Law Commons^™

The Onus Of Proof Of Aboriginal Title, Kent Mcneil

Osgoode Hall Law Journal

In the Delgamuukw decision, the Supreme Court of Canada clearly placed the onus on the Aboriginal nations to prove their title by showing occupation of lands at the time the Crown asserted sovereignty. In this article, it is argued that the common law could assist them in this respect. They should be able to rely on present or past possession to raise a presumption of Aboriginal title, and so shift the burden onto the Crown to prove its own title. Moreover, Aboriginal nations may be more successful if they bring an action for trespass or for recovery of possession of …

The Best And The Brightest?: Canadian Law School Admissions, Dawna Tong, W. Wesley Pue

Osgoode Hall Law Journal

This article assesses the admissions policies commonly employed by law faculties in common law Canada. These faculties rely heavily on admissions criteria and policies developed in the United States and, like their American counterparts, typically admit students on the basis of "index scores" produced by combining Law School Admissions Test (LSAT) performance with Undergraduate Grade Point Average (UGPA). The appropriateness of this American model to the Canadian context has never been rigorously assessed. This raises serious questions as to whether Canadian law school admissions policies serve either of their stated goals of finding the "best" students or of advancing social …

Aboriginal Forestry: Community Management As Opportunity And Imperative, Deborah Curran, Michael M'Gonigle

Osgoode Hall Law Journal

In recognition that forests are one of their greatest resources, Aboriginal peoples are considering how altered tenure arrangements might uphold traditional values, including ecological integrity, while providing economic and employment opportunities. However, the federal and provincial forest management structures have historically precluded First Nations from helping to define, and participate in, the forest industry. The authors explore the legal and regulatory basis of forest management in Canada, and assess how it facilitates or impedes Aboriginal management of traditional areas. This is done through a legislative and policy analysis, and through the use of case studies from across Canada. The authors …

Recognizing Substantive Equality As A Foundational Constitutional Principle, Patricia Hughes

Dalhousie Law Journal

The author proposes that substantive equality be recognized as a foundational constitutional principle. The foundational principles--or underlying constitutional norms-which constitute the constitutional framework have become more important as Canada matures as a regime governed by constitutional supremacy. Most prime social and political values have been recognized as underlying constitutional norms, including democracy, federalism, protection of minority rights, political speech and judicial independence. Although section 15 of the Charter has been interpreted as encompassing substantive equality, which has been identified as a significant social value by the Supreme Court of Canada, the Court has yet to include it among the foundational …

Taking Stock: Securities Markets And The Division Of Powers, Robert Leckey, Eric Ward

Dalhousie Law Journal

Recent developments in Canada's securities markets highlight their national character and call for a fresh consideration of the question of federal securities regulation. Developments in the constitutional case law have changed the legal context, such that the trade and commerce and the peace, order and good government powers under the Constitution Act, 1867 would likely support federal securities legislation. The securities question, important in its own right, also serves as a case study for how the Supreme Court of Canada conducts division of powers analysis for matters that have undergone substantive change. The authors contend that competence over a provincial …

Sovereignty's Alchemy: An Analysis Of Delgamuukw V. British Columbia, John Borrows

Osgoode Hall Law Journal

In Delgamuukw v. British Columbia, the Supreme Court of Canada issued its long-awaited judgment on the status of Aboriginal title under section 35(1) of the Constitution Act, 1982. The decision was regarded as highly significant because it seemed to fundamentally alter the law of Aboriginal rights. This article suggests that while the case has somewhat positively changed the law to protect Aboriginal title, it has also simultaneously sustained a legal framework that undermines Aboriginal land rights. In particular, the decision's unreflective acceptance of Crown sovereignty places Aboriginal title in a subordinate position relative to other legal rights. This article examines …

The Charter Of Rights And Freedoms And The Rebalancing Of Liberal Constitutionalism In Canada, 1982-1997, James B. Kelly

Osgoode Hall Law Journal

This article presents a statistical analysis of the first 352 Charter of Rights and Freedoms decisions by the Supreme Court of Canada between 1982 and 1997. The author argues that the emerging approach to Charter review by the Supreme Court of Canada has led to a rebalancing of liberal constitutionalism and to a reconciliation between Charter rights and federalism. This stands in stark contrast to the highly activist approach to Charter review detected in studies by Morton, Russell, and Withey and, to a lesser extent, by Morton, Russell, and Riddell. Several factors illustrate the rebalancing of liberal constitutionalism in Canada. …

Options In Consumer Bankruptcy: An American Perspective, Jean Braucher

Osgoode Hall Law Journal

In both the United States and Canada, a rapid increase in personal bankruptcies has led to demands for stricter laws to force more repayment by consumer debtors. Canada has already taken this step, while the United States may soon do so in response to the counterfactual claim that the problem is debtors with means using bankruptcy as "a method of financial planning." The author suggests that the real problem in both countries, however, is an increase in the ranks of the over-indebted. Bankruptcy is a symptom, signalling to creditors the need to reform themselves. The author concludes that if creditors …

Counselling Consumer Debtors Under Canada's Bankruptcy And Insolvency Act, Ruth E. Berry, Sue L. T. Mcgregor

Osgoode Hall Law Journal

If no attempts are made to determine the monetary and non-monetary reasons for bankruptcy or its recurrence, debtors may be more likely to choose bankruptcy, or remain in the cycle of bankruptcy. Credit counselling is one mechanism that can assist consumers in paying back debts without resorting to bankruptcy, thereby preventing repeat bankruptcies and heavy debt loads in the future. Canada passed a major milestone in 1992, becoming the first country to make financial counselling mandatory prior to the granting of an unconditional discharge from personal bankruptcy. This article describes the history of the policy analysis involved in making consumer …

Insolvency Counselling--Innovation Based On The Fourteenth Century, Carol Ann Curnock

Osgoode Hall Law Journal

In the fourteenth century, poverty (previously viewed as a virtue) was redefined by both church and state as illegal and immoral. This view persists in Canada today. The 1992 amendments to the Bankruptcy and Insolvency Act (BIA) included a provision that makes two counselling sessions mandatory for all persons going through bankruptcy. The author reviews The BIA Insolvency Counsellor's Qualification Course that was developed in support of this amendment, and concludes that it is not up to the task. The mandatory counselling presumes a bankrupt person's irresponsibility, addiction, and need for referral to community service agencies. However, these presumptions are …

The Overseas Dimension: What Can Canada And The United States Learn From The United Kingdom, Michael Adler

Osgoode Hall Law Journal

The United States and, to a slightly lesser extent, Canada have come to regard personal bankruptcy as a routine method of discharging debts, enabling the debtor to make a fresh start. By contrast, in the United Kingdom, bankruptcy is still seen as a remedy of last resort, and creditors may retain the right to enforce debts. The difference in approach is due to the fact that the United States and Canada have traditionally given priority to risk taking over security, while the United Kingdom has continued to give priority to security over risk taking. However, the British government's enthusiasm for …

The Dark Side Of Student Loans: Debt Burden, Default, And Bankruptcy, Saul Schwartz

Osgoode Hall Law Journal

This article addresses three hypotheses: (1) only a minority of Canadian student loan borrowers experience severe difficulty in repaying their student loans; (2) those who default on their student loans do so largely because they cannot pay, rather than because they do not want to pay; and (3) for Canadians who are filing for bankruptcy and who have student loans among their debts, bankruptcy is a last resort, and their economic situation is more difficult than that of the average person seeking bankruptcy protection. A review of the literature strongly supports the first two hypotheses; a new analysis of a …

The Philosophy And Design Of Contemporary Consumer Bankruptcy Systems: A Canada-United States Comparison, Jacob S. Ziegel

Osgoode Hall Law Journal

The rapid increase in the number of consumer bankruptcies in Canada and the United States over the past fifteen years has again focused attention on the philosophy and design of modern insolvency systems, and on the similarities and differences in the approaches adopted in Canada and the United States. In this article, the author points out that the single most important difference is that the United States has historically subscribed to the debtor's right to a "fresh start" after surrendering the debtor's non-exempt property, whereas Canadian law never has, and does not now, confer an absolute right of discharge. Although …

Of Provinces And S.35 Rights, Kerry Wilkins

Dalhousie Law Journal

It is now well established that federal law and regulatory activity may interfere with the exercise of aboriginal peoples' existing treaty and aboriginal rights, despite s. 35(1) of the Constitution Act, 1982, whenever the federal government can justify the interference. It is not yet clear, though, what power, if any, Canada's provinces have to regulate, even in justified ways, such rights and their exercise. This article argues that the provinces, as a general rule, have no such authority. Except in certain very specific and isolated circumstances, they have no power, even apart from s. 35, to regulate the exercise of …

The Empirical Dimensions Of Consumer Bankruptcy: Results From A Survey Of Canadian Bankrupts, Saul Schwartz

Osgoode Hall Law Journal

The number of consumer bankruptcies in Canada has risen substantially over the last twenty years. Using a 1997 survey of approximately 1,000 Canadian debtors, this article explores the economic situation of debtors seeking bankruptcy protection. This economic situation seems to be quite weak-most of the debtors have very low income, very high debts, and few assets. Moreover, the economic situation of the 1997 debtors seems quite similar to that of the 1977 debtors studied by Wayne Brighton and Justin Connidis almost twenty years ago. The aggregate amount of consumer credit, as a proportion of disposable income, has not risen dramatically, …

Philosophy And Design Of Modern Fresh Start Policies: The Evolution Of Canada's Legislative Policy, John D. Honsberger

Osgoode Hall Law Journal

The fresh start concept-the restoration of a bankrupt to his or her former debt-free status-originated in the United States. While lip service is paid to it in Canada, the author's review of the English origins and subsequent evolution of Canadian bankruptcy legislation indicates that a strong commitment to the fresh start policy has never been the Canadian philosophy. Rehabilitation of the debtor is not a matter of great concern in Canada. Indeed, the Canadian legislative policy has always been restrictive of the rights of debtors. With the passage of amendments to the Bankruptcy and Insolvency Act (BIA) in 1992 and …

Holding The High Ground: The Position Of Secured Creditors In Consumer Bankruptcies And Proposals, Tamara M. Buckwold

Osgoode Hall Law Journal

This article examines the position of secured creditors in the event of a consumer debtor's bankruptcy or the filing of a consumer proposal, as determined by the federal and provincial laws of Canada. Secured creditors in Canada are in a remarkably powerful position relative to other claimants in bankruptcy and to their counterparts in the United States. Their rights of realization against the collateral are essentially unaffected by the initiation of either a consumer bankruptcy or proposal. Moreover, recent judicial developments appear to further enhance secured creditors' rights of enforcement, both against the in personam payment obligation and against the …

Making Disclosure: Ideas And Interests In Canadian Securities Regulation, Christopher C. Nicholis

Dalhousie Law Journal

Early in her book, Professor Condon bemoans the general lack of Canadian scholarship in the area of securities regulation. Not only is there very little theoretical work in this field, she notes, but also, "even historically descriptive accounts of the Ontario Securities Commission have been notable by their infrequency" (at 15).'

Annotated Language Laws Of Canada: Constitutional, Federal, Provincial And Territorial Laws, Teresa Scassa

Dalhousie Law Journal

Many of Canada's language laws represent an attempt by governments to articulate national or provincial linguistic identities. How fitting, therefore, that Annotated Language Laws of Canada is a work which is itself in search of an identity. There is, in fact, some dissonance between what this book claims to be and what it actually is. Although its cover suggests that it is part of a series of "New Canadian Perspectives," there is little that is new (in the sense of original) in the work, other than the actual compilation. As for perspectives-one of the most striking absences in this work …

Corporate Nonrecognition Provisions: A Comparison Of The U.S. And Canadian Tax Regimes, Catherine Brown, Christine Manolakas

Dalhousie Law Journal

This article compares the rules governing the federal income taxation of corporate reorganizations in Canada with those in the United States, including transfers of property to a corporation, corporate divisions, share-for-share exchanges, amalgamations or mergers, recapitalizations, and corporate dissolutions. The paper outlines the provisions governing a particulartype of corporate transaction, compares the Canadian tax results with those of the United States, comments on any differences between particular tax provisions, and examines the practical implications of these differences. The authors conclude that although there are a number of parallels between the U.S. and Canadian tax systems, fundamental differences exist that change …

From The Ibpp Research Associates. Canada. Ismael Sambra, Ismael Sambra

International Bulletin of Political Psychology

This articles discusses a declaration - Joint Declaration by the Committee of Cuban Political Ex-Prisoners and Cuba Friends and Cuban Canadian National Foundation Against The Laws That Persecute and Condemn Freedom in Cuba. - provided by Mr. Ismael Sambra, president of the Cuban Canadian National Foundation and Writer in Residence at York University, Ontario, Canada.

Of note: Mr. Sambra published "A Dictator's Errors" in IBPP (Author: Ismael Sambra, Volume 4, Number 25, June 26, 1998.)

Foundations For 15(1): Equality Rights In Canada, Martha A. Mccarthy, Joanna L. Radbord

Michigan Journal of Gender & Law

The paper discusses a selection of important cases under section 15 of the Canadian Charter of Rights and Freedoms. It traces the development of equality jurisprudence from the introduction of section 15 to early approaches in Andrews, Hess, Weatherall, Symes, and McKinney. This review illustrates the persistence of formal equality analysis and the threats of biology, morality, and tradition to the realization of substantive equality. The May 25, 1995, trilogy of Egan, Miron, and Thibaudeau is critiqued in detail. Finally, we turn to more recent jurisprudence and offer a brief discussion of M. v. H.

The Morality Of Insider Trading In The United States And Abroad, Ramzi Nasser

Oklahoma Law Review

No abstract provided.

The Morality Of Insider Trading In The United States And Abroad, Ramzi Nasser

Oklahoma Law Review

No abstract provided.