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Articles 1 - 30 of 52
Full-Text Articles in Law
A Leap Of Faith: Twail Meets Caribbean Queer Rights Jurisprudence—Intersections With International Human Rights Law, H. Patrick Wells
A Leap Of Faith: Twail Meets Caribbean Queer Rights Jurisprudence—Intersections With International Human Rights Law, H. Patrick Wells
Dalhousie Law Journal
This article examines the legal status of queer rights in Caribbean jurisprudence. It conducts an analysis of Caribbean queer rights case law, in order to arrive at an understanding of the extent and dynamics of constitutional protection for these rights. It then uses the revelations from this analysis to determine how Caribbean queer rights jurisprudence has intersected with international human rights norms, values and rules. Finally, the article applies the TWAIL methodological approach to international law to argue that the Caribbean queer rights jurisprudence has not so far reflected the counter-hegemonic, resistance, anti-imperialist discourse that TWAIL champions, in spite of …
A Defence Of The Principled Approach To Tax Settlements, Saul Templeton
A Defence Of The Principled Approach To Tax Settlements, Saul Templeton
Dalhousie Law Journal
The Canadian Minister of National Revenue is responsible for administering and enforcing the majority of tax legislation in Canada. Where disputes arise with particular taxpayers over the correct amount of tax owed, the taxpaying public ought to have confidence that the Minister has a principled basis in law for settling disputes for less than amounts previously assessed. Yet opponents of the principled basis for settlement consistently call for reform, arguing that compromise settlement should be permissible. This paper responds to arguments raised for compromise settlement by reconciling the jurisprudence on the authority of the Minister to settle tax disputes. It …
The Contract Of Employment At The Supreme Court Of Canada: Employee Protection And The Presumption Of Employer Freedom, Gillian Demeyere
The Contract Of Employment At The Supreme Court Of Canada: Employee Protection And The Presumption Of Employer Freedom, Gillian Demeyere
Dalhousie Law Journal
This article critically examines the Supreme Court of Canada's treatment of the contract of employment in its wrongful dismissal jurisprudence over the last 25 years, with the aim of challenging the view that only by exempting the contract of employment from the ordinary workings of contract doctrine or by resorting to public policy considerations can the common law of dismissal provide adequate protection for employees. The Court's jurisprudence reveals a commitment to what this paper calls the presumption of employer freedom, a view of the contract of employment which has its origins in the status-based master and servant relationship and …
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 …
Searching And Seizing After 9/11: Developing And Applying Empirical Methodology To Measure Judicial Output Inthe Supreme Court's Section 8 Jurisprudence, Richard Jochelson, Michael Weinrath, Melaine Janelle Murchison
Searching And Seizing After 9/11: Developing And Applying Empirical Methodology To Measure Judicial Output Inthe Supreme Court's Section 8 Jurisprudence, Richard Jochelson, Michael Weinrath, Melaine Janelle Murchison
Dalhousie Law Journal
In 2005, Margit Cohn and Mordechai Kremnitzer created a multidimensional model to measure judicial discourse inherent in the decision making of constitutional courts. Their model set out multiple indicia bywhich to measure whether the court acted within proper constitutional constraints in order to determine the extent to which a court rendered a decision that was activist or restrained. This study attempts to operationalize that model. We use this model to analyze changes in interpretation of search and seizure law under section 8 after the enactment of the Canadian Charter of Rights and Freedoms at the Supreme Court of Canada. The …
Employee Pension Rights And The False Promise Of Trust Law, Elizabeth Shilton
Employee Pension Rights And The False Promise Of Trust Law, Elizabeth Shilton
Dalhousie Law Journal
This article explores the jurisprudence of the Supreme Court of Canada on employment pension trusts. I argue that the Court's 1994 decision in Schmidt v. Air Products, which embraced trust law as a tool for resolving pension surplus ownership disputes, held out the promise that courts would use fiduciary principles to shape pension rights for employees and protect those rights against employer self-interest. That promise has failed to bear much fruit. Since Schmidt, the Court has moved away from a conception of trust law as a fetter on employer power towards a flexible conception in which employer trust obligations are …
Clarifying Causation In Tort, Erik S. Knutsen
Clarifying Causation In Tort, Erik S. Knutsen
Dalhousie Law Journal
This article argues that there is nothing overly confusing about the law ofcausation in negligence. It attempts to define the current state of causation in Canadian negligence law with a simple goal in mind: to have a clearer more productive conversation about the law with the fundamental concepts clearly on the table. The author argues that while the leading decisions on causation are often couched in broad-based, universal terminology to refrain from inhibiting conceptual portability,the cases can be read as a sustained continuum of conversations about causation. A cohesive framework for the law is offered by taking a longitudinal perspective …
The National Class As Extraterritorial Legislation, Jeffrey Haylock
The National Class As Extraterritorial Legislation, Jeffrey Haylock
Dalhousie Law Journal
This article argues that provincially constituted multijurisdictional class actions violate the constitutional law of extraterritoriality. It begins with a brief overview of the lawof adjudicativejurisdiction, then provides a longer overviewof the separate body of law that imposes extraterritorial limits on substantive provincial legislation. The author then demonstrates the substantive characterof classaction legislation, which necessarily entails the applicability of the law ofextraterritoriality However, much of the relevant jurisprudence, as well as some of the relevant academic literature, has ignored this important issue.Application ofthe lawofextraterritoriality does, indeed, raise serious constitutional concerns, as the article's central section demonstrates. The desirable efficiencies of national …
Towards An Equality-Enhancing Conception Of Privacy, Jane Bailey
Towards An Equality-Enhancing Conception Of Privacy, Jane Bailey
Dalhousie Law Journal
Canadian jurisprudence has explicitly recognized the impact of child pornography on the privacy rights of the children abused in its production. In contrast, it has generally not analyzed other forms of harmful expression, such as hate propaganda and obscenity,to be violations of the privacy rights of those targeted. In a previous article, the author suggested that this distinction in the jurisprudence reflected the relative ease with which the privacy interests of the individual children whose abuse is documented inchild pornography meshed with the prevalent Western approach toprivacy as a negative individual liberty against intrusion. Noting the historic role that the …
Something To Talk About: Is There A Charter Right To Access Government Information?, Vincent Kazmierski
Something To Talk About: Is There A Charter Right To Access Government Information?, Vincent Kazmierski
Dalhousie Law Journal
Can sections 2(b) and 3 of the Canadian Charter of Rights and Freedoms be interpreted to protect a constitutional right of access to government information? The author argues that the constitutional principle of democracy provides a foundation for judicial recognition of such a constitutional right of access even though the inclusion ofan explicit right to access to government information was rejected during the process of drafting the Charter Given that the Supreme Court of Canada's section 2(b) and 3 jurisprudence has been informed by the principle of democracy, the application of the principle may now guide the Court to include …
Fallow Fields Initiatives And Canada's East Coast Offshore: Policy And Legal Considerations, Raymond E. Quesnel
Fallow Fields Initiatives And Canada's East Coast Offshore: Policy And Legal Considerations, Raymond E. Quesnel
Dalhousie Law Journal
The author examines various approaches adopted by government to balance the state's interest in promoting the timely and efficient exploration and development of oil and gas resources under state jurisdiction and industry's need for legal regimes providingsecurityoftenure and other conditions necessary for commercial success. In particular, the paper considers fallow field initiatives adopted by the United Kingdom in respect of the North Sea and their possible application to government's management of oil and gas resources in the Canadian east coast offshore areas, addressing applicable policy considerations, the legislative history of the statutory frameworks in place, and relatedjurisprudence.
Habermas, Legal Legitimacy, And Creative Cost Awards In Recent Canadian Jurisprudence, Michael Fenrick
Habermas, Legal Legitimacy, And Creative Cost Awards In Recent Canadian Jurisprudence, Michael Fenrick
Dalhousie Law Journal
Access to justice continues to be a live issue in Canadian courtrooms. While state-sponsored initiatives that promote access continue to flounder in Canada or in some cases, are cancelled altogether, the pressure is mounting to find creative solutions that facilitate greater participation in formal dispute resolution processes. The price of failing in this regard is very high. To truly flourish, both social cohesion and individual liberties require a more participatory and inclusive legal system than the one that currently precludes all but the wealthiest from accessing our courts. Drawing on the legal philosophy of Jargen Habermas, the author examines access …
Law's Ambition And The Reconstruction Of Role Morality In Canada, David M. Tanovich
Law's Ambition And The Reconstruction Of Role Morality In Canada, David M. Tanovich
Dalhousie Law Journal
There is a growing disconnect and alienation between lawyers and the legal profession in Canada. One cause, which is the focus ofthe article, is philosophical in nature. There appears to be a disconnect between the role lawyers want to pursue (i.e., a facilitator of justice) and the role that they perceive the profession demands they play (i.e., a hired gun). The article argues that this perception is a mistaken one. Over the last fifteen years, we have been engaged in a process of role morality reconstruction. Under this reconstructed institutional role, an ethic of client-centred zealous advocacy has slowly begun …
Courts And Constitutional Usurpers Some Lessons From Fiji, Venkat Iyer
Courts And Constitutional Usurpers Some Lessons From Fiji, Venkat Iyer
Dalhousie Law Journal
Much concern and disappointment has been expressed by jurists and human rights campaigners over the inaction ofnational judiciaries in reversing the effects of coups d'etat and other acts which result in the unconstitutional overthrow of democratically constituted governments Against this backdrop, the decisive steps taken b) the superior courts of Fiji to nullify the attempted destabilisation of that country's elected government in May 2000 was a trail-blazing development The author analyses the jurisprudence in this area and explains the implications of the Fijian judgments.
Charterwithout Borders? The Supreme Court Of Canada, Transnational Crime And Constitutional Rights And Freedoms, Robert J. Currie
Charterwithout Borders? The Supreme Court Of Canada, Transnational Crime And Constitutional Rights And Freedoms, Robert J. Currie
Dalhousie Law Journal
The first decades of the Supreme Court of Canada's Charter jurisprudence have coincided roughly with an increase in the extent to which Canada is affected by transnational crime and the nation s consequential participation in inter-state efforts to combat it. The Court itself has remarked on its discrete "jurisprudence on matters involving Canada's international co-operation in criminal investigations and prosecutions." This article examines the Court s adoption of a different approach to Charter analysis in cases involving transnational elements and surveys where the Court has "drawn the line" in terms of Charter application. By way of analyzing jurisprudence on exclusion …
After The Revolution: Being Pragmatic And Functional In Canada's Trial Courts And Courts Of Appeal, William Lahey, Diana Ginn
After The Revolution: Being Pragmatic And Functional In Canada's Trial Courts And Courts Of Appeal, William Lahey, Diana Ginn
Dalhousie Law Journal
In a 1998 decision, Pushpanathan v Canada, the Supreme Court of Canada synthesized and revised the previous jurisprudence on "pragmatic and functional analysis" - the approach used since the late 1980's to determine the appropriate standard of deference in substantive review of administrative decision making. The next year, in Baker v. Canada, the Court expanded the reach of the pragmatic and functional analysis by applying it to the exercise of administrative discretion. This paper examines approximately 275 lower court decisions to determine how courts across Canada are responding to and implementing the doctrinal change initiated by the Supreme Court. Patterns …
The Institutional And Substantive Effects Of The Human Rights Act In The United Kingdom, Christopher D. Jenkins
The Institutional And Substantive Effects Of The Human Rights Act In The United Kingdom, Christopher D. Jenkins
Dalhousie Law Journal
This article reviews the institutional and substantive impact that the Human Rights Act has on English law through its incorporation of the European Convention on Human Rights. Under the Act, higher courts can now move beyond a formalistic method of judicial review and substantively evaluate legislation in light of the Convention. The judiciary can accordingly issue declarations that statutes are incompatible with the Convention which, although not invalidating the act in question, will bring considerable political pressure to bear on Parliament to ensure compliance. The Act further directs courts to give special regard to the decisions of the European Court …
Marshalling Principles From The Marshall Morass, Leonard Rotman
Marshalling Principles From The Marshall Morass, Leonard Rotman
Dalhousie Law Journal
The Marshall case is the latest in a long series of Supreme Court of Canada decisions concerned with the interpretation of treaties between the Crown and aboriginal peoples in Canada. While the majority and minority judgments agreed on the principles of treaty interpretation to be applied in the case, the significant divergence in opinion between the majority and minority decisions provides important commentary on the differences between articulating and applying these principles. The Marshall case is also noteworthy for the manner in which it addresses similarities and differences pertaining to aboriginal and treaty rights. Because of these various traits, the …
Contextualism: The Supreme Court's New Standard Of Judicial Analysis And Accountability, Shalin Sugunasiri
Contextualism: The Supreme Court's New Standard Of Judicial Analysis And Accountability, Shalin Sugunasiri
Dalhousie Law Journal
Over the past few years, the "contextual approach" to law has acquired considerable cachet in juridical discourses across the country. In the Supreme Court of Canada, contextualism is now the new standard of judicial analysis and accountability This article analyzes a decade of Supreme court jurisprudence on Charter interpretation, statutory interpretation and the common law in order to fully explicate what contextualism in law is, where it came from, and how it has achieved its current pre-eminent status. The future promise of the contextual approach is also here canvassed through a dialectical engagement with postmodernist concerns respecting inherent legal indeterminacies.
La Doctrine Et L'Interprétation Du Code Civil, Stéphane Beaulac
La Doctrine Et L'Interprétation Du Code Civil, Stéphane Beaulac
Dalhousie Law Journal
Les Éditions Thémis publiaient en 1997 un livre intitulé La doctrine et l'interprétation du Code civil, par Me Sylvie Parent. Cette étude constitue le fruit de ses recherches et de sa réflection effectuées dans le cadre de ses travaux de maîtrise en droit à l'Université de Montreal; son directeur de thèse était le professeur Pieffe-André Côté, éminent auteur dans le domaine de l'interprétation des lois. C'est à ce dernier qu'est revenu l'honneur de rédiger la préface de cet ouvrage. Il n'a point hésité, à juste titre d'ailleurs, d'ajouter le nom de Me Parent à la liste d'auteurs contemporains ayant contribué, …
A Lot Of Knowledge Is A Dangerous Thing: Will The Legal Profession Survive The Knowledge Explosion?, H W. Arthurs
A Lot Of Knowledge Is A Dangerous Thing: Will The Legal Profession Survive The Knowledge Explosion?, H W. Arthurs
Dalhousie Law Journal
Professor Arthurs argues that with the growth and diversification of knowledge, the common body of knowledge that underpins a unified profession is becoming more difficult to sustain. The desire to know, the need to know and the resources to know have divided lawyers into subprofessions, increasingly defined by the non-lawyers with whom they work and the clienteles they serve, bound togetherif at all-only by nostalgia and some residuum of self-interest.
The First Cut Is (Not) The Deepest: Deconstructing "Female Genital Mutilation" And The Criminalization Of The Other, David Fraser
The First Cut Is (Not) The Deepest: Deconstructing "Female Genital Mutilation" And The Criminalization Of The Other, David Fraser
Dalhousie Law Journal
Deconstruction, as a 'philosophy'andas a strategy for the reading of texts, offers us the ability to engage in a politics and ethics of justice which seeks to recognize our responsibility to the Other. By 'reading' 'female genital mutilation' with this obligation in mind, this article attempts to deal with the prejudices and barriers to justice which present themselves to those of us in the West who seek an engagement with the Other. The article offers a warning and a reading of the 'text' of 'female genital mutilation' informed by our obligation to justice.
Judicial Jurisdiction In International Cases: The Supreme Court's Unfinished Business, Geneviève Saumier
Judicial Jurisdiction In International Cases: The Supreme Court's Unfinished Business, Geneviève Saumier
Dalhousie Law Journal
While the shortcomings of the common law rules of private international law were being reformed by statute in England, Canadian law, left to judicial development, remained mired in nineteenth-century thinking. A much overdue reassessment was finally undertaken by the Supreme Court earlier this decade. In Morguard Investments Ltd. v. De Savoye and Hunt v. T & N plc the Court recast the common law rules on jurisdiction and the enforcement of foreign judgments to conform with its perception of the "new world order" and Canadian federal structure. It then proceeded to endow these rules with constitutional authority. Although the Court's …
The Revival Of Tort Theory In Canada, Jamie Cassels
The Revival Of Tort Theory In Canada, Jamie Cassels
Dalhousie Law Journal
Tort scholarship in Canada has not traditionally been preoccupied with theory. Apart from several fine (doctrinally oriented) texts, by far the greatest amount of tort writing found in the journals is ad hoc and responsive to current is sues. It consists for the most part of case comments or 'recent development' articles inspired by important decisions from higher courts. Beyond this, a number of substantive topics and problem areas have recently been dealt with in some detail. There is alarge amount of literature, for example, on the liability of public authorities and professionals, sporting injuries, asbestos and environmental liability, and …
Lesbians, Gays And The Struggle For Equality Rights: Reversing The Progressive Hypothesis, Mary Eaton
Lesbians, Gays And The Struggle For Equality Rights: Reversing The Progressive Hypothesis, Mary Eaton
Dalhousie Law Journal
The tale often told of Canadian law's advancement in the field of sexual orientation rights is simple but sublime: law has moved, however ploddingly and not without substantial prodding, out of an epoch of almost total repression, into an evermore enlightened era. Castigated by criminal law, pushed to the perimeter by administrative law, and ignored by human rights law, the "homosexual"' had once been law's quintessential "other." In recent years, however, legislatures and courts have increasingly been willing to recognize "homosexuals" as a constituency too long held down by the heavy hand of legal control. Most penal prohibitions against exercises …
Law Reform Error: Retry Or Abort?, Audrey Macklin
Law Reform Error: Retry Or Abort?, Audrey Macklin
Dalhousie Law Journal
The void left by the demise of the Law Reform Commission of Canada (LRCC) in 1991 presents an opportunity to rethink the scope and legitimacy of law reform as it has been conceptualized and practised by academic lawyers. I am concerned that the dominant meaning ascribed to the term "federal law reform" under the tenure of the LRCC was partial, inadequate, and ultimately conservatizing in its influence. In reviewing past commentary on law reform in Canada, I have been struck by the recurring themes that emerged from the literature. I was particularly impressed by an exceptional piece written by the …
A History And Evaluation Of Dworkin's Theory Of Law, Rudy V. Buller
A History And Evaluation Of Dworkin's Theory Of Law, Rudy V. Buller
Dalhousie Law Journal
If we consider Ronald Dworkin's essay, "The Model of Rules" ', to be the first expression of his theory of law, then we have reached the 25th anniversary of that theory. And there can be little doubt that, for the most part of the last quarter century, Professor Dworkin has been the most influential legal philosopher in the English-speaking world.
Consideration And Estoppel: Problem And Panacea, Bruce Macdougall
Consideration And Estoppel: Problem And Panacea, Bruce Macdougall
Dalhousie Law Journal
In his book, The History of the Common Law of Contract, A.W.B. Simpson demonstrates that consideration originally seems to have meant the "matter of inducement" - the "why" of entering a promise.' He writes: "The essence of the doctrine of consideration, then, is the adoption by the common law of the idea that the legal effect of a promise should depend upon the factor or factors which motivated the promise. To decide whether a promise to do X is binding, you need to know why the promise was made."2 In modem terms, according to Simpson, a promise which lacks any …
The Democratic Intellect: The State In The Work Of Madame Justice Wilson, Philip L. Bryden
The Democratic Intellect: The State In The Work Of Madame Justice Wilson, Philip L. Bryden
Dalhousie Law Journal
It is a great honour to have been asked to provide an essay for this volume of reflections on the contribution Madame Justice Bertha Wilson has made to the development of law in Canada. To a certain extent, this is a matter of pride in finding my own name associated with that of the very learned and respected individuals who have set out their thoughts in this collection of articles. In the main, however, the honour comes from the opportunity to make a public statement of my own respect and admiration for Madame Justice Wilson and the significant role that …
Approaching Aliens: A Plea For Jurisprudential Recovery As A Theoretical Introduction To (Ex)Socialist Legal Systems, Ivan L. Padjen
Approaching Aliens: A Plea For Jurisprudential Recovery As A Theoretical Introduction To (Ex)Socialist Legal Systems, Ivan L. Padjen
Dalhousie Law Journal
It might be wise to stop here. Even a reader who is sympathetic to jurisprudential imagination must regard the communicable part of my title with considerable misgiving. For he or she can hardly be unaware of the double jeopardy in which the general theorist of law places himself when dealing with socialist legal systems. The first has been aptly described by Alasdair MacIntyre in his parable of a man who aspired to be the author of the general theory of holes.' The moral of the story, that the concept of a hole is a poor foundation for a general theory …