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Dalhousie Law Journal

1992

Articles 1 - 30 of 33

Full-Text Articles in Law

The Hollow Hope: Can Courts Bring About Social Change?, Ian Holloway Oct 1992

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.

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Paedophilia: The Criminal Responsibility Of Canada's Churches, Dawn Russell Oct 1992

Paedophilia: The Criminal Responsibility Of Canada's Churches, Dawn Russell

Dalhousie Law Journal

In the last few years Canada's churches have been plagued by sexual abuse scandals from Newfoundland to British Columbia. Members of the clergy and of lay orders across the country have been charged with, and convicted of, criminal offences involving the physical and sexual abuse of children. Mediareports and television documentaries have emphasized the tremendous scope of the problem of clergy paedophilia, the seriousness of the harm done to the victims, and the irresponsible and sometimes heartless behaviour of church officials who received reports of such abuse. These stories have shocked the Canadian public and have given rise to a …

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Morguard Investments Ltd.: Emerging International Implications, Simon Coakeley, Peter Finkle, Louise Barrington Oct 1992

Morguard Investments Ltd.: Emerging International Implications, Simon Coakeley, Peter Finkle, Louise Barrington

Dalhousie Law Journal

Events often gain a momentum of their own, sometimes well beyond that anticipated by those who set them in motion; this is as true in the field of law as it is in other areas of human endeavour. MorguardInvestments Ltd. v. De Savoye' is a legal event which seems to be taking on a rapidly building momentum. Basing themselves on this decision, Canadian courts, especially those in British Columbia, are recognizing and enforcing judgments from other courts in civil matters, even when these judgments bear few, if any, of the hallmarks that traditionally entitled a foreign judgment to be recognized …

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Consideration And Estoppel: Problem And Panacea, Bruce Macdougall Oct 1992

Consideration And Estoppel: Problem And Panacea, Bruce Macdougall

Dalhousie Law Journal

In his book, The History of the Common Law of Contract, A.W.B. Simpson demonstrates that consideration originally seems to have meant the "matter of inducement" - the "why" of entering a promise.' He writes: "The essence of the doctrine of consideration, then, is the adoption by the common law of the idea that the legal effect of a promise should depend upon the factor or factors which motivated the promise. To decide whether a promise to do X is binding, you need to know why the promise was made."2 In modem terms, according to Simpson, a promise which lacks any …

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American And Canadian Responses To The Challenge Of Small Power Production, J O. Krowina Oct 1992

American And Canadian Responses To The Challenge Of Small Power Production, J O. Krowina

Dalhousie Law Journal

Small power producers' are in the vanguard of the movement towards the increased use of "alternative" modes of generating electricity. Wind, water, solar, biomass, and cogeneration (which creates useful heat and electricity in one process) power sources promise increased efficiency, reduced environmental impacts and increased energy self-sufficiency. This paper undertakes to examine the interactions between small power producers and the established utility sector in North America. In particular, it examines the economic and institutional barriers faced by small producers attempting to gain access to utility-controlled electricity markets.

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Discrimination, The Right To Seek Redress And The Common Law: A Century-Old Debate, Béatrice Vizkelety Oct 1992

Discrimination, The Right To Seek Redress And The Common Law: A Century-Old Debate, Béatrice Vizkelety

Dalhousie Law Journal

Does discrimination law have anything in common with the common law? This question, which may have been reworded from time to time in deference to the age in which it was raised, is one which has recurred with remarkable tenacity throughout most of this century. It is also a question which continues, despite initial impressions, to be relevant to the manner in which adjudicatots interpret and apply anti-discrimination legislation today.

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The Constitution And Immigration: The Impact Of The Proposed Changes To The Immigration Power Under The Constitution Act, 1867, Davies Bagambiire Oct 1992

The Constitution And Immigration: The Impact Of The Proposed Changes To The Immigration Power Under The Constitution Act, 1867, Davies Bagambiire

Dalhousie Law Journal

This article examines the impact that the suggested changes would have on the immigration power as presently set forth in sections 95 and 91(25) of the Constitution Act, 1867, and on Canadian immigration policy generally. First, it discusses how the present immigration power is allocated as between the federal government and the provinces, how it has been exercised or attempted to be exercisedby the two levels of government and how it has evolved and been interpreted by the Courts. Secondly, it looks at the problems that could arise as a result of the federal government transferring some of its immigration …

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Discrimination In The Legal Profession, Codes Of Professional Conduct And The Duty Of Non-Discrimination, Christ Tennant Oct 1992

Discrimination In The Legal Profession, Codes Of Professional Conduct And The Duty Of Non-Discrimination, Christ Tennant

Dalhousie Law Journal

This paper is about discrimination in the legal profession, and about the kinds of responses to discrimination that the legal profession should be considering. I begin with a review of the various forms of discrimination which exist in the legal profession. Discrimination in the legal profession ranges from the exclusion of the members of certain groups from parts of the profession, to sexual harassment, to discrimination in our courts, to the exclusion and deprecation of the perspectives and experiences of those who have not traditionally beenin positions of power. Discrimination in the legal profession occurs against women, against aboriginal people, …

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Change Of Position And Estoppel As Defences To An 'Action For Money Paid By Mistake, Karl J. Dore Oct 1992

Change Of Position And Estoppel As Defences To An 'Action For Money Paid By Mistake, Karl J. Dore

Dalhousie Law Journal

The recent decision in RBC Dominion Securities Inc.v. Dawson' raises some interesting questions regarding the defences available to a claim in restitution for the recovery of money paid by mistake. At issue were the, defences of change of position and estoppel. Both defences are recognized in Canadian law, but questions remain regarding their limits and their relationship.

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Public Housing And Equality Rights - Dartmouth/Halifax County Regional Housing Authority V. Irma Sparks, Stephen G. Coughlan Oct 1992

Public Housing And Equality Rights - Dartmouth/Halifax County Regional Housing Authority V. Irma Sparks, Stephen G. Coughlan

Dalhousie Law Journal

In Dartmouth/HalifaxCounty Regional Housing Authority v. Sparks, courts in Nova Scotia are once again called upon to consider whether tenants in public housing are entitled to the same protection as private tenants. The Supreme Court Appeal Division decided in Bernard v. Dartmouth Housing Authority that shorter notice periods for public housing tenants were not objectionable, under either s. 7 or s. 15 of the Charter. The issue will now return to the Court of Appeal, but in the meantime the County Court has held that Bernard still sets the standard in Nova Scotia.

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Aboriginal Peoples And Criminal Justice: A Special Report Of The Law Reform Commission Of Canada, Bruce P. Archibald Oct 1992

Aboriginal Peoples And Criminal Justice: A Special Report Of The Law Reform Commission Of Canada, Bruce P. Archibald

Dalhousie Law Journal

Canada's criminal justice system has been shaken out of its stolid complacency in recent years by demonstrated instances of unfair treatment of religious, ethnic and racial minorities, and in particular our Aboriginal peoples.' Faced with a hue and cry directed at the justice system, the federal Minister of Justice asked the Law Reform Commission of Canada to study "as a matter of special priority, the Criminal Code and related statutes and to examine the extent to which those laws ensure that Aboriginal persons and persons who are members of cultural or religious minorities have equal access to justice and are …

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The "Colored Barrister": The Short Life And Tragic Death Of James Robinson Johnston, 1876-1915, Barry Cahill Oct 1992

The "Colored Barrister": The Short Life And Tragic Death Of James Robinson Johnston, 1876-1915, Barry Cahill

Dalhousie Law Journal

The mortal remains of James Robinson Johnston, Nova Scotia's first Black lawyer, lie buried in the family plot at Camp Hill Cemetery in Halifax. The gravestone epigraphy records that he was a Good Templar, a Freemason and an Oddfellow; his Dalhousie University degrees (one of them inaccurately); and the fact that he died a mere nine days short of his thirty-ninth birthday. "Gone but not forgotten" reads the epitaph, much less ironically now - in view of the fact that the recently established Chair in Black Canadian Studies at his alma mater has been named in Johnston's honour-than it ever …

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Does Canada Need A Social Charter?, Matthew Certosimo Oct 1992

Does Canada Need A Social Charter?, Matthew Certosimo

Dalhousie Law Journal

Over the decade since the birth of the Canadian Charter of Rights and Freedoms, expectations that it would impact greatly on the lives of Canadians have gone largely unfulfilled for those regarded as being the most in need of its protection. A recent decision of the Nova Scotia County Court has reminded critics that the narrow interpretation given the Charter'se quality2 and security oftheperson3 provisions, particularly with regard to social and economic rights, excludes from its purview the well-being of Canadians in economic need.

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The Role Of The Judiciary In The Work Of Madame Justice Wilson, Christine Boyle Jul 1992

The Role Of The Judiciary In The Work Of Madame Justice Wilson, Christine Boyle

Dalhousie Law Journal

My topic is the role of the judiciary in the work of Madame Justice Wilson, but I am going to use a particular focus. I started with the famous lecture "Do Women Judges Really Make a Difference" delivered at Osgoode Hall Law School7 and it helped me think of a question. What is it that women judges might make a difference to? One answer is the law, another is judging itself. These themes were very clear in Madame Justice Wilson's lecture. Another answer, however, is the concept of woman. When women judges make a difference to law, part of what …

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The Constituents Of Democracy: The Individual In The Work Of Madame Justice Wilson, Danielle Pinard Jul 1992

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.

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The "Family" In The Work Of Madame Justice Wilson, Mary Jane Mossman Jul 1992

The "Family" In The Work Of Madame Justice Wilson, Mary Jane Mossman

Dalhousie Law Journal

Susan Moller Okin's assertion about the need for justice in families offers a challenging starting point for an assessment of the family in the work of Justice Wilson. Her assertion challenges us for a number of reasons. First, in claiming that justice in the family is a prerequisite to a just society, Okin compels us to focus careful attention on our family relationships if we aspire to a just resolution of our public and political debates. For her, a satisfactory theory of justice can be developed only if it takes account of the structures and power in family relationships, and …

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Equality And Access To Justice In The Work Of Bertha Wilson, Hester Lessard Jul 1992

Equality And Access To Justice In The Work Of Bertha Wilson, Hester Lessard

Dalhousie Law Journal

Increasingly, Canadians have sought to understand themselves as a community through the language of equality rights. There are several practical and theoretical consequences to this choice of language. One of the practical consequences is that a formal commitment to equality raises public consciousness with regard to material and social disparities and to some extent gives those who are excluded or marginalized at least a rhetorical claim to participation and a share in resources. However, another consequence is that while promoting a rhetoric of respect and individual dignity, equality discourse also places a disproportionate amount of power in the hands of …

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The Scottish Enlightenment, The Democratic Intellect And The Work Of Madame Justice Wilson, Alan Watson Jul 1992

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.

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The Democratic Intellect: The State In The Work Of Madame Justice Wilson, Philip L. Bryden Jul 1992

The Democratic Intellect: The State In The Work Of Madame Justice Wilson, Philip L. Bryden

Dalhousie Law Journal

It is a great honour to have been asked to provide an essay for this volume of reflections on the contribution Madame Justice Bertha Wilson has made to the development of law in Canada. To a certain extent, this is a matter of pride in finding my own name associated with that of the very learned and respected individuals who have set out their thoughts in this collection of articles. In the main, however, the honour comes from the opportunity to make a public statement of my own respect and admiration for Madame Justice Wilson and the significant role that …

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Economic Actors In The Work Of Madame Justice Wilson, Maureen Maloney Jul 1992

Economic Actors In The Work Of Madame Justice Wilson, Maureen Maloney

Dalhousie Law Journal

One cannot discuss corporate or tax law, or indeed any law for that matter, in a value vacuum. How we interpret, analyse and assess factual situations and the legal analysis of them will differ depending upon our individual, and occasionally, collective or societal perspectives. In the economic sphere, a great deal depends upon one's world view of the primary economic actors in our society - corporations; and the main economic laws - the tax laws. At the outset I should state that a major reason for my disagreement with some of Justice Wilson's decisions is due to the fact that, …

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Canadian Constitutional Law And Madame Justice Bertha Wilson - Patriot, Visionary And Heretic, James Macpherson Jul 1992

Canadian Constitutional Law And Madame Justice Bertha Wilson - Patriot, Visionary And Heretic, James Macpherson

Dalhousie Law Journal

In the remainder of this paper I will consider Justice Wilson's contribution to Canadian constitutional law. The paper has three parts. Each has a different theme, although the themes overlap in places. I have given these themes labels, each reflecting, I believe, a significant feature of Justice Wilson's constitutional thinking and writing. The labels are Justice Wilson as - Patriot, Visionary and Heretic. In the next three parts of this paper I will deal with each of these themes, with reference principally to her decisions in Charter cases but also with occasional references to her decisions in other categories of …

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Tribute To Madame Justice Bertha Wilson, Foreword, And Preface, A Kim Campbell Jul 1992

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.

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Madame Justice Wilson: Trailblazer For Justice, Brian Dickson Jul 1992

Madame Justice Wilson: Trailblazer For Justice, Brian Dickson

Dalhousie Law Journal

Mr. Dean, Mme Justice Wilson, Mrs. Read, other distinguished Guests, Ladies and Gentlemen: May I say first of all that I am deeply honoured to have been invited to give the Horace E. Read Memorial Lecture for 1991, inaugurated in memory of the distinguished Dean of Dalhousie Law School who served in that capacity from 1950 to 1964. Dean Read's contribution to legal education and to legal scholarship in general was a massive one, encompassing as it did law reform, legislation and the legislative process, conflict of laws, labour law and legal education. Horace Read acquired an enviable international reputation …

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Identifying A Future Refugee Problem: Hong Kong 1997, Daniel C. Turack May 1992

Identifying A Future Refugee Problem: Hong Kong 1997, Daniel C. Turack

Dalhousie Law Journal

On December 19, 1984, the United Kingdom's Prime Minister, Margaret Thatcher, and Premier Zhao Ziyang of the People's Republic of China, formally signed the Sino-British Joint Declaration on the Question of Hong Kong whereby the status of the British Dependent Territory of Hong Kong will cease to exist. As of July 1, 1997, the Chinese Government of the People's Republic of China (PRC) will resume or be restored to sovereignty over the total territory known as Hong Kong.

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Public Power And Private Obligation: An Analysis Of The Government Contract, Shannon Kathleen O'Byrne May 1992

Public Power And Private Obligation: An Analysis Of The Government Contract, Shannon Kathleen O'Byrne

Dalhousie Law Journal

This paper analyzes contracts made by the Government in terms of political theory. From this perspective, it explores the assumptions, utility, and accuracy of the private law model which historically has governed the Government's liability in contract. The paper's overarching objective is to question the propriety of applying private law principles to a public entity, particularly within the context of liberal democratic values to which both the Canadian State and society are pledged. In accord with McAuslan, it regards theoretical inquiry as significant. It asserts that if the current model of State liability collides with fundamental Canadian political constructs, or …

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The Legal Regime Of Enclosed Or Semi-Enclosed Seas: The Particular Case Of The Mediterranean, Paul Gormley May 1992

The Legal Regime Of Enclosed Or Semi-Enclosed Seas: The Particular Case Of The Mediterranean, Paul Gormley

Dalhousie Law Journal

The 1982 United Nations Law of the Sea Convention has not only codified the relatively scant corpus of international law relating to the rubrics of enclosed semi-enclosed seas, but it has also given some guidance toward the future evolution of this unique body of sea law. Accordingly the underlying thesis advanced by a number of distinguished authors at a conference - convened by the Inter-University Center in Dubrovnik - is that the Law of the Sea Convention does not represent a definitive or complete corpus of law; rather the general articles will acquire substance from state practice, bilateral agreements between …

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Beyond Liberalism And Its Critics: An Essay In Constitutional Theory, Marcus Faro De Castro May 1992

Beyond Liberalism And Its Critics: An Essay In Constitutional Theory, Marcus Faro De Castro

Dalhousie Law Journal

Contemporary legal culture spends a great deal of energy in generating arguments about constitutional law. Typically, such arguments concern the determination of the content of constitutional clauses which define the meaning and extension of governmental powers, individual rights and civil liberties, the allocations of power among different departments of government, or among local and supra-local spheres of government, and so forth.

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The Hidden Gender Of Law, Christine Boyle May 1992

The Hidden Gender Of Law, Christine Boyle

Dalhousie Law Journal

Two legal academics who set out to produce a book of materials with such a title could weave many components into it. They could explore feminist methodology, and show how much feminist legal scholarship has in common with feminist scholarship generally. They could illustrate the influence of feminist academic work on actual legal decisions and legislation. They could discuss feminist scholarship and legal education, including the dramatic developments over the last twenty years. Questions about fundamental values - equality, liberty, security, fairness - could be addressed. Materials could be included from the field of law often called Women and the …

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Charles Handbook On Assessment Of Damages In Personal Injury Cases, Roger Harris May 1992

Charles Handbook On Assessment Of Damages In Personal Injury Cases, Roger Harris

Dalhousie Law Journal

This is the second edition of Professor Charles' aptly titled Handbook. The first edition was a simple reprint of a thirty-three page article that was originally published in the Canadian Cases on the Law of Torts, together with the 1978 Supreme Court "Trilogy"judgements themselves. While it provided a convenient capsulization of the issues, it clearly lacked the depth necessary to deal fully with many of the complexities involved, and the rationale for its publication was questionable (no matter how eminent its author or handsome its presentation, can any case comment really be worth $40.00?). Happily, the second edition has developed …

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Legal Research In A Social Science Setting: The Problem Of Method, T Brettel Dawson May 1992

Legal Research In A Social Science Setting: The Problem Of Method, T Brettel Dawson

Dalhousie Law Journal

As part of its ongoing process of curriculum development, the Department of Law at Carleton University decided in 1988 that a compulsory course in legal research methods was long overdue in the B.A. Honours degree in Law. Fortified with interest nurtured by methodological debates in feminist scholarship,' experience devilling' for a barrister pending my call to the bar, and practice from instructing a course in legal research and writing while a graduate student, I set about developing the proposed course. No guidelines existed for such a course, beyond the logic that it should complement the socio-legal or legal studies focus …

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