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Full-Text Articles in Law
Intervenors At The Supreme Court Of Canada, Geoffrey D. Callaghan
Intervenors At The Supreme Court Of Canada, Geoffrey D. Callaghan
Dalhousie Law Journal
My aim in this paper is to offer a normatively attractive and explanatorily sound interpretation of the Supreme Court of Canada’s approach to third party intervention. The crux of my interpretation is that the policy the Court has developed on intervenors allows it to strike a reasonable balance among a number of competing democratic considerations, all of which have value in the context of judicial decision making. In this respect, the Court should be commended for identifying a way to liberalize a practice that possesses many democratically-attractive features, but also the inherent capacity to undermine the democratic standing of the …
Duets, Not Solos: The Mclachlin Court's Co-Authorship Legacy, Peter Mccormick
Duets, Not Solos: The Mclachlin Court's Co-Authorship Legacy, Peter Mccormick
Dalhousie Law Journal
This article explores the recentphenomenon of the formal co-authorship of Supreme Court decisions. It begins with a short history of the practice, primarily in the closing years of the Lamer Court but expanding steadily under McLachlin. A closer investigation reveals two critically important dimensions: first, the practice is skewed toward the Court's more important decisions (measured in terms of subject matter legal complexity, interveners, and subsequent citation); and second, its diffusion across the Court's membership refutes the possibility that it simply reinforces persisting cleavages. This new practice represents a more overtly collegial format directed to the Court's more significant decisions. …
Nom De Plume: Who Writes The Supreme Court's "By The Court" Judgments?, Peter Mccormick
Nom De Plume: Who Writes The Supreme Court's "By The Court" Judgments?, Peter Mccormick
Dalhousie Law Journal
For several dozen of its major decisions, the Supreme Court in recent decades has adopted an unusual judgment style-the unanimous and anonymous "By the Court" format. Unlike judgments attributed to specific justices, "By the Court" presents an unusual and impersonal institutionalist face. But what is happening behind the fagade? Are these deeply collegial products with the actual drafting divided between some (or most, or all) of the justices? Is it "business as usual" which for major judgments involves rotation between the senior judges? Or is it simply a pseudonym for the Chief Justice writing alone in an unusually emphatic way? …
Searching And Seizing After 9/11: Developing And Applying Empirical Methodology To Measure Judicial Output Inthe Supreme Court's Section 8 Jurisprudence, Richard Jochelson, Michael Weinrath, Melaine Janelle Murchison
Searching And Seizing After 9/11: Developing And Applying Empirical Methodology To Measure Judicial Output Inthe Supreme Court's Section 8 Jurisprudence, Richard Jochelson, Michael Weinrath, Melaine Janelle Murchison
Dalhousie Law Journal
In 2005, Margit Cohn and Mordechai Kremnitzer created a multidimensional model to measure judicial discourse inherent in the decision making of constitutional courts. Their model set out multiple indicia bywhich to measure whether the court acted within proper constitutional constraints in order to determine the extent to which a court rendered a decision that was activist or restrained. This study attempts to operationalize that model. We use this model to analyze changes in interpretation of search and seizure law under section 8 after the enactment of the Canadian Charter of Rights and Freedoms at the Supreme Court of Canada. The …
Structures Of Judgment: How The Modern Supreme Court Of Canada Organizes Its Reasons, Peter Mccormick
Structures Of Judgment: How The Modern Supreme Court Of Canada Organizes Its Reasons, Peter Mccormick
Dalhousie Law Journal
In recent decades, the Supreme Court of Canada has developed a distinctive and unusual way of organizing its reasons for judgment; concomitantly, it has developed a comparably distinctive style for its minority reasons as well. This article describes this new decision format and the elements into which it is typically divided, and compares it with the practices of appeal courts in other common law countries. It concludes first by theorizing about the purpose and the functions of decision formats and format changes, and then by defending the current Canadian style.
After The Revolution: Being Pragmatic And Functional In Canada's Trial Courts And Courts Of Appeal, William Lahey, Diana Ginn
After The Revolution: Being Pragmatic And Functional In Canada's Trial Courts And Courts Of Appeal, William Lahey, Diana Ginn
Dalhousie Law Journal
In a 1998 decision, Pushpanathan v Canada, the Supreme Court of Canada synthesized and revised the previous jurisprudence on "pragmatic and functional analysis" - the approach used since the late 1980's to determine the appropriate standard of deference in substantive review of administrative decision making. The next year, in Baker v. Canada, the Court expanded the reach of the pragmatic and functional analysis by applying it to the exercise of administrative discretion. This paper examines approximately 275 lower court decisions to determine how courts across Canada are responding to and implementing the doctrinal change initiated by the Supreme Court. Patterns …
Reputational Review I: Expertise, Bias And Delay, Robert E. Hawkins
Reputational Review I: Expertise, Bias And Delay, Robert E. Hawkins
Dalhousie Law Journal
Expertise, bias and delay arguments are shifting the focus of judicial review from the legality of administrative decisions to the reputation of administrative decision- makers. These grounds measure the skill, objectivity and efficiency characteristics that define administrators' reputations. They make it possible for courts to consider these reputations, even if only by way of unarticulated judicial notice, when deciding judicial review applications. After setting out the theory of expertise, bias and delay implicit in recent Supreme Court of Canada decisions, the author concludes that courts must use less impressionistic measures in judging these concepts, lawyers must present more concrete reputational …
The Judicial Independence Of Canadian Forces General Court Martials: An Analysis Of The Supreme Court Of Canada Judgment In R. V. Genereux, Michael Doi
Dalhousie Law Journal
In R. v. Genereux, the Supreme Court of Canada reviewed the structure of a Canadian Forces General Court Martial and found it to incorporate features which reasonably called its judicial independence into question. This was held to violate the rights of accused military personnel to a fair trial under sub-section 11(d) of the Canadian Charter of Rights and Freedoms. In arriving at this conclusion, the Supreme Court of Canada questioned the legitimacy of Canadian Forces provisions which structure a judicial process governing service personnel as separate and distinct members from the rest of the general population. The Court also reviewed …
The Hollow Hope: Can Courts Bring About Social Change?, Ian Holloway
The Hollow Hope: Can Courts Bring About Social Change?, Ian Holloway
Dalhousie Law Journal
Coming as it does in the midst of all the palaver over political correctness within the American academic community, The Hollow Hope is, if nothing else, an opportune articulation of iconoclasm in the debate over civil rights and constitutional law in the United States.' Professor Rosenberg's questioning of the "cult of the court" provides a welcome expression of healthy skepticism towards an institution which conventional myth reveres beyond its due.
The Use Of History In Canadian Constitutional Adjudication, Frederick Vaughan
The Use Of History In Canadian Constitutional Adjudication, Frederick Vaughan
Dalhousie Law Journal
It is only in recent years that the use by judges of extrinsic materials has become an issue openly discussed in Canadian legal periodicals. Chief Justice Brian Dickson virtually occasioned a debate on the question in a public address in 1979. The Chief Justice said: ". . . the Supreme Court of Canada recently signalled an increasing receptiveness to the use of extrinsic materials in the Anti-Inflation Reference. Accordingly, I expect that we will see an increasing use by appellate courts of extrinsic evidence". Dickson gave the impression that extrinsic material was not widely used by Canadian courts prior to …
Extrinsic Evidence And Statutory Interpretation: Judicial Discretion In Context, W. H. Charles
Extrinsic Evidence And Statutory Interpretation: Judicial Discretion In Context, W. H. Charles
Dalhousie Law Journal
... the Supreme Court of Canada recently signalled an increasing receptiveness to the use of extrinsic materials in the Anti-Inflation Reference. Accordingly, I expect that we will see an increasing use by appellate courts of extrinsic evidence. ' This prediction was made by the Honourable Brian Dickson, a Justice of the Supreme Court of Canada, in an address in 1979. His statement concerns a problem that has haunted Canadian, English, and commonwealth courts for years, namely, how far beyond the actual words of the statute itself is it permissible for courts to roam in their efforts to interpret legislation? Put …