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Full-Text Articles in Law
Fifty Years Of Canadian Legal History, Jim Phillips, Philip Girard
Fifty Years Of Canadian Legal History, Jim Phillips, Philip Girard
Dalhousie Law Journal
Fifty years ago Canadian legal history was very much in its infancy. What little had been published was in equal measure antiquarian, descriptive, and hagiographic. The field has undergone a profound transformation in the last half-century. We now know a great deal more about all aspects of our legal past, about our institutions, our legal personnel, and the substantive law. The field has also become much more sophisticated, concerned not only with internal legal developments but increasingly with the relationships between law and other aspects of Canadian history. Social history, labour history, women’s history, economic, intellectual, cultural and political history, …
The Phenomenology Of Medico-Legal Causation, Nicholas Hooper
The Phenomenology Of Medico-Legal Causation, Nicholas Hooper
Dalhousie Law Journal
The language of counterfactual causation employed from the bench obscures the analytical vacuity of the "butfor" test. This paper takes issue with the consistent recourse to "common sense" as a methodological tool for determining the deeply complex issue of causality. Despite manifestly empty gestures to, e.g., robust pragmatism, the current approach imposes the dominant values of the judiciary in a manner that perpetuates the current distribution of power. Whatever the merits of counterfactual inquiry, its legal iteration requires judges to construct a hypothetical narrative about "how things generally happen." This, in turn, impels a uniquely comprehensive brand ofjudicialcreativity. The results …
Out Of The Black Hole: Toward A Fresh Approach To Tort Causation, Allan C. Hutchinson
Out Of The Black Hole: Toward A Fresh Approach To Tort Causation, Allan C. Hutchinson
Dalhousie Law Journal
The present state of Canadian doctrine on causation in tort law is in serious disarray Judges and jurists persist in thinking that it is a factual inquiry separate from policy concerns. This is made obvious in the recent Supreme Court decision in Clements and in the academic commentary around it. In contrast, I insist that the requirement of causation must be understood as being entirely part of the broader debate on the goals and policies of tort law generally Causation is a topic drenched with normative values and should be treated as such.
Nom De Plume: Who Writes The Supreme Court's "By The Court" Judgments?, Peter Mccormick
Nom De Plume: Who Writes The Supreme Court's "By The Court" Judgments?, Peter Mccormick
Dalhousie Law Journal
For several dozen of its major decisions, the Supreme Court in recent decades has adopted an unusual judgment style-the unanimous and anonymous "By the Court" format. Unlike judgments attributed to specific justices, "By the Court" presents an unusual and impersonal institutionalist face. But what is happening behind the fagade? Are these deeply collegial products with the actual drafting divided between some (or most, or all) of the justices? Is it "business as usual" which for major judgments involves rotation between the senior judges? Or is it simply a pseudonym for the Chief Justice writing alone in an unusually emphatic way? …
Judgment And Opportunity: Decision Assignment On The Mclachlin Court, Peter Mccormick
Judgment And Opportunity: Decision Assignment On The Mclachlin Court, Peter Mccormick
Dalhousie Law Journal
The workload of the Supreme Court of Canada is shared among the Court's nine members, but is this sharing equal with respect to the writing of judgments? A simple count does not provide an answer because not all cases are equally important. This paper develops an objective measure of case importance-the Legal Complexity Index-and applies it to the cases decided by the McLachlin Court. It demonstrates that judgment-delivery opportunities for significant cases have not been shared equally, either overall or with respect to any of the major subdivisions of the caseload. Some judges enjoy the spotlight, while others are relegated …
The Forms And Limits Of Judicial Inquiry: Judges As Inquiry Commissioners In Canada And Australia, Grant R. Hoole
The Forms And Limits Of Judicial Inquiry: Judges As Inquiry Commissioners In Canada And Australia, Grant R. Hoole
Dalhousie Law Journal
In both Canada and Australia the conduct ofpublic inquiries draws heavily from the expertise of the legal profession, with judges frequently serving as commissioners and inquiry hearings often reproducing the popular imagery of a courtroom. Despite this affinity between public inquiries and the legal profession, however, jurisprudential and academic authorities repeatedly stress that public inquiries are non-adjudicative. Indeed, the received wisdom is that the investigative focus of public inquiries justifies their divergence from the procedural and substantive commitments of adjudication. This paper challenges that assumption. It argues that the service of judges as inquiry commissioners should be premised on their …
Refining The Reasonable Apprehension Of Bias Test: Providing Judges Better Tools For Addressing Judicial Disqualification, Jula Hughes, Dean Philip Bryden
Refining The Reasonable Apprehension Of Bias Test: Providing Judges Better Tools For Addressing Judicial Disqualification, Jula Hughes, Dean Philip Bryden
Dalhousie Law Journal
Despite a considerable amount of litigation concerning judicial impartiality, the Canadian "reasonable apprehension of bias" test for judicial disqualification has remained fundamentally unaltered and is well accepted in the jurisprudence. Unfortunately, the application of the test continues to generate difficulties for judges who need to use it to make decisions in marginal cases. Based on previously published doctrinal and empirical research, the goal in the present contribution is to suggest modifications to the test that will better explain the existing jurisprudence and make it easier for judges to understand when recusal is or is not necessary in marginal cases. The …
The Impeachment Of The Judges Of The Nova Scotia Supreme Court, 1787-1793: Colonial Judges, Loyalist Lawyers, And The Colonial Assembly, Jim Phillips
Dalhousie Law Journal
In 1790 the Nova Scotia House of Assembly passed seven "articles of impeachment" against two ofthe colony's Supreme Courtjudges, the firstattempt bya British North American assembly to remove superior courtjudges. Although the impeachment failed when the British government rejected the charges, it is noteworthy nonetheless. The product of a dispute between newly arrived loyalist lawyers and a local elite of "old inhabitants, " it was at one and the same time a political struggle between the Assembly and the executive branch, and one that involved concerns about judicial competence. The impeachment crisis also demonstrates the close links between the judiciary …
Revising Canada's Ethical Rules For Judges Returning To Practice, Stephen Ga Pitel, Will Bortolin
Revising Canada's Ethical Rules For Judges Returning To Practice, Stephen Ga Pitel, Will Bortolin
Dalhousie Law Journal
It has recently become more common for retired Canadian judges to return to the practice of law This development raises an array of ethical considerations and potential threats to the integrity of the administration of justice. Although most codes of legal ethics contemplate the possibility of former judges returning to practice, the rules on this particular topic are dated, under-analyzed, and generally inadequate. This article reviews the Canadian ethical rules that specifically relate to former judges and identifies their shortcomings. In doing so, the authors consider, for comparative purposes, Canadian ethical rules directed at former public officers who return to …
Sharing The Spotlight: Co-Authored Reasons On The Modern Supreme Court Of Canada, Peter J. Maccormick
Sharing The Spotlight: Co-Authored Reasons On The Modern Supreme Court Of Canada, Peter J. Maccormick
Dalhousie Law Journal
When the Supreme Court of Canada delivers its reasons forjudgment, the normal expectation (the rare "By the Court" decision aside) is that the judgment of the Court-unanimous or majority or even plurality-will be designated as having been delivered by one specific judge. ("The reasons of A, B, C and D were delivered by B.") But in recent decades, the practice has developed for two or more judges to share this formal designation; co-authorships currently account for one judgment (and, for that matter one set of minority reasons) in every ten. This article explores this practice, unusual among comparable national high …
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 …
The Challenges Of Institutionalizing Comprehensive Restorative Justice: Theory And Practice In Nova Scotia, Bruce P. Archibald, Jennifer J. Llewellyn
The Challenges Of Institutionalizing Comprehensive Restorative Justice: Theory And Practice In Nova Scotia, Bruce P. Archibald, Jennifer J. Llewellyn
Dalhousie Law Journal
The Nova Scotia Restorative Justice Program ("NSRJ") is one of the oldest and by all accounts the most comprehensive in Canada. The program centres on youth justice, and operates through referrals by police, prosecutors, judges and correctional officials to community organizations which facilitate restorative conferences and other restoratively oriented processes. More than five years of NSRJ experience with thousands of cases has led to a considerable rethinking of restorative justice theory andpractice in relation to governing policies, standards for program implementation and responses to controversial issues. The purpose of this paper is to explore the significance of the Nova Scotia …
The Big Chill?: Contextual Judgment After R. V Hamilton, Richard Devlin, Matthew Sherrard
The Big Chill?: Contextual Judgment After R. V Hamilton, Richard Devlin, Matthew Sherrard
Dalhousie Law Journal
The tone and thrust of the Ontario Court ofAppeal's decision in R. v. Hamilton will serve to chill efforts by sentencing judges to tailor their responsibilities to accord with the recognized realities of systemic and intersectional inequality in Canadian society The decision presents an unduly conservative response to the judicial function question, and an understandable, if excessively cautious, answer with regard to the application of systemic, intersectional inequality issues in practice. Specifically, the decision underplays the overall remedial goal of section 718 of the Criminal Code by overemphasizing the particularity of Aboriginal peoples, and ignoring the specificity of especially vulnerable …
Deciding In The Heat Of The Constitutional Moment Constitutional Meaning And Change In The Quebec Secession Reference, Jonathon W. Penney
Deciding In The Heat Of The Constitutional Moment Constitutional Meaning And Change In The Quebec Secession Reference, Jonathon W. Penney
Dalhousie Law Journal
The Quebec Secession Reference addressed divisive issues with far-reaching implications for the Canadian constitutional order. Recently, commentators have called for a less traditional and more systematic approach to understanding the decision, and its place in the broader scheme of Canadian constitutionalism. Accordingly, this paper challenges the predominant narrative concerning the Quebec Secession Reference, which is largely judge-centred and shows little regard for the important historical, political, and popular forces so crucial to understanding the decision. The challenge is mounted through the work of Yale constitutional scholar Bruce Ackerman and his theory of constitutional moments. This paper uses Ackerman's criteria of …
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 …
Removing A "Section 96" Judge: An Historical Case Study, Barry Cahill
Removing A "Section 96" Judge: An Historical Case Study, Barry Cahill
Dalhousie Law Journal
The creation of the Canadian Judicial Council in 1971 and the gradual disappearance of county and district court judges into the superior court judiciary filled a lacuna in the Constitution Act, 1867. The tenure of county court judges was less secure than that of superior court judges, which was constitutionally entrenched and protected. The Judges Act, passed originally to provide for the removal of county court judges, articulated a mechanism which was extended to superior court judges at about the same time as county and district courts were beginning to disappear from the Canadian judicial scene. The lack of such …
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.
What's The Difference? Interpretation, Identity And R. V. R.D.S., Allan Hutchinson, Kathleen Strachan
What's The Difference? Interpretation, Identity And R. V. R.D.S., Allan Hutchinson, Kathleen Strachan
Dalhousie Law Journal
Lawyers hanker after authority. Whether it be in enforcing the law or justifying law's institutional power, there is an almost desperate yearning to establish and maintain the legitimacy of law and, therefore, of themselves, in a social world in which the whole notion of authority is challenged and undermined. When it comes to matters of legal interpretation, jurists and judges still crave some method that will ground or trace back an interpretation to a foundational or ultimate source that can confer authority on one particular interpretation over another. However, recent jurisprudential debate has done fatal damage to the notion that …
A Note On The Nineteenth Century Law Of Seduction, J M. Bumsted, Wendy J. Owen
A Note On The Nineteenth Century Law Of Seduction, J M. Bumsted, Wendy J. Owen
Dalhousie Law Journal
The authors examine Prince Edward Island's Seduction Act of 1876, which departed from the model of seduction legislation of other Canadian provinces. Based on study of the limited surviving court records they note a number of ways in which the tort of seduction operated differently in nineteenth century Prince Edward Island than it did elsewhere
Mélanges Jean Beetz, Teresa Scassa
Mélanges Jean Beetz, Teresa Scassa
Dalhousie Law Journal
Melanges Jean Beetz is a collection of essays honouring the late Supreme Court of Canadajudge who died in 1991 after a lengthy battle with illness. The timing of the publication of the book, some five years after his death, places the work within what is perhaps a fitting social and political context. The constitutional crises that have plagued this country continue in what seems to be a period of heightened alienation between Quebec and the rest of Canada. An exploration of the contribution of Justice Beetz to the jurisprudence of the Supreme Court of Canada may be of assistance in …
Framing The Issues For Cameras In The Courtrooms: Redefining Judicial Dignity And Decorum, A Wayne Mackay
Framing The Issues For Cameras In The Courtrooms: Redefining Judicial Dignity And Decorum, A Wayne Mackay
Dalhousie Law Journal
This article examines the role of s. 2(b) of the Charter of Rights in determining the role of cameras in Canadian courtrooms. The discussions reveal that arguments in opposition to cameras are largely unfounded and in contradiction to the freedom of expression guarantee. The denial of the right is in reality based on judges' and lawyers' fear of loss of control of the courtroom environment. Cameras should only be banned from courtrooms as part of a total publication ban, and then only after a careful s. 1 analysis
We Can't Go On Together With Suspicious Minds: Judicial Bias And Racialized Perspective In R. V. R.D.S., Richard F. Devlin
We Can't Go On Together With Suspicious Minds: Judicial Bias And Racialized Perspective In R. V. R.D.S., Richard F. Devlin
Dalhousie Law Journal
In recent years it has been recognized that the Canadian judiciary has been drawn from only a relatively small cross section of the community, specifically privileged white males. As a result there have been calls for, and some action in pursuit of, appointment processes that are designed to diversify the bench in order to render it more inclusive. Gender and race are the two primary categories that are invoked as the benchmarks of diversity. While it would appear that numerically there seems to be some very modest progress towards the goal of achieving a more inclusive judiciary, significant qualitative, institutional …
Did She Mention My Name?: Citation Of Academic Authority By The Supreme Court Of Canada, 1985-1990, Vaughan Black, Nicholas Richter
Did She Mention My Name?: Citation Of Academic Authority By The Supreme Court Of Canada, 1985-1990, Vaughan Black, Nicholas Richter
Dalhousie Law Journal
Readers of court judgments will have observed that in the course of expressing reasons for the decisions they reach, judges commonly refer to books and articles written by academics. This is not surprising. Many scholarly publications contain information, arguments and opinions pertinent to the choices that judges must make, and lawyers commonly refer to such works in the written and oral arguments they present to courts. We would therefore expect the judges who must assess and respond to such arguments to make mention of that scholarly material. Moreover a certain portion of academic writing-in particular, a preponderance of law review …
Family Violence-Investigating Child Abuse And Learning From British Mistakes, Alastair Bissett-Johnson
Family Violence-Investigating Child Abuse And Learning From British Mistakes, Alastair Bissett-Johnson
Dalhousie Law Journal
It seems appropriate at the onset to set out something of what the disciplines of law, medicine and social work know about family violence and when, during recent years, this knowledge came to the attention of professionals, the public and legislature. We can then, perhaps, judge whether our existing laws, rules of evidence and procedure take this information adequately into account in dealing with cases of violence within the family. Whilst solving these problems takes time, and law often lags behind the behavioural sciences, the question arises whether the lag is too long and whether differences between experts in the …
The Role Of The Judiciary In The Work Of Madame Justice Wilson, Christine Boyle
The Role Of The Judiciary In The Work Of Madame Justice Wilson, Christine Boyle
Dalhousie Law Journal
My topic is the role of the judiciary in the work of Madame Justice Wilson, but I am going to use a particular focus. I started with the famous lecture "Do Women Judges Really Make a Difference" delivered at Osgoode Hall Law School7 and it helped me think of a question. What is it that women judges might make a difference to? One answer is the law, another is judging itself. These themes were very clear in Madame Justice Wilson's lecture. Another answer, however, is the concept of woman. When women judges make a difference to law, part of what …
Dworkin And The Doctrine Of Judicial Discretion, David Jennex
Dworkin And The Doctrine Of Judicial Discretion, David Jennex
Dalhousie Law Journal
In a series of books and articles published over the last thirty years, Ronald Dworkin has relentlessly attacked the positivist view according to which law is a species of empirically verifiable fact. A position closely associated with this view, and with which Dworkin also takes issue, is the doctrine of judicial discretion. This doctrine asserts that in hard cases - cases in which it is unclear what the law requires - there is no legally required dispensation, so that judges are entitled to use discretion in making their decision. Dworkin disagrees, maintaining that in many such cases a thorough investigation …
Reasoning With The Charter, Gerald Tg Seniuk
Reasoning With The Charter, Gerald Tg Seniuk
Dalhousie Law Journal
Reasoning with the Charter by Leon Trakman is a timely and useful book. It is "timely" because in this the tenth anniversary of the Charter it is appropriate to review its impact, which Prof. Trakman finds wanting and unduly circumscribing. It is also useful, although "useful" is not a term usually associated with a theoreticalbook such as this. Certainly this is not a "how-to" book about Charter application. It does, however, outline a different approach to Charter interpretation and it may be that the neglect by our judges of this approach is a mistake. Perhaps not; but there are at …
Justification And Cultural-Authority In S.35(1) Of The Constitution Act, 1982: Regina V. Sparrow, Chris Tennant
Justification And Cultural-Authority In S.35(1) Of The Constitution Act, 1982: Regina V. Sparrow, Chris Tennant
Dalhousie Law Journal
Regina v. Sparrow is the first decision of the Supreme Court of Canada under s.35(1) of the Constitution Ac 1982. The case has wide-reaching implications for the recognition and limitation of aboriginal rights. This case comment will explore some of the implications of Sparrow, with a focus on the test developed by the Court for the justification of government regulation of aboriginal rights. In particular, the question of the cultural authority of non-aboriginal judges to justify legislation regulating aboriginal rights will be addressed.