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1993

Osgoode Hall Law Journal

Articles 1 - 18 of 18

Full-Text Articles in Law

Helping "Concerned Volunteers Working Out Of Their Kitchens": Funding Citizen Participation In Administrative Decision Making, Marcia Valiante, W. A. Bogart Oct 1993

Helping "Concerned Volunteers Working Out Of Their Kitchens": Funding Citizen Participation In Administrative Decision Making, Marcia Valiante, W. A. Bogart

Osgoode Hall Law Journal

Broad citizen participation in decision making by administrative bodies is important in achieving fairness, improving the quality of decisions, and realizing accountability and legitimacy. Yet such broad participation often hinges on adequate financial capacity. In this regard, the authors review a number of mechanisms used for funding citizen participation. These mechanisms are variations of essentially two models: public funding (direct and indirect) and direct funding by proponents. The article concludes with a plea for such mechanisms--even in a time of severe financial restraint-as one reflection of a vigorous participatory democracy.

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The Problems Of Public Choice: The Case Of Short Limitation Periods, Kent Roach Oct 1993

The Problems Of Public Choice: The Case Of Short Limitation Periods, Kent Roach

Osgoode Hall Law Journal

This article examines public choice as a predictor of legislative behaviour and as a guide for statutory and constitutional interpretation. It focuses on short limitation periods, which have often been criticized as special interest legislation benefiting well-organized groups, such as medical doctors. The author concludes that the economic assumptions of public choice cannot adequately explain complexities in interest group behaviour, and that the Canadian legislative process has the ability to advance the interests of diffuse and unorganized groups, such as patients. The author also argues that given the absence of normative content in public choice analysis, Canadian courts have rightly …

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Culture And The Canadian Constitution, Patrick J. Monahan Oct 1993

Culture And The Canadian Constitution, Patrick J. Monahan

Osgoode Hall Law Journal

This article examines the current division of powers over cultural matters in the Canadian Constitution and the manner in which the 1992 Charlottetown Accord would have altered that distribution. During the debate over the Charlottetown Accord, it was argued by the federal government and the provinces that the Constitution allocates primary legislative responsibility over cultural matters to the provinces. Therefore, the cultural amendments in the Accord which would have recognized the provinces' exclusive jurisdiction to make laws in relation to culture were justified on the basis that they merely codified the status quo. This paper challenges the belief that the …

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Copyright In Legal Documents, David Vaver Oct 1993

Copyright In Legal Documents, David Vaver

Osgoode Hall Law Journal

Original legal documents and forms have long enjoyed copyright protection. After looking at Commonwealth and U.S. decisions, the author discusses the nature, extent, and desirability of protection. An examination of the technicalities of copyright protection reveals a law drafted in broad generalities and ill-suited to respond adequately to the common practices arising from this class and, by implication, other classes of creative work. The author concludes by suggesting practical ways in which legislators, lawyers, and judges can solve some of the copyright problems generated through the use of legal documents.

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Conjugal Homicide And Legal Violence: A Comparative Analysis, Alison Young Oct 1993

Conjugal Homicide And Legal Violence: A Comparative Analysis, Alison Young

Osgoode Hall Law Journal

This article examines the defences in English and Canadian criminal law available to battered women who kill their abusers. The article sets out in detail the formation and evolution of the doctrinal interpretation, in English law, of the defences of provocation, diminished responsibility, and self-defence. Current case law is examined, including the recent cases of Thornton and Ahluwalia. The objective of the essay is to provide a critical context, namely the legal construction of the phenomenon of conjugal violence, in which we can see the current elaboration of these defences. The Canadian position is investigated, by means of a thorough …

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Bad Policy As A Recipe For Bad Federalism In The Regulation Of Canadian Financial Institutions: The Case Of Loan And Trust Companies, Ronald J. Daniels Jul 1993

Bad Policy As A Recipe For Bad Federalism In The Regulation Of Canadian Financial Institutions: The Case Of Loan And Trust Companies, Ronald J. Daniels

Osgoode Hall Law Journal

This article addresses the impact of substantive policy on federal arrangements in the regulation of Canadian loan and trust companies. It is argued that reliance on market-suppressing policies (flat-rate based deposit insurance and selective bail-outs of depositors in the event of institutional failure) has undermined the value of competitive federalism in this area, and has spawned highly contentious policy initiatives such as Ontario's Equals Approach. To redress the federalism problems in the regulation of loan and trusts, a useful starting point would be the enhancement of market forces in substantive policy. Here, it is argued that the commitment to secrecy …

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Withholding And Withdrawing Life Support From Adults At Common Law, Joan M. Gilmour Jul 1993

Withholding And Withdrawing Life Support From Adults At Common Law, Joan M. Gilmour

Osgoode Hall Law Journal

This article examines the circumstances in which life support can legally be withheld or withdrawn from adults. It analyzes the situation of patients who are both capable and incapable of making decisions, taking into account recent jurisprudence in Canada, the United States, and the United Kingdom. Where competence is not an issue, both law and modern medicine espouse a strong normative commitment to patient self-determination. However, when no clear indication of the patient's treatment preference can be ascertained because of decisional incapacity, then the question of terminating life support is much more difficult. The author describes and analyzes the two …

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Paradise Lost, Paradox Revisited: The Implications Of Familial Ideology For Feminist, Lesbian, And Gay Engagement To Law, Shelley A. M. Gavigan Jul 1993

Paradise Lost, Paradox Revisited: The Implications Of Familial Ideology For Feminist, Lesbian, And Gay Engagement To Law, Shelley A. M. Gavigan

Osgoode Hall Law Journal

In this article the author addresses the theoretical and political challenges issued to feminists and feminist scholarship by recent debates and litigation concerning "family" and "family-based" benefits. The argument proceeds in four parts: first, the discussion is relocated within socialist feminist theory. The implications of the qualified pro-family stance in the critiques advanced or influenced by women of colour is considered next, followed by an examination of some proposals to extend the definition of "spouse" and "family" to lesbian and gay relationships. The author is critical of both "critiques" and illustrates with reference to Canadian welfare and immigration law that …

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The Role Of Institutional And Retail Investors In Canadian Capital Markets, Jeffrey G. Macintosh Apr 1993

The Role Of Institutional And Retail Investors In Canadian Capital Markets, Jeffrey G. Macintosh

Osgoode Hall Law Journal

In recent years, the growth of the institutional portfolio (i.e., funds managed by mutual funds, insurance companies, banks, trust and loan companies, etc.) has been truly astonishing. In this article, Professor MacIntosh argues that this growth has important implications for the manner in which Canadian capital markets are regulated. In particular, institutional shareholders tend to be better monitors of corporate managers than retail shareholders. Institutional monitoring has been impeded by a number of features of the regulatory landscape. Professor MacIntosh makes a number of recommendations for changes to corporate and securities laws. Contrary to the fears expressed by some, the …

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Toward The Twenty-First Century: A Canadian Legal Perspective On Resource And Environmental Law, Constance D. Hunt Apr 1993

Toward The Twenty-First Century: A Canadian Legal Perspective On Resource And Environmental Law, Constance D. Hunt

Osgoode Hall Law Journal

This paper surveys existing and emerging Canadian approaches to environmental and resource management issues, and assesses the strengths and weaknesses of some of our past and current approaches. It considers the challenges posed by the fact that Canada is a federal state as illustrated by jurisdictional competition regarding environmental assessment. The successful utilization of cooperative strategies is considered and examples are given of new problems that need to be addressed. Difficulties faced by governmental, judicial, and administrative bodies are surveyed. Examples are given of emerging legislative strategies. It is concluded that, while much change is apparent, it is far from …

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Agenda For Canadian Labour Law Reform: A Little Liberal Law, Much More Democratic Socialist Politics, Harry J. Glasbeek Apr 1993

Agenda For Canadian Labour Law Reform: A Little Liberal Law, Much More Democratic Socialist Politics, Harry J. Glasbeek

Osgoode Hall Law Journal

Statutory collective bargaining has been the linchpin of Canadian industrial relations since World War I. It yielded benefits to large segments of workers, although its reach and impact were always exaggerated. As the economic entente which underpinned the scheme is unravelling, workers fight desperately to hang onto a system which, in retrospect, looks even better than it did before. But the narrow, male-centred, economic premises of collective bargaining make statutory collective bargaining reform a poor vehicle with which to offset employer attacks on the working classes. An agenda which seeks to link the economic and the political, men and women, …

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Australian Compulsory Arbitration: Will It Survive Into The Twenty-First Century?, Richard Mitchell, Richard Naughton Apr 1993

Australian Compulsory Arbitration: Will It Survive Into The Twenty-First Century?, Richard Mitchell, Richard Naughton

Osgoode Hall Law Journal

Over the past decade Australia has struggled to come to grips with the decline of its traditional economic and industrial structures, and the need to accommodate itself to the international context. Since 1900 Australia has had an industrial relations system highly regulated by law. Economic and political pressures are challenging the continuing relevance of this system, and particularly its ability to adapt to the need for an "enterprise-based" industrial relations culture. This article examines the type of industrial relations system erected under compulsory arbitration in Australia, its impact upon various aspects of the labour market, and the incremental nature of …

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Environmental And Resource Law In Australia, Ben Boer Apr 1993

Environmental And Resource Law In Australia, Ben Boer

Osgoode Hall Law Journal

This article outlines the development of environmental and resource law in Australia and explores its constitutional and political setting. The need for a national approach to the environment within the context of Australia as a federally organized country is recognized, particularly with regard to Australia's international obligations and the fact that environmental issues span state, territory, and/or national boundaries. It is argued that, to date, federal action with respect to the environment does not satisfactorily demonstrate the emergence of a national environmental strategy. However, the recent Intergovernmental Agreement on the Environment, signed by the state and federal governments in 1992, …

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Getting The Political Architecture Right, Richard Cullen, Peter Hanks Jan 1993

Getting The Political Architecture Right, Richard Cullen, Peter Hanks

Osgoode Hall Law Journal

As Australia approaches the twenty-first century, it finds itself, like a number of other Anglo-centred countries in the western world, including Canada, in the grip of continuing economic trauma. There has been a marked relative (and absolute) slip in general economic performance. This paper focuses on the linkages between this phenomenon and Australia's basic political architecture. It argues that, although renovation of Australian federalism is no panacea for these problems, there are linkages between Australia's aged, formal, political structure and its recent economic performance. Lack of attention to the task of serious, systematic renovation is allowing the present outdated political …

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Social Security, Taxation Law, And Redistribution: Directions For Reform, Alison Mcclelland, Rick Krever Jan 1993

Social Security, Taxation Law, And Redistribution: Directions For Reform, Alison Mcclelland, Rick Krever

Osgoode Hall Law Journal

While it is now generally accepted that some redistribution of economic power is a legitimate goal of government, there is no consensus as to the type of redistribution that should be pursued. In the absence of a clear redistributive goal, it is impossible to evaluate critically current law, or make recommendations. for change. In the first part of this article, we examine alternative models of redistribution and advocate a preferred model, namely, redistribution to promote equality of opportunity and to recognize periods of vulnerability. We then evaluate the operation of Australian social security law and taxation law in light of …

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The Difficulty Of Amending The Constitution Of Canada, Peter W. Hogg Jan 1993

The Difficulty Of Amending The Constitution Of Canada, Peter W. Hogg

Osgoode Hall Law Journal

The Charlottetown Accord of 1992 was a set of proposals for amendments to the Constitution of Canada. These proposals were designed to achieve a national settlement of a variety of constitutional grievances, chiefly those arising from Quebec nationalism, western regionalism, and Aboriginal deprivation. The Accord was defeated in a national referendum. In the case of Quebec, the defeat of the Charlottetown Accord, following as it did on the defeat of the Meech Lake Accord, has made the option of secession relatively more attractive, but there are sound pragmatic reasons to hope that Quebec will not make that choice. In the …

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The Changing Structure Of The Canadian Tax System: Accommodating The Rich, Neil Brooks Jan 1993

The Changing Structure Of The Canadian Tax System: Accommodating The Rich, Neil Brooks

Osgoode Hall Law Journal

The Canadian tax system underwent fundamental reform in the late 1980s. The principal effect of this reform has been to disable the tax system as an effective policy instrument for the redistribution of income. The fact that these reforms were an integral part of the larger neoconservative agenda to roll back the economic borders of the state and shift more power from the public to the private sector, is widely acknowledged. This paper simply illustrates how pervasively neoconservative ideology has influenced tax policy analysis. Every traditional objective of the tax system (to assist in reallocating resources, stabilizing the economy, and …

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The Australian Reluctance About Rights, Hilary Charlesworth Jan 1993

The Australian Reluctance About Rights, Hilary Charlesworth

Osgoode Hall Law Journal

This article examines the way in which the Australian legal system protects human rights. It discusses the paucity of constitutionally protected rights and the failure of various attempts made to amend the Constitution in this respect. The paper looks at the inadequacy of the Australian common law and legislation in the protection of rights. It argues that the politics of both federalism and legalism have produced a culture wary of rights discourse. The paper concludes by considering how the Australian protection of rights can be improved and suggests that one way ahead would be to introduce an Australian charter of …

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