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Articles 31 - 60 of 96
Full-Text Articles in Law
Long Overdue: A Reappraisal Of Section 121 Of The Constitution Act, 1867, Ian A. Blue
Long Overdue: A Reappraisal Of Section 121 Of The Constitution Act, 1867, Ian A. Blue
Dalhousie Law Journal
This article offers a new interpretation of s. 121 of the Constitution Act, 1867. The author re-evaluates the traditional interpretation of s. 121, found in Gold Seal Limited v. The Attorney General of the Province of Alberta. That interpretation limited the application of s. 121 to prohibiting interprovincial "customs duties" but nothing else. The author analyzes s. 121 using a purposive approach. After reviewing the provision's wording, legislative history, legislative context and its place within the scheme of the Act, the article concludes that a purposive and progressive interpretation leads to a more robust role for s. 121. Thus interpreted, …
Alex M. Cameron, Power Without Law. The Supreme Court Of Canada, .The Marshall Decisions, And The Failure Of Judicial Activism, Dianne Pothier
Alex M. Cameron, Power Without Law. The Supreme Court Of Canada, .The Marshall Decisions, And The Failure Of Judicial Activism, Dianne Pothier
Dalhousie Law Journal
Alex Cameron's book, Power WithoutLaw, is a scathing critique ofthe Supreme Court of Canada's 1999 decisions in R. v. Marshall upholding Donald Marshall Jr.'s Mi'kmaq treaty claim. Cameron's book has attracted a lot of attention because of the author's position as Crown counsel for the government of Nova Scotia. Cameron was not involved as a lawyer in the Marshallcase itself. As a fisheries prosecution, Marshallwas a matter of federal jurisdiction pursuant to s. 91(12) of the Constitution Act, 1867, and Nova Scotia chose not to intervene. However, Cameron did become involved in a subsequent case dealing with the same series …
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 …
Application Of Non-Implemented International Law By The Federal Court Of Appeal: Towards A Symbolic Effect Of S. 3(3)(F) Of The Irpa?, France Houle, Noura Karazivan
Application Of Non-Implemented International Law By The Federal Court Of Appeal: Towards A Symbolic Effect Of S. 3(3)(F) Of The Irpa?, France Houle, Noura Karazivan
Dalhousie Law Journal
Since 1999, the Supreme Court has explored the linkages between domestic statutes and international norms and values and has slowly developed the basic principles underlying a new mechanism of relevancy that the authors call harmonization of domestic law with international law The authors analyze this development in PartI of the present article. In Part II, they study the application of this harmonization mechanism in the field of Canadian immigration law Of, particular importance in the Immigration and Refugee Protection Act is s. 3(3)(f), for it directs judges to construe and apply the IRPA in a manner that "complies with international …
Structures Of Judgment: How The Modern Supreme Court Of Canada Organizes Its Reasons, Peter Mccormick
Structures Of Judgment: How The Modern Supreme Court Of Canada Organizes Its Reasons, Peter Mccormick
Dalhousie Law Journal
In recent decades, the Supreme Court of Canada has developed a distinctive and unusual way of organizing its reasons for judgment; concomitantly, it has developed a comparably distinctive style for its minority reasons as well. This article describes this new decision format and the elements into which it is typically divided, and compares it with the practices of appeal courts in other common law countries. It concludes first by theorizing about the purpose and the functions of decision formats and format changes, and then by defending the current Canadian style.
Caesar's Faith: Limited Government And Freedom Of Religion In Bruker V. Marcovitz, F C. Decoste
Caesar's Faith: Limited Government And Freedom Of Religion In Bruker V. Marcovitz, F C. Decoste
Dalhousie Law Journal
The Supreme Court of Canada has long pursued the view that our law is somehow an expression and repository of what it terms "Canada 's fundamental values." In Bruker v. Marcovitz, the Court added to the catalogue of these judicially decreed and enforced values one concerning religion, namely, the protection of Canadians against the arbitrary disadvantages of their religions. This comment argues that the Court's judgment in this regard constitutes a fundamental threat to religious liberty inasmuch as it subordinates religious beliefand practice to state values by making the legal acceptability of the former turn on their conformity to the …
Understanding The Progression Of Mi'kmaw Law, Jaime Battiste
Understanding The Progression Of Mi'kmaw Law, Jaime Battiste
Dalhousie Law Journal
Over the past 250 years, the recognition and implementation of the aboriginal and treaty rights of the Santi Mawio'mi of the Mi'kmaq has been a hard and bitter struggle for justice. Building on Mi'kmaw Aboriginal knowledge and legal traditions that inform their aboriginal and treaty rights, the Supreme Court of Canada has affirmed a Mi'kmaw right to hunt, fish, and gather in their traditional territory. The author focuses on the progression of Mi'kmaw law, drawing on the original teachings of the Mawio'mi embedded in Netukulimk and then shifting to the current legal strategy that creates a constitutional jurisgensis and a …
Something To Talk About: Is There A Charter Right To Access Government Information?, Vincent Kazmierski
Something To Talk About: Is There A Charter Right To Access Government Information?, Vincent Kazmierski
Dalhousie Law Journal
Can sections 2(b) and 3 of the Canadian Charter of Rights and Freedoms be interpreted to protect a constitutional right of access to government information? The author argues that the constitutional principle of democracy provides a foundation for judicial recognition of such a constitutional right of access even though the inclusion ofan explicit right to access to government information was rejected during the process of drafting the Charter Given that the Supreme Court of Canada's section 2(b) and 3 jurisprudence has been informed by the principle of democracy, the application of the principle may now guide the Court to include …
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 …
The Origins Of A Coming Crisis: Renewal Of The Churchill Falls Contract, James P. Feehan, Melvin Baker
The Origins Of A Coming Crisis: Renewal Of The Churchill Falls Contract, James P. Feehan, Melvin Baker
Dalhousie Law Journal
The 1969 Churchill Falls contract between Hydro-Quebec and the Churchill Falls Labrador Corporation has been the subject of political controversy. It has also been challenged in the courts, with appeals reaching to the Supreme Court of Canada. Yet, despite the scrutiny of those court cases, the political rhetoric, and the literature that has been spawned by this matter, an extraordinary element of that contract remains remarkably obscure. It is the contract's renewal clause. At the expiry of the contract's forty-four-year term in 2016, that clause requires an automatic renewal for twenty-five additional years at a fixed nominal price that is …
Conflict Of Interest, Duress And Unconscionability In Quebec Civil Law: Comment On "The Origins Of A Coming Crisis: Renewal Of The'churchill Falls Contract", Sarah P. Bradley
Conflict Of Interest, Duress And Unconscionability In Quebec Civil Law: Comment On "The Origins Of A Coming Crisis: Renewal Of The'churchill Falls Contract", Sarah P. Bradley
Dalhousie Law Journal
As Professor James Feehan and archivist-historian Melvin Baker describe the circumstances in which the fateful renewal provision of the 1969 Churchill Falls hydro contract was negotiated, they suggest that the legal doctrines of conflict of interest or economic duress might offer a basis upon which the contract, or perhaps the renewal provision, could be impugned. In addition to interesting historical insights, their analysis offers the intriguing possibility that the government of Newfoundland may yet succeed in its long-standing battle to rid itself of its obligations under the grossly disadvantageous Churchill Falls contract.
Child Pornography In Canada And The United States: The Myth Of Right Answers, Travis Johnson
Child Pornography In Canada And The United States: The Myth Of Right Answers, Travis Johnson
Dalhousie Law Journal
Child pornography is an increasing worldwide concern and is one of the most active fronts in the ongoing battle between freedom of expression and public safety and morality. In 2005, the child pornography provisions of the Canadian Criminal Code were amended in response to the controversial decision of the Supreme Court in R. v. Sharpe. Similar legislative response has occurred in the United States following the U.S. Supreme Court decision inAshcroft v. Free Speech Coalition. A comparative examination of the legislative and judicial treatments of the issue of child pornography in these countries reveals that despite reaching differing rights-balancing positions, …
Charterwithout Borders? The Supreme Court Of Canada, Transnational Crime And Constitutional Rights And Freedoms, Robert J. Currie
Charterwithout Borders? The Supreme Court Of Canada, Transnational Crime And Constitutional Rights And Freedoms, Robert J. Currie
Dalhousie Law Journal
The first decades of the Supreme Court of Canada's Charter jurisprudence have coincided roughly with an increase in the extent to which Canada is affected by transnational crime and the nation s consequential participation in inter-state efforts to combat it. The Court itself has remarked on its discrete "jurisprudence on matters involving Canada's international co-operation in criminal investigations and prosecutions." This article examines the Court s adoption of a different approach to Charter analysis in cases involving transnational elements and surveys where the Court has "drawn the line" in terms of Charter application. By way of analyzing jurisprudence on exclusion …
Amending Authors And Constitutional Discourse, Barbara Darby
Amending Authors And Constitutional Discourse, Barbara Darby
Dalhousie Law Journal
The author surveys various theories related to the concept of constitutional amendment, reviewing the importance of the notion of authorship to the amending process, and the related theories about constitutional legitimacy and judicial activism. In seeking an alternative conceptualization of authorship that is applicable to constitutional amendment, she reviews Michel Foucault's essay on authorship, and specifically his notion of the transdiscursive author who originates a "return" to an original text, which she presents as a useful context in which to read the constitutional amendment process. Constitutional discourse, using Foucault's approach to discourse, occupies a significant cultural and social position. She …
After The Revolution: Being Pragmatic And Functional In Canada's Trial Courts And Courts Of Appeal, William Lahey, Diana Ginn
After The Revolution: Being Pragmatic And Functional In Canada's Trial Courts And Courts Of Appeal, William Lahey, Diana Ginn
Dalhousie Law Journal
In a 1998 decision, Pushpanathan v Canada, the Supreme Court of Canada synthesized and revised the previous jurisprudence on "pragmatic and functional analysis" - the approach used since the late 1980's to determine the appropriate standard of deference in substantive review of administrative decision making. The next year, in Baker v. Canada, the Court expanded the reach of the pragmatic and functional analysis by applying it to the exercise of administrative discretion. This paper examines approximately 275 lower court decisions to determine how courts across Canada are responding to and implementing the doctrinal change initiated by the Supreme Court. Patterns …
The Law Of Options, Keith Evans
The Law Of Options, Keith Evans
Dalhousie Law Journal
Little attention is devoted to the law of options in major Canadian texts on contract law or in periodical literature. One might, therefore, assume that the law in this area is well settled and that few major cases come before the courts. However, a review of appellate decisions in Canada indicates significant judicial interest in the topic which would challenge those assumptions. In fact, appellate courts in various common law jurisdictions continue to struggle with many doctrinal issues related to this specialized type of contract. This article provides a comprehensive review of the law of options in Canada, and identifies …
The Legislature, The Executive And The Courts: The Delicate Balance Of Power Or Who Is Running This Country Anyway?, A Wayne Mackay
The Legislature, The Executive And The Courts: The Delicate Balance Of Power Or Who Is Running This Country Anyway?, A Wayne Mackay
Dalhousie Law Journal
The expanding role of Canadian courts since the introduction of the Charter has prompted critics to decry what they see as excessive and "anti-democratic" judicial activism. The author addresses such criticisms, responding, in particular, to the arguments of Ted Morton and Rainer Knopff. The article critiques the basic elements of Morton/Knopf's thesis: that activist courts are anti-democratic, excessively political, and engaging in illegitimate law-making. Rejecting the claim that Canada's judiciary is a less democratic state institution, the author notes the powerful law and policy-making role performed by the federal cabinet-for practical purposes, an unelected body. The author endorses the dialogue …
Brightening The Covenant Chain: Aboriginal Treaty Meanings In Law And History After Marshall, Mark D. Walters
Brightening The Covenant Chain: Aboriginal Treaty Meanings In Law And History After Marshall, Mark D. Walters
Dalhousie Law Journal
The decision of the Supreme Court of Canada in R. v. Marshall raises some difficult questions about the interpretation of Crown-Aboriginal treaties, especially treaties dating from the eighteenth century. The Court acknowledged that the treaty context is important to establishing the meaning of treaty texts, and Aboriginal and non-Aboriginal perspectives must be considered. As a result, judges must have regard to historical analyses of Crown-Aboriginal relations when interpreting these old treaties. In this article, the author explores some of the complex theoretical problems that such legal-historical analyses create, focusing in particular upon the possibility that lawyers and judges may reach …
Debtor In Possession Financing: The Jursidiction Of Canadian Courts To Grant Superpriority Financing In Ccaa Applications, Janis Sarra
Dalhousie Law Journal
Restructuring of insolvent corporations can be an effective means of a voiding the social and economic consequences of firm failure. Key to successful restructuring is financing (called DIP financing) in the interim period during which the corporation is attempting to develop a viable business plan that is acceptable to stakeholders. Canadian courts have exercised their inherent jurisdiction to grantsuch financing. A recent case before the Supreme Court of Canada settled. However, there continue to be challenges to the courts'jurisdiction. This article suggests that the degree of uncertainty created by the courts' granting of DIP financing has been exaggerated and that …
Du Dialogue Au Monologue - Un Commentaire Sur I'Arrêt R. V. Marshall, Nathalie Des Rosiers
Du Dialogue Au Monologue - Un Commentaire Sur I'Arrêt R. V. Marshall, Nathalie Des Rosiers
Dalhousie Law Journal
The author develops a model of constitutional dialogue which aims at helping the resolution of majority-minority conflicts. The model is applied to the aboriginal rights context. The author concludes that because of the ambivalences expressed by the Supreme Court of Canada in the Van der Peet case in particular, the federal government has not incorporated the Sparrow-Badger approach in its litigation and has failed even to attempt to comply with the justification requirements. This failure of the federal government to endorse the Sparrow-Badger approach in its continuing litigation strategy is the real tragedy in the Marshall case.
Marshalling Principles From The Marshall Morass, Leonard Rotman
Marshalling Principles From The Marshall Morass, Leonard Rotman
Dalhousie Law Journal
The Marshall case is the latest in a long series of Supreme Court of Canada decisions concerned with the interpretation of treaties between the Crown and aboriginal peoples in Canada. While the majority and minority judgments agreed on the principles of treaty interpretation to be applied in the case, the significant divergence in opinion between the majority and minority decisions provides important commentary on the differences between articulating and applying these principles. The Marshall case is also noteworthy for the manner in which it addresses similarities and differences pertaining to aboriginal and treaty rights. Because of these various traits, the …
Getting Their Feet Wet: The Supreme Court And The Practical Implementation Of Treaty Rights In The Marshall Case, Phillip Saunders
Getting Their Feet Wet: The Supreme Court And The Practical Implementation Of Treaty Rights In The Marshall Case, Phillip Saunders
Dalhousie Law Journal
Judicial decisions which recognize aboriginal or treaty rights to natural resources inevitably lead on to a process of negotiation, as governments and aboriginal and other users of the resource define the access and management regimes which allow for practical implementation of the legal rights. Courts should be cognizant of the impact of their decisions on such negotiations, and provide adequate clarity and substantive guidance to negotiators. This article considers the decisions of the Supreme Court of Canada in the Marshall case from this perspective, and details the shortcomings which made the prospects for successful negotiations less favourable. The weaknesses in …
Taking Stock: Securities Markets And The Division Of Powers, Robert Leckey, Eric Ward
Taking Stock: Securities Markets And The Division Of Powers, Robert Leckey, Eric Ward
Dalhousie Law Journal
Recent developments in Canada's securities markets highlight their national character and call for a fresh consideration of the question of federal securities regulation. Developments in the constitutional case law have changed the legal context, such that the trade and commerce and the peace, order and good government powers under the Constitution Act, 1867 would likely support federal securities legislation. The securities question, important in its own right, also serves as a case study for how the Supreme Court of Canada conducts division of powers analysis for matters that have undergone substantive change. The authors contend that competence over a provincial …
Recognizing Substantive Equality As A Foundational Constitutional Principle, Patricia Hughes
Recognizing Substantive Equality As A Foundational Constitutional Principle, Patricia Hughes
Dalhousie Law Journal
The author proposes that substantive equality be recognized as a foundational constitutional principle. The foundational principles--or underlying constitutional norms-which constitute the constitutional framework have become more important as Canada matures as a regime governed by constitutional supremacy. Most prime social and political values have been recognized as underlying constitutional norms, including democracy, federalism, protection of minority rights, political speech and judicial independence. Although section 15 of the Charter has been interpreted as encompassing substantive equality, which has been identified as a significant social value by the Supreme Court of Canada, the Court has yet to include it among the foundational …
Contextualism: The Supreme Court's New Standard Of Judicial Analysis And Accountability, Shalin Sugunasiri
Contextualism: The Supreme Court's New Standard Of Judicial Analysis And Accountability, Shalin Sugunasiri
Dalhousie Law Journal
Over the past few years, the "contextual approach" to law has acquired considerable cachet in juridical discourses across the country. In the Supreme Court of Canada, contextualism is now the new standard of judicial analysis and accountability This article analyzes a decade of Supreme court jurisprudence on Charter interpretation, statutory interpretation and the common law in order to fully explicate what contextualism in law is, where it came from, and how it has achieved its current pre-eminent status. The future promise of the contextual approach is also here canvassed through a dialectical engagement with postmodernist concerns respecting inherent legal indeterminacies.
Reconsidering The Charter And Election Boundaries, Mark Carter
Reconsidering The Charter And Election Boundaries, Mark Carter
Dalhousie Law Journal
This article argues for a judicial interpretation of the right to vote under s.3 of the Canadian Charter of Rights and Freedoms that places more emphasis upon ihe principle of the equal power of every vote-"one person, one vote"--than maybe suggested by the Supreme Court of Canada's decision in Reference re: Electoral Boundaries Commission Act. This becomes an issue of particular importance when a government is suspected of engaging in gerrymandering. Gerrymandering involves enhancing expected electoral support by ensuring that fewer votes will be needed to elect representatives in ridingspredictedto support the government. Any concessions governments may wish to make …
The Most Dangerous Justice: Measuring Judicial Power In The Lamer Court, 1991-97, Peter Mccormick
The Most Dangerous Justice: Measuring Judicial Power In The Lamer Court, 1991-97, Peter Mccormick
Dalhousie Law Journal
The Suoreme Court is an important national institution, but it is also nine individuals with differing conceptions of the law, the constitution and the judicial role. When the Court divides, which it does about half the time, some judges tend more often than others to write or to sign the reasons that constitute the decision of the Court. This article explores the notion of "judiciapl ower" by looking at the way that judges have written opinions and signed on to the opinions of others for the first seven years of this decade, looking for the "most powerful" (melodramatically: the "most …
R. V. R.D.S.: A Political Science Perspective, Jennifer Smith
R. V. R.D.S.: A Political Science Perspective, Jennifer Smith
Dalhousie Law Journal
Political scientists, including those who study Canadian government and politics, regard the judiciary as a component of the system of governance as a whole. They view it as an institution in relation to other institutions. Thus in The Judiciary in Canada: The Third Branch of Government, Peter Russell examines such issues as the structure of the judiciary in the federal system, the separation of powers and judicial independence, and the appointment, promotion and removal of judges.' As well, political scientists follow the development of the law itself, in areas of peculiar relevance to political life, like electoral law, or of …
No Dichotomies: Reflections On Equality Forafrican Canadians In R. V. R.D.S., April Burey
No Dichotomies: Reflections On Equality Forafrican Canadians In R. V. R.D.S., April Burey
Dalhousie Law Journal
The contrasts, in form and substance, were stark. In form, I was a black woman in a wheelchair, pleading before an all-white, able-bodied and almost all-male Supreme Court of Canada. The usually empty public galleries in the Ottawa courtroom were filled with people of colour, who had come from across the country to witness the hearing of this landmark case. On their entrance, the nine white judges, dressed in their staid, black robes made an almost audible gasp as they were met with this colourfully clad, intently silent band of people of colour.
Reputational Review I: Expertise, Bias And Delay, Robert E. Hawkins
Reputational Review I: Expertise, Bias And Delay, Robert E. Hawkins
Dalhousie Law Journal
Expertise, bias and delay arguments are shifting the focus of judicial review from the legality of administrative decisions to the reputation of administrative decision- makers. These grounds measure the skill, objectivity and efficiency characteristics that define administrators' reputations. They make it possible for courts to consider these reputations, even if only by way of unarticulated judicial notice, when deciding judicial review applications. After setting out the theory of expertise, bias and delay implicit in recent Supreme Court of Canada decisions, the author concludes that courts must use less impressionistic measures in judging these concepts, lawyers must present more concrete reputational …