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 …

Euthanasia And Assisted Suicide In The Post-Rodriguez Era: Lessons From Foreign Jurisdictions, Michael Cormack

Osgoode Hall Law Journal

Euthanasia and assisted suicide are highly controversial subjects that have drawn much attention in Canada over the last two decades. This paper outlines how the Netherlands, the United States, Australia, and Canada have approached the practices. Jurisprudence, public opinion polls, legislative developments, and the positions of medical organizations and their members are included in the analysis. A number of arguments for and against the continued prohibition of the practices in Canada are evaluated. As well, information regarding the extent to which euthanasia and assisted suicide are performed in these countries is assessed. It will be shown that Canadians currently enjoy …

Race And The Australian Constitution: From Federation To Reconciliation, George Williams

Osgoode Hall Law Journal

The framing of the Australian Constitution initiated a pattern of discrimination against Australia's Indigenous peoples. They were cast as outsiders to the nation brought about in 1901. This pattern was broken in 1967 by the deletion of the discriminatory provisions from the Constitution. Today, there is strong community support in Australia for the reconciliation process, which would involve recognition of Indigenous peoples as an integral and unique component of the Australian nation. However, this has yet to be translated into substantive legal outcomes. The author analyses the interaction of issues of race and the Australian Constitution as it has affected …

Gender On The Line: Technology, Restructuring And The Reorganization Of Work In The Call Centre Industry, Policy Report, Ruth Buchanan, Sara Koch-Schulte

Commissioned Reports, Studies and Public Policy Documents

This project, a case study of the emerging call centre industry in Canada, examines the impacts of restructuring on those in the lower tiers of the labour market. The first stage of the study surveyed managers at call centres in three sites in Canada: New Brunswick (St. John, Moncton and Fredericton), Winnipeg, Manitoba, and Toronto, Ontario. Issues surveyed included types of call centre applications, labour force composition (age, gender, race and disability), wage rates, hiring, training and promotion. The survey results clearly established that women and youth make up the majority of the call centre work force across Canada. The …

Poor Canadian Legal Education: So Near To Wall Street, So Far From God, Harry W. Arthurs

Osgoode Hall Law Journal

The recent appearance of recruiters from Wall Street firms at several Canadian law schools, and the recent hiring by American law schools of several mid-career Canadian law professors, has created a "moral panic" as journalists, academics and law firms have expressed great concern over the loss of Canada's "best and brightest" to the United States. Properly understood as part of a larger debate about globalization and regional economic integration, these developments are less important in themselves than for what they reveal about the present and future of the Canadian state, and the Canadian business community, legal profession and universities.

A Legal And Psychological Critique Of The Present Approach To The Assessment Of The Competence Of Child Witnesses, Nicholas Bala, Kang Lee, Rod Lindsay, Victoria Talwar

Osgoode Hall Law Journal

The Canada Evidence Act requires an inquiry to determine whether a child has the requisite moral and intellectual capacity to testify. Caselaw suggests that a child must demonstrate an understanding of abstract concepts like "truth" and "promise" to be competent to testify. This article reports on a survey of Ontario justice system professionals, revealing significant variation in how judges conduct competency inquiries. Children are often asked about religious beliefs and practices, and are frequently asked developmentally inappropriate questions. The authors also report on their experimental research which indicates that children's ability to explain such abstract concepts as "truth," "lie," and …

Challenges For Cause, Stand-Asides, And Peremptory Challenges In The Nineteenth Century, R. Blake Brown

Osgoode Hall Law Journal

This article examines the substantial differences that emerged during the nineteenth century between the law of England, the United States, and Canada regarding challenges for cause, stand-asides, and peremptory challenges in the jury selection process. The author argues that these differences stemmed from the unique social conditions of each country. The emergence of legal formalism-with its emphasis on certainty and predictability in the law-affected the development of jury challenges, though the result of formalist thinking had very different effects in all three jurisdictions. In addition, Canadian law regarding jury challenges reveals the influence of both American and English legal trends.

The Dissenting Opinion: Voice Of The Future?, Claire L'Heureux-Dube

Osgoode Hall Law Journal

Madame Justice L'Heureux-Dubé explores the history and the role of dissenting opinions in Canadian law. She argues that dissents contribute to the development of the law through their prophetic potential. Dissents are also fundamental elements of judicial discourse, serving to safeguard the integrity of the decisionmaking process and judicial independence. The Canadian legal tradition, like its American counterpart, provides numerous examples of why, in 1951, future Chief Justice Bora Laskin praised the "precious right" to dissent. Unanimity is not indispensable for judicial legitimacy or legal stability. In fact, the presence of judicious dissents can portray the true complexity of legal …

Commodifying Justice For Global Free Trade: The Proposed Hague Judgments Convention, Vaughan Black

Osgoode Hall Law Journal

A notable omission from the legal apparatus for international free trade is a multilateral agreement on court jurisdiction and enforcement of foreign country judgments. However, negotiations toward such an international convention are in progress. This paper explores the background to those discussions. It examines the current draft of the proposed judgments convention with particular reference to the way in which implementation of that draft would affect Canadians engaged in the practice of international commercial litigation. It concludes with a discussion of current sticking points in the negotiations, and with commentary on the judgment enforcement scene and the implications of failure …

"Are We There Yet?": Towards A New Rule For Choice Of Law In Tort, Janet Walker

Osgoode Hall Law Journal

The Supreme Court's effort to establish certainty in this area by basing a firm rule on a clear theory has failed. The intention was laudable but the proposed theory bore little relation to the courts' adjudicative concerns; and the rule sometimes produced injustice, prompting courts to circumvent it. This article considers the brief history of choice of law in tort and recent developments in common law and civil law jurisdictions, and suggests a new theory and a new rule (based on principles of tort law rather than public international law) which are likely to increase certainty by promoting fairness.

Réflexions Sur La Codification Du Droit Privé, Paul-A. Crepeau

Osgoode Hall Law Journal

Within the framework of a broader research into the sources of the civil law of obligations, the author starts, here, from the historical fact that, on the one hand, the private law of Québec constitutes, since 1866, and contrary to the common law, an essentially legislated system, in the form of a Civil Code enacted in the French civilian tradition, and that, on the other hand, that form was maintained in the 1994 new Civil Code of Quebec. In reflecting on the method of codification, on the basis of various definitions of the term code, the author presents and analyzes …

The Rome Statute On The International Criminal Court: From 1947-2000 And Beyond, Sharon A. Williams

Osgoode Hall Law Journal

On 17 July 1998 the International Criminal Court Statute was adopted in Rome by the United Nations Diplomatic Conference of Plenipotentiaries. It will become operative once sixty states have ratified. It will have subject matter jurisdiction over genocide, war crimes, crimes against humanity and in the future aggression once an appropriate definition has been agreed upon. It is the culmination of work that began in United Nations history in 1947. Its intent is to replace the cycle of impunity for some of the most heinous international crimes with accountability. The philosophical and practical underpinnings of the ICC are deterrence, prosecution …

The Gender Of Genetic Futures: The Canadian Biotechnology Strategy, Women And Health, Roxanne Mykitiuk, Fiona Miller, Lorna Weir

All Papers

No abstract provided.

Doing The Rules: An Assessment Of The Federal Clarity Act In Light Of The Quebec Secession Reference, Patrick Monahan

Commissioned Reports, Studies and Public Policy Documents

No abstract provided.

The Constitutional Legacy Of Chief Justice Brian Dickson, Robert J. Sharpe

Osgoode Hall Law Journal

Chief Justice Brian Dickson played a central role in the elaboration of the fundamental values of the Canadian Constitution. He took a balanced approach to federalism, favouring neither federal nor provincial claims and inviting cooperation through overlapping jurisdiction. Dickson transformed the rule of law from a background value to an operative constitutional principle. His judgments on the rights of minorities reflect a remarkable empathy for the plight of the disadvantaged. Democracy informed all aspects of his constitutional thinking. Dickson rejected the contention that judicial review is anti-democratic, and his constitutional legacy reflects a sustained effort to harmonize all four fundament …

L'Intégration Des Valeurs Et Des Intérêts Autochtones Dans Le Discours Judiciaire Et Normatif Canadien, Andrée Lajoie, Eric Gélineau, Isabelle Duplessis, Guy Rocher

Osgoode Hall Law Journal

This article aims to define the degree to which values presented by groups representing Aboriginal interests in the Supreme Court of Canada have been integrated into the discourse of the Court and the decisions of political actors in Canada. The authors' analysis confirms the hypothesis that the Court, in contrast to its favourable treatment of private claims made by social minorities, is less receptive to the claims made by Aboriginals, a political minority whose claims are centered on political power and territory, issues that have been relegated to political negotiations. The significant difference between judicial and political decisionmakers concerning Aboriginal …

The Legal Regulation Of Adult Personal Relationships: Evaluating Policy Objectives And Legal Options In Federal Legislation, Brenda Cossman, Bruce Ryder

Commissioned Reports, Studies and Public Policy Documents

Few would dispute that adult personal relationships characterized by caring and commitment ought to be recognized and supported by the state because of their fundamental importance to the well-being of individuals and communities. The law has long sought to identify these relationships by reference to ties of blood, marriage or adoption. Contemporary norms, however, value adult personal relationships by reference to their qualitative attributes rather than their formal legal status. This shift in normative assumptions has accompanied profound shifts in Canadians’ living arrangements over the course of the last thirty years. We have witnessed a decline in the marriage rate, …

Making Sense Of Aboriginal And Treaty Rights, Brian Slattery

Brian Slattery

No abstract provided.

Left Out In The Cold: The Problem With Aboriginal Title Under Section 35(1) Of The Constitution Act, 1982 For Historically Nomadic Aboriginal Peoples, Brian J. Burke

Osgoode Hall Law Journal

In R. v. Adams and Delgamuukw v. British Columbia, the Supreme Court of Canada made statements to the effect that certain historically nomadic Aboriginal groups may be unable to make out a claim for Aboriginal title under section 35(1) of the Constitution Act, 1982. In light of the anthropological evidence relating to the close connection some of these groups enjoyed with the lands they occupied, a serious injustice may arise if these groups are indeed barred from an Aboriginal title claim. The author attempts to correct this potential injustice by demonstrating that at least some of these historically nomadic groups …

Bill 11, The Canada Health Act And The Social Union: The Need For Institutions, Sujit Choudhry

Osgoode Hall Law Journal

This article argues that the debate over the future of Medicare has been dominated by financial considerations at the expense of an examination of the place of supervisory institutions in the health care system. Supervisory institutions will be of central importance to the future of Medicare because any future system will include some national standards, which, to be effective, must be interpreted, applied and enforced by institutions of some kind. This article focuses on two specific institutional questions: the dismal record of federal enforcement of the existing national standards of the Canada Health Act, and the pressing need for dispute-settlement …

Law's Expression: The Promise And Perils Of Judicial Opinion Writing In Canadian Constitutional Law, Paul Horwitz

Osgoode Hall Law Journal

This article argues that there is a link between one's theory of constitutional law, and one's judgments about style in judicial opinion writing. It identifies several special functions of the constitutional opinion, including the democratic function of responding to the counter-majoritarian difficulty through an act of public justification, and the inter-generational function of provoking a temporally extended dialogue about constitutional values. Drawing on these functions, it argues for an opinion writing style dubbed "open-textured minimalism," that seeks to resolve cases narrowly, articulate fundamental values and principles, and spark long-term debates about the underlying constitutional values supporting each decision. The author …

See No Evil, Hear No Evil, Remedy No Evil: How The Ontario Rental Housing Tribunal Is Failing To Protect The Most Fundamental Rights Of Residential Tenants, Paul Stuart Rapsey

Journal of Law and Social Policy

No abstract provided.

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

Articles & Book Chapters

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 …