land, four days away from a trading post, remains a mystery. Aboriginal Legal Services ALS (formerly Aboriginal Legal Services of Toronto) was formed in 1990. As of 2017, ALS has approximately 60 staff and offices in 11 cities in Ontario. ALS’s initiatives in criminal law include establishing the Community Council, the first urban Aboriginal alternative justice program in Canada in 1992, and helping with the creation of the first Gladue (Aboriginal Persons) Court in Ontario in 2001. ALS also wrote the first Gladue Reports in Canada and we continue to be leaders in this important work. ALS has also been involved in test case litigation, appearing as intervener at the Supreme Court of Canada in Williams (1998), Gladue (1999), Wells (2000) and Ipeelee (2012), among many others. About the Author: Dr. Lorna Fadden The author, Dr. Lorna Fadden, is a Métis person living in British Columbia. She earned her PhD in linguistics from Simon Fraser University in 2008, where for several years she taught linguistics for teachers and learners of Indigenous languages. Her research is in the area of forensic discourse analysis and she has assisted legal counsel on criminal and civil matters involving language evidence since 2007. -
Judicial Power and the Charter: Three Myths and a Political Analysis Christopher P
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference Volume 14 (2001) Article 18 Judicial Power and the Charter: Three Myths and a Political Analysis Christopher P. Manfredi Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/sclr This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Citation Information Manfredi, Christopher P.. "Judicial Power and the Charter: Three Myths and a Political Analysis." The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 14. (2001). http://digitalcommons.osgoode.yorku.ca/sclr/vol14/iss1/18 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in The uS preme Court Law Review: Osgoode’s Annual Constitutional Cases Conference by an authorized editor of Osgoode Digital Commons. JUDICIAL POWER AND THE CHARTER: THREE MYTHS AND A POLITICAL ANALYSIS * Christopher P. Manfredi I. INTRODUCTION Does the Supreme Court exercise “too much” judicial power under the Charter? Consider that over 22 years (1960-1982), the federal Bill of Rights generated 34 Supreme Court decisions, five successful claims, and only one partial nullification of a federal statute.1 During the same period, the number of constitutional decisions issued by the Court totalled 120, or less than six per year.2 By contrast, over its first 17 years of operation (1982-1999) the Charter generated 390 Supreme Court decisions, 130 successful claims, and 63 nullifications of federal or provincial statutes.3 As these comparisons affirm, and as everyone acknowledges, the scope of judicial power has increased under the Charter. -
PART III.—REGISTER of OFFICIAL APPOINTMENTS* the Following List of Official Appointments Continues That Published in the 1951 Year Book, Pp
1218 SOURCES OF OFFICIAL INFORMATION Article Contributor Volume Page Transportation— The Development of Aviation in Canada. J. A. WILSON. 1938 710-712 The Trans-Canada Airway J. A. WILSON. 1938 713-715 Pre-War Civil Aviation and the Defence Program J. A. WILSON. 1941 608-612 Wartime Control of Transportation 1943-14 567-575 International Air Conferences 1945 642-644 The Wartime Role of the Steam Railways of Canada C. P. EDWARDS, O.B.E. 1945 648-651 Canada's Northern Airfields A. D. MCLEAN. 1945 705-712 United Nations- Canada and the United Nations C. S. A. RITCHIE. 1946 82-86 Canada and the United Nations 1948-49 122-125 Canada and the United Nations 1950 134-139 PART III.—REGISTER OF OFFICIAL APPOINTMENTS* The following list of official appointments continues that published in the 1951 Year Book, pp. 1181-1186, until Sept. 30, 1952. Governor General's Staff.—1951. June 7, Hon. John Robert Cartwright, Puisne Judge of the Supreme Court of Canada: to be Deputy of His Excellency the Governor General. 1952. Feb. 28, Joseph Francois Delaute: to be Deputy of His Excellency the Governor General. Superintendent Cyril Nordheimer Kenny-Kirk, of the Royal Canadian Mounted Police, Ottawa, Ont.: to be Honorary Aide-de-Camp to His Excellency the Governor General, effective Feb. 28, 1952. Mar. 6, The follow ing persons to be Deputies of His Excellency the Governor General: Rt. Hon. Thibaudeau Rinfret, LL.D., Hon. Patrick Kerwin, Hon. Robert Taschereau, LL.D., Hon. Ivan Cleveland Rand, Hon. Roy Lindsay Kellock, Hon. James Wilfred Estey. Mar. -
Continuum: Volume 36 (Winter 2012)
OSGOODE HALL LAW SCHOOL OF YORK UNIVERSITY ALUMNI MAGAZINE • Bursting with Pride • Osgoode and WINTER 2012 the Community • Osgoode Catalysts • Mental Health, Disability, Law & Justice CONTINUUM The New Osgoode Continuum Osgoode Hall Law School Alumni Magazine Volume 36 EDITOR 08 Bursting with Pride Anita Herrmann It was billed as the Osgoode Building Director, Office of Advancement Celebration, but Sunday, October 16, 2011, 416-736-5364 [email protected] was really all about “community” and the CONTRIBUTING EDITORS coming together of those who share an Virginia Corner enduring common bond. Communications Manager Smriti Kapoor Manager, Office of Advancement 14 Osgoode and the WRITERS Community Virginia Corner Laurie de Fleuriot de la Coliniere Engagement with the community continues to Nathalie Kalina be one of Osgoode’s central priorities, which is Anita Herrmann why the Law School is committed to enhancing Smriti Kapoor experiential learning opportunities for students. Lorne Sossin Christine Ward PHOTOGRAPHY 18 Osgoode Catalysts AKA Photography Inspiring Osgoode alumni who overcame Gary Beechey Horst Herget Photography barriers in the legal community and paved the Clifton Li Photography way for others are showcased in The Catalysts DESIGN AND PRODUCTION Project, part of a dynamic new physical and Fish Out of Water Design Inc. digital history exhibit in Gowlings Hall called WINTER 2012 PRINTING “Osgoode: Then and Now.” Colour Innovations Continuum is published once a year by Osgoode Hall Law School of York University for alumni and 22 Mental Health, Disability, friends. Ideas and opinions expressed in Continuum do not necessarily reflect those of the editors, Law & Justice Osgoode Hall Law School or York University. -
Beyond a Reasonable Doubt: Does It Apply to Finding the Law As Well As
Beyond a Reasonable Doubt:Does it Apply to Finding the Law asWell as the Facts? Martin Friedland* 1. Introduction About a year ago I published an article in the Criminal Law Quarterly in which I examined the concept of proof beyond a reasonable doubt in criminal trials.1 I looked at its application to the proof of facts, historically, comparatively, and analytically. The standard of proof of facts Ð everyone agrees Ð plays a crucial role in the criminal process. What role does reasonable doubt play with respect to determining the criminal law, particularly the scope of statutory provisions? I had nevergivenseriousthoughttotheissue.Iknew,ofcourse,thatthereis a rule of strict construction of criminal legislation Ð known in the United States as the Rule of Lenity Ð and assumed that the rule only applies if there is a tie, which is really a balance of probability test. In other words, the better argument wins, with the ultimate burden being on the Crown.2 Many, if not most, readers probably assume this is the correct approach. The standard for finding the criminal law, like the standard of proof of facts, is important, yet surprisingly little has been written aboutit inCanada,3 unlikeinthe UnitedStates,wherethereare many major articles.4 There are, of course, relatively brief discussions in * Martin Friedland, CC, QC, University Professor and Professor of Law Emeritus, University of Toronto. I would like to thank Pavle Levkovic and Michael Stenbring for their excellent research assistance. I am also grateful to Ben Berger, Michael Code, Timothy Endicott, Matthew Gourlay, Kent Roach, Bob Sharpe, Simon Stern, Malcolm Thorburn, and Wes Wilson for their helpful comments on earlier drafts. -
The Supremecourt History Of
The SupremeCourt of Canada History of the Institution JAMES G. SNELL and FREDERICK VAUGHAN The Osgoode Society 0 The Osgoode Society 1985 Printed in Canada ISBN 0-8020-34179 (cloth) Canadian Cataloguing in Publication Data Snell, James G. The Supreme Court of Canada lncludes bibliographical references and index. ISBN 0-802@34179 (bound). - ISBN 08020-3418-7 (pbk.) 1. Canada. Supreme Court - History. I. Vaughan, Frederick. 11. Osgoode Society. 111. Title. ~~8244.5661985 347.71'035 C85-398533-1 Picture credits: all pictures are from the Supreme Court photographic collection except the following: Duff - private collection of David R. Williams, Q.c.;Rand - Public Archives of Canada PA@~I; Laskin - Gilbert Studios, Toronto; Dickson - Michael Bedford, Ottawa. This book has been published with the help of a grant from the Social Science Federation of Canada, using funds provided by the Social Sciences and Humanities Research Council of Canada. THE SUPREME COURT OF CANADA History of the Institution Unknown and uncelebrated by the public, overshadowed and frequently overruled by the Privy Council, the Supreme Court of Canada before 1949 occupied a rather humble place in Canadian jurisprudence as an intermediate court of appeal. Today its name more accurately reflects its function: it is the court of ultimate appeal and the arbiter of Canada's constitutionalquestions. Appointment to its bench is the highest achieve- ment to which a member of the legal profession can aspire. This history traces the development of the Supreme Court of Canada from its establishment in the earliest days following Confederation, through itsattainment of independence from the Judicial Committeeof the Privy Council in 1949, to the adoption of the Constitution Act, 1982. -
Symes V. Canada
Symes v. Canada Melina Buckley Author’s Note The result in Symes v. Canada is troubling on a number of levels. The failure to challenge the long-standing social norms associated with gender roles and the division of labour in the household and the lack of acknowledgment of the public good of caring for children continue to cast a long shadow on the struggle for women’s equality. At the same time, the tax rules at issue in the case afford only a narrow opportunity to recognize the important connection between women’s inequality and society’s continued failure to ensure that women do not bear unfair burdens as an incident of motherhood. Nor does the claim give rise to a comprehensive solution to the urgent need for publicly funded high-quality childcare and the undervaluing of the work of childcare providers. The case was controversial within the women’s movement in Canada for precisely these reasons. My aim in re-casting Symes was to fully address the substantive equality concerns in this case, which I see as a limited but important opportunity to press for the reconstruction of tax systems and employment systems so that they fully reflect women’s realities as well as men’s. I have a personal interest in Symes because I served as co-counsel with J.J. Camp, Q.C., to the intervenor, the Canadian Bar Association, in the Supreme Court of Canada. It was my first major equality rights case. The Women’s Court of Canada project has provided me with an opportunity to explore my initial sense of outrage at, and long-simmering dissatisfaction with, the majority decision in a concrete, disciplined fashion. -
Co Supreme Court of Canada
supreme court of canada of court supreme cour suprême du canada Philippe Landreville unless otherwise indicated otherwise unless Landreville Philippe by Photographs Ottawa, Ontario K1A 0J1 K1A Ontario Ottawa, 301 Wellington Street Wellington 301 Supreme Court of Canada of Court Supreme ISBN 978-1-100-21591-4 ISBN JU5-23/2013E-PDF No. Cat. ISBN 978-1-100-54456-4 ISBN Cat. No. JU5-23/2013 No. Cat. © Supreme Court of Canada (2013) Canada of Court Supreme © © Cour suprême du Canada (2013) No de cat. JU5-23/2013 ISBN 978-1-100-54456-4 No de cat. JU5-23/2013F-PDF ISBN 978-0-662-72037-9 Cour suprême du Canada 301, rue Wellington Ottawa (Ontario) K1A 0J1 Sauf indication contraire, les photographies sont de Philippe Landreville. SUPREME COURT OF CANADA rom the quill pen to the computer mouse, from unpublished unilingual decisions to Internet accessible bilingual judgments, from bulky paper files to virtual electronic documents, the Supreme Court of Canada has seen tremendous changes from the time of its inception and is now well anchored in the 21st century. Since its establishment in 1875, the Court has evolved from being a court of appeal whose decisions were subject to review by a higher authority in the United Kingdom to being the final court of appeal in Canada. The Supreme Court of Canada deals with cases that have a significant impact on Canadian society, and its judgments are read and respected by Canadians and by courts worldwide. This edition of Supreme Court of Canada marks the retirement of Madam Justice Marie Deschamps, followed by Fthe recent appointment of Mr.