Shannon A. Moore and Richard C. Mitchell
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199652501
- eISBN:
- 9780191739217
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199652501.003.0014
- Subject:
- Law, Family Law, Human Rights and Immigration
This chapter presents selected preliminary findings from an exploratory, qualitative study that began in 2008 utilizing grounded theory, analytical and methodological procedures to investigate ...
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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.Less
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.
Edward M. Iacobucci
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780195387704
- eISBN:
- 9780199866762
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195387704.003.0003
- Subject:
- Law, Public International 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 ...
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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.Less
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.
Stéphane Beaulac and John H. Currie
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199694907
- eISBN:
- 9780191731914
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199694907.003.0005
- Subject:
- Law, Public International Law
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 ...
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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.Less
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.
Philip Girard
- Published in print:
- 2010
- Published Online:
- October 2011
- ISBN:
- 9780199563746
- eISBN:
- 9780191701900
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199563746.003.0014
- Subject:
- History, World Modern History
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 ...
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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.Less
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.
Phillip M Saunders
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780199679409
- eISBN:
- 9780191758478
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199679409.003.0005
- Subject:
- Law, Public International Law, Comparative 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 ...
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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.Less
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.
John Seymour
- Published in print:
- 2000
- Published Online:
- March 2012
- ISBN:
- 9780198264682
- eISBN:
- 9780191682759
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198264682.001.0001
- Subject:
- Law, Medical Law
This book examines aspects of English, United States, Canadian, and Australian law as it applies to the fetus, the pregnant woman, and the doctor or midwife who provides antenatal and perinatal care. ...
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This book examines aspects of English, United States, Canadian, and Australian law as it applies to the fetus, the pregnant woman, and the doctor or midwife who provides antenatal and perinatal care. A major part of the book consists of a critical examination of the law’s attempts to protect the fetus, which is threatened by conduct such as a criminal assault, maternal drug-taking, or parental refusal of medical treatment. The remainder of the work deals with the rapidly expanding and increasingly complex body of law on the liability of obstetricians, general practitioners, and midwives when negligent antenatal or perinatal care has been provided. There are numerous situations in which these health care professionals (or their employees) can be liable to pay damages. They can be sued if their negligence has harmed the mother, caused the birth of an injured, disabled, or stillborn child, or has resulted in the birth of an unwanted child. The book provides a comprehensive statement of the law on antenatal intervention to protect the fetus and on the responsibilities of those who care for pregnant women. By examining the nature of the relationship between a pregnant woman and her fetus, and the operation of child protection and criminal laws and the law of negligence, the book explores questions about maternal autonomy, the rights of the woman and the fetus, and the role of the law in protecting those rights and providing compensation when something goes wrong.Less
This book examines aspects of English, United States, Canadian, and Australian law as it applies to the fetus, the pregnant woman, and the doctor or midwife who provides antenatal and perinatal care. A major part of the book consists of a critical examination of the law’s attempts to protect the fetus, which is threatened by conduct such as a criminal assault, maternal drug-taking, or parental refusal of medical treatment. The remainder of the work deals with the rapidly expanding and increasingly complex body of law on the liability of obstetricians, general practitioners, and midwives when negligent antenatal or perinatal care has been provided. There are numerous situations in which these health care professionals (or their employees) can be liable to pay damages. They can be sued if their negligence has harmed the mother, caused the birth of an injured, disabled, or stillborn child, or has resulted in the birth of an unwanted child. The book provides a comprehensive statement of the law on antenatal intervention to protect the fetus and on the responsibilities of those who care for pregnant women. By examining the nature of the relationship between a pregnant woman and her fetus, and the operation of child protection and criminal laws and the law of negligence, the book explores questions about maternal autonomy, the rights of the woman and the fetus, and the role of the law in protecting those rights and providing compensation when something goes wrong.
Jane Bailey and Sara Shayan
- Published in print:
- 2017
- Published Online:
- October 2017
- ISBN:
- 9780190685515
- eISBN:
- 9780190685546
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190685515.003.0007
- Subject:
- Law, Company and Commercial Law, Constitutional and Administrative Law
This chapter focuses on Canadian law as it applies to government access to private-sector data. The Canadian Charter of Rights and Freedoms implicitly provides constitutional protection of privacy by ...
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This chapter focuses on Canadian law as it applies to government access to private-sector data. The Canadian Charter of Rights and Freedoms implicitly provides constitutional protection of privacy by prohibiting unreasonable search and seizure by the state (s. 8) and by limiting government intrusion on life, liberty and security of the person (s. 7). With some exceptions, the Charter requires law enforcement agencies to seek prior authorization before accessing personal information. However, Canada’s national security intelligence agencies are subject to more relaxed standards. The Privacy Act regulates federal government institutions’ relationship with personal information, whereas the private sector is regulated by the Personal Information and Protection of Electronic Documents Act. However, numerous exceptions in both statutes allow for (and in some cases encourage), information sharing between private-sector and state entities.Less
This chapter focuses on Canadian law as it applies to government access to private-sector data. The Canadian Charter of Rights and Freedoms implicitly provides constitutional protection of privacy by prohibiting unreasonable search and seizure by the state (s. 8) and by limiting government intrusion on life, liberty and security of the person (s. 7). With some exceptions, the Charter requires law enforcement agencies to seek prior authorization before accessing personal information. However, Canada’s national security intelligence agencies are subject to more relaxed standards. The Privacy Act regulates federal government institutions’ relationship with personal information, whereas the private sector is regulated by the Personal Information and Protection of Electronic Documents Act. However, numerous exceptions in both statutes allow for (and in some cases encourage), information sharing between private-sector and state entities.
Glen Loutzenhiser
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199685349
- eISBN:
- 9780191770531
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199685349.003.0014
- Subject:
- Law, Company and Commercial Law, Philosophy of Law
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 ...
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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.Less
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.
Cynthia Lee Starnes
- Published in print:
- 2014
- Published Online:
- March 2016
- ISBN:
- 9780814708248
- eISBN:
- 9780814708477
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814708248.003.0006
- Subject:
- Law, Family Law
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 ...
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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.
Less
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.
Cynthia Lee Starnes
- Published in print:
- 2014
- Published Online:
- March 2016
- ISBN:
- 9780814708248
- eISBN:
- 9780814708477
- Item type:
- chapter
- Publisher:
- NYU Press
- DOI:
- 10.18574/nyu/9780814708248.003.0006
- Subject:
- Law, Family Law
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 ...
More
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.Less
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.
Gebhard Bücheler
- Published in print:
- 2015
- Published Online:
- November 2015
- ISBN:
- 9780198724339
- eISBN:
- 9780191792045
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198724339.003.0003
- Subject:
- Law, Public International Law, Company and Commercial Law
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 ...
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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.Less
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.
John Seymour
- Published in print:
- 2000
- Published Online:
- March 2012
- ISBN:
- 9780198264682
- eISBN:
- 9780191682759
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198264682.003.0002
- Subject:
- Law, Medical Law
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 ...
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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.Less
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.
James Meese
- Published in print:
- 2018
- Published Online:
- September 2018
- ISBN:
- 9780262037440
- eISBN:
- 9780262344517
- Item type:
- book
- Publisher:
- The MIT Press
- DOI:
- 10.7551/mitpress/9780262037440.001.0001
- Subject:
- Society and Culture, Technology and Society
How should we think about authorship, use and piracy in an era of media convergence? How does the growing focus on amateur creativity impact on existing legal and cultural understandings of around ...
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How should we think about authorship, use and piracy in an era of media convergence? How does the growing focus on amateur creativity impact on existing legal and cultural understandings of around creation? And why are the author, user and pirate so prominent in debates around copyright law? Authors, Users, Pirates: Copyright Law and Subjectivity presents a new way of thinking about these three central subjects of copyright. It outlines a relational approach to subjectivity, charting connections between the author, user and pirate through a series of historical and contemporary case studies, moving from early regulatory debates around radio spectrum and nineteenth century cases on book abridgments to the controversial reuse of Instagram photos and the emergence of multi-channel networks on YouTube. The book draws on legal scholarship, cultural theory and media studies research to provide a new way of thinking about subjectivity and copyright. It also offers insights into a range of critical issues that sit at the intersection of copyright law and digital media including online copyright infringement, amateur media production and the potential futures of creative industries.Less
How should we think about authorship, use and piracy in an era of media convergence? How does the growing focus on amateur creativity impact on existing legal and cultural understandings of around creation? And why are the author, user and pirate so prominent in debates around copyright law? Authors, Users, Pirates: Copyright Law and Subjectivity presents a new way of thinking about these three central subjects of copyright. It outlines a relational approach to subjectivity, charting connections between the author, user and pirate through a series of historical and contemporary case studies, moving from early regulatory debates around radio spectrum and nineteenth century cases on book abridgments to the controversial reuse of Instagram photos and the emergence of multi-channel networks on YouTube. The book draws on legal scholarship, cultural theory and media studies research to provide a new way of thinking about subjectivity and copyright. It also offers insights into a range of critical issues that sit at the intersection of copyright law and digital media including online copyright infringement, amateur media production and the potential futures of creative industries.
Denise Réaume
- Published in print:
- 2013
- Published Online:
- April 2014
- ISBN:
- 9780199664313
- eISBN:
- 9780191748486
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199664313.003.0002
- Subject:
- Law, Philosophy of Law, Human Rights and Immigration
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 ...
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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.Less
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.
Descheemaeker Eric
- Published in print:
- 2014
- Published Online:
- May 2015
- ISBN:
- 9780748693641
- eISBN:
- 9781474400930
- Item type:
- chapter
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9780748693641.003.0002
- Subject:
- Law, Comparative 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 ...
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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’.Less
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’.
Sharon Weill
- Published in print:
- 2014
- Published Online:
- April 2014
- ISBN:
- 9780199685424
- eISBN:
- 9780191765643
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199685424.003.0003
- Subject:
- Law, Public International Law, Comparative Law
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 ...
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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.Less
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.
Joseph J. Arvay and Alison M. Latimer
- Published in print:
- 2019
- Published Online:
- December 2019
- ISBN:
- 9780190947927
- eISBN:
- 9780190947934
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780190947927.003.0020
- Subject:
- Law, Criminal Law and Criminology
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 ...
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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.Less
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.
Lionel Smith
- Published in print:
- 2015
- Published Online:
- October 2015
- ISBN:
- 9780198747123
- eISBN:
- 9780191809408
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198747123.003.0003
- Subject:
- Law, Comparative Law, Family Law
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 ...
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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).Less
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).
Gerry Ferguson
- Published in print:
- 2018
- Published Online:
- September 2018
- ISBN:
- 9780198788478
- eISBN:
- 9780191830341
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198788478.003.0006
- Subject:
- Law, Comparative Law
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 ...
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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?Less
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?
Andrew Altman
- Published in print:
- 2019
- Published Online:
- December 2018
- ISBN:
- 9780199358700
- eISBN:
- 9780199358731
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780199358700.003.0010
- Subject:
- Philosophy, Moral Philosophy, Feminist Philosophy
This chapter addresses criticisms of the sex equality approach from those who argue that pornography is a right flowing from a right to freedom of expression—the free speech defense of pornography, ...
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This chapter addresses criticisms of the sex equality approach from those who argue that pornography is a right flowing from a right to freedom of expression—the free speech defense of pornography, by self-styled feminists, who claim that pornography (its making and its use) is a part of sexual liberation for women, and by gays and lesbians insofar as they allege it plays an important role in the communities of sexual minorities. Finally, I examine the arguments to those, like Altman, who locate a “right to pornography” in the right to sexual autonomy. I argue that none of these arguments sufficiently establishes their conclusions.Less
This chapter addresses criticisms of the sex equality approach from those who argue that pornography is a right flowing from a right to freedom of expression—the free speech defense of pornography, by self-styled feminists, who claim that pornography (its making and its use) is a part of sexual liberation for women, and by gays and lesbians insofar as they allege it plays an important role in the communities of sexual minorities. Finally, I examine the arguments to those, like Altman, who locate a “right to pornography” in the right to sexual autonomy. I argue that none of these arguments sufficiently establishes their conclusions.
