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This article draws on the suggestion that modern technology is "autonomous" in that our social control mechanisms are unable to control technology and instead merely adapt society to integrate new technologies. In this article, I suggest that common law judges tend systematically to support the integration of novel technologies into society. For example, courts sometimes require parties seeking compensation for serious injuries to submit to medical technologies to which the parties object for genuine reasons of fear or moral objection. Where a novel technology alters the environment in some way, courts sometimes legitimize that alteration by refusing to recognize harm and instead characterizing avoidance of the technology as self-imposed harm. The examples selected in this article were chosen to support the hypothesis in one way or another, and future work will aim to look for counter examples and to conduct a more complete assessment of the hypothesis. (Contains 1 note.)

Documents how the introduction of an integrated (or bijural) approach to the teaching of the civil and common law at Louisiana State University in 2001, as at McGill University in 1999, represents a restoration of a way of thinking about law that was not uncommon in 19th-century Louisiana and Quebec. (EV)

This article assesses a hypothetical battery claim for noise exposure in Australia using Canada's Freedom Convoy as a case study. I first advance a normative account for why battery ought to respond to noiserelated interferences using Kit Barker's taxonomy of 'vindication events'. I argue that battery, relative to negligence and private nuisance: (1) more accurately 'marks' and 'declares' the plaintiff's right to bodily integrity and 'denounces' the defendant's intentional interference; and (2) improves access to 'appropriate compensation' post-infringement. I also explain how the 'prevention of rights infringements' fits within my normative account. I then answer the key doctrinal questions of whether and when noise exposure constitutes an actionable battery. I draw from existing common law precedents to show that physical contact by sound waves is 'direct' and capable of being 'offensive'. I conclude by addressing the concern that my doctrinal conclusions would unduly burden protesters' implied freedom of political communication. [ABSTRACT FROM AUTHOR]

Expropriation law in Canada has operated on the basis of two presumptions at common law: that compensation is owing for the compulsory acquisition of property unless specifically indicated otherwise by statute; and, that no compensation is owing for land use regulation unless specifically provided for by statute. In its decision in Annapolis Group Inc. v Halifax Regional Municipality, the Supreme Court of Canada abandoned the second presumption that compensation for land use regulation required a statutory foundation. The majority and dissent proceed on the unexamined foundation that there is a common law basis for compensation in claims for constructive takings or de facto takings. This article sets out the earlier consensus, documents the drift to constructive takings at common law, and presents the implications. [ABSTRACT FROM AUTHOR]

This article offers a legal explanation for the decline of honeybees. While most investigations into bee populations and bee survival rates have been scientific, this article provides an additional set of causes, showing how our legal definitions of property and standards of negligence contribute to a landscape hostile to the lives of bees. Examining recent litigation in the United States and Canada, it shows how legal concepts of property impact the lives of bees, especially in cases of pesticide overspray near property boundaries, and in the forms of knowledge and ignorance in play in contesting duties of care in negligence cases. By expanding our understanding of the causes of bee death, this article points toward additional ways in which the stressors that bees face might be reduced. [ABSTRACT FROM AUTHOR]

In England and Wales, the Coroners and Justice Act 2009, (CJA), s. 55(3) introduced into statute 'fear of serious violence' as a ground (or 'a trigger') for loss of control manslaughter. It was intended to take into account the circumstances of women who in self-preservation kill abusive and violent intimate partners. Despite this important reform, a woman who defends herself from a partner's abuse and violence in both manslaughter and self-defence pleadings continues to be assessed with reference to a masculinist interpretation of what is reasonable through the anthropomorphic 'reasonable man/person,' and loss of control still underpins voluntary manslaughter. In Canada, the homicide provisions in the Criminal Code, RSC 1985, c C-46, were amended in 2012 to reframe the law of self-defence (s. 34) and in 2015 to revise the law of provocation by which culpable homicide can be reduced to manslaughter (s. 232), with neither amendment accounting explicitly for the circumstances of women who kill abusive partners. In both jurisdictions despite revisions to the legal construct of 'loss of control manslaughter' (England and Wales) or the provocation defence (Canada), the common law underpinnings of these defences and jurors' perceptions of what constitutes or what can trigger 'loss of control' continues to inform such pleadings whilst the law on self-defence (with its masculinist requirements and interpretation of proportionality and reasonableness) remains largely inaccessible to the abused woman who defends herself from an intimate partner's violence and abuse. This article explores the legal developments in both jurisdictions and their limitations through an analysis of the substantive law and recent case law. The number of women who kill violent and abusive partners and the legal outcomes, the methods used to kill and the ways in which substantive law and legal actors disadvantage those who use a weapon eschewing women's disproportionate size and strength, are all considered. The article concludes with proposals for further reform. [ABSTRACT FROM AUTHOR]

This article employs the case study method to investigate the social history of Canadian tort law and litigation after 1945. Its focus is Menow v Jordan House, the stem precedent of the Canadian common law of tavern-keeper liability for intoxicated patrons. The article examines the historical genesis, pleading, and adjudication of this litigation, probing why – in Canada in the late 1960s and early 1970s – the novel tort claim of an ejected intoxicant against a vendor of alcohol not only was imagined, discussed, and commenced but also was won by the plaintiff at three levels of court. The authors argue that the Jordan House lawsuit exemplified a pivotal moment of socio-legal discontinuity in Canada, portending a quarter century of change in three major facets of its tort law system: in the perceptions of lay persons with respect to their private legal rights and obligations; in the personal convictions, social geography, and litigation strategies of Canadian lawyers; and in the formulation of tort doctrine by Canada's trial and appellate judges. The article is a sub-study of a larger project on the reinvention of tort law and litigation in Canada in the half-century after World War II. [ABSTRACT FROM AUTHOR]

This mixed-methods study analyses a sample of 303 rejections of refugee claims by Canadian refugee status adjudicators. It explores the role that inferences about the claimant's risk response play in supporting the adjudicators' conclusions that the claimant is lying. In justifying their negative credibility conclusions, the adjudicators in almost two out of three decisions (63%) cited the claimant's risk response. They often measured the claimant against a general idealized standard: in the face of an alleged danger, the claimant did not act like a 'person at risk'. This approach brings to refugee law the confusion that characterizes the common law's most famous fiction. Like the 'reasonable man', the 'person at risk' blurs the lines between descriptive analyses aimed at understanding how a person would have acted and normative analyses aimed at establishing how a person should have acted. Moreover, in deciding how a 'person at risk' would act, the adjudicators did not consider social scientific sources. For many decades, researchers have investigated how human beings respond to potentially deadly threats such as natural hazards, lethal illnesses, attacks, and assaults. The adjudicators' reasoning, resting on common sense alone, often ran counter to key insights that emerge from this body of research. This study's findings suggest that refugee systems must guard against the use of normative standards in drawing credibility inferences from a claimant's risk response, and that they must do more to ensure that social scientific evidence informs these judgments. Evidence about human risk response should be on the record in every refugee hearing. [ABSTRACT FROM AUTHOR]

In 1999, the Supreme Court of Canada affirmed that the Treaties of 1760–1761 provided the Mi'kmaq, Wolastoqey, and Passamaquoddy Indige-nous peoples with the right to fish to earn a moderate livelihood. Today, 23 years later, such treaty rights remain unimplemented by Canada. This situ-ation has created significant conflict and violence for Indigenous people who attempt to exercise such rights. This article examines the various rea-sons why such rights have remained unimplemented by Canada, and con-siders Canada's legislative and policy responses to such rights under the scope of their statutory authority, the common law and Canada's legal du-ties owed to Aboriginal peoples. [ABSTRACT FROM AUTHOR]

This article will first situate cultural heritage preservation in the urban context through an overview of notions of outstanding universal value, the role of cities in cultural heritage and municipal archaeology generally, paths toward the equitable and sustainable development of cities, and inclusive urban cultural rights in the context of cultural heritage where these appear within international law and guiding international legal frameworks for the protection of cultural heritage. The article will also discuss the notion of the 'public good' as it is applied within heritage preservation decisions and will also address the balancing of public and private interests in built heritage preservation. This article will further turn to the broad legal framework of cultural heritage protection for built spaces in Canada before narrowing in on the common law concept of a heritage easement agreement – notably, how it is and can be deployed in Canada – and the civil law conservation servitude as it is available in the Civil Code of Quebec. [ABSTRACT FROM AUTHOR]

This article examines the theoretical foundations and developments of the concept of proportionality in common law sentencing. It traces its evolution within its two main underlying frameworks: desert-based and consequentialist theories of punishment. It specifically examines the Canadian context and demonstrates that this concept was primarily rooted in a desert-based framework but has increasingly been infused with consequentialist rationales. It is argued that this multiplication of underpinnings has led to a conceptual muddling of proportionality, risking voiding the concept of its meaning and usefulness to decision-makers at sentencing. The article therefore proposes a nuanced framework, similar to the one in England and Wales, rooted in a dynamic understanding of just deserts that allows for the incorporation of relevant consequentialist aims in a principled fashion. [ABSTRACT FROM AUTHOR]

The duty to consult and accommodate Indigenous peoples under section 35 of the Constitution Act, 1982 is frequently ful"lled through environmental assessments. However, environmental statutes and the common law do not always properly re#ect the constitutional nature of the duty, nor do they ensure that decisions are environmentally sound. In light of these shortcomings, this paper recommends three reforms: (1) a revision of the federal Impact Assessment Act; (2) the codi"cation of environmental rights; and (3) a change in the standard of review applied to administrative decisions stemming from environmental assessments. !ese adjustments would not subvert the current legal framework. Nonetheless, they have the potential to assist in advancing the related goals of sustainable development and reconciliation between Canada and Indigenous peoples. [ABSTRACT FROM AUTHOR]

This paper traces the Canadian doctrine of unconscionability's distant voyage in Uber Technologies v Heller 2020 SCC 16 from the familiar waters of the English 'unconscionable bargains' family of doctrines, found in various common law jurisdictions. Since the 19th century, those jurisdictions had included Canada. However, in this important decision of the Supreme Court of Canada, the position of the doctrine shifted significantly. Its movement can be identified as towards the American doctrine of unconscionability, a distinct doctrine not part of the English family, based rather on §2-302 of the Uniform Commercial Code. Court-watchers in the United Kingdom and other Commonwealth jurisdictions wondering whether this reinterpretation of unconscionability might represent a model for progressive reform should understand why it does not. Adrift between two doctrines with different purposes, it is insufficiently suited to serve either. Meanwhile, it may disrupt business reliance on standard form contracts, and cause tremendous contractual instability. [ABSTRACT FROM AUTHOR]

Copyright of Canadian Studies in Population is the property of Springer Nature and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

In 2016, the Canadian Human Rights Tribunal found that Canada's management of child welfare discriminates against First Nations children. The First Nations Child and Family Caring Society, one of the complainants, maintains a web-based campaign called "I Am A Witness," providing details on the hearings and legal materials and asking visitors to act towards ending discrimination against First Nations children. What does it mean to bear witness to such discrimination? The concept of "witnessing" circulates through Indigenous oral traditions, communication and media theories, and the common law. This article explores the I Am A Witness campaign, arguing that as it evokes various theories of witnessing and builds public awareness of legal processes, it shifts spaces of and perspectives on legality beyond Western categories, creating a public that is enabled to bear witness to, and respond to, ongoing injustices against Indigenous peoples. [ABSTRACT FROM AUTHOR]

Copyright of Ottawa Law Review is the property of University of Ottawa, Faculty of Law and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The Canadian Charter of Rights and Freedoms contains not one but two kinds of equality rights--general equality rights, set out in section 15, and linguistic equality rights, set out in sections 16 to 23--but the relationship between them is not well understood. Do official language rights rest on a distinct set of values, or do they simply instantiate the same general principle expressed in section 15? If the former, what are these values, and how do they relate to other principles of constitutional justice? The matter is further complicated by the need to account for the special constitutional status of Indigenous peoples, who also claim a form of equality. If we are to do justice to all concerned, we need to determine if and how these different claims to equality can and should fit together. However, this requires that we have a clear account of their underlying principles, and our understanding of linguistic equality in this respect lags far behind. While the concept of general equality and the status of Indigenous peoples have both received sustained theoretical attention, linguistic equality has not, leaving a number of fundamental questions--namely its basic analytical structure and its moral foundations--unresolved. The purpose of this article is to lay the groundwork for a theoretical account of linguistic equality, one that situates this concept within a broader framework of constitutional values that includes general equality rights and the rights of Indigenous peoples. [ABSTRACT FROM AUTHOR]

Laws are experienced, and produced, with and through bodies. By this, I mean the prohibitions, permissions, rights, and duties often understood as shaping the topology of a social community, amount to more than a system of rules incorporated in mental schema. Laws exist in dialectical relation with agents who construct, rely upon, and find meaning in law, and that dialectical relation is a consequence of both the representations agents impose upon social order and the material conditions of their environment that inform or otherwise give shape to their social practices. That environment, in which the legal actor is emplaced, includes both physical and social phenomena in actual space and the corporeality of the body. [ABSTRACT FROM AUTHOR]

The mid-nineteenth century was an age of reform in the civil courts of the common-law world. Why, in spite of the clamour for change within Upper Canada and the introduction of reforms in adjacent common-law jurisdictions, were Upper Canada's leading lawyers and politicians so reluctant to act? The answer is found in the conservatism of the province's leaders, which stemmed not only from the legal training of the lawyers, but also from the moderate conservative ideology of the Upper Canadian leadership as a whole. At an almost unprecedented time of public debate, when resentment to lawyers and the courts was being expressed and a radical critique of the courts and the profession was emerging, Upper Canada's most influential residents managed to maintain political control and steadfastly refused to act in advance of the mother country. [ABSTRACT FROM AUTHOR]

In recent years, the Canadian Charter of Rights and Freedoms (the "Charter") has been relied on increasingly by Canadian courts to bolster common law police powers, often at the expense of due process. Ostensibly, the courts have shown more concern with the administration of the limits of policing than with the delineation of civil liberties. In this article, we trace the evolution of the interpretation of the Charter in this context, with early decisions suggesting a reluctance to create ex post facto police powers. The article then outlines the acceleration of judicial proliferation of common law police powers in Canada, cloaked in the veil of the Charter. In other words, unauthorized police conduct is legitimized by the courts on an ad hoc basis, so long as it is ultimately justifiable. We then discuss the findings of our own research into this phenomenon and comment on the possible implications that increasingly expansive common law police powers created by courts have had on due process in Canada, and the administrative role of the Supreme Court of Canada in mobilizing civil rights protections in the direction of state surveillance. [ABSTRACT FROM AUTHOR]

This article explores the emerging use of the proportionality concept in the contract law of the Anglo-common law world, first to understand its internal logic, and secondly, to situate its invocation within private law theory. What are judges doing when they appeal to "proportionality"?, and what does this say about the ideology of adjudication? I draw insights from the use of proportionality in other domains, in particular public law, to uncover its internal rationality as a means-ends rationality review coupled with a process of balancing competing considerations, which I illustrate with reference to the illegality, penalty, and cost of cure doctrines. I argue that proportionality reflects a method of pragmatic justification, expressing an aspiration towards a structured and transparent mode of argumentation that is anti-formal and anti-ideological, focusing from the bottom-up on contextual considerations, and occupying a distinct space against existing theories in private law driven, for instance, by "top-down"? rights-based ideologies or critical and communitarian perspectives. [ABSTRACT FROM AUTHOR]

Copyright of Revue Generale de Droit is the property of Universite d'Ottawa, Section de Droit Civil and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Revue Generale de Droit is the property of Universite d'Ottawa, Section de Droit Civil and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The Canadian public law recognises the writ of habeas corpus as an essential remedy against unlawful detention. Apart from the applications for the release of persons unlawfully incarcerated, there are applications of the writ that illustrate its use to release persons from particular form of detention although the person will lawfully remain under some other restraint of liberty. South African courts like their Canadian counterparts uphold the inherent right of every subject, and in every stranger in the country to issue out a writ of habeas corpus. This right is given not only by the English common law, but also by the South African Roman-Dutch equivalent – interdictum de libero homine exhibendo. However, a close scrutiny of at least one of such decisions proceeding from the lower to the highest court in the country reveals a disconnect in the judicial pronouncements on the link between actio popularis and interdictum de libero homine exhibendo; and the distinction between a bail application and interdictum de libero homine exhibendo. The level of consistency enjoyed by the Canadian courts decisions have not been attained in South Africa. [ABSTRACT FROM AUTHOR]

Copyright of Social Sciences Bulletin / Sociālo Zinātņu Vēstnesis is the property of Socialo Zinatnu Vestnesis and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The global temperature is set to rise to irreversible and hazardous levels by 2030. In Canada and around the world, governments have been failing to act with the urgency these circumstances demand. Internationally, rights-based class proceedings have been used to pressure governments into action. In common law Canada, such proceedings would provide an opportunity for the judiciary to depart from the conservative approach to certification used in environmental class actions. While the first Canadian attempt is being brought in Quebec where a liberal approach makes authorization more likely, one successful class action will not be enough. Given that applicable rights can be found in the Canadian Charter of Rights and Freedoms, climate change class actions in common law jurisdictions are possible, and they could play an important role in reducing emissions in Canada. [ABSTRACT FROM AUTHOR]

Canada delegates securities regulation to the provincial securities regulators where each Canadian firm is headquartered. Legal origin theories predict weaker enforcement due to less emphasis on accounting in civil law jurisdictions, like Quebec. Consistent with these theories, we find fewer restatements for non-U.S. cross-listed firms headquartered in Quebec relative to the rest of Canada (ROC), which has a common law legal origin. When subject to two securities regulators—a Canadian provincial securities regulator and the Securities and Exchange Commission—Quebec firms cross-listed in the U.S. restate at a rate similar to the ROC. Finally, we document that Canadian firms restate less frequently after adopting IFRS, consistent with more principles-based standards being more difficult to enforce ex post than more rules-based standards. [ABSTRACT FROM AUTHOR]

The article discusses about the legal refugee system in Canada with a focus on refugee status determination, legal decision-making and Canada's common law legal tradition. The article also discusses about International refugee law, evidence-based reasoning and topics related to the role of Canadian Federal Courts, jurisdictions and Canadian adjudicators in providing justice and protecting the rights of the refugees.

The common law of assumed jurisdiction in Canada now consists of judges interpreting and applying the presumptive connecting factors established for tort claims in Club Resorts Ltd. v Van Breda and identifying and fleshing out the contours of presumptive connecting factors for claims other than tort. There is a pressing need for detailed analysis. While the presumptive connecting factor of a tort committed in the forum has been easy to apply in some cases, such as motor vehicle collisions, it has been much harder to apply in cases of defamation, misrepresentation, deceit and conspiracy. Beyond tort, presumptive connecting factors for certain causes of action such as breach of fiduciary duty, breach of confidence, or reversal of an unjust enrichment remain under-analysed. Little consensus exists on what aspects, if any, of these claims would constitute a sufficient connection for assumed jurisdiction. There are also important questions about how the presumptive connecting factor approach operates for several federal and provincial statutory causes of action, which differ in important ways from common law claims, and for assumed jurisdiction with respect to concurrent claims. [ABSTRACT FROM AUTHOR]

The story of institutional law reform in Canada has been described by one veteran as 'somewhat troubling.' It is a story not without significant successes: In Québec civil law, the codifications were remarkable achievements which realised sweeping and highly-esteemed reforms. Among Canadian common law provinces, Ontario founded the Commonwealth's first law reform commission in 1964, and as early as 1967 Alberta innovated the now internationally-influential joint venture design of its commission. Further, Canada's original national commission was notable for its ambitious pursuit of social issues, and the second national commission challenged conventional legal paradigms at unparalleled depth. Across the country, many law commissions were established. Yet, what is 'troubling' is how many, including long-established and prominent commissions, were since closed or constrained, impeded from accomplishing what they might have. Meanwhile, in Québec civil law, the codifiers' repeated calls for a permanent commission have gone unheeded. What does the future hold for institutional law reform in Canada? In Québec civil law, there are some signs of movement towards reform continuity. An important question will be whether processes of continuous incremental reform can be developed and managed to alleviate reliance on overwhelming legal overhauls. Elsewhere in Canada, a few Canadian provinces that shuttered commissions have since re-established them in altered forms. The common themes of austerity, ideology, and alleged redundancy in the downfall of past Canadian commissions remain an ever present concern to the survivors, as they simultaneously confront newly emerging challenges. Time will tell whether, because of their experience in reforming themselves in response to their troubling story to date, Canada's law commissions may be best-positioned to meet institutional law reform's challenges of the future. [ABSTRACT FROM AUTHOR]

The re-emergence in recent years of interest in the private law in and of itself, rather than as an instrument of extrinsic, regulatory goals, has called into focus the appropriateness of ‘policy-based’ reasoning in private law adjudication and rule formulation. While many have become accustomed to the idea that the courts both can and must resolve disputes in terms of community welfare or socio-economic considerations, more recent formalist, corrective justice-based accounts of the private law simply have no room for any policy or instrumental considerations; the private law is concerned only with the balance of justice between the parties to the dispute. To a large extent, the opposing views rest on deeper philosophical premises about the proper role of law and of the courts in society and have arisen in opposition to each other. The opposing camps thus tend to talk past one another in restating their respective views. In seeking to contribute to, and hopefully advance, this debate, we defend the thesis that direct recourse to considerations of the social, moral, or economic impact on society of a particular rule or ruling, as distinct from the policy of a legal rule or policy as the deeper values of society, is inconsistent with the fundamental characteristics and methodology of the private law and that this is not contradicted by the necessary role of final appellate courts in reformulating the law or by the inherently political and instrumental underpinnings of statutory private law. [ABSTRACT FROM AUTHOR]

This short article considers the central differences in the law on taking jurisdiction in civil and commercial disputes between those common law provinces that have implemented a statute on jurisdiction (British Columbia, Nova Scotia, and Saskatchewan) and those common law provinces that rely on the common law (Alberta, Ontario, and others). It focuses on the distinction between presence and ordinary residence, the role and analysis of presumptive connecting factors for taking jurisdiction, and issues related to immovable property. [ABSTRACT FROM AUTHOR]