Law Commons^™

Unconstitutional Or Just Unworkable? The Life And Death Of A Prohibition On Floor-Crossing In Fletcher V The Government Of Manitoba, Andrew Martin

Articles, Book Chapters, & Popular Press

Fletcher v the Government of Manitoba is the first reported challenge to a floor-crossing prohibition under the Canadian Charter of Rights and Freedoms. This case comment begins with the legislative history of the challenged provision and then provides an overview and critique of the reasons in Fletcher. Against this backdrop, it then reflects on the lessons of the case in two respects. The first is the difficulty in translating a policy idea into legislation – specifically, defining the conduct to be prohibited and determining the appropriate deterrent or penalty for breach. The second respect is the government’s role in …

La Saisie De Données Situées Dans Le Nuage En Droit Criminel Canadien, Laura Ellyson

Canadian Journal of Law and Technology

L’article 8 de la Charte canadienne des droits et libertés prévoit que « chacun a droit à la protection contre les fouilles, les perquisitions ou les saisies abusives ». Cette disposition a fait couler beaucoup d’encre depuis son adoption, mais aussi plus récemment en raison de son application aux nouvelles technologies. En effet, dans les 20 dernières années, la Cour suprême du Canada a adapté les principes généraux découlant des fouilles, saisies et perquisitions aux réalités informatiques nouvelles, notamment l’ordinateur et le cellulaire. Toutefois, l’émergence de nouvelles technologies est un phénomène qui ne cesse jamais. L’essor de l’infonuagique, ce modèle …

Just Care: A Relational Approach To Autonomy And Decision Making Of Parents Committed To Religious Or Indigenous Traditional Practices, Tu-Quynh Trinh

LLM Theses

Hamilton Health Sciences Corp. v. D.H. and B. (R.) v. Children’s Aid Society of Metropolitan Toronto tell important stories about people and relationships—and about parenthood; autonomy; religious believers and cultural communities; and the role of the state in family, culture, and religion. Their narratives were influenced by liberalism and emphasize a degree of individualism that is incongruous given the subject matter of parent child relationships and their place within communities and the law. This thesis explores the application of relational theory and the integrated principles of justice and care to these issues. Ultimately, the stories these judicial opinions tell help …

Lest Law Forget: Locke's Toleration And Religious Freedom, Stephen Holt

LLM Theses

The Canadian Charter of Rights and Freedoms guarantees every person in Canada freedom of conscience and religion. I contend that the concept of religious freedom was born out of a history of religious suffering and originally took the form of John Locke’s toleration of religious differences. In Big M, the first Supreme Court of Canada case that interpreted s. 2(a), Chief Justice Dickson recognized the historical context of religious freedom but also tied it to human autonomy, equality, and dignity. An examination of the cases since Big M suggests that when courts think in terms of tolerance, they accord greater …

“Greening” The Charter: Section 7 And The Right To A Healthy Environment, Lauren Worstman

Dalhousie Journal of Legal Studies

Canada is among one of the few remaining United Nations member states that does not have a constitutionally protected right to a healthy environment. Amid concerns about climate change and its impact on human health and well-being, the Constitution has become a focal point for advancing environmental justice in Canada. This paper explores three questions surrounding environmental rights and the Constitution. First, does the right to life, liberty, and security of the person, protected by section 7 of the Canadian Charter of Rights and Freedoms, protect a right to a healthy environment? If it does, would such a right strengthen …

A School Divided: A Historicist Legal Analysis Of Good Spirit School Division No 204 V Christ Teacher Roman Catholic Separate School Division No 212, Edward (Ted) R. Lewis

Dalhousie Journal of Legal Studies

On the cusp of a judgment by the Saskatchewan Court of Appeal, this article examines the 2017 Saskatchewan Court of Queen’s Bench decision in Good Spirit School Division No 204 v Christ the Teacher Roman Catholic Separate School Division No 212. In this case, the SKQB ruled that non-Catholic students attending a publicly funded Catholic school were not entitled to per-student funding grants administered by the provincial government. This article reviews the case using a historicist lens informed by the philosophy of Edmund Burke, which the author suggests is appropriate in the Canadian constitutional context. Through this constitutional lens, the …

Proceedings Of Expert Forum On First Nations Social Assistance Reform, September 3, 2019, Naiomi Metallic, Fred Wien

Articles, Book Chapters, & Popular Press

Social assistance, whether directed to the mainstream population or to First Nations, is not – according to Forum participants -- a sexy topic. Specifically, with respect to First Nation persons living on reserve in Canada, it has been largely a neglected field except for those directly responsible for administering it. Despite its substantive importance, it has not received a lot of attention from the academic research community, for example, nor is it usually near the top of the list of priorities for political leaders and governments.

Why is this the case? Perhaps it has to do with the history of …

The Spousal Support Advisory Guidelines, Soft Law, And The Procedural Rule Of Law, Jodi Lazare

Articles, Book Chapters, & Popular Press

The Spousal Support Advisory Guidelines facilitate discretionary spousal support determinations under the Divorce Act. Non-binding in nature, they are expected to restore some transparency to an uncertain and unpredictable remedy and to benefit dependent spouses who might previously have been deterred from claiming support. They may thus be seen as an important tool for advancing economic justice at family breakdown and promoting substantive economic gender equality. Several Canadian appellate courts have enthusiastically endorsed them. Others object to their application, grounding their resistance in their unofficial and non-binding character. This paper responds to that objection, based on the constitutional separation of …

The Science, Law, And Politics Of Canada's Pathways To Paris: Introduction To Ubc Law Review's Special Section On Climate Change And Canada, Jason Maclean, Meinhard Doelle, Chris Tollefson

Articles, Book Chapters, & Popular Press

This brief essay introduces two articles comprising a special section of the UBC Law Review on climate change law and policy in Canada.

Extradition And Trial Delays: Recent Developments (And Lessons?) From Canada, Robert Currie, Laura Ellyson

Articles, Book Chapters, & Popular Press

Extradition – the formal rendition of criminal fugitives between states – is well-known to be a time-consuming process that often has impacts, minor or major, on the ability of states to complete prosecution in a timely manner. Thus, the extradition process can sometimes be at odds with the right to trial within a reasonable time, which is part of the overall package of fair trial rights enshrined in international human rights law. In Canada, this right is implemented by paragraph 11(b) of the Canadian Charter of Rights and Freedoms. In recent years Canadian courts have developed a series of principles …

When Law Frees Us To Speak, Danielle Citron, Jonathon Penney

Articles, Book Chapters, & Popular Press

A central aim of online abuse is to silence victims. That effort is as regrettable as it is successful. In the face of cyber harassment and sexual privacy invasions, women and marginalized groups retreat from online engagement. These documented chilling effects, however, are not inevitable. Beyond its deterrent function, law has an equally important expressive role. In this article, we highlight law’s capacity to shape social norms and behavior through education. We focus on a neglected dimension of law’s expressive role—its capacity to empower victims to express their truths and engage with others. Our argument is theoretical and empirical. We …

The Canadian Legal System: An Introduction For Regulated Professions, Steve Coughlan, Dale Darling

Articles, Book Chapters, & Popular Press

To understand the influence of law on any regulated profession, one must first understand the influences on the creation of law. This introductory paper sets the context for that discussion of law by explaining the structural aspects of the legal system. Those aspects include the sources of law in Canada, the forms that law can take, and the parties who are primarily responsible for creating and shaping the law. This paper is structured around the discussion of four things: constitutional law, non-constitutional law, decision-makers in the legal system and, finally, a case study illustrating those features in action.