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Full-Text Articles in Law
Ties That Bind?: The Supreme Court Of Canada, American Jurisprudence, And The Revision Of Canadian Criminal Law Under The Charter, Robert Harvie, Hamar Foster
Ties That Bind?: The Supreme Court Of Canada, American Jurisprudence, And The Revision Of Canadian Criminal Law Under The Charter, Robert Harvie, Hamar Foster
Osgoode Hall Law Journal
Chief Justice Dickson has suggested that Canadian jurists should consult American authority in Charter cases, but with care. The authors look at how the Court has followed this advice in its own criminal decisions rendered prior to March 1989, in which American authority is cited in less than 50 percent of the cases. The authors conclude that, in some significant areas, the Court has interpreted the interests of the accused more broadly than the American Supreme Court does and has on occasion done so without citing divergent U.S. precedent. The effect of sections 1 and 24(2) of the Charter on …
Interpreting The Charter Of Rights: Generosity And Justification, Peter W. Hogg
Interpreting The Charter Of Rights: Generosity And Justification, Peter W. Hogg
Osgoode Hall Law Journal
The author argues that there is a close relationship between the scope of the rights guaranteed by the Charter and the standard of justification required under section 1. The broader the scope of a right, the more relaxed the standard of justification must be. A generous interpretation of a right is incompatible with the stringent Oakes standard of justification. However, a purposive interpretation of a right, confining the right to conduct that is worthy of constitutional protection, is compatible with a stringent standard of justification.
Cross Cultural Reflections: Teaching The Charter To Americans, Jamie Cameron
Cross Cultural Reflections: Teaching The Charter To Americans, Jamie Cameron
Osgoode Hall Law Journal
In this article, the author discusses a course in Comparative Constitutional Jurisprudence that she taught at Cornell Law School in the winter semester of 1989. She is particularly interested in the way this class of American students responded to the Supreme Court of Canada's interpretation of the Charter. She presents her reflections on differences between Canadian and American constitutional culture through a discussion of the decisions in The Motor Vehicle Reference, R. v. Morgentaler, and The French Language Case.
The Evolution Of The Limitation Clause, Janet Hiebert
The Evolution Of The Limitation Clause, Janet Hiebert
Osgoode Hall Law Journal
The evolution of the limitation clause reveals a rigorous and changing political discourse about the nature of rights and limitations. While the larger issue in the entrenchment debate focussed on whether legislatures or courts were best suited to protect Canadians' interests, a fundamental concern underlying the debate was the scope of permissible limitations on protected rights. Many commentators argued that an explicit limitation clause was not necessary because courts would fashion the appropriate limits on rights. Provincial and federal drafters, however, rejected the assumption implicit in this suggestion: that the Charter was to provide an exhaustive statement of all values …