{"title":"Two Myths of Administrative Law","authors":"Mark Mancini","doi":"10.5206/uwojls.v9i1.6837","DOIUrl":"https://doi.org/10.5206/uwojls.v9i1.6837","url":null,"abstract":"In an upcoming set of cases, the Supreme Court of Canada will review its approach to the standard of review of administrative action. In this paper, the author suggests that the Court must go back to the foundation of judicial review in redesigning the standard of review, namely, the task of courts to police the legal boundaries of the administrative body. To do so, courts must authentically interpret the legislative grant of authority to the administrative decision-maker, particularly to determine the appropriate intensity of review. To that end, the author suggests that the Court should discard two myths that have pervaded modern administrative law: (1) that administrative decisionmakers should be granted deference based on purported expertise in matters of statutory interpretation; and (2) that jurisdictional questions exist separately from questions of law. The myths may impose a different standard of review than the one discernible with the ordinary tools of statutory interpretation. The author argues that these court-created devices should not exist at the expense of the constitutionally prescribed duty of the courts to exercise their policing function and engage in genuine statutory interpretation to determine the appropriate standard of judicial review in a given case.","PeriodicalId":40917,"journal":{"name":"Western Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47832478","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}
{"title":"The Misinformed Versus the Misunderstood","authors":"Isaac Heo","doi":"10.5206/UWOJLS.V9I1.6639","DOIUrl":"https://doi.org/10.5206/UWOJLS.V9I1.6639","url":null,"abstract":"The Youth Criminal Justice Act (YCJA) came into effect in 2003 as a response to the overincarceration of youth that occurred under its predecessor, the Young Offender’s Act (YOA). Parliament’s intention was clear in repealing and replacing the YOA in favour of the more restorative YCJA: no longer would custody be considered an appropriate response to youth crime. More than a decade has passed since the introduction of the YCJA, and statistics reveal that it has had incredible success in reducing the rate of overall youth incarceration. What remains problematic, however, is the persistent and prevailing issue of the overincarceration of Indigenous youth. \u0000The purpose of this article is to unpack the complexity of this issue, identify its causes, and to ultimately propose different strategies to help reduce a custodial response to Indigenous youth crime. In achieving this goal, the article will begin with an overview of the YCJA and an exploration of its restorative provisions to argue that the legislation itself is not at fault. The article will then provide current statistics on the overincarceration of Indigenous youth, and subsequently, examine some of the most popular explanations as to why the issue continues to persist. Finally, and perhaps most importantly, the article will conclude by proposing several strategies – such as the implementation of more Aboriginal Youth Courts – to better address the overincarceration of Indigenous youth moving forward.","PeriodicalId":40917,"journal":{"name":"Western Journal of Legal Studies","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49400945","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}
{"title":"Galambos v Perez, its Critics, and the Equity-Certainty Paradox in Fiduciary Law","authors":"Calvin DeWolfe","doi":"10.5206/uwojls.v11i1.10724","DOIUrl":"https://doi.org/10.5206/uwojls.v11i1.10724","url":null,"abstract":"This paper examines the merits of the current approach to identifying ad hoc fiduciary duties in Canada, which was exposited by the Supreme Court of Canada in its 2009 Galambos v Perez decision. The indicia of fiduciary relationships expressed in Galambos, I argue, are sufficiently comprehensive and certain to overcome popular academic criticisms of the indicia-based ad hoc approach. Specifically, I will challenge the arguments of the contractarian scholar Anthony Duggan and the equity-focused scholar Leonard Rotman -- both of which argue, albeit from different ends of the academic spectrum, that ad hoc fiduciary duties should not be identified using indicia.","PeriodicalId":40917,"journal":{"name":"Western Journal of Legal Studies","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70664492","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}
{"title":"Nihkitimahkinawow ekwa Nihkitimahkisin: Pity and Compassion in Cree Law","authors":"Nigel Baker-Grenier","doi":"10.5206/uwojls.v11i1.10784","DOIUrl":"https://doi.org/10.5206/uwojls.v11i1.10784","url":null,"abstract":"In Nêhiyawêwin (Plains Cree language), kitimahkinawaw translates as “to takepity on someone”. Kitimahkinawaw describes the quality of a person’s actions when theyshow kindness, pity, and compassion towards others. Cree law includes a responsibilityto treat others with kitimahkinawaw, which encompasses a duty to care for the elderly,poor, homeless, and sick. Further, it requires us to treat people who are harmful withfairness and compassion. The purpose of kitimahkinawaw is to mitigate suffering,especially the struggles experienced by marginalized people. Kitimahkisin means “apitiful person”. Kitimahkisin includes a recognition that we are dependent uponpakwataskamik (the land), Kisemanito (Creator), and each other for our sustenance.Each person has a gift and we have a responsibility to use these gifts to benefit society,for we are all kitimahkisin. The author argues that kitimahkinawaw and kitimahkisin arelegal principles within the Cree legal order which guide relationships between the manyanimate beings within Cree epistemology. The author draws upon âtayôhkêwin (stories),Nêhiyawêwin, and Indigenous legal theory to illustrate the complexities and nuanceswithin the principles of kitimahkinawow and kitimahkisin. Kitimahkinawow andkitimahkisin are living laws which obtain meaning through the practice of caring for thepoor and marginalized.","PeriodicalId":40917,"journal":{"name":"Western Journal of Legal Studies","volume":"32 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70664543","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}
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