Showing papers in "Alberta law review in 1969"

Aboriginal Rights and Canadian Sovereignty: An Essay on R. v. Sparrow

Abstract: The authors articulate the basic elements of two competing theories of aboriginal right. The first, a contingent rights approach, requires state action for the existence of aboriginal rights. This approach dominated early judicial pronouncements on the nature of aboriginal rights. The second, an inherent rights approach, views aboriginal rights as inherent in the nature of aboriginality. This approach came to be embraced by the judiciary in cases addressing the nature of aboriginal legal interests prior to the passage of the Constitution Act, 1982. The authors then assess the Supreme Court of Canada's decision in R. v. Sparrow in light of these two competing theories. In Sparrow, the Court addressed the meaning of s. 35(1) of the Constitution Act, 1982 and, despite other laudable aspects of the judgment, relied on a contingent theory of aboriginal right and an unquestioned acceptance of Canadian sovereignty. The authors offer two alternative approaches to s. 35(1) based on the overarching value of equality of peoples. As a result, the Court severely curtailed the possibility that s. 35(1) includes an aboriginal right to sovereignty and rendered fragile s. 35(1)'s embrace of a constitutional right to self-government.

Equality, Democracy, and Constitution: We the People in Court

Abstract: Commentators have seen the disabling provisions found in the American and Canadian constitutions as undemocratic because they restrict majority powers. Building upon the work of John Hart Ely, this paper puts forward a conception of democracy which nourishes both collective responsibility and individual judgment. The distinguishes between "statistical" and "communal'' conceptions of democracy. Traditional theories, such as Ely's, have relied on the statistical notion which of individuals in a democracy acting each on their own. In the communal conception, decisions are made by the ' 'people'' acting as a distinct and collective unit of responsibility. The author then elaborates on the communal conception by identifying two variations of it, ' 'integrated'' and ' 'monolithic' 'forms of collective action. In the latter, both the unit of responsibility and the unit of judgment are collective, while in the former the unit of judgment resides in the individual. If democracy is understood in the integrated communal sense, then many of the disabling provisions in the American and Canadian constitutions can be seen to democracy rather than contradict it.

Judicial Assessment of the Credibility of Child Witnesses.

Abstract: This article reports on the results of two research studies carried out by the authors that address the questions of how and how well judges assess the honesty and reliability of children's testimony. One study tested the accuracy of judges and other professionals in assessing the honesty of children giving mock testimony. Judges performed at only slightly above chance levels, though the performance of judges was comparable to other justice system professionals, and significantly better than the performance of law students. The second study, a survey of Canadian judges about their perceptions of child witnesses, reveals that judges believe that compared to adults, children are generally more likely when testifying to make errors due to limitations of their memory or communication skills and due to the effects of suggestive questions. However, children are perceived to generally be more honest than adult witnesses. The survey also revealed that judges believe that children are often asked developmentally inappropriate questions in court, especially by defence counsel. There were no gender differences among the judges in either study. To put this research in context, the article first discusses the inherent challenges in assessing the credibility of witnesses and provides a review of the psychological literature and leading Canadian jurisprudence on the credibility and evidence of children.

Understanding Sentencing under the Youth Criminal Justice Act

Abstract: The authors provide an analysis of the complicated sentencing regime found in Canada's Youth Criminal Justice Act (YCJA) and compare the new Act to the previous Young Offenders Act In comparison to the provisions of the Criminal Code that govern adult sentencing, the YCJA makes no reference to deterrence, has more focus on rehabilitation, and calls for lesser penalties than for adults. The authors point out that proportionality is a key principle for both sentencing youths and adults, but the aggravating elements enumerated in the YCJA are not the same as those in the Criminal Code. They further note that situations in which youth custody may be used are limited and that judges are directed to treat custody as a last resort and consider all alternatives. The authors conclude that the YCJA facilitates a more uniform treatment of young offenders, though the courts will continue to exercise considerable discretion. While it is clear that the use of custodial sanctions will decrease even without more community resources, in some places the coming into force of the new Act was accompanied by increased community resources which will also affect sentencing practices. The article concludes with a survey of some of the first cases decided under the YCJA, which reveal that custodial sanctions were avoided and rehabilitative principles played a major role in sentencing decisions.

Evaluating Canada's New Immigration and Refugee Protection Act in Its Global Context

Abstract: The author examines the changes to Canadian Immigration Law in the new Immigration and Refugee Protection Act in a global context. She identifies three categories of changes: those that legislate current practice, those that are partial attempts to include legal recommendations, and those that are a direct response to globalization. The author concludes that overall, immigration law in Canada is resistant to substantial change, in spite of major efforts at public consultation. As a result, despite considerable changes in new legislation, the central features of the old legislation have remained intact.

Water Rights in Alberta

Abstract: The author studies the law in Alberta regarding the use of water resources. The right to divert surface water from its course or to detain its natural flow for consumptive or other purposes is discussed. The author contends that the present Alberta Water Resources Act does not develop maximum beneficial use of Alberta's water resources.

Hard Choices and Soft Law: Ethical Codes, Policy Guidelines and the Role of the Courts in Regulating Government

Abstract: The authors examine a number of examples of "soft law": written and unwritten instruments and influences which shape administrative decision- making. Rather than rendering bureaucratic processes more transparent and cohesive, or fostering greater accountability and consistency among decision-makers, "soft law" in this context frequently reinforces artificial divisions. Moreover, it insulates decisions and decision-makers from the kinds of critical inquiry typically associated with "hard law." If it is to realize its potential as a bridge between law and policy, and lend meaning to core principles — like fairness and reliability — soft law ought to be subjected to similarly critical consideration. The authors maintain that doing so allows one to preserve soft law's promise of flexibility. Moreover, one avoids falling prey to the misleading dichotomies soft law tends to bolster in the absence of critical administrative, political, and judicial scrutiny.

The Canadian Principle of Unjust Enrichment: Comparative Insights into the Law of Restitution

Abstract: In this article, the author explores the principle of unjust enrichment as formulated by courts of common law jurisdictions in Canada. He analyzes and assesses that principle in light of comparable principles applied in England, Australia and Quebec. He argues that while sound in many respects, the Canadian principle of unjust enrichment often is characterized by a relative lack of analytical rigour. He concludes by suggesting that Canadian courts might profitably consider the approaches adopted in other jurisdictions.

Diversion, Conferencing, and Extrajudicial Measures for Adolescent Offenders

Abstract: In responding to youth crime, Canada makes disproportionate use of courts and custodial sentences, while other countries divert more youth from the formal justice system and make greater use of community-based responses. This article surveys diversion from the youth courts under the different youth justice regimes that have existed in Canada, including informal and formal screening, police and Crown cautions, and use of youth justice committees and conferencing. The newly enacted Youth Criminal Justice Act is intended to encourage greater use of these diversionary "extrajudicial measures," and more use of a "restorative justice " approach to cases. A major limitation is that these provisions are permissive, and create no new legal rights for youths and impose no new obligations on governments. It will be up to provincial governments to decide whether to allow police, prosecutors and local program operators to actually implement these provisions. Further, depending on how these provisions are implemented, there are legitimate concerns about the potential for these informal responses to abuse the rights of youths or ignore the needs of victims. There should be both monitoring of the implementation of these provisions and research to determine how effective they are at reducing offending, and meeting the needs of victims, offenders and communities.

Individual Property Rights on Canadian Indian Reserves: A Review of the Jurisprudence

Abstract: This article explores lite case law on individual property rights on Canadian Indian reserves. By surveying the courts' treatment of customary holdings, Certificates of Possession and the procedure for valuing leasehold reserve land, the authors find that the courts have had great difficulty in interpreting those rights that have no statutory basis or off-reserve equivalent. In contrast, the courts have been much more Consistent in interpreting those property rights that derive their authority from a statute and have similarities to off-reserve legal concepts.

Directing Traffic at the Crossroads of Criminal Justice and Mental Health: Conditional Sentencing after the Judgment in Knoblauch

Abstract: The issue of conditional sentencing in relation to mentally disordered offenders was recently addressed by the Supreme Court of Canada in R. v. Knoblauch. This article examines the context in which the Knoblauch decision was made by reviewing the incidence of mental disorders in correctional populations and the criminal justice system s response. The authors explore Knoblauch's implications on the conditional sentencing regime as a whole and its use as a sentencing tool for dealing with mentally disordered offenders.

Clones, controversy, and criminal law: a comment on the proposal for legislation governing assisted human reproduction.

Abstract: In the past few years there has been a tremendous amount of regulatory conflict and social controversy in the area of reproductive genetics. The Canadian government has recently released a proposal for legislating in this complex arena. Although the proposed Bill contains many positive elements, it is argued that the use of the criminal law as a regulatory mechanism is neither warranted nor appropriate. The author suggests a more flexible and responsive system of moratoriums and licences that would enable review and adjustment to the realities of emerging reproductive technologies is a better approach.

Reducing the Democratic Deficit: Representation, Diversity and the Canadian Judiciary, or towards a Triple P Judiciary

Abstract: The authors review the current structures for judicial appointments in Canada and provide statistical information about the results of these mechanisms in respect to diversity of representation on the courts. They are also critical of the fairness and openness of judicial appointments processes. After examining several variants of the dominant liberal view of law and of judges, the authors proffer and articulate a neo-realist theory of law and what they term a "bungee cord theory of judging." According to the former, law is inevitably a form of politics; according to the latter, judges are unavoidably political actors. In consequence, the judiciary is properly subject to democratic norms, including especially the norms of representation and of diversity. The authors then argue that, judged against those democratic norms, the present systems of judicial appointment (and the judiciary which it has put in place) suffers from what they term "a democratic deficit." After a detailed examination of past attempts to reform this system, of arguments for and against a more democratic and representational approach to judicial selection, and possible models of judicial selection, the authors propose their own reform: the establishment by statute of Judicial Appointments Commissions. Such an approach might help cure the democratic deficit and produce what they dub a Triple-P judiciary, that is, one that is politically accountable, professionally qualified, and proportionally representative.

A Theory of Democratic Adjudication: Towards a Representative, Accountable and Independent Judiciary

Abstract: This article explores how the judiciary, particularly in the modern British context, could increase its representational capacity and its accountability while maintaining its independence. The analysis includes an examination of the functions and principles underlying the judiciary, as well as the current movement for judicial reform in Britain. The author suggests a number of ways for judges to be made accountable in order to promote dialogue between judges and the public, including the appearance before a Select Committee. It is also suggested that a Registrar of Judicial Interests would strengthen both judicial independence and accountability. The author further notes that the creation of a Judicial Appointments Commission, not only to monitor but also to appoint judges, would protect the judiciary's independence from the political sphere.

The Reception of English Law

Abstract: new country is faced with choice in deciding upon system of law for itself. It can either copy someone else's codified law or it can adopt system of law which is largely judge-made. If it opts for the latter it cannot afford to spend centuries building up system of judge-made law. Therefore it must copy the rules of society which has already developed sophisticated body of such law. Most of the Commonwealth nations have chosen the latter route and as result have received English law as their own. The rules and consequences inherent in such a reception are discussed in this article. After short discussion of the distinction between the Imperial law in force proprio vigore and the English law received in the colony as such, the modes of reception of English law are described. In this respect the differences in reception between settled and conquered colonies are outlined. The parts of English law which have been received and the general rules of applicability as well as the applicability of particular areas of the law are also analyzed. The article concludes with discussion of repeal, amendment and reform of imported English law by the country receiving such law. An appendix contains an account of the reception of English law in each of the Canadian provinces. The subject of this article is often considered as part of legal history. It should be stressed however that this is not the case, as all the rules described are rules of present-day law and many of them are being applied and expounded continually, particularly in Australia and Canada. This is the author's second article in this area; the first being The Introduction of English Law Into Alberta, (1964) Alta. L. Rev. 262.

Crafting Youth Sentences: The Roles of Rehabilitation, Proportionality, Restraint, Restorative Justice, and Race under the Youth Criminal Justice Act

Abstract: The author examines the scope and direction of legislative guidance in assessing youth sentences under the Youth Criminal Justice Act is contended that the Act does not support a reduction in otherwise proportional youth sentences on the basis of rehabilitative concerns. Proportionality of sentences is a primary concern, but considerations such as restraint, rehabilitation, and restorative justice may affect a sentence's conditions or form. The Youth Criminal Justice Act contains clear direction to limit the over-use of custody for youth. Aboriginal offenders are subject to a different methodology for determining sentences, with proportionality considered one of many concerns, rather than the principal one as it is for non-Aboriginal offenders. The author suggests that the judiciary will determine whether the Act's provisions will succeed in altering youth sentencing patterns, and that those efforts may be hindered by a lack of alternatives if provincial and federal governments do not invest in non-custodial sentencing options

Fraudulent concealment and the duty to disclose medical mistakes.

Abstract: The author examines recent case-law which suggests that, when a mistake is made in the course of medical treatment, the physician is under a legal duty to inform the patient of this. The significance of this development is discussed with particular reference to limitation periods in medical negligence cases.

Aboriginal Self-Government and the Construction of Canadian Constitutional Identity

Abstract: In this article, the author examines the need for constitutional recognition and protection of the political collective rights of minority groups in Canada, particularly those of Aboriginal nations. The author asserts that Canada's present constitutional approach to minority collective rights is one of "indirect consociation," an approach which embraces the ideology of "universalism" and does not expressly recognize or protect minority ethnonational communities. This is ineffective as it generates political instability. He examines both Canadian constitutional thinking as well as the thoughts of Aboriginal nations on the right to self-government and discusses the conflicting theories behind each position. Finally, the author suggests that the solution to resolving this conflict between minority and majority political rights is for Canada to adopt a "direct consociation" approach. This approach would recognize expressly and protect the political rights of Aboriginal nations and other minorities, based on the concept of equality, as opposed to continuing colonialist or assimilationist approaches which only serve to heighten inequality and political tension.

On Not Standing For Notwithstanding

Abstract: Many commentators have attempted to locate a Justification for the legislative override in section 33 of Charter on the basis of Canadian constitutional theory. Professor Whyte argues that the abolition of the notwithstanding clause would conform comfortably with the premises which underlie the Canadian constitutional regime. The first among these is the principle of legal- ism, the process by which we have chosen to adjudicate the resolution of public issues. Second, the principle of it is contended, provides some support for judicial control over political choices on the basis that, at the very least, certain Charter rights enhance the democratic process. The final principle examined, that of federalism, provides a historical perspective within which the disruption caused by judicial nullification can be assessed. The author argues that constitutionalism already exacts a high price on the autonomy of electoral politics and that the capacity of governments to regulate for the public good has not been seriously hampered as a result. Lastly, Professor Whyte examines the rationale for the Charter, as a tool to circumvent oppressive legislative measures, and why the judiciary be relied upon to protect the radically dispossessed when they have no alternative route for the vindication of Charter values.

First Nations Land Management Act and Third Party Interests

Abstract: In 1999 the Government of Canada enacted the First Nations Land Management Act, which is designed to provide First Nations with increased control and authority over land management on Indian reserve land and to replace related provisions in the Indian Act. This article addresses concerns regarding third party interests and licences under this new Act, in that such interests may be less secure than under the old land management regime. The author then outlines some potential remedies to the existing ambiguities found in the new land management regime as a way to provide practical suggestions for First Nations to fully develop and utilize their First Nation land.

The Supreme Court and Civil Liberties

Abstract: To what extent has the Supreme Court of Canada tended to promote human rights and protect fundamental freedoms? This question is examined by looking at the bases on which the Supreme Court can protect civil liberties. In decisions prior to 1950 the author finds that the Supreme Court was not protective of "egalitarian" civil liberties. With respect to "political" civil liberties, the author finds the majority judgments of the Supreme Court of Canada of the 1950's inspiring. The enactment of the Canadian Bill of Rights in 1960 provided an important direction to the Court to protect civil liberties. The author feels that the Supreme Court has not yet satisfac torily responded to this direction. However, the Drybones decision recognized the constitutional status of the Bill of Rights and the author supports the argument that it is constitutional instrument.

Feminism, Foucault, and Law as Power/Knowledge

Abstract: In this article, Bunting critically assesses Michel Foucault's theses on power/knowledge, law and the state along with feminist writing engaging with Foucault. She explores tensions between Foucauldian and feminist theories while claiming that a constructive fusion of the two can lead to a rich analytical framework for women. Bunting concludes with a discussion of the implications of a Foucauldian approach for feminist legal strategies.