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The Peter A. Allard School of Law

Series

2005

Articles 1 - 13 of 13

Full-Text Articles in Law

Section 7 And The Politics Of Social Justice, Margot Young Jan 2005

Section 7 And The Politics Of Social Justice, Margot Young

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This paper examines the transformative potential of section 7 of the Canadian Charter of Rights and Freedoms and its potential usefulness in the struggle against social and economic injustice central to Canadian society. Can section 7 of the Charter encompass the protection of social and economic rights? In other words, can section 7 be interpreted to capture the progressive goal of economic redistribution? Three separate issues are considered, each providing different perspectives on the issue. First jurisprudence (doctrine) is considered, i.e. how section 7 can encompass substantive claims to economic redistributive justice. Secondly, the institutional appropriateness and justiciability of socio-economic …

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The Chimera Of The Real And Substantial Connection Test, Joost Blom, Elizabeth Edinger Jan 2005

The Chimera Of The Real And Substantial Connection Test, Joost Blom, Elizabeth Edinger

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This paper was first presented at a symposium held at the University of British Columbia Faculty of Law on November 5 and 6, 2004 to honour the late Mr. Justice Kenneth Lysyk, a former faculty member and Dean of Law at U.B.C. For this paper we chose a topic that combines both of Ken Lysyk's favourite subjects. We set out to examine how the Supreme Court of Canada has used the "real and substantial connection" test in the conflict of laws and in related areas of constitutional law. This test has been adopted for a variety of purposes. We suggest …

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A Colonial Reading Of Recent Jurisprudence: Sparrow, Delgamuukw And Haida Nation, Gordon Christie Jan 2005

A Colonial Reading Of Recent Jurisprudence: Sparrow, Delgamuukw And Haida Nation, Gordon Christie

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Throughout Canada's long colonial relationship with Aboriginal nations, the Crown and the judiciary have worked in tandem. Historically, executive and legislative arms of government developed and implemented dispossessive and oppressive colonial policies and legal regimes, while the courts consciously developed conceptual frameworks meant to justify the taking of lands and the denial of Aboriginal sovereignty. This essay explores judicial attempts to justify the taking of lands and the denial of Aboriginal sovereignty, with the focus on how doctrinal law has conceived the transition from a world in which collective understandings of Aboriginal nations define the nature of their land interests …

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Private Property And Tax Policy In A Libertarian World: A Critical Review, David G. Duff Jan 2005

Private Property And Tax Policy In A Libertarian World: A Critical Review, David G. Duff

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The idea that taxes involve the confiscation of private property is widely held in popular thinking and scholarly writing. This article challenges the libertarian foundations of this assumption by critically examining libertarian theories of private property and their implications for tax policy. Part II summarizes the leading libertarian theories of private property, reviewing John Locke's argument in the Second Treatise of Government and Robert Nozick's account in Anarchy, State, and Utopia. Part III examines the implications of these libertarian theories for tax policy, considering libertarian prescriptions for substantive tax measures as well as institutional arrangements that affect tax policy outcomes. …

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The Abolition Of Wealth Transfer Taxes: Lessons From Canada, Australia And New Zealand, David G. Duff Jan 2005

The Abolition Of Wealth Transfer Taxes: Lessons From Canada, Australia And New Zealand, David G. Duff

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When the United States acted to phase-out its estate tax by 2010, it joined a small but growing group of countries which have also repealed their wealth transfer taxes. In Canada, federal gift and estate taxes were repealed in 1972 and provincial wealth transfer taxes were abolished in the 1970s and 1980s. In Australia, State and Commonwealth wealth transfer taxes were repealed in the late 1970s and early 1980s. New Zealand followed suit in the 1990s, reducing estate tax rates to zero in 1992 and repealing the tax in 1999. This paper reviews the abolition of wealth transfer taxes in …

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Road Pricing In Theory And Practice: A Canadian Perspective, David G. Duff, Carl Irvine Jan 2005

Road Pricing In Theory And Practice: A Canadian Perspective, David G. Duff, Carl Irvine

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Like other developed countries, Canada experienced massive increases in road transportation since the end of the Second World War. At first, Canadian governments attempted to match the growing demand for road transportation by improving the quality and capacity of roads and highways - significantly increasing the extent of paved roadways and introducing a national highway system supported by federal shared-cost funding. Since the 1970s, however, Canadian governments have been less willing to invest in roads and highways, as growing environmental concerns lessened public enthusiasm for automobiles and urban expressways in particular. At the same time, government support for public transit …

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Symposium On Tax Avoidance After Canada Trustco And Mathew: Summary Of Proceedings, Benjamin Alarie, Sanjana Bhatia, David G. Duff Jan 2005

Symposium On Tax Avoidance After Canada Trustco And Mathew: Summary Of Proceedings, Benjamin Alarie, Sanjana Bhatia, David G. Duff

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On October 19, 2005, the Supreme Court of Canada released its much-anticipated decisions in The Queen v. Canada Trustco Mortgage Co. and Mathew v. The Queen, the first two cases from Canada's highest court addressing the general anti-avoidance rule (GAAR) in section 245 of the federal Income Tax Act. The Faculty of Law at the University of Toronto hosted a symposium on November 18, 2005, which brought together academics, practitioners, representatives of the Canada Revenue Agency, and Chief Justice Donald Bowman of the Tax Court of Canada to discuss the implications of the decisions. This article summarizes the formal presentations …

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An Income-Contingent Financing Program For Ontario, Benjamin Alarie, David G. Duff Jan 2005

An Income-Contingent Financing Program For Ontario, Benjamin Alarie, David G. Duff

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Although the positive externalities associated with higher education favour substantial government support, sound arguments also favour student contributions to the costs of post-secondary education, based on both the private benefits obtained and the regressive impact of general subsidies for higher education. At the same time, the central role that higher education performs as a vehicle for social mobility and the general reluctance of private lenders to finance individual investments in higher education suggest that governments also have an important role to play in the area of student assistance - ensuring that higher education is accessible to all students on the …

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Toward A Reform-Minded Model For Securities Law Enforcement, Cristie Ford Jan 2005

Toward A Reform-Minded Model For Securities Law Enforcement, Cristie Ford

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This paper examines a significant shift in enforcement practice at the United States Securities and Exchange Commission, originating under the Chairmanship of William Donaldson but likely to continue beyond it. This shift is a response to a crisis of corporate governance, exemplified by recent scandals among various public corporations and financial services institutions, and to the demonstrated inadequacy of SEC enforcement tools to respond to that crisis. While the SEC's new approach, which I call the Reform Undertaking, is incomplete, I argue that if properly implemented it may have the potential to spur institutional reform not only in corporate governance, …

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Leading Towards A Level Playing Field, Repaying Ecological Debt, Or Making Environmental Space: Three Stories About International Environmental Cooperation, Karin Mickelson Jan 2005

Leading Towards A Level Playing Field, Repaying Ecological Debt, Or Making Environmental Space: Three Stories About International Environmental Cooperation, Karin Mickelson

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This article considers a number of different ways of conceptualizing the relationship between South and North in the environmental context, focusing on international responses to climate change and, particular, the Kyoto Protocol to the United Nations Framework Convention on Climate Change. It explores three stories about international cooperation. One derives from the concept of "ecological debt," the second comes from the concept of "environmental space," and the third, which might be said to underlie the U.S. approach to the Kyoto Protocol at the present time, is labelled "leading towards a level playing field." This article provides an overview of all …

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Prisoner Voting Rights In Canada: Rejecting The Notion Of Temporary Outcasts, Debra Parkes Jan 2005

Prisoner Voting Rights In Canada: Rejecting The Notion Of Temporary Outcasts, Debra Parkes

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This book chapter examines a successful prisoner voting rights case in Canada and suggests that the opposition in the U.S. to postincarceration legal, social, and economic consequences of criminal conviction would benefit from attention to the way the continued construction of prisoners as temporary outcasts resonates positively in society, assisting to legitimate the myriad penalties and consequences imposed on prisoners' release.

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Child Soldiers: Legal And Military Challenges In Confronting A Global Phenomenon, Benjamin Perrin Jan 2005

Child Soldiers: Legal And Military Challenges In Confronting A Global Phenomenon, Benjamin Perrin

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Book note re: Children at War by Peter W. Singer (New York: Pantheon, 2005). "Over the last decade, the existence of child soldiers has been brought to light through a barrage of graphic international news agency articles and human rights reports. Usually, these materials only identify sporadic and often sensationalized cases. What has been less forthcoming is a deeper understanding of what P.W. Singer calls the “child-soldier doctrine”: a calculated and pervasive strategy by armed groups to use children as combatants. Children at War is an admirable effort at making this daunting topic accessible to a wider public policy audience, …

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Book Review: Peter H. Russell, Recognizing Aboriginal Title: The Mabo Case And Indigenous Resistance To English-Settler, W. Wesley Pue Jan 2005

Book Review: Peter H. Russell, Recognizing Aboriginal Title: The Mabo Case And Indigenous Resistance To English-Settler, W. Wesley Pue

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This provides a short review and commentary on Peter Russell's extraordinary new work on aboriginal peoples and settler-colony imperialism in Canada, the USA, Australian, and New Zealand.

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