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Articles 1 - 26 of 26
Full-Text Articles in Law
Interpreting The Charter Of Rights: Generosity And Justification, Peter W. Hogg
Interpreting The Charter Of Rights: Generosity And Justification, Peter W. Hogg
Osgoode Hall Law Journal
The author argues that there is a close relationship between the scope of the rights guaranteed by the Charter and the standard of justification required under section 1. The broader the scope of a right, the more relaxed the standard of justification must be. A generous interpretation of a right is incompatible with the stringent Oakes standard of justification. However, a purposive interpretation of a right, confining the right to conduct that is worthy of constitutional protection, is compatible with a stringent standard of justification.
Law Faculty Developments At Calgary, 1984-1989, Margaret E. Hughes
Law Faculty Developments At Calgary, 1984-1989, Margaret E. Hughes
Dalhousie Law Journal
The Calgary Law Faculty is the youngest of the Canadian Law Schools, having been established in 1976. During the period under review the Faculty tackled developmental challenges that older Canadian law schools had faced years ago in generally less stringent economic times.
The Annotated Criminal Code En Version Quebecois: Signs Of Territoriality In Canadian Criminal Law, Nicholas Kasirer
The Annotated Criminal Code En Version Quebecois: Signs Of Territoriality In Canadian Criminal Law, Nicholas Kasirer
Dalhousie Law Journal
Why bother annotating the Criminal Code? At first blush the answer seems as plain to the casual reader as it did to Sir Charles: judges and others join Parliament in making criminal law. Indeed, despite the promise implicit in its short title, the Criminal Code is no more than An Act respecting the Criminal Law - a near-code which was and is a boat designed to be full of holes, to the great comfort of those standing by as it was launched in 1892 and, to a lesser extent, those hard at work bailing it out today. Today's Code admits …
Second Class Rights? Principles And Compromise In The Charter, Denise G. Réaume, Leslie J. M Green
Second Class Rights? Principles And Compromise In The Charter, Denise G. Réaume, Leslie J. M Green
Dalhousie Law Journal
Minority language rights are both historically and politically central to the Canadian constitution. It is also commonly supposed that they are fundamental rights, rooted in principle, and deserving generous interpretation by the courts. For a time, it seemed that the Supreme Court of Canada shared this view. In the Manitoba Language Reference, for example, they said that "The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity." In Mercure v. A.G. of Saskatchewan they reiterated: "It can hardly be gainsaid that language is profoundly anchored in the human condition. Not …
The Employer's Intentional Tort - Should It Be Recognized In Canadian Jurisdictions?, Leigh West
The Employer's Intentional Tort - Should It Be Recognized In Canadian Jurisdictions?, Leigh West
Dalhousie Law Journal
At the inception of Canadian worker compensation legislation, an historic trade off agreement was made between employers and their workers. By virtue of this agreement, the right of workers to sue their employer in tort was removed and in return workers were to receive swift, certain, but limited, compensation payments for job-related injuries and illness, regardless of fault. With a few minor exceptions, this agreement made worker compensation the exclusive remedy available to an injured worker. It also lodged with the various provincial worker compensation boards the responsibility to adjudicate whether or not the injury or illness claimed was one …
Local Elections In Canada, A Wr Carrothers
Local Elections In Canada, A Wr Carrothers
Dalhousie Law Journal
This book is the fifth in a series by the same author, and the same publisher, on Canadian Election Law. The previous books (with their sub-titles) are as follows: Political Rights (The Legal Framework of Elections in Canada); Lawmaking by the People (Referendums and Plebiscites in Canada); Money and Message (The Law Governing Election Financing, Advertising, Broadcasting and Campaigning in Canada); and, Election Law in Canada (The Law and Procedure of Federal, Provincial and Territorial Elections (two volumes)). The present book is sub-titled "The Law Governing Elections of Municipal Councils, School Boards and Other Local Authorities". The sub-title is a …
Cross Cultural Reflections: Teaching The Charter To Americans, Jamie Cameron
Cross Cultural Reflections: Teaching The Charter To Americans, Jamie Cameron
Osgoode Hall Law Journal
In this article, the author discusses a course in Comparative Constitutional Jurisprudence that she taught at Cornell Law School in the winter semester of 1989. She is particularly interested in the way this class of American students responded to the Supreme Court of Canada's interpretation of the Charter. She presents her reflections on differences between Canadian and American constitutional culture through a discussion of the decisions in The Motor Vehicle Reference, R. v. Morgentaler, and The French Language Case.
The Contractual Liability Of The Crown And Its Agents, Sue Arrowsmith
The Contractual Liability Of The Crown And Its Agents, Sue Arrowsmith
Osgoode Hall Law Journal
This article considers the question of the capacity in which Crown agents enter into contracts - whether on behalf of the Crown or in an independent capacity - and examines the significance of this for questions such as the application of Crown immunities. It is argued that the courts' attempt to deal with these questions through the recognition of a dual capacity in Crown agents and the application of the private law of agency is highly unsatisfactory, and it is suggested that this area well illustrates the pressing need to reconsider the dual legal status of the administration.
The Question Of A Duty To Rescue In Canadian Tort Law: An Answer From France, Mitchell Mcinnes
The Question Of A Duty To Rescue In Canadian Tort Law: An Answer From France, Mitchell Mcinnes
Dalhousie Law Journal
A man witnesses a canoeist drowning a short distance from the shore.2 For over forty minutes the tenants of an apartment complex listen to the tortured screams of a woman being murdered in the streets below.3 A handful of railway employees watch a boy bleed to death for want of medical attention after he was struck by a passing car.4 The owner of a pleasure craft learns that one of his passengers has fallen overboard into an icy lake.' An innocent party to a motor vehicle accident finds that the driver at fault was injured as a result of the …
The Fiercest Debate: Cecil A. Wright, The Benchers And Legal Education In Ontario 1923-1957, W R. Lederman
The Fiercest Debate: Cecil A. Wright, The Benchers And Legal Education In Ontario 1923-1957, W R. Lederman
Dalhousie Law Journal
In the dozen years after the end of the Second World War, long-standing conflicts about the nature of education for the legal profession in Ontario became especially acute. Fortunately, climax and successful compromise came in 1957. In that year the Law Society of Upper Canada, which had controlled legal education and admission to practice from the early days of the Colony of Upper Canada, gave up its monopoly of legal education and conceded an equal position in this respect to Ontario universities willing and able to enter the field. Several were, and promptly did so. Indeed the University of Toronto …
Newfoundland And Dominion Status, Christine Boyle
Newfoundland And Dominion Status, Christine Boyle
Dalhousie Law Journal
The relationship between Canada and Newfoundland was under stress for a number of different reasons during the eighties. There was a dispute over off-shore mineral rights' as well as concern over French fishing rights.2 For those interested in the relationship, Dr. Gilmore's book, Newfoundland and Dominion3 Status, subtitled The External Affairs Competence and International Law Status of Newfoundland, 1855-1934, therefore provides a useful historical background as well as fascinating information about the constitutional development of Newfoundland. This may be of interest as well to constitutional and international scholars generally as well as to Newfoundland's neighbours in the Maritimes.
Ends, Means And Utility Functions: The Efficiency Criterion And Enforcement Activity In Canadian Antitrust 1970-1981, Cynthia Shorthill, J. C. H. Jones
Ends, Means And Utility Functions: The Efficiency Criterion And Enforcement Activity In Canadian Antitrust 1970-1981, Cynthia Shorthill, J. C. H. Jones
Osgoode Hall Law Journal
The object of this paper is twofold: to determine the extent to which enforcement of the Combines Investigation Act from 1970-1981 was guided by the goal of maximizing economic efficiency; and to ascertain the roles - facilitating or frustrating - played by the government and the Bureau of Competition Policy. The former is accomplished by correlating Bureau enforcement activity with estimates of allocative inefficiency. The latter is accomplished by treating the Bureau as a utility maximizer subject to the constraints imposed by the legislation and the structures set up to administer and adjudicate the statute. Our conclusions are that: enforcement …
The Evolution Of The Limitation Clause, Janet Hiebert
The Evolution Of The Limitation Clause, Janet Hiebert
Osgoode Hall Law Journal
The evolution of the limitation clause reveals a rigorous and changing political discourse about the nature of rights and limitations. While the larger issue in the entrenchment debate focussed on whether legislatures or courts were best suited to protect Canadians' interests, a fundamental concern underlying the debate was the scope of permissible limitations on protected rights. Many commentators argued that an explicit limitation clause was not necessary because courts would fashion the appropriate limits on rights. Provincial and federal drafters, however, rejected the assumption implicit in this suggestion: that the Charter was to provide an exhaustive statement of all values …
Of Persons And Property: The Politics Of Legal Taxonomy, David S. Cohen
Of Persons And Property: The Politics Of Legal Taxonomy, David S. Cohen
Elisabeth Haub School of Law Faculty Publications
The essay falls into three major parts. In the first part, we explain and describe what we believe to be the core idea of law - that it represents a discursive and taxonomic economy which is used to give meaning to the world by creating a particular and partial reality. The concepts and language lawyers use, the way those media are deployed, the argumentative devices relied upon, and the values inculcated combine in conscious and unconscious ways to constitute law and a legal style of life. In part two, we tell two stories. One involves the Supreme Court's treatment of …
Suing The State, David S. Cohen
Suing The State, David S. Cohen
Elisabeth Haub School of Law Faculty Publications
As one examines the ways in which we have chosen to respond to claims of individuals and firms to compensation from the federal administration, one is immediately struck by the rapid rate of growth in the number of claims and the magnitude of the compensation that has been sought in recent years. What is even more dramatic, however, is the shift in the focus of our attention away from low-level bureaucratic activity, and towards alleged administrative failures to ensure air traffic safety, combat international terrorism, regulate financial institutions, protect the interests of businesses in international trade negotiations, privatize the delivery …
Can It Really Be Unconstitutional To Regulate Product Safety Information?, David S. Cohen
Can It Really Be Unconstitutional To Regulate Product Safety Information?, David S. Cohen
Elisabeth Haub School of Law Faculty Publications
In this paper, I examine the impact of two Supreme Court decisions on information-based product safety regulation which, in a variety of guises in Canada, can be said to restrict manufacturers', distributors' and marketers' ability to "express" themselves. In the end, I conclude that, if one appreciates the justification for and the processes by which this kind of product safety regulation is instituted, there is only a small risk that the current regulatory activity will be held unconstitutional. When one takes into account the degree of co-operation between business and government in establishing the content of most regulatory activity and …
Contempt For Workers, Harry J. Glasbeek
Contempt For Workers, Harry J. Glasbeek
Osgoode Hall Law Journal
Charter proponents have been hopeful that the courts will use the constitutional entrenchment of rights to enlarge the political freedom of Canadians. Charter opponents have been doubtful of the court's ability to do so and, more importantly, of their willingness to do so where the enhancement of rights would undermine existing power relations. While many cases which come before the courts do not raise this issue squarely, the contradictory propositions are tested where capital labour conflicts are the subject of litigation. The argument is that it is the courts' historic mission to safeguard capital from working class challenges. Two recent …
What Is A Church By Law Established?, M. H. Ogilvie
What Is A Church By Law Established?, M. H. Ogilvie
Osgoode Hall Law Journal
This paper examines one narrow question which is raised tangentially by virtue of the Constitution Act 1867, section 93 and the Constitution Act 1982, section 29 as interpreted by the Supreme Court of Canada in the Reference Re An Act to Amend the Education Act: what is an established church? It argues that when a single church alone enjoys constitutionally entrenched state support for its schools to the exclusion of all other religious groups, the real legal question is not about the legal protection of that church as a religious minority, especially when the recipient of state support is the …
Regulating Regulators: The Legal Environment Of The State, David S. Cohen
Regulating Regulators: The Legal Environment Of The State, David S. Cohen
Elisabeth Haub School of Law Faculty Publications
In this paper I focus on the ability of tort law to reduce primary costs, or losses associated with the number and seriousness of accidents. In one sense I will be analysing the state as if it were a private firm in which losses suffered by private individuals and firms are externalities. Several years ago Mark Spitzer wrote a paper on this topic in which he posited several models of state activity and analysed the incentive effects of liability rules in each case. In my view Spitzer's general conclusion - the rule which may be synthesized from all of the …
Introduction & Table Of Cases, Innis Christie, A Paul Pross
Introduction & Table Of Cases, Innis Christie, A Paul Pross
Dalhousie Law Journal
Commissions of inquiry have been popular mechanisms with Canadian governments. Despite a widespread view that they are used principally to delay action while removing embarrassment from the immediate vicinity of governments, it is a fact that commissions of inquiry have repeatedly - and often highly successfully - served as vehicles for analyzing policy, for evaluating outworn or failed policy, for identifying a consensus about policy and for building support for new policy directions. They have brought facts to light both about specific incidents and about matters of policy concern; facts as diverse as what actually happened at a given time …
Reflections On Commission Research, Alan C. Cairns
Reflections On Commission Research, Alan C. Cairns
Dalhousie Law Journal
This paper explores the role of research in royal commissions. It is based primarily on my experience as one of three research directors for the Royal Commission on the Economic Union and Development Prospects for Canada, popularly known as the Macdonald Commission. Since royal commissions appear in many guises, much of what I say may not apply to other commissions. In general, my remarks are more applicable to those commissions that give advice on significant public policy matters than to more narrowly investigative commissions set up in response to allegations of corruption or scandal in government or to determine the …
Red Raspberries: Effective Dispute Settlement In The Canada-United States Free Trade Agreement, Thomas M. Boddez, Alan M. Rugman
Red Raspberries: Effective Dispute Settlement In The Canada-United States Free Trade Agreement, Thomas M. Boddez, Alan M. Rugman
Northwestern Journal of International Law & Business
By negotiating the Free Trade Agreement (FTA) with the United States, the Canadian government sought to ensure its exporters more secure and predictable access to the huge United States market, where a majority of Canadian foreign trade is conducted. Canadian exporters were especially concerned with the increased imposition of antidumping (AD) and countervailing duties (CVD) by the United States. Trade laws in the United States are effected through the International Trade Commission (ITC) and the International Trade Administration of the Department of Commerce (ITA). These bodies are central to the bifurcated, quasi-judicial administrative system used in the United States to …
Comment On Inquiry Management, J G. Godsoe
Comment On Inquiry Management, J G. Godsoe
Dalhousie Law Journal
I think whether the commission is a policy commission or an investigative commission or both, as the case was with the Ocean Ranger Inquiry, a commission almost inevitably is drawn into an adversarial context. I think in the case of an investigative commission, the parties, who have interests at stake that are being investigated and adjudicated upon, will tend, over time, to start to question the validity of the commission. Likewise, a policy commission frequently is criticized as soon as it is announced or, as in the case of the MacDonald Commission, even before it was announced as being a …
Commissions Of Inquiry And Public Policy In Canada, Frank Iacobucci
Commissions Of Inquiry And Public Policy In Canada, Frank Iacobucci
Dalhousie Law Journal
Most Canadians attach a great deal of importance to commissions of inquiry. When commissions of inquiry are appointed and when they report, great public attention is usually focussed on the substantive and serious issues discussed.
The Role Of The Commission Counsel, John Sopinka
The Role Of The Commission Counsel, John Sopinka
Dalhousie Law Journal
Commissions of inquiry have been prominently featured in this country for decades. For instance the Durham Report on the 1837 Mackenzie- Papineau Rebellion was the product of a public inquiry. As well, other inquiries have played a pivotal role in the development of our public and economic life. We had, for example, the Rowell-Sirois Commission on Dominion-Provincial Relations, the Royal Commission on Bilingualism and Biculturalism, the McDonald Commission on the Economy, the Dubin Inquiry on Aviation Safety and the Estey Inquiry on Bank Failures to mention a few. In 1979, the Law Reform Commission of Canada estimated that there had …
The Rights And Obligations Of Those Subject To Inquiry And Of Witnesses, David Wayne Scott
The Rights And Obligations Of Those Subject To Inquiry And Of Witnesses, David Wayne Scott
Dalhousie Law Journal
There are questions raised from time to time as to the desirability of continued utilization of the public inquiry as we know it. These questions ordinarily arise in the context of a consideration of the issues outlined in this paper, that is to say, the rights and obligations of those subject to inquiry. In a classic description of the public inquiry Mr. Justice Middleton observed as follows: It must not be forgotten that this is an inquiry directed by the government into the affairs of its own creature, a Children's Aid Society, with the view of ascertaining if it is …