ALBERTA LAW REVIEW最新文献_第7页

Closing Address 结束地址

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ALBERTA LAW REVIEW Pub Date : 2019-07-17 DOI: 10.29173/alr2559

T. Cote

引用次数: 0

Honouring The Honourable William A. Stevenson 尊敬的威廉·史蒂文森先生

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ALBERTA LAW REVIEW Pub Date : 2019-07-17 DOI: 10.29173/alr2541

Theron Brown

引用次数: 0

Reconstitutions of Harm: Novel Applications of the Labaye Test Since 2005 伤害的重构:2005年以来Labaye检验的新应用

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ALBERTA LAW REVIEW Pub Date : 2019-07-17 DOI: 10.29173/ALR2543

Richard Jochelson, J. Gacek

引用次数: 0

Bill C-59 and CSIS’s “New” Powers to Disrupt Terrorists Threats: Holding the Charter-Limiting Regime to (Constitutional) Account C-59法案和CSIS颠覆恐怖分子威胁的“新”权力：追究宪章限制制度的（宪法）责任

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ALBERTA LAW REVIEW Pub Date : 2019-07-03 DOI: 10.29173/alr2575

Michael E Nesbitt

引用次数: 1

Instrumental Rationality and General Deterrence 工具理性与一般威慑

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ALBERTA LAW REVIEW Pub Date : 2019-04-21 DOI: 10.29173/ALR2564

Colton Fehr

{"title":"Instrumental Rationality and General Deterrence","authors":"Colton Fehr","doi":"10.29173/ALR2564","DOIUrl":"https://doi.org/10.29173/ALR2564","url":null,"abstract":"The Supreme Court of Canada concluded in R. v. Nur that the use of general deterrence in sentencing is not “rationally connected”to its objective of lowering crime levels. Although this conclusion was drawn in the Charter section 1 context, its logic applies with equal force at the section 7 stage of analysis. As a law bearing no rational connection to its purpose is arbitrary, the author contends that judicial reliance on general deterrence in sentencing runs afoul of section 7 of the Canadian Charter of Rights and Freedoms. This conclusion is significant not only because it would forestall judicial use of general deterrence, but also for what it reveals about the relationship between the instrumental rationality principles. Commentators maintain that the Supreme Court’s “individualistic” approach to instrumental rationality resulted in the arbitrariness principle becoming subsumed by overbreadth. Yet, challenging the general deterrence provisions with overbreadth is not possible given the discretion given to judges to avoid its unnecessary application. The fact that a law can be arbitrary but not overbroad provides support for the Supreme Court’s insistence upon keeping the principles distinct. It also, however, requires that the Supreme Court adjust its position with respect to its method for proving arbitrariness.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2019-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43756893","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

Urban Indigenous Courts: Possibilities for Increasing Community Control Over Justice 城市土著法院:增加社区对司法控制的可能性

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ALBERTA LAW REVIEW Pub Date : 2019-03-25 DOI: 10.29173/ALR2529

Gabe Boothroyd

引用次数: 1

Adoption Constitutionalism: Anishinaabe Citizenship Law at Fort William First Nation 采用宪政主义:威廉堡第一民族的公民法

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ALBERTA LAW REVIEW Pub Date : 2019-03-25 DOI: 10.29173/ALR2523

Damien Lee

引用次数: 0

The Tin Ear of the Court: Ktunaxa Nation and the Foundation of the Duty to Consult 法院的锡耳:克图纳族与协商义务的基础

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ALBERTA LAW REVIEW Pub Date : 2019-03-25 DOI: 10.29173/ALR2520

R. Hamilton, J. Nichols

{"title":"The Tin Ear of the Court: Ktunaxa Nation and the Foundation of the Duty to Consult","authors":"R. Hamilton, J. Nichols","doi":"10.29173/ALR2520","DOIUrl":"https://doi.org/10.29173/ALR2520","url":null,"abstract":"The recent Ktunaxa Nation decision of the Supreme Court of Canada provides an opportunity to discuss the fundamental legal presumptions that underlie the Crown’s duty to consult and accommodate Aboriginal peoples. The jurisprudence in this area has been based on a “thick” conception of Crown sovereignty as including legislative power and underlying title in relation to Aboriginal lands. This, in the Supreme Court’s view, justifies the possibility of the unilateral infringement of Aboriginal rights. This framework assumes that the relationship between the Crown and Aboriginal peoples is a sovereign-to-subjects one. This assumption, however, lacks a legal and factual basis. \u0000Conversely, Aboriginal peoples articulate their claims in the language of inherent jurisdiction within a nation-to nation relationship. If the Supreme Court acknowledged that the relationship between the parties is indeed nation-to-nation, the appropriate doctrine would no longer be a duty to consult and accommodate. Following the approach to a similar relationship outlined by the Supreme Court in the Secession Reference, the appropriate model would be a generative duty to negotiate. This article sets a path to a model that preserves the useful components of the duty to consult while providing a remedy to the distributional inequity in bargaining power created under the current framework, thereby opening avenues for effective conflict resolution.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2019-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43573855","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: 17

Reconciliation Through Relationality in Indigenous Legal Orders 原住民法律秩序中的关系和解

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ALBERTA LAW REVIEW Pub Date : 2019-03-25 DOI: 10.29173/ALR2524

Alan Hanna

{"title":"Reconciliation Through Relationality in Indigenous Legal Orders","authors":"Alan Hanna","doi":"10.29173/ALR2524","DOIUrl":"https://doi.org/10.29173/ALR2524","url":null,"abstract":"Canada’s reconciliation with Indigenous peoples and groups in Canada is an ambitious goal with little in the way of clear direction. Canadian courts have provided limited direction in their decisions, yet the result of litigation has imposed a concept of reconciliation based on First Nations remaining subordinate to state authority and interests. Reconciliation will be confounded without gaining a shared understanding with Indigenous peoples. Different Indigenous groups will have their own interpretation of what reconciliation may require to be successful. One approach to seeking common understandings is for Canadians to learnhow relationality operates as a function of disparate Indigenous legal orders. While substantive research into Indigenous legal orders is relatively new in Canadian scholarship, there is much knowledge to be gleaned from interdisciplinary research, particularly in anthropology, from the early twentieth century. At the risk of presenting an abrupt shift in disciplinary paradigms in this article, the author follows a thread of relationality from Canadian courts through the lens of doctrinal jurisprudence into relationality within various Indigenous legal orders through anthropological study. Combined, the article offers a potential path to reconciliation through relationality within Indigenous legal orders.","PeriodicalId":54047,"journal":{"name":"ALBERTA LAW REVIEW","volume":" ","pages":""},"PeriodicalIF":0.5,"publicationDate":"2019-03-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42823612","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: 3

Cannabis, Reconciliation, and the Rights of Indigenous Peoples: Prospects and Challenges for Cannabis Legalization in Canada 大麻、和解和土著人民的权利:加拿大大麻合法化的前景和挑战

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ALBERTA LAW REVIEW Pub Date : 2019-03-25 DOI: 10.29173/ALR2519

Konstantia Koutouki, K. Lofts

引用次数: 6