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Articles 1 - 30 of 58
Full-Text Articles in Law
Insulated From Justice? Religious Expulsion Before Canadian Courts In The Post-Highwood Era, Adam Schenk
Insulated From Justice? Religious Expulsion Before Canadian Courts In The Post-Highwood Era, Adam Schenk
Dalhousie Law Journal
Judicial consideration of religious disputes prompt concerns that the legal system may delve into issues of a spiritual nature that should enjoy some insulation from legal comment or intervention. These concerns are only heightened in instances where the dispute concerns the very serious issue of the expulsion of a member from their religious community. While necessary care is warranted in these sensitive circumstances, a blanket prohibition on legal intervention in instances of religious expulsion creates the possibility that a member of a religious community may experience the devastation of expulsion in an unfair and unjust manner. This paper, written prior …
The Conceptual Gap Between Doré And Vavilov, Mark Mancini
The Conceptual Gap Between Doré And Vavilov, Mark Mancini
Dalhousie Law Journal
This paper argues that there is a fundamental conceptual gap between the cases of Doré and Vavilov. This is because both cases are motivated by different conceptions of administrative law. In Vavilov, the paper suggests that the Court melded together two theories of judicial review; a Diceyan theory based on a harmonious understanding of the principles of legislative sovereignty and the Rule of Law; and a “culture of justification” for administrative decision-makers. On the other hand, Doré is motivated by a functionalist understanding of administrative law, in which the expertise of decision- makers is emphasized. The paper explores the doctrinal …
Foreword, Michael Macdonald
The Story Of Law Reform In Nova Scotia: A Perilous Enterprise, Bill Charles
The Story Of Law Reform In Nova Scotia: A Perilous Enterprise, Bill Charles
Dalhousie Law Journal
The basic or overarching question addressed by the author is why institutional law reform in Nova Scotia has experienced such operational difficulties and challenges, particularly in relation to funding, to the point where it can be described as a perilous enterprise. In the process of searching for an answer to this question, the author examines the origins and development of organized law reform in Nova Scotia over the last 65 years, with special attention paid to the experience of Nova Scotia's two statutory commissions. As a backdrop to the discussion, the author examines the complicated process of law reform itself …
Self-Represented Litigants, Active Adjudication And The Perception Of Bias: Issues In Administrative Law, Michelle Flaherty
Self-Represented Litigants, Active Adjudication And The Perception Of Bias: Issues In Administrative Law, Michelle Flaherty
Dalhousie Law Journal
This paper advocates for a more active role for adjudicators, one in which they provide direction to parties and actively shape the hearing process. Active adjudication can be an important access to justice tool. Without some direction and assistance from the adjudicator, growing numbers of self-represented litigants cannot meaningfully access administrative justice. Importantly, however, as the role of the adjudicator shifts, so too must our understanding of the notion of impartiality If it is unfair to expect self-represented litigants to navigate the hearing process without adjudicative assistance and direction, it is also unfair to insist on a vision of impartiality …
The Attorney General As Lawyer (?): Confidentiality Upon Resignation From Cabinet, Andrew Flavelle Martin
The Attorney General As Lawyer (?): Confidentiality Upon Resignation From Cabinet, Andrew Flavelle Martin
Dalhousie Law Journal
The unique role of the attorney general raises several special issues oflegal ethics. This paper addresses one previously unaddressed: whether it is appropriate for the attorney general to publicly announce his or her reasons for resighing from Cabinet. Unlike other ministers, the attorney general is almost always a practicing lawyer and thus bound not only by Cabinet solidarity and Cabinet confidentiality, but also by the lawyer's professional duty of confidentiality and by solicitor-client privilege. The paper begins by canvassing a hierarchy ofreasons for a principled resignation and the rare historical examples where these have occurred. It then turns to the …
The Tabling Of International Treaties Inthe Parliament Of Canada: The First Four Years, Ted L. Mcdorman
The Tabling Of International Treaties Inthe Parliament Of Canada: The First Four Years, Ted L. Mcdorman
Dalhousie Law Journal
In January 2008, the government ofCanada announced the adoption of the policy that international treaties would be tabled in the House of Commons following their signature or adoption and prior to Canada formally notifying its intention to be bound by the treaty. This article provides an overview of the Tabling Policy, the domestic legal structure of treaty-making in Canada, a description of the international instruments that have been tabled under the Policy from 2008 to 2011, and a review of the one treaty that has been discussed at length in the House of Commons.
Lawyering At The Intersection Of Public Law And Legal Ethics: Government Lawyers As Custodians Of The Rule Of Law, Adam M. Dodek
Lawyering At The Intersection Of Public Law And Legal Ethics: Government Lawyers As Custodians Of The Rule Of Law, Adam M. Dodek
Dalhousie Law Journal
Government lawyers are significant actors in the Canadian legal profession, yet they are largely ignored by regulators and by academic scholarship. The dominant view of lawyering fails to adequately capture the unique role of government lawyers. Government lawyers are different from other lawyers by virtue of their role in creating and upholding the rule of law Most accounts of government lawyers separate public law duties of government from ethical duties of lawyers; for example, acknowledging the "public interest" role ofgovernment lawyers but asserting that this has no impact on their ethical duties as lawyers. Instead of this compartmentalized approach, this …
Section 2(B) Advertising Rights On Government Property: Greater Vancouver Transportation Authority, Anew Can Of Worms And The Liberty Two Step?, Elaine Craig
Dalhousie Law Journal
The Supreme Court's recent decision inVancouver Transportation is problematic for two reasons. First, the majority adopts an analytical framework for determining whether a claim triggers the positive rights Dunmore/Baier analysis, which means that policies restricting expressive rights based on groups rather than content could be less likely to fall within the scope of section 2(b). A better approach would be to characterize section 2(b) cases based on the nature of the claim rather than the nature of the restriction and to apply the positive rights Dunmorel Baier criteria only where the claim is for an audience with the government or …
Annotated Language Laws Of Canada: Constitutional, Federal, Provincial And Territorial Laws, Teresa Scassa
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 …
The Form And Substance Of Ethics: Prenatal Diagnosis In The Baird Report, Rachel Ariss
The Form And Substance Of Ethics: Prenatal Diagnosis In The Baird Report, Rachel Ariss
Dalhousie Law Journal
This article analyses the employment of textual tactics in the Final Report of the Royal Commission on New Reproductive Technologies. The author argues that the Commission uses these tactics to persuade several different audiences that its stance is correct, and simultaneously to manage dissent over new reproductive technologies. Analysis of textual tactics opens the ethical position of the Commission to substantive questioning. The authorfocuses on the Commission's discussion of prenatal diagnosis for genetic anomalies and concludes that the Commission fails to engage with ethical arguments put forward by persons with disabilities and their advocates. The conclusion also encourages the development …
Visible Minorities In The Multi-Racial State: When Are Preferential Policies Justifiable?, Anita Anand
Visible Minorities In The Multi-Racial State: When Are Preferential Policies Justifiable?, Anita Anand
Dalhousie Law Journal
This article outlines the circumstances in which the state is justified in implementing preferential policies in favour of visible minorities and describes an approach to policy formulation. The thesis is that visible minorities warrant preferential treatment in order to rectify past injustices and to redistribute advantages to visible minorities who are chronically poor. "Supply-side" over "demand-side" policies are favoured. Supply-side policies are preferable because they support substantive equality by ensuring that individuals have a minimum level of subsistence. If the goal of achieving substantive equality is to be achieved, the poor should also be entitled to benefit under preferential policies. …
Salvaging The Welfare State?: The Prospects For Judicial Review Of The Canada Health & Social Transfer, Lorne Sossin
Salvaging The Welfare State?: The Prospects For Judicial Review Of The Canada Health & Social Transfer, Lorne Sossin
Dalhousie Law Journal
The Canadian Health and Social Transfer ("CHST"), which came into force on April 1, 1996, contains no national standards relating to the quality of social welfare. The goal of this new transfer was to promote provincial flexibility in the sphere of social policy. The author argues that this flexibility may undermine the core of the Canadian welfare state. Given the preoccupation of the provincial and federal governments with devolution, welfare recipients must turn to the judiciary to determine the "bottom line" of the welfare state. The author explores the various constitutional and administrative law grounds on which the federal government's …
Balancing Regional Government Health Mandateswith Federal Economic Imperatives: Perspectives Fromnova Scotia And Illinois, John Blum
Dalhousie Law Journal
This article focuses on current health policy changes in Canada and the United States at the federal and regionallevels. The Canadian discussion centres on the integrity of the Canada Health Act in the era of the Canada Health and Social Transfer, and the strategies that provincial governments have pursued to cope with persistent funding constraints. On the American side, the article examines the role of private sector managed care plans in filling a health policy void resulting from the demise of the Clinton Health Security Act. Two specific regional government health reform initiatives in Nova Scotia and Illinois are discussed …
"Cinderella" Services In The Nhs Internal Market:Does Contracting Make A Difference?, David Hughes, Siobhan Mcclelland, Lesley Griffiths
"Cinderella" Services In The Nhs Internal Market:Does Contracting Make A Difference?, David Hughes, Siobhan Mcclelland, Lesley Griffiths
Dalhousie Law Journal
This paper examines the impact of the NHS internal market reforms on an aspect of equity in the British system that features little in recent policy commentary: the allocation of resources between acute services for the entire population and nonacute services for the elderly, the mentally ill, and the disabled (the so-called "Cinderella" services). The authors' research on health planning and contracting in the NHS in Wales suggests that patterns of services have remained largely unchanged, and that pressures in the reformed system, such as the Patient's Charter initiative, prevent any major reallocation of resources away from the acute sector. …
The Impact Of The Purchaser Provider Funding Model Inthe U.K. On The Independence Of Persons With Disabilities:Implications For Canada, Sandra G. Leggat, Gaétan S. Tardif
The Impact Of The Purchaser Provider Funding Model Inthe U.K. On The Independence Of Persons With Disabilities:Implications For Canada, Sandra G. Leggat, Gaétan S. Tardif
Dalhousie Law Journal
Through large-scale system restructuring, a number of jurisdictions around the world have adopted a purchaserprovider approach to the funding and delivery of health care services. In this model, a decision-making body, such as a regional board, is provided with a budget to purchase health care services on behalf of, and in response to the identified needs of a defined population. This paper reviews the purchaser provider funding model of the United Kingdom and comments on the impact of this system on the health needs of individuals with disabilities. Generally, the purchaser provider split in the U.K. appears to have resulted …
Accountability Of Health Service Providers:Comparing Internal Markets And Managedcompetition Reform Models, Colleen M. Flood
Accountability Of Health Service Providers:Comparing Internal Markets And Managedcompetition Reform Models, Colleen M. Flood
Dalhousie Law Journal
A numberof countries, including the U.K., NewZealand, the Netherlands, and the U.S., have attempted to reform their health care systems using "internal market" or "managed competition" reform models. These models signal a departure from reliance on passive indemnity payers or insurers and require proactive purchasers to intervene actively and manage allocation decisions made by physicians. The author explores how these models will ensure the accountability of these new decision-makers to the citizens and patients they ultimately represent. Neither model is found to address accountability issues sufficiently. However, the managed competition model offers the promise of tailoring market (exit), political (voice) …
A Comparative Analysis Of The Reforms In Europeanhealth Care Systems, Thomas Rathwell
A Comparative Analysis Of The Reforms In Europeanhealth Care Systems, Thomas Rathwell
Dalhousie Law Journal
Most countries in Europe are at various stages in the process of reforming their health care systems. Instead of different and more diverse systems emerging, the health reform process has resulted in a convergence on "managed competition" as the only acceptable means for delivering health care. After briefly describing the historical context, this paper examines the nature and scope of the reform process in Europe. The major features of the reforms are cost-containment and a reduction in the role of the state. There have been few systematic attempts to measure the extent to which expectations are being realized. The paper …
Lessons From Away:An Interdisciplinary Collectionof Studies Exploring Whatcanada May Learn From Othercountries' Experiences Withhealth Care Reforms, Colleen M. Flood
Lessons From Away:An Interdisciplinary Collectionof Studies Exploring Whatcanada May Learn From Othercountries' Experiences Withhealth Care Reforms, Colleen M. Flood
Dalhousie Law Journal
The Canadian health care system is considered a shining example of what it is to be Canadian: to aspire to social justice goals and to achieve those goals at a reasonable cost.' Canadians take great pride in that, by any measure, their health care system is superior to the piece-meal, expensive, and unjust U.S. health care system.
Common Problems, Different "Solutions": Learningfrom International Approaches To Improving Medicalservices Access For Underserved Populations, Morris Barer, Laura Wood
Common Problems, Different "Solutions": Learningfrom International Approaches To Improving Medicalservices Access For Underserved Populations, Morris Barer, Laura Wood
Dalhousie Law Journal
Canada shares with most OECD countries the problems associated with inequitable geographic access to physician services, and improving the geographic distribution of physicians is a policy preoccupation of all ministries of health in Canada today. Recent court challenges by newly-entering physicians to physician supply controls in B. C. and New Brunswick have brought the issue into sharp relief. The authors explore the degree to which the provinces have adopted common approaches to addressing these problems, and whether Canadian policy-makers have learned from international experience. The recent judgment in the Waldman case in B.C. is analyzed in terms of likely implications …
Managed Competition Reform In The Netherlandsand Its Lessons For Canada, Frederik T. Schut, Herbert Egm Hermans
Managed Competition Reform In The Netherlandsand Its Lessons For Canada, Frederik T. Schut, Herbert Egm Hermans
Dalhousie Law Journal
This article provides an economic and legal perspective on the managed competition reforms within the Netherlands. After an examination of the rationale and the main features of the reforms, a number of problems and dilemmas that were encountered during the implementation process will be highlighted. The authors conclude that although the logic of the managed competition model is appealing, its implementation is quite complicated and requires a strong government with a continued commitment to set and enforce the rules of competition. If these preconditions are not met, the prospects of a successful introduction of managed competition are bleak. Despite its …
In Search Of Universality, Equity, Comprehensivenessand Competition: Health Care Reform And Managedcompetition In Israel, Carmel Shalev, David Chinitz
In Search Of Universality, Equity, Comprehensivenessand Competition: Health Care Reform And Managedcompetition In Israel, Carmel Shalev, David Chinitz
Dalhousie Law Journal
Israel's ongoing health reform provides lessons regarding attempts to combine universal coverage under national health insurance with a version of managed competition. Based on principles of 'justice, equality and mutual aid," Israel's National Health Insurance Law, 1994 guarantees access to a broad basket of basic services to be provided by four competing sick funds, and the availability of resources adequate to finance the basket. The new rights of citizens to universal coverage and to move freely among sick funds constituted a major policy breakthrough. However, successive amendments to the Law reflect continuing controversy over the amount of resources required to …
Sanctions And Rewards In The Legal System: A Multidisciplinary Approach, A Wr Carrothers
Sanctions And Rewards In The Legal System: A Multidisciplinary Approach, A Wr Carrothers
Dalhousie Law Journal
This book consists of ten essays on the general theme of effective techniques for controlling and regulating social behaviour. The authors draw on the disciplines of management studies, history and criminology, public policy studies and economics, psychology, anthropology, law, sociology, and political science. They are, collectively, a modern manifestation of Roscoe Pound's concept of law in action as "social engineering".
The Aftermath Of The Marshall Commission: A Preliminary Opinion, H Archibald Kaiser
The Aftermath Of The Marshall Commission: A Preliminary Opinion, H Archibald Kaiser
Dalhousie Law Journal
Prolegomena to the Cure or the Beginning of the Epitaph: "Look, Doctor, try to see things my way. All the diagnoses have been made and the treatment has been prescribed, but somehow ... I just don't feel quite right. Sometimes I think I'll never get well. Is there something you haven't told me? The Doctor's skeptical but still deferential patient echoes the sentiments of many who have keenly observed the unfolding of the Donald Marshall, Jr. saga. A monstrous injustice was perpetrated and then sustained over a period of fifteen years in the conviction and ongoing persecution of an innocent …
Introduction & Table Of Cases, Innis Christie, A Paul Pross
Introduction & Table Of Cases, Innis Christie, A Paul Pross
Dalhousie Law Journal
Commissions of inquiry have been popular mechanisms with Canadian governments. Despite a widespread view that they are used principally to delay action while removing embarrassment from the immediate vicinity of governments, it is a fact that commissions of inquiry have repeatedly - and often highly successfully - served as vehicles for analyzing policy, for evaluating outworn or failed policy, for identifying a consensus about policy and for building support for new policy directions. They have brought facts to light both about specific incidents and about matters of policy concern; facts as diverse as what actually happened at a given time …
The Use And Abuse Of Inquiries: Do They Serve A Policy Purpose, Willard Estey
The Use And Abuse Of Inquiries: Do They Serve A Policy Purpose, Willard Estey
Dalhousie Law Journal
Professor Wade MacLauchlan: We have the great pleasure of being joined by Mr. Justice Willard Estey who, among other things, sits on the Supreme Court of Canada. As regards his involvement with commissions of inquiry, Mr. Justice Estey is eminently qualified to speak from many different experiences as advocate and counsel for various interests before commissions of inquiry during his long period as a busy practitioner. As well, during that period he served as counsel to a variety of commissions. Since going to the bench, he has conducted three inquiries; into the Steel Industry in Ontario, into Air Canada and, …
Mandates, Legal Foundations, Powers And Conduct Of Commissions Of Inquiry, A Wayne Mackay
Mandates, Legal Foundations, Powers And Conduct Of Commissions Of Inquiry, A Wayne Mackay
Dalhousie Law Journal
Indeed, it may be just as difficult to disentangle law and politics as it is to separate religious and sexual passions. While law has traditionally been presented as more value-neutral than politics, in either its academic or applied form, the inaccuracy of this view of law is becoming widely recognized. Value choices have always been a vital aspect of legal adjudication and the arrival of the Canadian Charter of Rights and Freedoms in 1982 has forced judges to be more overt about this aspect of their job.' The separation of law and politics is more a matter of mythology than …
Reflections On Commission Research, Alan C. Cairns
Reflections On Commission Research, Alan C. Cairns
Dalhousie Law Journal
This paper explores the role of research in royal commissions. It is based primarily on my experience as one of three research directors for the Royal Commission on the Economic Union and Development Prospects for Canada, popularly known as the Macdonald Commission. Since royal commissions appear in many guises, much of what I say may not apply to other commissions. In general, my remarks are more applicable to those commissions that give advice on significant public policy matters than to more narrowly investigative commissions set up in response to allegations of corruption or scandal in government or to determine the …
Comment On Inquiry Management, J G. Godsoe
Comment On Inquiry Management, J G. Godsoe
Dalhousie Law Journal
I think whether the commission is a policy commission or an investigative commission or both, as the case was with the Ocean Ranger Inquiry, a commission almost inevitably is drawn into an adversarial context. I think in the case of an investigative commission, the parties, who have interests at stake that are being investigated and adjudicated upon, will tend, over time, to start to question the validity of the commission. Likewise, a policy commission frequently is criticized as soon as it is announced or, as in the case of the MacDonald Commission, even before it was announced as being a …
Contributions Of Commissions Of Inquiry To Policy Analysis: An Evaluation, Peter Aucoin
Contributions Of Commissions Of Inquiry To Policy Analysis: An Evaluation, Peter Aucoin
Dalhousie Law Journal
Commissions of inquiry appointed to analyze major matters of public policy constitute an important organizational instrument in governance for essentially three reasons. First, their establishment enables decision-makers in government to delay or postpone decisions without being criticized for doing nothing at all. Policy analysis in this circumstance may be an excuse for a "non-decision", but at the least it ensures that the issue at hand stays on the policy agenda in a certain fashion. Second, such commissions provide for a process whereby the views of special interest groups and the interested public can be presented in a forum that is …