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Articles 1 - 5 of 5
Full-Text Articles in Law
L'Indépendance Judiciaire Et La Cour Suprême: Reconstruction Historique Douteuse Et Théorie Constitutionnelle De Complaisance, Jean Leclair, Yves-Marie Morissette
L'Indépendance Judiciaire Et La Cour Suprême: Reconstruction Historique Douteuse Et Théorie Constitutionnelle De Complaisance, Jean Leclair, Yves-Marie Morissette
Osgoode Hall Law Journal
The recent decision of the Supreme Court of Canada in the Reference re: Remuneration of Judges in the Provincial Court of Prince Edward Island has given judicial independence a surprising interpretation. A majority of the Court stated that this principle requires legislative bodies to establish independent procedures for setting judicial salaries. The Court maintained that the basis of judicial independence is to be found in the preamble of the Constitution Act, 1867, rather than the express provisions of the constitutional text. The authors argue in Part I of this article that the Court transformed fundamentally and without reason traditional conceptions …
Antidiscrimination And Affirmative Action Policies: Economic Efficiency And The Constitution, Edward M. Iacobucci
Antidiscrimination And Affirmative Action Policies: Economic Efficiency And The Constitution, Edward M. Iacobucci
Osgoode Hall Law Journal
This article assesses the economic efficiency of race-based antidiscrimination and affirmative action policies with a view to assessing relevant Canadian and American constitutional law. The article reviews economic arguments about why antidiscrimination laws may be efficient in addressing externalities, in hastening the exit of bigoted employers from the market, and in preventing the potentially inefficient use of race as a proxy for information; affirmative action may be efficient in accounting for differential signaling costs across race. The article concludes that economic analysis supports the approach in section 15 of the Charter which generally bans discriminatory government action, but recognizes that …
"Pro-Life" Absolutes, Feminist Challenges: The Fundamentalist Narrative Of Irish Abortion Law 1986-1992, Ruth Fletcher
"Pro-Life" Absolutes, Feminist Challenges: The Fundamentalist Narrative Of Irish Abortion Law 1986-1992, Ruth Fletcher
Osgoode Hall Law Journal
This article asks how Irish abortion law developed to the point of stopping a young pregnant rape victim from travelling abroad to have an abortion in 1992 (Attorney General v. X.). The author argues that this case, which ultimately saw the Irish Supreme Court overturn that decision and recognize the young woman's right to abortion, was the last chapter of the fundamentalist narrative of Irish abortion law. The feminist critique of that law needs to consider its particular fundamentalist aspects in order to clarify the obstacles posed to the struggle for Irish women's reproductive freedom. The author argues that a …
A Bill Of Rights For The United Kingdom: From London To Strasbourg By The Northwest Passage?, Stephen Sedley
A Bill Of Rights For The United Kingdom: From London To Strasbourg By The Northwest Passage?, Stephen Sedley
Osgoode Hall Law Journal
In anticipation of the United Kingdom's patriation of the European Convention on Human Rights, the author explores the possible impact that a Bill of Rights will have on the U.K. system of justice from a European and U.K. perspective. The author argues that, from a European perspective, the U.K. has an established history of yielding to supra-national law given its membership in the European Union. However, from a U.K. perspective, this will present new challenges, as the constitutionality of domestic legislation is subject to increased judicial scrutiny in ensuring conformance with European Convention obligations. The author argues that the pressures …
R. V. Oakes 1986-1997: Back To The Drawing Board, Leon E. Trakman, William Cole-Hamilton, Sean Gatien
R. V. Oakes 1986-1997: Back To The Drawing Board, Leon E. Trakman, William Cole-Hamilton, Sean Gatien
Osgoode Hall Law Journal
The Supreme Court of Canada, in R. v. Oakes, identified two standards of justification in applying section 1. The first standard was normative. The second was methodological, called the Oakes test. The Court, until recently, applied the Oakes test mechanically and avoided the normative standard. More recently, in Egan v. Canada and RJR-MacDonald Inc. v. Canada (A.G.), it resorted to a normative analysis that is indeterminate and unpredictable. This article challenges both the mechanical application of the Oakes test and the Court's new normative approach. It proposes, and illustrates, a preferable alternative that is both determinate and predictable. It is …