Western Journal of Legal Studies最新文献

The Conflation of the Justification Framework for Infringement of Aboriginal Rights with the Oakes Test in Tsilhqot’in Nation v British Columbia Tsilqot'in民族诉不列颠哥伦比亚案中侵犯原住民权利的辩护框架与Oakes测试的冲突

Western Journal of Legal Studies Pub Date : 2023-06-27 DOI: 10.5206/uwojls.v14i2.15667

D. Côté

{"title":"The Conflation of the Justification Framework for Infringement of Aboriginal Rights with the Oakes Test in Tsilhqot’in Nation v British Columbia","authors":"D. Côté","doi":"10.5206/uwojls.v14i2.15667","DOIUrl":"https://doi.org/10.5206/uwojls.v14i2.15667","url":null,"abstract":"In Tsilhqot'in Nation v British Columbia, the Supreme Court of Canada replaced the test for the justification of Aboriginal rights infringements with a framework that is nearly indistinguishable from the Oakes test. The goal of this paper is to show that this development in the law, and thus the current justification framework, is undesirable and erroneous. This paper submits four reasons to arrive at this conclusion. First, the justification test proposed in Tsilhqot'in mirrors the test rrequired to prove an infringement of Aboriginal rights, whose burden of proof falls on the Indigenous party, and hence shifts the entire onus of proving justification from the Crown to the Indigenous party. Second, the conflation of the Oakes test with the justification framework makes justification effectively impossible, which may cause reluctance amongst courts to recognize Aboriginal rights. Third, Aboriginal rights are fundamentally different from Charter rights and should not be subjected to a test designed for the Charter. Fourth, the incorporation of the Oakes test into the justification framework runs contrary to established principles of constitutional interpretation. These four reasons merit abandoning the framework proposed in Tsilhqot'in. Otherwise, this area of the law will be riddled with doctrinal flaws and Indigenous interests will suffer.","PeriodicalId":40917,"journal":{"name":"Western Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49577519","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Deductibility of Surrogacy Payments in Canadian Tax Law 加拿大税法中代理付款的扣除

Western Journal of Legal Studies Pub Date : 2023-06-27 DOI: 10.5206/uwojls.v14i2.14880

Tatiana Hulan

引用次数: 0

Are Delayed Complaints of Sexual Harassment Not Worthy of Human Rights Protection? 拖延性骚扰投诉不值得人权保护吗？

Western Journal of Legal Studies Pub Date : 2023-06-27 DOI: 10.5206/uwojls.v14i2.16001

Sophie Poinar

{"title":"Are Delayed Complaints of Sexual Harassment Not Worthy of Human Rights Protection?","authors":"Sophie Poinar","doi":"10.5206/uwojls.v14i2.16001","DOIUrl":"https://doi.org/10.5206/uwojls.v14i2.16001","url":null,"abstract":"\u0000Within the current legislative landscape in Ontario, survivors of sexual harassment are treated differently than survivors of sexual assault and sexual misconduct with respect to when they can advance a legal claim against their perpetrators. Under sections 16(1)(h) and 16(1)(h.1) of the Ontario Limitations Act, survivors of sexual assault and misconduct are able to file a civil claim whenever they choose to do so. Under s 34(1) of the Ontario Human Rights Code, survivors of sexual harassment must file a human rights complaint within one year of the experienced harassment. This paper argues that s 34(1) should not apply to complaints based on sexual harassment. The author provides four reasons to substantiate this argument: (1) this provision fails to align with contemporary understandings of sexual harassment; (2) it is arbitrary to apply drastically different timelines to survivors depending on the type of sexual violence they have experienced; (3) two important objectives of limitation periods will not be seriously threatened by the suggested amendment to the Human Rights Code; and (4) section 34(1) favours the interests of the harassers over those of the survivor, the public, Bill 132 and the Human Rights Code.\u0000","PeriodicalId":40917,"journal":{"name":"Western Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46720773","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Wrongly Imprisoned, Released as a Pauper: Canada’s Ineffective Approach to Innocence Compensation and Avenues for Reform 被错误监禁，作为罪犯获释：加拿大无效的无罪赔偿方法和改革途径

Western Journal of Legal Studies Pub Date : 2023-01-31 DOI: 10.5206/uwojls.v14i1.14627

Omri Rozen

引用次数: 0

Harm Reduction in Prisons: Restraints within the Prisoners’ Rights Discourse 监狱减少伤害:囚犯权利话语中的约束

Western Journal of Legal Studies Pub Date : 2023-01-31 DOI: 10.5206/uwojls.v14i1.15144

Étienne F. Lacombe

{"title":"Harm Reduction in Prisons: Restraints within the Prisoners’ Rights Discourse","authors":"Étienne F. Lacombe","doi":"10.5206/uwojls.v14i1.15144","DOIUrl":"https://doi.org/10.5206/uwojls.v14i1.15144","url":null,"abstract":"A growing gap exists between the availability of harm reduction initiatives in mainstream society and those offered in correctional institutions. The quality of current risk-reducing measures in penitentiaries and the absence of more ambitious programs have led prisoners’ rights advocates to seek relief through litigation, often unsuccessfully. The author deconstructs these cases and traces litigants’ lack of success to two factors, which he contends condition harm reduction litigation in the prison context. While the law is clear that inmates retain their civil rights behind bars, the author concludes that the generic legal channels through which inmates must litigate their rights and a widespread conception of health that centres on treatment rather than prevention impede efforts to import harm reduction initiatives into penitentiaries. Although past prison litigation reveals great strides to providing inmates with the same rights and protections as members of the general population, challenges to the availability of harm reduction initiatives fit uneasily within the established pattern of prisoners’ rights litigation. In order to accommodate harm reduction claims, the prisoners’ rights discourse would need to be reconceptualized at the stakeholder and judicial levels.","PeriodicalId":40917,"journal":{"name":"Western Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44830903","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Contract Law’s Red Herring: Exposing “Intention” as a Guise for Consideration 《合同法》的红线：暴露“意图”作为对价的指南

Western Journal of Legal Studies Pub Date : 2023-01-31 DOI: 10.5206/uwojls.v14i1.15360

L. Goldfarb

{"title":"Contract Law’s Red Herring: Exposing “Intention” as a Guise for Consideration","authors":"L. Goldfarb","doi":"10.5206/uwojls.v14i1.15360","DOIUrl":"https://doi.org/10.5206/uwojls.v14i1.15360","url":null,"abstract":"This paper describes and evaluates the contested fourth requirement for contract formation: the intention of both parties that their agreement be legally enforceable (“legal intention”). I begin with an overview of the jurisprudence on legal intention, ending with the Supreme Court of Canada’s most recent pronouncement in Ethiopian Orthodox Church of Canada St. Mary Cathedral v Aga. While the Court in this case affirmed that legal intention is to be treated as a fourth requirement, its analysis reveals precisely the reason why it should not be: when courts purport to analyze legal intention, an inherently difficult value to assess, they often lapse into a veiled assessment of consideration instead. I draw on Peter Benson's conception of \"robust consideration\" to argue that we should dispense with the legal intention requirement. In its place, a clear test for robust consideration would allow courts to conduct self-aware analyses free from contorted intention assessments. I conclude by offering an interpretation of Balfour v Balfour, the seminar case supporting a legal intention requirement, that is consistent with my proposed approach to contract formation. ","PeriodicalId":40917,"journal":{"name":"Western Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49451922","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Indeterminate Sentences and Section 12 of the Charter 不定语和《宪章》第12条

Western Journal of Legal Studies Pub Date : 2023-01-31 DOI: 10.5206/uwojls.v14i1.14341

Zev Macklin

{"title":"Indeterminate Sentences and Section 12 of the Charter","authors":"Zev Macklin","doi":"10.5206/uwojls.v14i1.14341","DOIUrl":"https://doi.org/10.5206/uwojls.v14i1.14341","url":null,"abstract":"Indeterminate sentences are uniquely reserved for two classes of offenders, dangerous offenders and individuals designated not criminally responsible on account of mental disorder. These sentences effectively keep individuals in constant jeopardy before a Parole or Review Board. This paper reviews the constitutionality of these regulatory schemes under Section 12 of the Charter; its prohibition against “cruel and unusual treatment or punishment.” In this paper, I examine the legislative and jurisprudential development of the regimes, and their impact on individuals given these designations. The paper argues that the regimes result in a gross and systemic violation of the rights of individuals who have been given indeterminate sentences. It finally argues that there is also a moral imperative to reject any indefinite detention that is not subject to judicial review. This paper discusses and seeks to bring attention to the unfair and unconstitutional treatment of two vulnerable groups in our judicial system. Through greater visibility, the author hopes to put pressure on our legal system and the government to review these types of sentences and their true impact on individual rights and freedoms.","PeriodicalId":40917,"journal":{"name":"Western Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44642521","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Jury Strikes Back 陪审团反击

Western Journal of Legal Studies Pub Date : 2022-05-11 DOI: 10.5206/uwojls.v13i1.14603

Brandon Orct

{"title":"Jury Strikes Back","authors":"Brandon Orct","doi":"10.5206/uwojls.v13i1.14603","DOIUrl":"https://doi.org/10.5206/uwojls.v13i1.14603","url":null,"abstract":"Ontario’s civil jury system has been the topic of many discussions about reform. However, none of these explorations contemplated the drastic effects of ever-evolving public health emergency. The COVID-19 pandemic has heightened Ontario’s access to civil justice crisis through extensive pandemic delays, while simultaneously challenging the role of civil jury in administering justice. Ontario consequently provides a ripe case study to explore how the pandemic has affected civil jury trials and to explore ways of enhancing their viability in a post-pandemic Ontario. \u0000 \u0000This this article is concerned with advancing measures that can not only enhance the viability of civil jury trials going forward, but advance access to civil justice more generally. The purpose of this article is twofold. First, to examine how the pandemic has fundamentally challenged the viability of civil jury trials while exacerbating existing impediments to accessing civil justice. And second, to outline a multifaceted approach to reforming the jury trial to ensure it remains a viable vehicle for civil justice consistent with enhancing access to justice through the pandemic. The hope is that this article will inspire much needed exploration into Ontario’s civil justice system to address the consequences of the COVID-19 pandemic and future emergencies.","PeriodicalId":40917,"journal":{"name":"Western Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47823273","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0

Examining Labour Rights Enforcement Mechanisms in NAFTA and the USMCA and its Impact on Labour Conditions in Mexico 检视北美自由贸易协定和美墨加协定劳工权利执行机制及其对墨西哥劳工条件的影响

Western Journal of Legal Studies Pub Date : 2022-05-11 DOI: 10.5206/uwojls.v13i1.14339

B. Bates

引用次数: 0

COVID-19 Pandemic and Structural Barriers for Migrant Agricultural Workers in Ontario 新冠肺炎大流行与安大略省农民工的结构性障碍

Western Journal of Legal Studies Pub Date : 2021-10-26 DOI: 10.5206/uwojls.v12i1.13636

Taj James

{"title":"COVID-19 Pandemic and Structural Barriers for Migrant Agricultural Workers in Ontario","authors":"Taj James","doi":"10.5206/uwojls.v12i1.13636","DOIUrl":"https://doi.org/10.5206/uwojls.v12i1.13636","url":null,"abstract":"COVID-19 has exposed and exacerbated many longstanding barriers and shortcomings in labour protections for migrant workers in Canada. This paper focuses on the situation of workers under the Seasonal Agricultural Workers Program (SAWP) in Ontario, demonstrating how the COVID-19 pandemic has exposed and greatly aggravated the already precarious conditions of migrant workers. It explores the employment, labour and immigration law frameworks that render SAWP workers particularly vulnerable to exploitation and harm, both during pandemic and non-pandemic times. While some government policy and legislative responses have sought to respond to the increased vulnerability of migrant agricultural workers to the virus, fundamental changes in both the immigration and labour spheres are necessary to fix the structural causes of migrant agricultural workers’ vulnerability.\u0000This paper suggest that the pandemic has created not only an unprecedented urgency for systemic change, but also an unprecedented opportunity. Given the current broad shifts in public ideas about employment, health, and vulnerability, as well as mainstream public attention to the plight of migrant farm workers, I suggest that there is now an unprecedented space in Canadian public policy discourse to advance the urgently needed structural changes to protect the rights of migrant farm workers.","PeriodicalId":40917,"journal":{"name":"Western Journal of Legal Studies","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46385507","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1