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Full-Text Articles in Law
Long Overdue: A Reappraisal Of Section 121 Of The Constitution Act, 1867, Ian A. Blue
Long Overdue: A Reappraisal Of Section 121 Of The Constitution Act, 1867, Ian A. Blue
Dalhousie Law Journal
This article offers a new interpretation of s. 121 of the Constitution Act, 1867. The author re-evaluates the traditional interpretation of s. 121, found in Gold Seal Limited v. The Attorney General of the Province of Alberta. That interpretation limited the application of s. 121 to prohibiting interprovincial "customs duties" but nothing else. The author analyzes s. 121 using a purposive approach. After reviewing the provision's wording, legislative history, legislative context and its place within the scheme of the Act, the article concludes that a purposive and progressive interpretation leads to a more robust role for s. 121. Thus interpreted, …
Ivan Rand's Ancient Constitutionalism, Jonathon Penney
Ivan Rand's Ancient Constitutionalism, Jonathon Penney
Articles, Book Chapters, & Popular Press
Few names loom larger than Ivan Rand’s in the history of Canadian law. If anything, Rand has retained his image as a courageous judge willing to bend the law in creative ways to seek justice and protect the rights of oppressed minorities. But Rand’s legal ideas have not faired as well. Over the years, his theory of “implied rights,” and view of the judicial role, has been criticized as incoherent and indefensible. The central aim of this paper is to challenge these criticisms. I want to offer a solution by reconstructing an overlooked component of his legal thought: a form …
The Origins Of A Coming Crisis: Renewal Of The Churchill Falls Contract, James P. Feehan, Melvin Baker
The Origins Of A Coming Crisis: Renewal Of The Churchill Falls Contract, James P. Feehan, Melvin Baker
Dalhousie Law Journal
The 1969 Churchill Falls contract between Hydro-Quebec and the Churchill Falls Labrador Corporation has been the subject of political controversy. It has also been challenged in the courts, with appeals reaching to the Supreme Court of Canada. Yet, despite the scrutiny of those court cases, the political rhetoric, and the literature that has been spawned by this matter, an extraordinary element of that contract remains remarkably obscure. It is the contract's renewal clause. At the expiry of the contract's forty-four-year term in 2016, that clause requires an automatic renewal for twenty-five additional years at a fixed nominal price that is …
Conflict Of Interest, Duress And Unconscionability In Quebec Civil Law: Comment On "The Origins Of A Coming Crisis: Renewal Of The'churchill Falls Contract", Sarah P. Bradley
Conflict Of Interest, Duress And Unconscionability In Quebec Civil Law: Comment On "The Origins Of A Coming Crisis: Renewal Of The'churchill Falls Contract", Sarah P. Bradley
Dalhousie Law Journal
As Professor James Feehan and archivist-historian Melvin Baker describe the circumstances in which the fateful renewal provision of the 1969 Churchill Falls hydro contract was negotiated, they suggest that the legal doctrines of conflict of interest or economic duress might offer a basis upon which the contract, or perhaps the renewal provision, could be impugned. In addition to interesting historical insights, their analysis offers the intriguing possibility that the government of Newfoundland may yet succeed in its long-standing battle to rid itself of its obligations under the grossly disadvantageous Churchill Falls contract.
Brightening The Covenant Chain: Aboriginal Treaty Meanings In Law And History After Marshall, Mark D. Walters
Brightening The Covenant Chain: Aboriginal Treaty Meanings In Law And History After Marshall, Mark D. Walters
Dalhousie Law Journal
The decision of the Supreme Court of Canada in R. v. Marshall raises some difficult questions about the interpretation of Crown-Aboriginal treaties, especially treaties dating from the eighteenth century. The Court acknowledged that the treaty context is important to establishing the meaning of treaty texts, and Aboriginal and non-Aboriginal perspectives must be considered. As a result, judges must have regard to historical analyses of Crown-Aboriginal relations when interpreting these old treaties. In this article, the author explores some of the complex theoretical problems that such legal-historical analyses create, focusing in particular upon the possibility that lawyers and judges may reach …
Characterization Of Limitation Statutes In Canadian Private International Law: The Rocky Road Of Change, John P. Mcevoy
Characterization Of Limitation Statutes In Canadian Private International Law: The Rocky Road Of Change, John P. Mcevoy
Dalhousie Law Journal
Prior to the Supreme Court of Canada's decision in Tolofson v. Jensen limitations statutes were characterized, prima facie, as procedural for purposes of Canadian private international law. The principal authority for this characterization was the 1835 case of Huber v. Steiner in which an action was brought on a promissory note made in France in 1813 and payable in 1817. The defendant argued that the French Code de commerce applied and that the right of action was extinguished by the provision that "all actions ... prescribe themselves by five years reckoning from the day of protest ..... Tindal C.J. recognized …
Mr. Justice Roland Ritchie: A Biography, Thomas Stinson
Mr. Justice Roland Ritchie: A Biography, Thomas Stinson
Dalhousie Law Journal
Mr. Justice Roland Almon Ritchie (1910-1988) was the most recent Nova Scotian to have been on the bench of the Supreme Court of Canada, serving for a quarter-century (1959-1984). Judicial biographies in this country are rare enough that any addition to the literature can be justified but Ritchie is an especially intriguing choice. He served on the bench for a long period, there is a wealth of information regarding his formative years courtesy of the published diaries of his older brother, Charles, and he is regarded as the embodiment of conservatism in a court that has frequently been described as …
The Scottish Enlightenment, The Democratic Intellect And The Work Of Madame Justice Wilson, Alan Watson
The Scottish Enlightenment, The Democratic Intellect And The Work Of Madame Justice Wilson, Alan Watson
Dalhousie Law Journal
To talk of Madame Justice Wilson in the context of her Scottish background, the Scottish Enlightenment and the Democratic Intellect is one of the most exciting yet daunting tasks I have undertaken. A huge problem, which I will mention first but not discuss, has been to get to grips with her towering intellect. As will become clear, this problem was much diminished by Madame Justice Wilson herself: she writes with a simplicity, grace, rationality and humanity that may even lead one to underestimate the complexity of her thought.
Tribute To Madame Justice Bertha Wilson, Foreword, And Preface, A Kim Campbell
Tribute To Madame Justice Bertha Wilson, Foreword, And Preface, A Kim Campbell
Dalhousie Law Journal
On behalf of the Government of Canada, I am pleased to convey my best wishes to all those participating in 'The Democratic Intellect" Symposium being hosted by Dalhousie Law School in honour of Madame Justice Bertha Wilson's contribution to the law and to the life of Canada.
The Constituents Of Democracy: The Individual In The Work Of Madame Justice Wilson, Danielle Pinard
The Constituents Of Democracy: The Individual In The Work Of Madame Justice Wilson, Danielle Pinard
Dalhousie Law Journal
I shall attempt to share with you the impression I have of Judge Wilson's conception of the individual. I will try to present a general view of what occurred to me as I went through the opinions she wrote while at the Supreme Court of Canada, alone or with the assent of her colleagues, dissenting or in agreement with the majority.' I shall try to put together, as honestly as possible, what she explicitly said on the subject in question.
Mélanges. Louis-Philippe Pigeon, Marcel Joyal
Mélanges. Louis-Philippe Pigeon, Marcel Joyal
Dalhousie Law Journal
This is a collection of legal articles put together at the Faculty of Law, Civil Law Section, of the University of Ottawa under the direction of Professor Ernest Caparros.
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 …