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The Peter A. Allard School of Law

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Articles 661 - 681 of 681

Full-Text Articles in Law

Tadić, The Anonymous Witness And The Sources Of International Procedural Law, Natasha Affolder Jan 1998

Tadić, The Anonymous Witness And The Sources Of International Procedural Law, Natasha Affolder

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On May 7, 1997, Trial Chamber II of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia released its verdict in its first trial. While the proceedings of the International Tribunal were commended for their fairness, criticism quickly erupted as a result of the Trial Chamber's decision to allow anonymous testimony to be used in the Tadic trial. This article explores the Trial Chamber's decision to allow the use of anonymous testimony as a protective measure. It focuses on the challenge of defining the sources …

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Aboriginal Rights, Aboriginal Culture, And Protection, Gordon Christie Jan 1998

Aboriginal Rights, Aboriginal Culture, And Protection, Gordon Christie

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There is a common perception that elements of mainstream society are disrespectful of Aboriginal culture. This article argues that developments in the law offer promise for the protection of Aboriginal "intellectual products," manifestations of Aboriginal culture reflecting their world-view. What Aboriginal peoples would like to see protected, however, are not so much words, pictures, or acts but rather the values, beliefs, and principles that give these meaning. Such, the author argues, are best protected by mechanisms internal to Aboriginal communities. Furthermore, the lack of such mechanisms would not justify the intrusion of Canadian law, but rather raises a call within …

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International Law And International Relations Theory: A New Generation Of Interdisciplinary Scholarship, Anne-Marie Slaughter, Andrew S. Tulumello, Stepan Wood Jan 1998

International Law And International Relations Theory: A New Generation Of Interdisciplinary Scholarship, Anne-Marie Slaughter, Andrew S. Tulumello, Stepan Wood

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Nine years ago, Kenneth Abbott published an article exhorting international lawyers to read and master regime theory, arguing that it had multiple uses for the study of international law. 1 He went as far as to call for a "joint discipline" that would bridge the gap between international relations theory (IR) and international law (IL). Several years later, one of us followed suit with an article mapping the history of the two fields and setting forth an agenda forjoint research. 2 Since then, political scientists and international lawyers have been reading and drawing on one another's work with increasing frequency …

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Aboriginal Rights And The Constitution: A Story Within A Story?, Darlene Johnston Jan 1997

Aboriginal Rights And The Constitution: A Story Within A Story?, Darlene Johnston

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Proponents of group rights generally point to section 35 of Canada's Constitution Act 1982 as the prime example of legal rights being vested explicitly in groups. Section 35 declares that 'the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.' In this paper, the author examines the 1990 Supreme Court of Canada decision in R. v. Sparrow, a leading case on section 35, and its application to a fishing rights case involving her own community, the Nayaashiinigmiing, a reserve belonging to the Saugeen Ojibway Nation.

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Developments In Constitutional Law: The 1994-95 Term, Hester Lessard, Bruce Ryder, David Schneiderman, Margot Young Jan 1996

Developments In Constitutional Law: The 1994-95 Term, Hester Lessard, Bruce Ryder, David Schneiderman, Margot Young

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This essay explores the apparent triumph of the individual of classical liberalism in Supreme Court decision making. Our analysis examines the particular way in which this political imagery of the individual interacts with judicial assumptions about important social institutions: the family, religion, media, and the state. What is revealed is the judicial adoption of an intricate social and political map in which abstract individualism combines with, and often masks, traditional, conservative images of social order and moral choice.

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Developments In Constitutional Law: The 1993-94 Term, Joel Bakan, Bruce Ryder, David Schneiderman, Margot Young Jan 1995

Developments In Constitutional Law: The 1993-94 Term, Joel Bakan, Bruce Ryder, David Schneiderman, Margot Young

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This paper seeks to draw out four different, and often conflicting, themes that inform the Supreme Court of Canada's constitutional decision making. Each theme expresses a conception of the Canadian state, and taken together they represent, arguably, the current range of dominant views regarding the appropriate role of the state in Canada: classical liberalism, federalism, social democracy and neo-liberalism. Explicit and implicit reliance upon these conceptions of the state can be understood as reflecting the Court's concern to stay in step with its perception of contemporary social consensus on the large political issues lurking behind every constitutional question it addresses. …

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Second Chances: Bill C-72 And The Charter, Isabel Grant Jan 1995

Second Chances: Bill C-72 And The Charter, Isabel Grant

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For decades, Canadian courts grappled with the issue of whether intoxication should mitigate criminal responsibility. During that time, Parliament avoided dealing with this controversial issue, preferring to leave it in the hands of judges. This paper examines the legislative response to the Supreme Court of Canada’s 1994 decision in R. v. Daviault. The author argues that Bill C-72, which limits the defence of extreme intoxication, is constitutional because of its strong underpinnings in equality. The author reviews the statistics on violence against women and the role of intoxication in that violence to illustrate why the defence of intoxication raises issues …

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In Pursuit Of Better Myth: Lawyers' Histories And Histories Of Lawyers, W. Wesley Pue Jan 1995

In Pursuit Of Better Myth: Lawyers' Histories And Histories Of Lawyers, W. Wesley Pue

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This paper explores the mythologies contemporary lawyers generate in defence of existing professional structures. Drawing on the history of legal professions, the paper engages critically with professional apologetics, from a perspective influenced by diverse contemporary writings on legal professions including those associated with Richard Abel, Terrence Halliday, and others.

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Sex, Tax And The Charter: A Review Of Thibaudeau V. Canada, Lisa Philipps, Margot Young Jan 1995

Sex, Tax And The Charter: A Review Of Thibaudeau V. Canada, Lisa Philipps, Margot Young

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Section 15 of the Charter offers the promise of redressing many systemic inequalities in the law. This paper considers the implications of section 15 for the taxation of child support payments, an issue raised in the Thibaudeau case. While endorsing the Federal Court of Appeal's decision that the current tax regime is unconstitutional, the authors take issue with the Court's reasoning in reaching this result. In the first part of their paper, the authors address a number of shortcomings in the Court's equality analysis, arguing that the process employed by the Court ignored critical aspects of equality theory. The process …

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Marshalling And The Personal Property Security Acts: Doing Unto Others…, Bruce Macdougall Jan 1994

Marshalling And The Personal Property Security Acts: Doing Unto Others…, Bruce Macdougall

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Where a senior creditor has access to two funds from the same debtor to satisfy its claims and the junior creditor has access to only one of these funds, it could be equitable to expect that the senior creditor satisfy itself out of the fund in which the junior creditor does not have an interest. Where a court makes an order based on this principle, it has invoked the doctrine of marshalling, sometimes called the two-fund rule.' Marshalling is an equitable doctrine and therein lies its strengths and weaknesses. Equity gives it its flexibility, adaptibility and utility. Equity also gives …

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Taxing Inherited Wealth: A Philosophical Argument, David G. Duff Jan 1993

Taxing Inherited Wealth: A Philosophical Argument, David G. Duff

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This paper presents a preliminary argument for the introduction and design of a lifetime accessions tax: a progressive tax on inherited wealth levied on the cumulative lifetime gifts and inheritances of the recipient.' As such, it contains an elaboration of the rationale for the tax and a presentation of distributive principles to govern its design. However, it does not include a detailed exposition of the actual design of the tax, nor an analysis of its feasibility in a given context. As a result, it provides an ethical blueprint for the design of an ideal inheritance tax without fully considering concrete …

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Book Review Of A Radical Lawyer In Victorian England: W. P. Roberts And The Struggle For Workers' Rights By Raymond Challinor, W. Wesley Pue Jan 1991

Book Review Of A Radical Lawyer In Victorian England: W. P. Roberts And The Struggle For Workers' Rights By Raymond Challinor, W. Wesley Pue

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This essay assesses the history of one of Britain's most important lawyers for the working class through a critical review of Raymond Challinor's ground-breaking work. The life of W. P. Roberts spanned crucial decades of the nineteenth Century. Admitted to the lower branch of the legal profession in Bath in 1827 W. P. Roberts converted from Toryism in the first decade of his professional life to emerge as a leading figure in the Bath Working Men's Association by 1837. Apparently motivated by a deeply-held Christian belief in an essential human dignity, Roberts' consistently employed the law as a shield in …

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Strange Expectations: A Review Of Two Theories Of Judicial Review, Joel Bakan Jan 1990

Strange Expectations: A Review Of Two Theories Of Judicial Review, Joel Bakan

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The author examines two theories of judicial review under the Charter, one proposed by D.M. Beatty in Putting the Charter to Work: Designing a Constitutional Labour Code, and the other by P. Monahan in Politics and the Constitution: The Charter, Federalism and the Supreme Court of Canada. He demonstrates how each of these theories attempts to reconcile judicial review under the Charter with the principles of democracy by portraying it (judicial review) as a means for realizing these principles. He then argues that both efforts are ultimately unsuccessful and, indeed, only compound the problems they identify and set out to …

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The Medical Malpractice Explosion: An Empirical Assessment Of Trends, Determinants, And Impacts, Michael J. Trebilcock, Donald N. Dewees, David G. Duff Jan 1990

The Medical Malpractice Explosion: An Empirical Assessment Of Trends, Determinants, And Impacts, Michael J. Trebilcock, Donald N. Dewees, David G. Duff

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This article briefly describes trends in the frequency and severity of medical malpractice claims in Canada and the U.S., with some comparative references to trends in Britain and Australia. In all cases, frequency and severity rates appear to have risen quite dramatically over the past decade and a half. The article proceeds to explore various hypotheses that might explain these trends. While empirical analysis does not yield firm conclusions, the fact that so many jurisdictions have experienced a somewhat similar phenomenon makes it doubtful that the primary cause of the increase is likely to be idiosyncratic features of one particular …

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Parental Separation And The Child Custody Decision: Toward A Reconception, David G. Duff, Roxanne Mykitiuk Jan 1989

Parental Separation And The Child Custody Decision: Toward A Reconception, David G. Duff, Roxanne Mykitiuk

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Contemporary debates regarding the appropriate way to resolve custody and access disputes reflect deeply rooted conceptions of both the family and the proper relationship between the family and the state. The prevailing "best interests of the child" test and judicial presumptions favouring sole custody embody a traditional definition of the family and a communitarian image of familial relationships.Conversely, current joint custody legislation adopts a liberal-contractual paradigm, in which the family is viewed as a joint partnership and children are conceived as assets to be equally divided upon termination ofthe spousal relationship. The authors reject both notions of the family and …

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Evidentiary Privilege For Hospital Quality Assurance And Risk Management: Assessing Statutory Reform, David G. Duff Jan 1989

Evidentiary Privilege For Hospital Quality Assurance And Risk Management: Assessing Statutory Reform, David G. Duff

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Quality assurance (QA) and risk management (RM) programs originated relatively recently in Canadian hospitals. Associated with the increasingly institutional framework for the delivery of health care, their development has been stimulated by tougher standards for hospital accreditation., the expanded scope of hospital liability for medical malpractice, and direct government regulation. While these measures promise substantial advancement in patient safety and the quality of medical care, considerable concern has been voiced that their potential is frustrated by the unwillingness of medical personnel to participate wholeheartedly in such programs without clear guarantees of confidentiality for the deliberations and recommendations of QA and …

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The Supreme Court And The New Family Law: Working Through The Pelech Trilogy, David G. Duff Jan 1988

The Supreme Court And The New Family Law: Working Through The Pelech Trilogy, David G. Duff

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The trilogy of family law decisions, released by the Supreme Court of Canada on 4 June 1987, represents perhaps the most important statement of the past two decades by Canada's highest court on this rapidly changing area of law. Although decided under the repealed Divorce Act of 1968, judicial analyses of support and domestic contracts are likely to be little altered under the 1985 Act. Furthermore, that these cases reveal the Court's underlying philosophy of the new family law as a whole suggests a significance that transcends specific amendments to the Act. With respect to the outcome of each individual …

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Judicial Law Reform In The Law Of Contract, Joost Blom Jan 1988

Judicial Law Reform In The Law Of Contract, Joost Blom

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For all its stability the law of contract has seen a good deal of reform, most of it judge-made, in the last quarter century or so. In this 1988 paper the author tries to sketch at least some of the main features of this judicial law reform in the law of contracts, to suggest the areas where this reform has been a success and where it has been less so, and, at the end, to ask what this overall picture tells us about the process of judicial law reform in the common law. This paper will touch on a number …

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Records And Archives In Court, Anthony F. Sheppard Jan 1984

Records And Archives In Court, Anthony F. Sheppard

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In an increasingly litigious society, records and archives frequently become evidence in court. What are the criteria for admitting records in court as evidence, and how might records keepers be called upon to testify in court? These matters will be discussed in the context of federal and provincial law. The author's comments are directed towards these two central issues: The criteria for admitting records in court as evidence, and the status of records keepers called upon to testify in court.

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Why Do We Punish?: The Case For Retributive Justice, Joseph Weiler Jan 1978

Why Do We Punish?: The Case For Retributive Justice, Joseph Weiler

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The never-ending debate about the substantive and procedural rules in our criminal justice system rarely addresses itself to the most fundamental question- why do we punish at all? The answer to this threshold question has traditionally taken one of two lines, retributionist or utilitarian. On the one hand, there is the view that punishment of the morally derelict is its own justification for it is right for the wicked to be punished. This imperative flows from a view of the very nature of man as a responsible moral agent to whom rewards or punishment should be assessed according to the …

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Controlling Obscenity By Criminal Sanction, Joseph Weiler Jan 1971

Controlling Obscenity By Criminal Sanction, Joseph Weiler

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Consideration of both rationale and process suggest that the criminal sanction, society's ultimate threat, inflicting as it does a unique combination of stigma and loss of liberty, should be resorted to only sparingly in a society that regards itself as free and open.' The sanction is at once uniquely coercive and, in the broadest sense, uniquely expensive. It should be reserved for what really matters. It is the thesis of this paper that this advice as to the proper criterion of forbiddenness has not been followed in the area of obscenity law. The purpose of this paper is to explore …

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