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Full-Text Articles in Law
The Legislature, The Executive And The Courts: The Delicate Balance Of Power Or Who Is Running This Country Anyway?, A Wayne Mackay
The Legislature, The Executive And The Courts: The Delicate Balance Of Power Or Who Is Running This Country Anyway?, A Wayne Mackay
Dalhousie Law Journal
The expanding role of Canadian courts since the introduction of the Charter has prompted critics to decry what they see as excessive and "anti-democratic" judicial activism. The author addresses such criticisms, responding, in particular, to the arguments of Ted Morton and Rainer Knopff. The article critiques the basic elements of Morton/Knopf's thesis: that activist courts are anti-democratic, excessively political, and engaging in illegitimate law-making. Rejecting the claim that Canada's judiciary is a less democratic state institution, the author notes the powerful law and policy-making role performed by the federal cabinet-for practical purposes, an unelected body. The author endorses the dialogue …
Disarming Canadians, And Arming Them With Tolerance: Banning Firearms And Minimum Sentences To Control Violent Crime--An Essay On An Apparent Contradiction, Helene Dumont
Osgoode Hall Law Journal
In an article published in French in 1997, the author offered reflections on feminism and criminal law that would allow for a better control of violent crime, without Parliament having to resort to excessively severe sentences. In this respect, she argued that there was no contradiction in supporting the radical ban of firearms in Canada, while opposing a minimum sentence of four years under the Firearms Act, which currently affects approximately ten serious Criminal Code offences. After setting out her position in favour of the "disarmament" of Canadians, the author argued that minimum sentences of four years were unconstitutional. Such …
The Death Penalty, Mandatory Prison Sentences, And The Eighth Amendment's Rule Against Cruel And Unusual Punishments, Jamie Cameron
The Death Penalty, Mandatory Prison Sentences, And The Eighth Amendment's Rule Against Cruel And Unusual Punishments, Jamie Cameron
Osgoode Hall Law Journal
The text of section 12 of the Canadian Charter of Rights and Freedoms and the Eighth Amendment to the United States Constitution prohibit cruel and unusual punishment in language that is similar but not identical. Still, in considering constitutional restrictions on punishment, the deviations of the Supreme Court both focus on the concept of gross disproportionality between the offence committed and the state’s response. Despite the appearance of similarity, this article maintains that differences in the American law of sentencing explain why Canada ought not follow or adopt the United States approach to minimum sentences.
Searching For Smith: The Constitutionality Of Mandatory Sentences, Kent Roach
Searching For Smith: The Constitutionality Of Mandatory Sentences, Kent Roach
Osgoode Hall Law Journal
The jurisprudence of the Supreme Court of Canada on the constitutionality of mandatory minimum sentences, from R. v. Smith to R. v. Latimer, is reviewed and assessed in light of relevant developments in constitutional law and sentencing. These include the Supreme Courts increasing interest in constitutional minimalism and corresponding reluctance to rely on hypothetical offenders and facial declarations of invalidity. The manner in which the Court's increasing concern for crime victims and fault levels has been used to justify upholding mandatory sentences is examined. The author also relates this jurisprudence to trends in sentencing, including an increasing acceptance of mandatory …
Securing Accountability Through Commissions Of Inquiry: A Role For The Law Commission Of Canada, Robert Centa, Patrick Macklem
Securing Accountability Through Commissions Of Inquiry: A Role For The Law Commission Of Canada, Robert Centa, Patrick Macklem
Osgoode Hall Law Journal
Focusing on the Government of Ontario's unwillingness to call a public inquiry into the death of Dudley George, an Aboriginal protester, and the Government of Canada's willingness to interfere with an inquiry into the deployment of Canadian forces to Somalia, this article argues that governments appear increasingly reluctant to support a commission of inquiry into a public crisis even where it can serve as a catalyst for addressing larger and more pressing concerns of institutional and policy reform. It first addresses "start-up problems" associated with the fact that the decision to appoint a commission of inquiry lies within the sole …