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Articles 1 - 13 of 13
Full-Text Articles in Law
Towards An Equality-Enhancing Conception Of Privacy, Jane Bailey
Towards An Equality-Enhancing Conception Of Privacy, Jane Bailey
Dalhousie Law Journal
Canadian jurisprudence has explicitly recognized the impact of child pornography on the privacy rights of the children abused in its production. In contrast, it has generally not analyzed other forms of harmful expression, such as hate propaganda and obscenity,to be violations of the privacy rights of those targeted. In a previous article, the author suggested that this distinction in the jurisprudence reflected the relative ease with which the privacy interests of the individual children whose abuse is documented inchild pornography meshed with the prevalent Western approach toprivacy as a negative individual liberty against intrusion. Noting the historic role that the …
The Boundaries Of The Criminal Law: The Criminalization Of The Non-Disclosure Of Hiv, Isabel Grant
The Boundaries Of The Criminal Law: The Criminalization Of The Non-Disclosure Of Hiv, Isabel Grant
Dalhousie Law Journal
In this paper, the author examines the trend toward the increased criminalization and punishment of persons with HIV who fail to inform their stxual partners of their HIV-positive status. Since the Supreme Court of Canada's decision in R. v. Cuerrier, such behaviour may constitute aggravated assaultor aggravated sexual assault, the latter offence carrying a maximum sentence of life imprisonment. The paper surveys the Canadian case law and highlights the trend towards the imposition of increasingly harsh sentences. After reviewing public-health and criminal law options for dealing with nondisclosure of one's HIV status, the author concludes that criminal law should only …
Missing Privacy Through Individuation: The Treatment Of Privacy Law In The Canadian Case Law On Hate, Obscenity, And Child Pornography, Jane Bailey
Dalhousie Law Journal
Privacy is approached differently in the Canadian case law on child pornography than in hate propaganda and obscenity cases. Privacy analyses in all three contexts focus considerable attention on the interests of the individuals accused, particularly in relation to minimizing state intrusion on private spheres of activity However, the privacy interests of the.equality-seeking communities targeted by these forms of communication are more directly addressed in child pornography cases than in hate propaganda and obscenity cases. One possible explanation for this difference is that hate propaganda and obscenity simply do not affect the privacy interests of targeted groups and their members. …
Retribution, Restoration, And White-Collar Crime, Katherine Beaty Chiste
Retribution, Restoration, And White-Collar Crime, Katherine Beaty Chiste
Dalhousie Law Journal
A "restorative" approach to criminality and conflict has been proposed in a number of common law jurisdictions in a variety of legal contexts, both civil and criminal, with an interesting exception: white-collar crime, which is discussedin an almost exclusively retributive vocabulary. This paper explores what a specifically restorative response to white-collar crime might look like, a response which above all else would seek to heal the harm the crime has done. In particular,the author looks at the possibilities for voluntary participation of victims and offenders; broad stakeholder inclusion and a focus on future relations rather than past offences-all necessaryparts of …
Arbitrary Detention: Whither - Or Wither? - Section 9, Stephen Coughlan
Arbitrary Detention: Whither - Or Wither? - Section 9, Stephen Coughlan
Articles, Book Chapters, & Popular Press
It is a remarkable fact that more than 25 years after the Canadian Charter of Rights and Freedoms came into effect, we still have no section 9 jurisprudence. It is not that there have been no decisions at all concerning the right not to be arbitrarily detained, of course, but taken in total they do not come anywhere near setting out an analytical framework. This stands in contrast to most other legal rights in the Charter. Section 7 jurisprudence has established the two-step approach to take in assessing claims under that section, including a three-step test for determining whether a …
Re-Interpreting The Criminal Regulation Of Sex Work In Light Of R C Labaye, Elaine Craig
Re-Interpreting The Criminal Regulation Of Sex Work In Light Of R C Labaye, Elaine Craig
Articles, Book Chapters, & Popular Press
In 2005, the Supreme Court of Canada revised the meaning of indecency under the Criminal Code. This was achieved by removing from its definition any reliance on the community standard of tolerance test. In R. c. Labaye the Court reinforced the notion that the focus of laws regulating sexuality should not be based on sexual morality and moral harm to society but rather on political morality and actual harm to individuals. The reasoning in R. c. Labaye should change the way that courts understand the prostitution-related provisions in the Criminal Code. In particular, a proper application of its reasoning suggests …
Improving Privacy Protection, But By How Much?, Steve Coughlan
Improving Privacy Protection, But By How Much?, Steve Coughlan
Articles, Book Chapters, & Popular Press
The discussion of reasonable expectation of privacy in R. v. M. (A.) is extremely useful. In the wake of Tessling, many courts had effectively reduced the protection offered by s. 8 based on two arguments: that what was detected was an emanation in the public domain similar to heat coming from a house, and that what was discovered merely related to informational privacy and was not part of the biographical core of such data. Justice Binnie's decision puts paid the notion that either of these arguments is a trump card. He suggests that generalizing about "emanations" is not a useful …
Reforming Homicide Law To Separate Guilt From Sentence: An International Gloss, Steve Coughlan
Reforming Homicide Law To Separate Guilt From Sentence: An International Gloss, Steve Coughlan
Articles, Book Chapters, & Popular Press
This article argues that Canadian homicide law is handicapped by trying to combine two contradictory approaches. In general, Canadian criminal law adopts the approach of setting out relatively rigid rules for determining guilt or innocence. That is, the Criminal Code sets out particular offences, and if the elements of an offence can be proven, then failing the presence of any defence (also relatively rigidly defined), any accused will be found guilty. The question of guilt or innocence is not individualized to the circumstances of the offender. On the other hand, sentencing decisions adopt exactly the opposite approach, and are made …
The End Of Constitutional Exemptions, Steve Coughlan
The End Of Constitutional Exemptions, Steve Coughlan
Articles, Book Chapters, & Popular Press
In R. v. Ferguson (reported ante p. 197) the Supreme Court decided that constitutional exemptions are not available as a remedy when a mandatory minimum sentence is said to violate section 12 of the Charter. This is a well reasoned and sensible decision. As mandatory minimum sentences are the context in which the possibility of the constitutional exemption as a Charter remedy has most frequently arisen, as a practical matter Ferguson largely disposes of the issue. Nonetheless, a further clarification at some point that constitutional exemptions are not available in any context, for other violations of section 12 or of …
Let My People Go: Human Capital Investment And Community Capacity Building Via Meta/Regulation In A Deliberative Democracy - A Modest Contribution For Criminal Law And Restorative Justice, Bruce P. Archibald
Articles, Book Chapters, & Popular Press
Globalization and the new information economy are putting great stress on western high-wage economies of which Canada is an exemplar. As individuals and together as a society, Canadians are being forced to become more flexible and strategic in adjusting to changing employment opportunities and economic challenges. Meanwhile, governments have shifted from being purveyors of welfare to being supervisors of both markets and decentralized/ privatized public services. Key roles for the government in this new political environment are the sponsorship of mechanisms for autonomous, individual human capital investment as well as for community responses to these emerging economic and social challenges. …
Prenatal Management Of Anencephaly, Rebecca J. Cook, Joanna Erdman, Martin Hevia, Bernard M. Dickens
Prenatal Management Of Anencephaly, Rebecca J. Cook, Joanna Erdman, Martin Hevia, Bernard M. Dickens
Articles, Book Chapters, & Popular Press
About a third of anencephalic fetuses are born alive, but they are not conscious or viable, and soon die. This neural tube defect can be limited by dietary consumption of foliates, and detected prenatally by ultrasound and other means. Many laws permit abortion, on this indication or on the effects of pregnancy and prospects of delivery on a woman's physical or mental health. However, abortion is limited under some legal systems, particularly in South America. To avoid criminal liability, physicians will not terminate pregnancies, by induced birth or abortion, without prior judicial approval. Argentinian courts have developed means to resolve …
Rodriguez Redux, Jocelyn Downie, Simone Bern
Rodriguez Redux, Jocelyn Downie, Simone Bern
Articles, Book Chapters, & Popular Press
Assisted suicide has once again surfaced as an issue of public attention. Just in the past year, four cases have been in the news. In addition the results of a major study on the attitudes of cancer patients in palliative care towards euthanasia and physician-assisted suicide and the results of an Ipsos Reid public opinion poll on assisted suicide were released. Vigorous calls both for and against the decriminalization of assisted suicide followed. Given that it has been fifteen years since the release of the most famous assisted suicide case in Canada, and given this recent spate of attention, we …
Arbitrary Detention: Whither - Or Wither? - Section 9, Steve Coughlan
Arbitrary Detention: Whither - Or Wither? - Section 9, Steve Coughlan
Articles, Book Chapters, & Popular Press
It is a remarkable fact that more than 25 years after the Canadian Charter of Rights and Freedoms came into effect, we still have no section 9 jurisprudence. It is not that there have been no decisions at all concerning the right not to be arbitrarily detained, of course, but taken in total they do not come anywhere near setting out an analytical framework. This stands in contrast to most other legal rights in the Charter. Section 7 jurisprudence has established the two-step approach to take in assessing claims under that section, including a three-step test for determining whether a …