Law Commons^™

Dialogue And Hierarchy In Charter Interpretation: A Comment On R. V. Mills, Jamie Cameron

Articles & Book Chapters

This case comment focuses on two issues of methodology: the first concerns constitutional interpretation and the democratic process, or the dialogue issue, and the second, the relationship between Charter guarantees, or the hierarchy issue. To set the stage, an initial section provides an overview of the Stinchcombe/O'Connor/Mills trilogy, and is followed by a more detailed analysis of Mills that examines the tension between judicial and legislative decision making, before considering how Parliament and the Court altered O'Connor's model for balancing the rights of the accused and complainants. On the latter issue, though the article does not comment in detail on …

The Nature Of Aboriginal Title, Brian Slattery

Articles & Book Chapters

The concept of Aboriginal title is an autonomous concept of Canadian common law that bridges the gulf between Indigenous land systems and imported European land systems. It does not stem from Indigenous customary law, English common law or French civil law. It coordinates the interaction between these systems without forming part of them. In effect, it is a form of inter-societal common law.

Parallel Proceedings-Converging Views: The Westec Appeal, Janet Walker

Articles & Book Chapters

The flexibility afforded by new rules for jurisdiction and judgments creates opportunities for parallel proceedings and the potential for inconsistent results. Could mechanisms developed in other systems be adopted, such as the lis pendens rule in Europe, or would they merely replace the 'race to judgment' with a 'race to file'? What might a "made in Canada" solution look like? Would it succeed in preventing abuse without compromising fairness in the individual case?

Master And Servant In England: Using The Law In The 18th And 19th Centuries, Douglas Hay

Articles & Book Chapters

No abstract provided.

Legal Knowledge For Our Times: Rethinking Legal Knowledge And Legal Education, Ruth Buchanan, Marilyn Maccrimmon, Wes Pue

Articles & Book Chapters

The essays gathered for this symposium reflect a number of overlapping concerns about contemporary legal knowledge and education.

Though they are considerably diverse in focus and subject-matter, ranging from admissions to films to "marketing" of law faculties, each of these articles addresses aspects of legal education, the construction of legal knowledge and the character of what Ian Duncanson calls "the law discipline." Educational practice, knowledge and disciplinarity are thoroughly inter-related. The contributors to this volume are all acutely aware that, as educators and researchers, we both:

participate in the construction of legal knowledge (for the readers of learned journals, for …

The Bank Manager Always Rings Twice: Stereotyping In Equity After Garcia, Richard Haigh, Samantha Hepburn

Articles & Book Chapters

Stereotyping is an inevitable part of human interaction. Everyone is judged, to some extent, according to individual perception, with reference to such factors as physical appearance, social position, marital status, language facility and ethnicity. It is not possible to eradicate stereotyping because it is a natural, automatic - sometimes instinctive - human response. In a legal context, however, there is a need for some mechanisms to control the degree to which stereotyping influences judicial decision-making so as to ensure that justice is administered in as neutral and impartial a manner as possible. Whether it be in the determination of facts …

From Consultation To Reconciliation: Aboriginal Rights And The Crown’S Duty To Consult, Sonia Lawrence, Patrick Macklem

Articles & Book Chapters

The judiciary has repeatedly called on First Nations and the Crown not to tax the institutional competence of the judiciary by excessive litigation of disputes, and instead to attempt to reach negotiated settlements . It has also held that the Crown is under a duty to consult with a First Nation when it proposes to engage in an action that threatens to interfere with existing Aboriginal or treaty rights recognized and affirmed by s. 35(1) of the Constitution Act, 1982. In this Article, the authors argue that the duty to consult requires the Crown, in most cases, to make good …

The Process Geography Of Law (As Approached Through Andalucian Gitano Family Law), Susan G. Drummond

Articles & Book Chapters

Comparative law and legal anthropology have for long theorized on the basis of a traditional geography which saw states, regions, locales and social fields as having durable boundaries containing stable and homogenous cultures. This idea of place is now undergoing a massive transformation in response to the effects of and theories about globalization. The emerging ‘process geography’ rejects these traditional ideas, arguing that they are not, and indeed have never been aspects of reality, which is better represented by an imagery of processes. However, it is argued here that globalization is not a synonym for homogenization, nor has place suddenly …

The Business Of Bribery: Globalization, Economic Liberalization, And The ‘Problem’ Of Corruption, Margaret E. Beare, James Williams

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This paper is intended as a critical response to the emerging consensus within both academic and policy literatures that we are currently facing an epidemic of corruption which threatens to undermine the stability of economic and political development on both a national and global scale, and which requires both immediate and wide-ranging policy interventions. Based on a review of the publications and policy statements of the leading anti-corruption crusaders — namely the OECD, the IMF, and the World Bank — it will be argued that the recent concern with corruption is attributable, not to any substantive increase incorrupt practices, but …

Making Sense Of Aboriginal And Treaty Rights, Brian Slattery

Articles & Book Chapters

This paper proposes a basic framework for understanding the decisions of the Supreme Court of Canada relating to aboriginal and treaty rights. It argues that the foundations of these rights lie in the common law doctrine of aboriginal rights, which originated in ancient custom generated by historical relations between the Crown and indigenous peoples, as informed by basic principles of justice. This sui generis doctrine is par t of the common law of Canada and operates uniformly across the country, it also provides the context for interpreting section 35(1) of the Constitution Act, 1982. The doctrine of aboriginal rights has …

The Supreme Court Of Canada's Tax Jurisprudence: What's Wrong With The Rule Of Law, Lisa Philipps

Articles & Book Chapters

This paper reviews the history of the Supreme Court's tax jurisprudence focussing on the Court's ongoing struggle to define its proper institutional role in the creation and interpretation of the tax laws. An emprical overview is first presented to document the changing nature and volume of the Court's taxation caseload through history, and this is related to the evolution of Canada's fiscal system. Selected judgments from differing periods are then examined to illuminate how the Court has conceived its role in the adjudication of tax issues. The author suggests that tax decisions have been strongly informed by a classical liberal …

Insolvent Bank’S Irrevocable Credit As Priority Payment Instrument: Barclays Bank V. Price Waterhouse, Benjamin Geva

Articles & Book Chapters

No abstract provided.