Open Access. Powered by Scholars. Published by Universities.®

Law Commons™

Open Access. Powered by Scholars. Published by Universities.®

Osgoode Hall Law School of York University

Journal

1992

Articles 1 - 15 of 15

Full-Text Articles in Law

Spacing Out: Towards A Critical Geography Of Law, Nicholas K. Blomley, Joel C. Bakan Jul 1992

Spacing Out: Towards A Critical Geography Of Law, Nicholas K. Blomley, Joel C. Bakan

Osgoode Hall Law Journal

The authors analyze the interconnections between space, law, and power and forge links between critical studies in law and geography. Analytical categories of space-for example, the divide between public and private space, or the concept of national citizenship-are all politically constructed. The authors analyze Canadian and American concepts of federalism and their impact on regulating worker safety. A common judicial mapping of work, local space, and state regulation determines whether local officials have enforcement authority in contexts where national worker safety regulations apply. Through this analysis, the authors illustrate the potential for future studies in critical legal geography.

Go to article

Police Implementation Of Supreme Court Of Canada Charter Decisions: An Empirical Study, Kathryn Moore Jul 1992

Police Implementation Of Supreme Court Of Canada Charter Decisions: An Empirical Study, Kathryn Moore

Osgoode Hall Law Journal

Little empirical research has been done on the Charter's impact on the public policy process. This paper presents the results of an empirical research study designed to fill that gap. The study examined the manner in which a municipal police force and the RCMP implemented changes to procedures following two Supreme Court of Canada Charter decisions. The paper concludes that, while steps have been taken to develop a process by which Supreme Court decisions are implemented, the process would be improved if one body were allocated responsibility for the provision of interim information to the police.

Go to article

The Charter Of Rights And Public Policy In Canada, Patrick J. Monahan, Marie Finkelstein Jul 1992

The Charter Of Rights And Public Policy In Canada, Patrick J. Monahan, Marie Finkelstein

Osgoode Hall Law Journal

Much of the literature on the Charter has focused on the manner in which the courts have interpreted the document. This essay examines the Charter from another perspective-its impact on the policy process within government. Drawing on a series of papers prepared by senior government officials at both the federal and provincial levels, the authors argue that the Charter has permanently changed the way in which governments formulate and implement public policy in Canada. Virtually all policy proposals making their way to the Cabinet table must be examined to ensure that they conform to the requirements of the Charter. This …

Go to article

Administrative And Criminal Penalties In The Enforcement Of Occupational Health And Safety Legislation, R. M. Brown Jul 1992

Administrative And Criminal Penalties In The Enforcement Of Occupational Health And Safety Legislation, R. M. Brown

Osgoode Hall Law Journal

The sanction for occupational health and safety offences in Ontario is a regulatory prosecution in provincial criminal court. In contrast, regulatory officials assess administrative penalties in British Columbia and the United States. A larger proportion of offenders are punished under these administrative processes than in the Ontario criminal justice system, and the average administrative penalty generally is higher than the average criminal fine. In addition, a system of administrative penalties is better able to identify employers who warrant punishment because regulators apply the civil standard of proof, attach great weight to a firm's compliance history, and do not reserve penalties …

Go to article

Judicial Choice And Disparities Between Measures Of Economic Values, David Cohen, Jack L. Knetsch Jul 1992

Judicial Choice And Disparities Between Measures Of Economic Values, David Cohen, Jack L. Knetsch

Osgoode Hall Law Journal

An important idea, which characterizes law in society, is a reluctance to move from the status quo. In general, one can argue that legal institutions and legal doctrine are not engaged in the redistribution of wealth from one party to another. This paper explores a possible explanation for that principle. The authors' research suggests that, across a wide range of entitlements and in a variety of contexts, individuals value losses more than foregone gains. The paper argues, as a matter of efficiency, that law and social policy might have developed in a manner consistent with this valuation disparity. Furthermore, this …

Go to article

Fiduciary Obligation Under Intellectual Siege: Contemporary Challenges To The Duty To Be Loyal, Deborah A. Demott Apr 1992

Fiduciary Obligation Under Intellectual Siege: Contemporary Challenges To The Duty To Be Loyal, Deborah A. Demott

Osgoode Hall Law Journal

This essay argues that fiduciary obligation is a distinctive type of obligation. Its central rationale, nurturing and enforcing commitments to act loyally toward the interests of others, furnishes limits on the reach of fiduciary obligations. Attempts to characterize fiduciary obligation as solely a type of contractual obligation or as a concept best rationalized by the law of torts are unpersuasive, as are attempts to capture fiduciary obligation within definitions of altruistic behaviour. The author elaborates these arguments using examples drawn from partnership and corporate law.

Go to article

Feminist Jurisprudence In A Conventional Context: Is There Room For Feminism In Dworkin's Theory Of Interpretive Concepts?, Lynne Hanson Apr 1992

Feminist Jurisprudence In A Conventional Context: Is There Room For Feminism In Dworkin's Theory Of Interpretive Concepts?, Lynne Hanson

Osgoode Hall Law Journal

This paper examines Dworkin's interpretive theory of law from a feminist perspective, and asks whether his attempts to accommodate competing political opinions within an interpretive community can successfully encompass feminist concerns as well. It is argued that Dworkin repeatedly underestimates the extent of disagreement regarding the practice of law as a whole, while his requirements of fit, coherence and integrity impose a political agenda on the interpreter. As a consequence, Dworkin's theory is ultimately unable to adequately respond to a feminist critique of law, so that feminist jurisprudence must be seen as falling outside the scope of his interpretive community.

Go to article

Apostolat Juridique: Teaching Everyday Law In The Life Of Marie Lacoste Gérin-Lajoie (1867-1945), Nicholas Kasirer Apr 1992

Apostolat Juridique: Teaching Everyday Law In The Life Of Marie Lacoste Gérin-Lajoie (1867-1945), Nicholas Kasirer

Osgoode Hall Law Journal

Based on a reading of archival material stored in a convent in east-end Montreal, the author describes the career of Marie Lacoste Gérin-Lajoie, a self-trained jurist who taught and wrote about law for women in convent schools, teachers' colleges, study circles, temperance union meetings and the like over a forty-year period in Quebec at the beginning of this century. Her career as a law teacher is presented as a sign of a less visible facet of the history of legal education in Quebec-beyond the formal institutions of law teaching-that was closely tied to the home and the private world of …

Go to article

A Genealogy Of Law: Inherent Sovereignty And First Nations Self-Government, John J. Borrows Apr 1992

A Genealogy Of Law: Inherent Sovereignty And First Nations Self-Government, John J. Borrows

Osgoode Hall Law Journal

First Nations self-government in Canada has often been regarded as extinguished or delegated from the British Crown or the Canadian federal government. First Nations self-government among the Chippewas of the Nawash Band in southern Ontario has not been extinguished or delegated, but continues to exist as an inherent exercise of community sovereignty. The idea of existing Aboriginal self-government in modern-day Ontario contrasts with many prevailing notions about Native society in Canada today. The inherent and unextinguished nature of self-government among the Nawash Band is demonstrated by examining the events of the author's ancestors and community in their interactions with foreign …

Go to article

The Ontario Court Of Appeal And Speedy Justice, Carl Baar, Ian Greene, Martin Thomas, Peter Mccormick Apr 1992

The Ontario Court Of Appeal And Speedy Justice, Carl Baar, Ian Greene, Martin Thomas, Peter Mccormick

Osgoode Hall Law Journal

The authors use a data sample collected from the Ontario Court of Appeal minute books between 1983 and 1987 to analyze how appeals move through the province's highest court. Criminal and, chiefly, sentence appeals dominate the Court's agenda. Hearing times-the duration of argument and rendering of judgment-are shorter than commonly believed, most often lasting less than twenty minutes. Elapsed times-the period between end of trial and beginning of hearing-are, on average, 77 per cent longer for civil than criminal appeals, 52 per cent longer for defendant than crown appeals, and 23 per cent longer for fall than spring appeals. Elapsed …

Go to article

Child Welfare Law, "Best Interests Of The Child" Ideology, And First Nations, Marlee Kline Apr 1992

Child Welfare Law, "Best Interests Of The Child" Ideology, And First Nations, Marlee Kline

Osgoode Hall Law Journal

Liberalism has structured legal discourse such that racism is most often unintended and rarely explicit. To understand how and why law has an oppressive and discriminatory impact on First Nations and other racialized groups in Canadian society, one must look at some of its more subtle processes and, in particular, its ideological form. The goal of this article is to provide insight into the origins and operation of "best interests of the child" ideology and to illustrate how it structures and constrains judicial decision making in the context of First Nations child welfare. Best interests ideology serves to portray the …

Go to article

Appeals On The Merits, Terence G. Ison Jan 1992

Appeals On The Merits, Terence G. Ison

Osgoode Hall Law Journal

This article deals with the limitations of judicial review and the possibilities of its augmentation or replacement by a regime of appeals on the merits. The author questions some assumptions that are commonly made about appellate structures. He criticizes the "broad-brush approach" and warns that there is no panacea. The article explains why any broad regime of appeals on the merits from tribunals to courts of general jurisdiction is not an available option, and it discusses alternative structures of appeals to tribunals. Finally, it explains why it would be irresponsible to propose any appellate structure covering any substantive subject except …

Go to article

The Efficacy Of The Tort System And Its Alternatives: A Review Of Empirical Evidence, Don Dewees, Michael J. Trebilcock Jan 1992

The Efficacy Of The Tort System And Its Alternatives: A Review Of Empirical Evidence, Don Dewees, Michael J. Trebilcock

Osgoode Hall Law Journal

This paper reviews the existing empirical evidence on the efficacy of the tort system and alternatives to it. The evidence is evaluated against three normative goals: deterrence, corrective justice, and distributive justice. Empirical evidence relating to five major categories of accidents is reviewed: automobile accidents, medical malpractice, product related accidents, environmental injuries, and workplace injuries. In each case, the paper proceeds by reviewing empirical evidence on the deterrence and compensatory properties of the tort system, and then reviews parallel bodies of evidence on regulatory or penal alternatives and on compensatory alternatives to the tort system. The paper concludes that the …

Go to article

A Black (And Rising?) Tide: Controlling Maritime Oil Pollution In Canada, Suzanne Hawkes, Michael M'Gonigle Jan 1992

A Black (And Rising?) Tide: Controlling Maritime Oil Pollution In Canada, Suzanne Hawkes, Michael M'Gonigle

Osgoode Hall Law Journal

A series of dramatic oil spills in recent years has once again drawn critical attention to the nature and adequacy of existing domestic and international legislation regarding ship source oil pollution. Predictably, legislators and policy makers have responded with a plethora of studies, reviews, and consultations. However, past improvements to the domestic and international regimes have traditionally been slow and incremental, at best. In Canada, approximately three years have passed since the Nestucca spill took place off the B.C. coast. Yet, while there has been much discussion, domestic legislation remains virtually unaltered at the present time. The authors find that …

Go to article

The Supreme Court's First One Hundred Charter Of Rights Decisions: A Statistical Analysis, F. L. Morton, Peter H. Russell, Michael J. Withey Jan 1992

The Supreme Court's First One Hundred Charter Of Rights Decisions: A Statistical Analysis, F. L. Morton, Peter H. Russell, Michael J. Withey

Osgoode Hall Law Journal

This study presents a descriptive statistical analysis of the Supreme Court of Canada's first one hundred Charter of Rights decisions (1982-1989). Charter appeals now constitute one-quarter of the Court's annual caseload. The Court has abandoned the judicial self-restraint that shaped its pre-Charter civil liberties jurisprudence. It has upheld rights claimants in 35 percent of its decisions and declared nineteen statutes void. Seventy-five percent of the Court's Charter work dealt with legal rights and criminal justice, but more provincial statutes were declared invalid than federal. After an initial period of consensus, the Court divided into identifiable voting blocs, with wide discrepancies …

Go to article