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Articles 1 - 13 of 13
Full-Text Articles in Law
Creating A System For All Parents: Rethinking Procedural And Evidentiary Rules In Proceedings With Self-Represented Litigants, Cassandra Richards
Creating A System For All Parents: Rethinking Procedural And Evidentiary Rules In Proceedings With Self-Represented Litigants, Cassandra Richards
Dalhousie Law Journal
Through qualitative interviews undertaken with ten judges at the Superior Court of Québec, this study considers the procedural and evidentiary challenges faced by self-represented litigants in family law matters. Subsequently, this paper offers solutions to the problems identified. The goal of this paper is to provide legal participants with concrete techniques to facilitate proceedings with SRLs that uphold their duty of impartiality and duty of assistance. While this article will likely be useful for judges who engage with SRLs daily, it will also be of interest to those working on issues relating to access to justice, SRLs, as well as …
Private Search And Seizure: The Constitutionality Of Anton Piller Orders In Canada, Dimitros Valkanas
Private Search And Seizure: The Constitutionality Of Anton Piller Orders In Canada, Dimitros Valkanas
Dalhousie Law Journal
This paper examines the constitutionality of the Anton Piller order in Canadian law. First, the paper examines whether Anton Piller orders overall are unconstitutional through three major avenues of attack: (i) Charter challenges; (ii) the ultra vires doctrine; and (iii) the principle of natural justice, audi alteram partem. Afterwards, in the event that no challenge against Anton Piller orders broadly would succeed, the paper examines whether their uniquely Canadian variant known as a “rolling” or “John (or Jane) Doe” Anton Piller orders could be challenged, looking at both Charter and non-Charter challenges. Finally, this paper proposes the imposition of additional …
Judicial Treatment Of Aboriginal Peoples’ Oral History Evidence: More Room For Reconciliation, Jimmy Peterson
Judicial Treatment Of Aboriginal Peoples’ Oral History Evidence: More Room For Reconciliation, Jimmy Peterson
Dalhousie Law Journal
Oral history is the only past record in many Aboriginal groups in Canada. In 1997, in Delgamuukw, the Supreme Court of Canada recognized that the strict approach to evidence law with respect to oral history had to be relaxed for Aboriginal peoples to be able to pursue claims to Aboriginal rights or Aboriginal title. This was a necessary element of the attempt to achieve reconciliation between Aboriginal and non-Aboriginal peoples. Yet, while evidence law has become increasingly flexible when it comes to accommodating Aboriginal peoples, courts have struggled with how to value oral traditions. A review of the case …
Hit Them Where It Hurts: State Responses To Biker Gangs In Canada, Graema Melcher
Hit Them Where It Hurts: State Responses To Biker Gangs In Canada, Graema Melcher
Dalhousie Law Journal
From civil and criminal forfeiture, to "gangsterism"offences in the Criminal Code, Canada does not lack for tools to address biker gangs. Yet attempts to stamp out bikers have met with little to no success. State responses to criminal organizations should use those organizations' own structures and symbols of power against them. A gang's reputation may be effectively used against a gang, but this strategy poses significant challenges to prosecution. Attempts to use a gang's internal hierarchy and administrative structure can succeed, but may only produce circumstantial findings if not supported by sufficient and substantial evidence. Attempts to combat gang violence …
Trial By Theory: A Response To Acharya's "Law's Treatment Of Science: From Idealization To Understanding", Gary Edmond, Kent Roach
Trial By Theory: A Response To Acharya's "Law's Treatment Of Science: From Idealization To Understanding", Gary Edmond, Kent Roach
Dalhousie Law Journal
Adopting a pragmatic and empirically sensitive approach to the use of forensic science and medicine, this essay defends Edmond and Roach's "AContextual Approach to the Admissibility of the State's Forensic Science and Medical Evidence." The authors reiterate their concerns about idealized approaches to science and expertise and question the utility of philosophically-driven and essentialist models of science for legal practice. In detail the essay explains why privileging process over outcomes in the criminal process (andeven perpetuating the dichotomy) is misguided. The authors affirm the importance of factual accuracy and the socio-institutional illegitimacy generated by wrongful convictions. Drawing upon recent inquiries …
The Admissibility Of Electronic Business Records, Ken Chasse
The Admissibility Of Electronic Business Records, Ken Chasse
Canadian Journal of Law and Technology
The business record provisions of the Evidence Acts determine a record’s admissibility by evidence of its history, which must be the product of “the usual and ordinary course of business” (or comparable “business activity” wording). The electronic record provisions determine a record’s admissibility by the, “integrity of the electronic records system in which it is recorded or stored.” The difference is, records management (RM) based on “paper records concepts” versus “electronic records systems concepts.” The former is subjective — each business determines its own “usual and ordinary course of business”; the latter, objective — in accor- dance with authoritative standards …
Clarifying Causation In Tort, Erik S. Knutsen
Clarifying Causation In Tort, Erik S. Knutsen
Dalhousie Law Journal
This article argues that there is nothing overly confusing about the law ofcausation in negligence. It attempts to define the current state of causation in Canadian negligence law with a simple goal in mind: to have a clearer more productive conversation about the law with the fundamental concepts clearly on the table. The author argues that while the leading decisions on causation are often couched in broad-based, universal terminology to refrain from inhibiting conceptual portability,the cases can be read as a sustained continuum of conversations about causation. A cohesive framework for the law is offered by taking a longitudinal perspective …
R' Blake Brown, A Trying Question: The Jury In Nineteenth-Century Canada, Mary Stokes
R' Blake Brown, A Trying Question: The Jury In Nineteenth-Century Canada, Mary Stokes
Dalhousie Law Journal
In a 1984 review essay on the inter-relationship(s) oflaw and society in English criminal law historiography, Doug Hay observed that "in history, there is no 'background,"" His point was that there are an infinite number ofbackgrounds, all of which are moving and changing, often in non-linear fashion, at different paces, either in counter-point or direct dialogue with the foreground which is the immediate subject ofexposition. Legal historians who put their topics "in context" by treating the background as static are now fortunately few, at least when this background is conceived of as social or economic. But as Hay observed, the …
The Criminal Defence Lawyer's Role, David Layton
The Criminal Defence Lawyer's Role, David Layton
Dalhousie Law Journal
Defence lawyers often fight to prevent the conviction of people who have committed serious crimes. How can this role be justified? In providing his answer the author generally accepts the traditional view of criminal lawyering according to which defence counsel "does good" by ensuring that the state does not obtain a conviction in the absence of proof beyond a reasonable doubt based on admissible and reliable evidence Ethical advocacy in the criminal context is thus heavily influenced by a conception of justice that includes not only the search for truth but also due process rights for accused persons. The author …
Psychiatric Evidence Of Sexual Assault Victims: The Need For Fundamental Change In The Determination Of Relevance, Sadie Bond
Dalhousie Law Journal
What follows is a discussion of the use of evidence of the complainant's psychiatric history in sexual assault trials. I will argue that the introduction of this evidence is sought mainly for the purpose of discrediting the complainant's testimony, as part of an "attack the victim" strategy. The admissibility of this evidence as relevant is the product of unfounded myths and sex-biased, if not misogynist, views about women. This evidence is rarely, if ever, relevant and its minimal probative value is, in most cases, far outweighed by its potential for exacerbating or perpetuating sex bias in the sexual assault trial. …
La Preuve, Les Techniques Modernes Et Le Respect Des Valeurs Fondamentales, Wafe Maclauchlan
La Preuve, Les Techniques Modernes Et Le Respect Des Valeurs Fondamentales, Wafe Maclauchlan
Dalhousie Law Journal
In La preuve, les techniques modernes et le respect des valeurs fondamentales, Professor Pierre Patenaude has produced a scholarly and practical inquiry into the question of how law responds to science. This book raises questions of the gathering, the admissibility and the reliability of evidence through modem techniques such as electronic surveillance, breathalyzer tests, lie detectors, radar, the administration of truthinducing drugs, and hypnosis. It combines a thoughtful examination of values underlying the law of evidence with an introduction to the complexities and the frailities of scientific investigative techniques.
Privileged Communications: A Proposal For Reform, Leslie Katz
Privileged Communications: A Proposal For Reform, Leslie Katz
Dalhousie Law Journal
The privileged communications rules may prevent a party to litigation from bringing into evidence matters he wishes to bring. His inability to do so may lead to a result less favourable to him than that which he would have obtained had a claim of privilege not barred his way. This different result may not only put him in a worse position than he would otherwise have been in, but may have harmful consequences for others as well, consequences which may be too subtle even to detect at the time the privilege is exercised. How likely is it that the privileged …
Reform Of The Law Of Evidence In Criminal Cases, J. A. Coutts
Reform Of The Law Of Evidence In Criminal Cases, J. A. Coutts
Dalhousie Law Journal
Events surrounding the recent proposals for the reform of the English law of evidence in criminal cases may be thought to afford a cautionary tale, indicating the wrong way to engage in public debate upon such matters. In 1964, the Home Secretary asked the Criminal Law Revision Committee to review the law of evidence in criminal cases. Before its Report1 was published (some eight years later), and, indeed, before the Home Secretary had himself received it, there occurred a flood of critical comment in the Press and on radio and television, and questions in Parliament, on what were thought (not …