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Articles 1 - 18 of 18
Full-Text Articles in Law
Disabling Solitary: An Anti-Carceral Critique Of Canada's Solitary Confinement Litigation, Sheila Wildeman
Disabling Solitary: An Anti-Carceral Critique Of Canada's Solitary Confinement Litigation, Sheila Wildeman
Research Papers, Working Papers, Conference Papers
The title of this chapter signifies at least three things. The first is the disabling effects of solitary confinement. The second is recent efforts of prison justice advocates in Canada to use law, or specifically litigation, to disable the logic of solitary confinement: to disrupt that logic through the logic of human rights. The third, most oblique reference, and one I develop here, speaks to dangers presented by the path Canada’s solitary confinement litigation has taken: a path of isolating disability-based prison justice claims from the wider ambitions of intersectional substantive equality. My thesis is that this isolation of disability …
Social Science Evidence In Charter Litigation: Lessons From Carter V Canada (Attorney General), Jocelyn Downie
Social Science Evidence In Charter Litigation: Lessons From Carter V Canada (Attorney General), Jocelyn Downie
Articles, Book Chapters, & Popular Press
In this paper, I offer the reflections of an academic who wandered well out of her wheelhouse. While I have graduate training in both philosophy and law, I am not an expert on the use of social science and humanities evidence in litigation. But, through the course of working on Carter v Canada (Attorney General), I had the opportunity to participate directly in the process of marshalling, preparing, analyzing, and critiquing the evidence. My hope is that, through this paper, I can bring a perspective that may be useful both for practitioners who might (or, I would say, should) be …
From Smokes To Smokestacks: Lessons From Tobacco For The Future Of Climate Change Liability, Martin Zp Olszynski, Sharon Mascher, Meinhard Doelle
From Smokes To Smokestacks: Lessons From Tobacco For The Future Of Climate Change Liability, Martin Zp Olszynski, Sharon Mascher, Meinhard Doelle
Articles, Book Chapters, & Popular Press
In this article, we imagine a future Canada (circa 2030) wherein the world has managed to avoid the worst climate change but nevertheless has begun to experience considerable warming. Governments of all levels, but especially provincial ones, are incurring unprecedented costs to mitigate the effects of climate change and to adapt to new and uncertain climatic regimes. We then consider how legislatures might respond to these challenges. In our view, the answer may lie in the unprecedented story of tobacco liability, and especially the promulgation in the late 1990s of provincial legislation specifically designed to enable provinces to recover the …
A Goal-Oriented Understanding Of The Right To Health Care And Its Implications For Future Health Rights Litigation, Michael Da Silva
A Goal-Oriented Understanding Of The Right To Health Care And Its Implications For Future Health Rights Litigation, Michael Da Silva
Dalhousie Law Journal
International human rights law recognizes a right to health. A majority of domestic constitutions recognize health-related rights. Many citizens believe that they have a moral right to health care. Some theorists agree. Yet the idea of a right to health care remains controversial. Specifying the nature of such a right invites more controversy. Indeed, most models of the right face persistent problems that threaten to undermine the conceptual coherence of a right to health care. This article accordingly sketches preliminary arguments for a new, goal-oriented model of the right to health care. It explains that the model avoids most of …
Identity, Law, And The Right To A Dream?, Robert Leckey
Identity, Law, And The Right To A Dream?, Robert Leckey
Dalhousie Law Journal
This paper engages critically with the new orthodoxy holding that individuals have a "right" to know their genetic origins and that such knowledge is crucial to realizing their identities. It examines two case studies: the Pratten litigation under the Canadian Charter of Rights and Freedoms regarding anonymous donor conception and scholarship approving a reform to Quebec's adoption law. It addresses the supposed "identity gap" between those who are adopted or donor-conceived and those who are neither Arguments for law reform exaggerate that gap, opposing the incomplete, insecure identity of the adopted or donorconceived to the ostensibly complete, secure identity of …
Common Resource Or Private Right: Contested Claims To Seaweed In 19th Century Prince Edward Island, Rusty Bittermann, Margaret Mccallum
Common Resource Or Private Right: Contested Claims To Seaweed In 19th Century Prince Edward Island, Rusty Bittermann, Margaret Mccallum
Dalhousie Law Journal
In the nineteenth century, before farmers could purchase inexpensive chemical fertilizers, farmers on Prince Edward Island looked to the sea and the shore for nutrients to add to their soils. When disputes over who had the right to gather seaweed led to litigation, judges ruled that the owners of property fronting on the shore had the exclusive right to seaweed cast up on the shore, both above and belot, the high water mark. These rulings did little to dispel the popular perception that seaweed, a gift of nature, was a common resource that belonged to the people who collected it. …
Law's Treatment Of Science: From Idealization To Understanding, Nayha Acharya
Law's Treatment Of Science: From Idealization To Understanding, Nayha Acharya
Dalhousie Law Journal
Increasing reliance on scientific evidence in litigation has created a demand for discussions directed at enabling a legitimate interaction between science and law The article develops the notion ofprocedural legitimacy-that adherence to legal procedure maintains the legitimacy of the adjudicative system and its outcomes -and applies it to determining how best to admit and use scientific evidence. The problem of undervaluing procedural legitimacy is illustrated through a commentary on contributions to the science and law discussion of Edmond and Roach, and Haack. The author's thesis is that maintaining adjudicative legitimacy depends on procedural rules being applied as vigilantly to science …
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 …
Response To Haack And Edmond/Roach Articles, Nayha Acharya
Response To Haack And Edmond/Roach Articles, Nayha Acharya
Dalhousie Law Journal
I am grateful to Professors Edmond and Roach' and Professor Haack2 for their thoughtful replies to my paper, Law 's Treatment of Science: From Idealizationto Understanding.Much like my experience after reading "A Contextual Approach to the Admissibility of the State's Forensic Science and Medical Evidence,"' and Haack's contributions, 4 I have come away from reviewing Edmond and Roach and Haack's replies with a heightened awareness that the admissibility of scientific evidence is significant and complicated. Both replies have raised important concerns that have demanded further attention from me, which I turn to here. My response to Edmond and Roach's Reply …
Costs Immunity: Banishing The 'Bane' Of Costs From Public Interest Litigation, Martin Twigg
Costs Immunity: Banishing The 'Bane' Of Costs From Public Interest Litigation, Martin Twigg
Dalhousie Law Journal
For litigants raising a matter of public interest, the possibility of facing an adverse costs award if unsuccessful may act as a deterrent to pursuing their legal claim. The author evaluates a form of costs order called "costs immunity," referred to as "protective costs orders" (PCOs) in the U.K., as a means of removing the deterrent effect of costs on public interest litigants. Part Iprovides an overview of costs law in Canada. Part // reviews the various types of costs orders employed by Canadian courts to facilitate access to justice in public interest litigation. Part Ill explores the English experience …
Book Review: 'E-Discovery In Canada' By Todd J. Burke, Kelly Friedman, Andrew J. Mccreary, James Morton, Susan Nickle, Vincenzo Rondinelli, Glenn Smith, James Swanson & Susan Wortzman, Robert Currie
Articles, Book Chapters, & Popular Press
It is not hyperbolic to say that the proliferation of electronically stored information (ESI) is probably the most prominent change-harbinger and potential havoc-wreaker in civil litigation today — second only, perhaps, to the spiralling costs of litigation itself. Indeed, the practical and legal difficulties associated with the storage, gathering, preservation, disclosure and evidentiary use of ESI have the potential to act as a Trojan Horse, causing what would previously have been ordinary cases to implode under their weight. Increasing recognition of this is evident; electronic discovery (e-discovery) cases have begun to emerge in the reports, a successful co-operative effort by …
Defining Civil Disputes: Lessons From Two Jurisdictions, Elizabeth Thornburg, Camille Cameron
Defining Civil Disputes: Lessons From Two Jurisdictions, Elizabeth Thornburg, Camille Cameron
Articles, Book Chapters, & Popular Press
Court systems have adopted a variety of mechanisms to narrow the issues in dispute and expedite litigation. This article analyses the largely unsuccessful attempts in two jurisdictions - the United States and Australia - to achieve early and efficient issue identification in civil disputes. Procedures that rely on pleadings to provide focus have failed for centuries, from the common (English) origins of these two systems to their divergent modern paths. Case management practices that are developing in the United States and Australia offer greater promise in the continuing quest for early, efficient dispute definition. Based on a historical and contemporary …
Proceeding With (Pre)Caution: Environmental Principles As Interpretive Tools In Applications For Pre-Trial Injunctions, Heather Mcleod-Kilmurray
Proceeding With (Pre)Caution: Environmental Principles As Interpretive Tools In Applications For Pre-Trial Injunctions, Heather Mcleod-Kilmurray
Dalhousie Law Journal
In many cases of imminent environmental harm, a trial may take years. To prevent harm in the meantime, pre-trial injunctions are essential. The author highlights the important role of interlocutory injunctions in Canadian environmental litigation, uncovers the judicial assumptions and attitudes toward the environment which these decisions reveal, and proposes a precautionary approach to interpreting the interlocutory injunction test in environmental cases. She argues that prevailing judicial attitudes and presumptions in relation to environmental claims often negatively influence how the discretionary elements in procedural rules governing pre-trial injunctions are applied. Although there has been much analysis of principles such as …
Access To Justice And The Evolution Of Class Action Litigation In Australia, Bernard Murphy, Camille Cameron
Access To Justice And The Evolution Of Class Action Litigation In Australia, Bernard Murphy, Camille Cameron
Articles, Book Chapters, & Popular Press
The federal and Victorian class action regimes are intended to facilitate aggregation of multiple claims. Aggregation can improve efficiency by combining similar claims and can enhance access to justice by providing a mechanism to litigate small claims. This article considers whether these efficiency and access aims are being achieved. The authors argue that whilst some developments in class action jurisprudence have been consistent with these legislative aims, other have not. Several features of Australian class action jurisprudence and practice have hampered the healthy development of the legislative regimes, including adverse costs orders, unclear threshold requirements, evasive posturing and unresolved class …
Access To Justice And The Evolution Of Class Action Litigation In Australia, Camille Cameron, Bernard Murphy
Access To Justice And The Evolution Of Class Action Litigation In Australia, Camille Cameron, Bernard Murphy
Articles, Book Chapters, & Popular Press
The federal and Victorian class action regimes are intended to facilitate aggregation of multiple claims. Aggregation can improve efficiency by combining similar claims and can enhance access to justice by providing a mechanism to litigate small claims. This article considers whether these efficiency and access aims are being achieved. The authors argue that whilst some developments in class action jurisprudence have been consistent with these legislative aims, other have not. Several features of Australian class action jurisprudence and practice have hampered the healthy development of the legislative regimes, including adverse costs orders, unclear threshold requirements, evasive posturing and unresolved class …
Destruction Of Documents Before Proceedings Commence: What Is A Court To Do?, Camille Cameron, Jonathan Liberman
Destruction Of Documents Before Proceedings Commence: What Is A Court To Do?, Camille Cameron, Jonathan Liberman
Articles, Book Chapters, & Popular Press
The effective performance by courts of their adjudicative role depends on the availability of relevant evidence. In civil proceedings, the discovery process aims to ensure that such evidence is available. If documents that would be relevant evidence in a trial are destroyed, a fair adjudication is made difficult, if not impossible. This is so whether the destruction of documents occurs before or after proceedings commence. This article asks what a trial judge should do in a situation where relevant evidence is unavailable because one of the parties has destroyed documents before the proceedings commenced but anticipating that such proceedings were …
Du Dialogue Au Monologue - Un Commentaire Sur I'Arrêt R. V. Marshall, Nathalie Des Rosiers
Du Dialogue Au Monologue - Un Commentaire Sur I'Arrêt R. V. Marshall, Nathalie Des Rosiers
Dalhousie Law Journal
The author develops a model of constitutional dialogue which aims at helping the resolution of majority-minority conflicts. The model is applied to the aboriginal rights context. The author concludes that because of the ambivalences expressed by the Supreme Court of Canada in the Van der Peet case in particular, the federal government has not incorporated the Sparrow-Badger approach in its litigation and has failed even to attempt to comply with the justification requirements. This failure of the federal government to endorse the Sparrow-Badger approach in its continuing litigation strategy is the real tragedy in the Marshall case.
Lights, Camera, Litigate: Lawyers And The Media In Canada And The United States, Charles W. Wolfram
Lights, Camera, Litigate: Lawyers And The Media In Canada And The United States, Charles W. Wolfram
Dalhousie Law Journal
Drawing on recent high profile cases in Canada and the United States, the author examines the different extent to which lawyers in those two countries comment to the media about ongoing litigation. He investigates various formal constraints upon lawyer comment, such as court-imposed publication bans and rules of professional responsibility. He also looks at the way in which lawyer behaviour is attributable to non-formal, cultural determinants.