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This chapter presents selected preliminary findings from an exploratory, qualitative study that began in 2008 utilizing grounded theory, analytical and methodological procedures to investigate Canada's compliance with alternative standards for juvenile justice found within numerous United Nations frameworks. This chapter's authors' research aim was twofold: first, to uncover barriers to compliance and secondly, to identify mechanisms to address these impediments. The analytical focus of the study relied on the concept of ‘rights-based restorative justice’, one that integrates the core principles of the UN Convention on the Rights of the Child and those found within the Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters. Data were organized by contextualizing current statutory and local practices of rights-based restorative justice programming across the country within international legal frameworks, by constant comparison of data to data and data to literature, and by presenting thematic findings elicited from eight key informant interviews through salient quotes.

This chapter examines British justice, English law, and the Canadian legal culture. It clarifies that there is no such thing as British law and it was English law that was introduced in British North America. This chapter analyses the role of the British Parliament, the House of Lords, and the Judicial Committee of the Privy Council in the establishment of the Canadian legal institutions and in the directions taken by Canadian law.

In a small, open economy like Canada's, it would be plainly incomplete to think of antitrust law and policy as involving only domestic interests. This has always been true, but of course this has become even more essential to appreciate the growth in international trade. This chapter maps out the international contours of Canadian competition law and practice. First, it considers the extraterritorial reach of Canadian competition law. It looks at three relevant dimensions of extraterritorial application: Does Canadian law reach domestic conduct that affects foreign markets? Does Canadian law reach foreign conduct that affects domestic markets? Finally, does Canadian law reach foreign conduct that affects foreign markets? In discussing extraterritoriality, the central issue is whether Canadian law has jurisdiction over the relevant conduct. But even if it does have jurisdiction, it may decline to assume jurisdiction on grounds of international comity. The second section outlines the role of comity in Canadian attitudes to the extraterritorial reach of its statutes.

With two exceptions, Canada's written Constitution is silent on international agreements and treaties. This is because Canada was a British Dominion rather than a sovereign state at the time of Canadian Confederation in 1867, and its foreign affairs were conducted on its behalf by the Imperial British government in the years immediately following Confederation. There are no explicit references to customary international law or the law of nations in Canada's written Constitution. However, section 11(g) of the Canadian Charter of Rights and Freedoms implicitly references customary international law when it refers to offences at ‘international law’. Further, the preamble to the Constitution Act 1867 provides that Canada shall have ‘a Constitution similar in principle to that of the United Kingdom’. This has generally been interpreted to mean that customary international law has a status in Canadian law similar to that which it enjoys in British law.

This chapter examines the influence of transnational dialogue on the development of the Canadian law to date, and in particular the prospects and possible pitfalls with regard to its further application in the future. It first summarizes the principles which govern the application of international law in Canadian courts, including the manner in which courts have employed transnational dialogues in the process. Second, it outlines the statutory instruments under which international organization immunity in Canada is primarily structured, and provides an overview of current practice. This is followed by a review of the jurisprudence dealing with the personality, privileges, and immunities of international organizations in Canada. Finally, some suggestions are offered as to the relevance and appropriateness of transnational judicial dialogue and its likely future impact.

This chapter examines the application of sham as a judicial anti-avoidance doctrine in Canadian tax law. It considers two relatively recent Federal Court of Appeal decisions that not only demonstrate a renewed judicial interest in sham, but also have the potential to broaden significantly the heretofore narrow scope of the doctrine. It concludes that despite the Federal Court of Appeal’s portrayal of sham as a valuable and useful anti-avoidance tool, a closer judicial inspection ultimately will reveal a doctrine of quite limited practical utility.

Alimony law draws on the culture it serves. Its role in any particular place is thus part of a larger picture of cultural views of the meaning and duration of intimate commitment and of individual versus community responsibility for dependency. A glimpse of alimony in other countries can broaden our perspectives of possibilities for alimony in the United States and enrich any discussion of alimony reform. This chapter takes a brief look at the law of alimony in a few select countries (Ireland, Malaysia, Russia, Samoa) and at the Principles of European Family Law regarding Divorce and Maintenance between Former Spouses. It then takes a more extensive look at the fascinating evolution of alimony law in Canada, culminating in the adoption of national alimony guidelines.

Alimony law draws on the culture it serves. Its role in any particular place is thus part of a larger picture of cultural views of the meaning and duration of intimate commitment and of individual versus community responsibility for dependency. A glimpse of alimony in other countries can broaden our perspectives of possibilities for alimony in the United States and enrich any discussion of alimony reform. This chapter takes a brief look at the law of alimony in a few select countries (Ireland, Malaysia, Russia, Samoa) and at the Principles of European Family Law regarding Divorce and Maintenance between Former Spouses. It then takes a more extensive look at the fascinating evolution of alimony law in Canada, culminating in the adoption of national alimony guidelines.

This chapter examines whether the principle of proportionality should be relevant to investor–State arbitration. It first examines the role of the principle of proportionality in various domestic legal systems, in particular in Germany, Canada, South Africa, Israel, and the USA. It then discusses three main concerns regarding proportionality that arbitrators should assess before applying proportionality in a particular normative setting: firstly, unwarranted judicial law-making; secondly, the rule of law; and, thirdly, the risk of arbitrary outcomes due to the lack of a relevant value system. Next, it considers the role of proportionality in several subsystems of international law and shows that—as a matter of principle—proportionality is transposable to the international level. It sheds light on the typical situations in which international courts and tribunals resort to proportionality, and how these bodies deal with specific issues that arise when applying proportionality.

This chapter examines how the law in the United States, Canada, and England has responded to parental behaviour which threatens the welfare of a fetus or causes it harm. The aim of the various legal procedures discussed is to protect the fetus. This aim can be pursued in different ways and at different stages of the antenatal and perinatal period. During a woman’s pregnancy, the law may be invoked in an attempt to prevent threatened harm. The same purpose may be pursued at the time of delivery. Alternatively, legal action might be taken immediately after the birth of an impaired child. At first sight, it may seem odd to regard postnatal intervention as a means of protecting the fetus, but it is possible for the law to take action after the event in order to express society’s disapproval of certain conduct and so to seek to deter its repetition.

This chapter explores the comparative dimension of discrimination, in particular, in cases where courts' use comparison to assess equality claims. The language of comparison in cases indicates the operation of a background judgment about what a statute's underlying distributive principle is, and whether it is constitutionally permissible. Thus a ?test? is needed: what makes a statutory distributive principle unworthy? One thread in the Canadian case law addressed this question by asking whether the distributive criterion used violates dignity. It is argued that the typical way that purposes are identified and understood, against which criteria are assessed, fails to do justice to a foundation in dignity. An alternative approach is proposed that also appeals to dignity, but does so in a way that is more productive and more deeply attuned to the broad constitutional role of equality principles. The argument unfolds against the backdrop of Canadian equality law.

Using a comparative analysis – mainly looking at French law with some incursions into English law – this chapter examines the effects of possession through the example of possessory protection in Quebec Law. It considers the appropriate parameters of possessory protection in relation to its functions, arguing that the possessory action has a larger function than the protection of ownership, given its supplementary purpose of protecting against violence. The argument consists of three parts. First, following the examination of the notion of possession and the foundations of the protection of possession, it is submitted that the person with detention of the property should benefit from possessory protection. Second, it is argued that this action should not be subject to the conditions set for a useful possession. Finally, it is submitted that the domain of possessory protection should be extended to movables in order to transcend the obsolete maxim ‘res mobilis res vilis’.

This chapter discusses the avoiding role of courts. Courts, motivated by policy considerations, avoid exercising their jurisdiction over a given case. It first analyses the construction of the act of state and political question doctrines. It then examines the de facto selective application of these doctrines by different courts in the United States, Canada, and Israel.

The province of Quebec has a civilian law of succession, while the common law governs in the other provinces and in the territories. At the dawn of the twentieth century, an unbridled freedom of testation prevailed in most of Canada. In the decades that followed, the law evolved to temper this principle in favour of protecting the family of a deceased person, so that obligations of support did not simply vanish upon death. The shape and structure of provision for the family is, however, diverse across the country. There is a great deal of variation even among the statutory regimes in the common law provinces, under which courts have the discretion to grant an allowance; some require a claimant to show need, an inter vivos obligation of support, or both, while others allow claims even by adult independent children. In relation to those members of First Nations to whom it applies, federal law grants a wide power to intervene in the distribution of an estate, in this case not to the courts but to the relevant minister. Quebec law, by contrast, aims to convert legal obligations of support that existed at the moment of death into claims against the estate, rejecting any wide discretion and preserving freedom of testation as much as possible. In a broadly comparative context, the unexpected conclusion is that in Canada, it is not the common law but the civil law of Quebec that offers the most freedom to a testator.

On January 17, 2018, a historic decision put Canada at the forefront of an international movement against solitary confinement. A trial judge found that administrative segregation is a form of solitary confinement and that it causes some inmates physical harm and places all inmates subject to it in Canada at significant risk of serious psychological harm, including mental pain and suffering, and increased incidence of self-harm and suicide. This chapter describes the Canadian litigation and the findings of the trial judge with respect to the laws’ constitutional invalidity. The decision of the trial judge was largely upheld by the British Columbia Court of Appeal. The Canadian Parliament has now enacted a new law that purports to abolish solitary confinement but the authors are skeptical that the new law will pass constitutional muster because it is still too restrictive of inmate rights. It is expected that the government will seek leave to appeal to the Supreme Court of Canada.

This chapter examines the Canadian law of fitness to stand trial, which has remained largely the same since its codification in 1992. It examines two major weaknesses of that law. First, the statutory definition of unfit to stand trial is unduly narrow. Secondly, the disposition imposed on the accused after a finding of unfitness still allows, at least theoretically, for indefinite detention. The chapter also analyses existing data on the actual length of detention for unfit accused. Other reform issues are also examined in this chapter. For example, is it time for Canada to abolish the practice of fitness to stand trial verdicts being made by juries rather than judges? And should Canada raise the standard of proof to ‘beyond a reasonable doubt’ when the issue of unfit to stand trial is alleged solely by the Crown?

Quebec’s civil law of intestate succession was initially derived from French customary law and continues to bear some imprint of this origin, despite its evolution over the years. Since 1866, it has been based in large part on post-revolutionary French law as embodied in the French Civil Code. And yet, unlike other civilian systems, Quebec law has, since 1774, allowed full freedom of testation. This chapter traces the historical development of the law of intestate succession that proceeds in four distinct stages: the period of uncodified civil law received from France (1663 to 1763); the period of uncodified civil law as modified by the British regime (1763 to 1865); the Civil Code of Lower Canada (1866 to 1993); and the Civil Code of Québec (1994 to the present day). It also explains the law relating to first nations (Indian Act).