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Full-Text Articles in Law
A Proposed Transjudicial Approach To S. 15(2) Charter Adjudication, Vanita Goela
A Proposed Transjudicial Approach To S. 15(2) Charter Adjudication, Vanita Goela
Dalhousie Law Journal
Canada and India are both pluralistic democracies with diverse populations. Both countries have drafted constitutional provisions which enshrine equality rights and permit affirmative action. In India, various disadvantaged groups receive special protection from the Constitution of India, such as the Other Backward Classes (OBC). The Supreme Court of India has held that States and the Central government must identify the "creamy layer" within the OBC category so that reservations target members who are most in need. Otherwise, the OBC category is overinclusive. The creamy layer includes those who are socially and economically advanced and who no longer require the benefits …
Child Pornography In Canada And The United States: The Myth Of Right Answers, Travis Johnson
Child Pornography In Canada And The United States: The Myth Of Right Answers, Travis Johnson
Dalhousie Law Journal
Child pornography is an increasing worldwide concern and is one of the most active fronts in the ongoing battle between freedom of expression and public safety and morality. In 2005, the child pornography provisions of the Canadian Criminal Code were amended in response to the controversial decision of the Supreme Court in R. v. Sharpe. Similar legislative response has occurred in the United States following the U.S. Supreme Court decision inAshcroft v. Free Speech Coalition. A comparative examination of the legislative and judicial treatments of the issue of child pornography in these countries reveals that despite reaching differing rights-balancing positions, …
Reforming Testamentary Undue Influence In Canadian And English Law, Fiona R. Burns
Reforming Testamentary Undue Influence In Canadian And English Law, Fiona R. Burns
Dalhousie Law Journal
The traditional doctrine of testamentary undue influence developed in nineteenth century England. Its utility, however, is limited since the doctrine requires the person alleging undue influence to provide direct proof of coercion according to a high standard. In England the doctrine has remained static and there have been calls for reform. In Canada, some courts have ceased to apply the traditional doctrine so that today there is no one consistent and coherent doctrine of testamentary undue influence. This article explores two possible reforms of the doctrine both of which are evident in recent Canadian case law: a presumption of testamentary …
Constitutional Realism About Constitutional Protection: Indigenous Rights Under A Judicialized And A Politicized Constitution, Matthew Sr Palmer
Constitutional Realism About Constitutional Protection: Indigenous Rights Under A Judicialized And A Politicized Constitution, Matthew Sr Palmer
Dalhousie Law Journal
This article assesses the comparative effectiveness of constitutional protection of indigenous rights in Canada and New Zealand using a perspective of "constitutional realism". The two constitutions offer a useful contrast of similar systems distinguished by distinctly contrasting directions over the past twentyfive years. The reality of Canadas constitutional development has seen more power accrue to the judicial branch of government. The reality of New Zealand's constitutional development has seen more power accrue to the political branches ofgovernment. The article considers the reality of the behaviour of these branches of government in each jurisdiction in relation to indigenous rights. It finds …
Foreign Judgments At Common Law: Rethinking The Enforcement Rules, Tanya J. Monestier
Foreign Judgments At Common Law: Rethinking The Enforcement Rules, Tanya J. Monestier
Dalhousie Law Journal
England and Canada have adopted divergent approaches to the enforcement of foreign civil and commercial judgments. An English court will only enforce a foreign judgment where the defendant submitted to the junsdiction of the foreign court, or was present in the foreign jurisdiction when served with process. This position. while protecting domestic defendants, is outdated and does little to further the objectives underpinning judgment enforcement- Canadian courts, by contrast, have been far more liberal than their English counterparts, enforcing foreign judgments in cases where there is a "real and substantial connection" between the dispute and the judgment forum. While this …
Fisheries And Oceans Governance In Australia And Canada: From Sectoral Management To Integration?, Marcus Haward, Rod Dobell, Anthony Charles, Elizabeth Foster
Fisheries And Oceans Governance In Australia And Canada: From Sectoral Management To Integration?, Marcus Haward, Rod Dobell, Anthony Charles, Elizabeth Foster
Dalhousie Law Journal
Australia and Canada have significant oceans domains, and concomitant responsibility for large maritime zones. Fisheries in both countries are important activities with capture fishing, aquaculture and associated processing being vital rural industries Australia and Canada both face major challenges affecting fisheries management. These challenges include managing multiple and at times conflicting uses and claims on ocean and marine resources, while also recognizing the complexity and profound uncertainty associated with those resources. In that context, and having regard to the different histories of Australia and Canada, this paper outlines the different strategies and emphases adopted recently by the two countries. These …
Australia And Canada In Regional Fisheries Organizations: Implementing The United Nations Fish Stocks Agreement, Rosemary Rayfuse, Marcus Haward, Gregory Rose, Sali Bache
Australia And Canada In Regional Fisheries Organizations: Implementing The United Nations Fish Stocks Agreement, Rosemary Rayfuse, Marcus Haward, Gregory Rose, Sali Bache
Dalhousie Law Journal
In the late 1980s and early 1990s a number of factors and events coalesced to encourage the international community to re-examine high seas fisheries issues. The need to enhance the effectiveness of regional fisheries organizations led to the development of the 1995 United Nations Fish Stocks Agreement, dealing with straddling and highly migratory stocks. Both Canada and Australia played a significant role in the development of this agreement While having much in common, each state had different interests and concerns Canada's attention was focused on the problem of straddling stocks, while Australia 's interests have been primarily, though not exclusively, …
Australian And Canadian Perspectives On Offshore Management, Donald R. Rothwell, David Vanderzwaag
Australian And Canadian Perspectives On Offshore Management, Donald R. Rothwell, David Vanderzwaag
Dalhousie Law Journal
Challenges in ocean and coastal management are facing all coastal states of the world. including Australia and Canada. Overharvesting of fish stocks, increasing pressure from land-based sources of pollution, expanding offshore petroleum developments, and rising risks of ship-sourced pollution in fragile marine ecosystems have caused both countries to begin a process of reassessment and rethinking. In January 1997 Canada adopted a new Oceans Act, which called for the development of a National Oceans Management Strategy based on principles of sustainable development, precaution and integration, and a new national marine protected areas network. In December 1998, Australia released a National Oceans …
The Challenges Of Integrating Tourism Into Canadian And Australian Coastal Zone Management, Alison Gill, Lorne K. Kriwoken, Suzanne Dobson, Liza D. Fallon
The Challenges Of Integrating Tourism Into Canadian And Australian Coastal Zone Management, Alison Gill, Lorne K. Kriwoken, Suzanne Dobson, Liza D. Fallon
Dalhousie Law Journal
This article discusses the challenges of integrating tourism into Canadian and Australian coastal zone management. Comparisons are drawn between coastal and marine tounsm resources in Australia and Canada. The resources considered include the cruise ship industry, recreational boating, fishing, sea kayaking, SCUBA diving and marine wildlife tourism. In the introduction, some of the problems of definition and data are addressed. Tourism is described as an industry, but unlike many traditional industries, the tourism arena consists of a myriad of players and sectors. After the comparison of tourism resources in both countries, the power and politics associated with managing user conflicts …
Corporate Nonrecognition Provisions: A Comparison Of The U.S. And Canadian Tax Regimes, Catherine Brown, Christine Manolakas
Corporate Nonrecognition Provisions: A Comparison Of The U.S. And Canadian Tax Regimes, Catherine Brown, Christine Manolakas
Dalhousie Law Journal
This article compares the rules governing the federal income taxation of corporate reorganizations in Canada with those in the United States, including transfers of property to a corporation, corporate divisions, share-for-share exchanges, amalgamations or mergers, recapitalizations, and corporate dissolutions. The paper outlines the provisions governing a particulartype of corporate transaction, compares the Canadian tax results with those of the United States, comments on any differences between particular tax provisions, and examines the practical implications of these differences. The authors conclude that although there are a number of parallels between the U.S. and Canadian tax systems, fundamental differences exist that change …
Lights, Camera, Litigate: Lawyers And The Media In Canada And The United States, Charles W. Wolfram
Lights, Camera, Litigate: Lawyers And The Media In Canada And The United States, Charles W. Wolfram
Dalhousie Law Journal
Drawing on recent high profile cases in Canada and the United States, the author examines the different extent to which lawyers in those two countries comment to the media about ongoing litigation. He investigates various formal constraints upon lawyer comment, such as court-imposed publication bans and rules of professional responsibility. He also looks at the way in which lawyer behaviour is attributable to non-formal, cultural determinants.
The Teaching Of The Law Of Thailand, Ted L. Mcdorman
The Teaching Of The Law Of Thailand, Ted L. Mcdorman
Dalhousie Law Journal
Within the last few years Canada has begun to realize that it is a Pacific Rim country with substantial connections and interests in Asia. As part of this awakening Canadian interest in Asian affairs the Faculty of Law at the University of Victoria decided to develop and offer a course entitled "Legal Issues in Southeast Asia", with the hope that such a course would provide a forum for a systematic, informed comparison of the legal systems of Asia.
Procedural Fairness And University Students: England And Canada Compared, Clive B. Lewis
Procedural Fairness And University Students: England And Canada Compared, Clive B. Lewis
Dalhousie Law Journal
Universities have recently been subjected to increased demands for judicial scrutiny of the conduct of their affairs, especially in the area of procedural review. Much of the academic writing has concentrated on these developments as they affect the academic staff of the university.' This article seeks to redress the balance by considering procedural fairness in the context of university decision-making as it affects students. A study of university decision-making provides a useful framework for a more general consideration of the new approach to "procedural fairness" with its emphasis on balancing the nature of the decisions against the competing interests of …