Canadian Jurisprudence Research Articles

Judicial Assessment of the Credibility of Child Witnesses

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.

Writing the Canadian Bill of Rights: Religion, Politics, and the Challenge of Pluralism 1957–1960

RésuméUn élément central dans l'histoire du Canada, depuis le Deuxième Guerre mondiale, est ‘la révolution des droits,’ cette quête d'articuler et de donner une protection légale aux droits humains et libertés fondamentales. À bien des égards, ce but est devenu la principale méta-narration de la nation, qui donne identité, valeurs normatives et mission à la nationalité et la jurisprudence du Canada, particulièrement après l'enchâssement de la Charte canadienne des Droits et Libertés dans la Constitution canadienne de 1982. Cet article étudie historiquement le rôle complexe de la religion, dans la phase initiale de la narration des droits humains au Canada. Au centre est la dimension religieuse du premier dispositif législatif sur les droits humains, la Déclaration canadienne des droits, que le gouvernement de John Diefenbaker a fait adopter en 1960. L'auteur soutient que les églises jouaient un rôle important mais ambigu dans le mouvement des droits humains, lequel, à certains égards, dénote une mise en cause perçue de leur propre méta-narration religieuse de l'histoire, de l'identité et de la destinée du Canada. La thèse centrale est que la Déclaration canadienne des droits exprimait un pluralisme religieux positif, en intégrant les valeurs nationales, religieuses et politiques, dans la formule du Préambule de la Déclaration: «Le Parlement du Canada proclame que la nation canadienne repose sur des principes qui reconnaissent la suprématie de Dieu, la dignité et la valeur de la personne humaine ainsi que le rôle de la famille dans une société d'hommes libres et d'institutions libres (…)».

Clinical application of attachment theory in permanency planning for children in foster care: The importance of continuity of care

AbstractPermanency planning is a critical issue facing all children in foster care. Foster children frequently suffer from developmental delays and severe behavior problems, often leading to repeated displacements that in turn increase the risk for attachment disorders. To prevent the emergence of such disturbances, an Attachment Clinic was developed in Montreal to offer consultation to Youth Protection workers. A specific problem has frequently been identified in this Clinic: Should a child who has developed a significant attachment to his or her foster parents return to the biological parents or stay in the foster family? The choice between the two families is even more difficult when the parenting competencies of the biological parents seem to have progressed while the child has developed secure attachments in the foster family. Clinical cases will be presented to illustrate such dilemmas. Concepts rooted in attachment theory have been very useful to understand such problems, and have led us to believe that children's best interests lie in the preservation of their attachment ties and that repeated ruptures of such ties constitute a severe trauma. Resistances of the milieu to our position will be discussed as well as the Court's decisions in light of Canadian jurisprudence.

On the Social Welfare Objectives of Canada's Antitrust Statute

The Competition Act is arguably one of the most economically sophisticated legal statutes ever enacted in Canada. As such, it has been argued that the paramount objective of the merger provisions of the Competition Act should be the promotion of economic efficiency. This paper examines the underlying normative objective of Canadian merger law from a positive perspective by looking at the legal framework established in Canadian jurisprudence. An argument is developed that demonstrates the existence of distributional objections to wealth redistribution caused by an increase in market power with respect to the status quo allocation of economic resources. This social welfare objective is inconsistent with the commonly held view of the functions of competition policy institutions in Canada.

Making a Bad Law Worse

IN ITS FINAL DAYS IN OFFICE, Jean Chretien government had some good--or at least provocatively interesting--ideas about justice. It proposed to legalise same-sex marriage, and it offered plan to partially decriminalise use of marijuana. It also had one very bad idea: Bill C-20, proposal to amend and strengthen existing law (See. 163.1 of Criminal Code). The centrepiece of Bill C-20 is disturbing move to eliminate defence of artistic or an educational, scientific or medical purpose against charge of pornography, and replace it with defence of serving public good. Then, having abolished artistic merit drafters of bill further proposed that written material dominant characteristic of which is description, for sexual purpose, of sexual activity with person under age of eighteen that would be an offence under Criminal Code should also be made clime. (1) Though passage of Bill C-20 was interrupted by prorogation of Parliament in November 2003, new government of Prime Minister Paul Martin has option of resuming consideration of this legislative scheme. To understand how and why Parliament of Canada arrived at startling idea of partially striking down longstanding right of artists to freedom of speech and expression requires bit of history. (2) Ever since its legislative passage in summer 1993, more than decade ago, Sec. 163.1 of Criminal Code (a supplement to Sec. 163, law against obscenity) was conceptually inchoate. Yet, original notion for law, as drafted by Ministry of Justice, was reasonably coherent. Tee core idea was that any sexual representation of actual children that was produced through commission of sexual crime against those children should be prohibited. For example, it is illegal for an adult to engage in sexual touching of children under age of fourteen or to counsel or induce sexual touching of such children. It's also illegal for adults to engage in sex with persons under age of eighteen with whom they are in relation of authority or trust (such as relationships between teachers and students under eighteen), or to provide an inducement for young people under eighteen to engage in sex with adults (as in prostitutional circumstances). Since such acts are crimes against children and young people, reasoning went, representations of those acts perpetuated and extended harm caused by original violation. The new law also contained one novel feature: while obscenity law criminalised making, distribution and sale of obscene materials, law also criminalised mere possession of pornography, first law in Canadian jurisprudence to Criminalise simple possession of expressive materials. Unfortunately, law passed by Parliament in 1993 was far different from one envisaged by its drafters. Once bill reached Commons, it was drastically expanded by legislators, and law that was hastily passed in June 1993 was, in our view, constitutionally overbroad. The term means, in legal circles, that law captures activities and materials that are protected by Constitution and that should not be criminalised. The overbreadth of law is found in law's definition of pornography. In Section 163.1, child pornography means a photographic, film, video or other visual representation ... that shows person who is or is depicted as being under age of 18 and is engaged in or is depicted as engaged in explicit sexual activity. As well, includes representations the dominant characteristic of which is depiction, for sexual purpose, of sexual organ or anal region of person under age of 18 years. Finally, also includes written material or visual representation that advocates or counsels sexual activity with person under age of 18 years that would be crime under Criminal Code. …

International Commercial Arbitration: A Canadian Perspective

INTERNATIONAL COMMERCIAL arbitration is finding a safe haven in Canada after years of neglect, mistrust and misunderstanding. Canadian and international arbitration institutions are co-ordinating the resolution of many commercial disputes involving parties from different countries using Canada as the place of arbitration, subject to the laws of Canadian provinces, while including some Canadian arbitrators on arbitration panels. This article is intended to provide background and introductory information for individuals who wish to use or participate in the international arbitration process in Canada. It is also intended to provide individuals who are interested in international arbitration with a summary of the special features of the process in this country. In this article, we shall provide a general overview of the legal framework in Canada. This will be followed by a review of leading Canadian jurisprudence in the area of international commercial arbitration and a discussion of recent developments and trends. Finally, we shall review the work and services provided by a selection of autonomous Canadian and international arbitration institutions. Individuals choosing to arbitrate their international disputes in Canada ought to be aware of the special features of the Canadian legal framework. Canada is a federal state with ten provinces and three territories. Canada's Constitution Act 1867,1 provides for the division of legislative powers between the federal and provincial governments. Section 92 of the Constitution Act sets out the enumerated classes of matters over which the provincial governments have exclusive legislative competence, while section 91 sets out the enumerated classes of matters over which the federal government has exclusive legislative competence. It has been traditionally held that the subjects of ‘arbitration’ and ‘enforcement of arbitral awards’, neither of which is specifically enumerated among the matters listed in sections 91 and 92, fall within provincial legislative competence under sub-sections 92(13) (‘Property and …

The Limits of Belief: Freedom of Religion, Secularism, and the Liberal State

RésuméLes tribunaux canadiens sont de plus en plus confrontés au défi de réconcilier une politique laïque libérale avec la protection de la liberté de religion de la Charte. Les approches traditionnelles envers le libéralisme et la laïcité ont rendu cette réconciliation particulièrement difficile, en promouvant une vision insatisfaisante, sur le plan conceptuel, d'un espace public areligieux, hyper-rationnel et dénué d'engagements moraux. En même temps, les théoriciens libéraux n'ont pas apprécié entièrement la nature et les demandes de la conscience religieuse. Cet article aborde les notions de libéralisme, de sécularisme et de conscience religieuse et suggère une compréhension de la relation entre les trois qui impliquerait un pluralisme arbitré sur la base des prémisses d'un langage de valeurs civiques. À l'aide d'une analyse de la jurisprudence canadienne, l'auteur montre que cette forme de réconciliation est déjà tacitement à l'œuvre. Cette approche est la manière la plus cohérente pour tracer les limites de la conscience religieuse au Canada et donne de la substance à la liberté religieuse tout en respectant le bien commun et les acquis du libéralisme séculier.

The Problems and Promise of Spraytech v. Hudson

SummaryIn Spraytech v. Hudson, the Supreme Court of Canada made a bold declaration on the status of the precautionary principle in international law. While the methodology of the majority is open to criticism, the judgment is a welcome clarification of the court’s groundbreaking decision in Baker v. Canada and, building on that case, offers the prospect of a truly internationalized Canadian jurisprudence. In a postscript to this comment, the judgment of the Supreme Court of Canada in Suresh v. Canada is briefly considered.

Sidney L. Harring, White Man's Law: Native People in Nineteenth-Century Canadian Jurisprudence, Toronto: University of Toronto Press, 1998. Pp. 449. $60.00 (ISBN 0-8020-0503-9).

Sidney L. Harring, White Man's Law: Native People in Nineteenth-Century Canadian Jurisprudence, Toronto: University of Toronto Press, 1998. Pp. 449. $60.00 (ISBN 0-8020-0503-9).

Culture and the Courts: A New Direction in Canadian Jurisprudence on Aboriginal Rights?

This article explores the implications of changes in Canadian Supreme Court jurisprudence on Aboriginal rights since the 1990s. While recognizing the Court's valuable contributions in the period from Calder to Sparrow, the author argues that the 1996 Van der Peet decision deals a serious blow to the legal status of Aboriginal rights, particularly the right to self-government. The standard of legal recognition established in Van der Peet constitutes a decided step back from the Court's prior jurisprudence, and is insufficient as a means of securing its stated ends: the survival and well-being of Aboriginal communities and cultures. The author concludes by arguing that the Court can repair the recent damage it has done to Aboriginal rights by revisiting the concept of the quasinational status granted to Aboriginal peoples within the context of the sui generis Crown-Aboriginal relationship.

Essential Reading on Race and Law

Constance Backhouse, Colour-Coded Law: A Legal History of Racism in Canada 1900-1950 (Toronto: Osgoode Society for Canadian Legal History / University of Toronto Press 1999) Sidney L. Hairing, The White Man's Law: Native People in Nineteenth-Century Canadian Jurisprudence (Toronto: The Osgoode Society 1998) James W. St. G. Walker, Race, Rights and the Law in the Supreme Court of Canada (Toronto: Osgoode Society for Canadian Legal History / Wilfrid Laurier Press 1997)

Judicial Notice: The Very Texture of Legal Reasoning

AbstractThe doctrine of judicial notice has been gaining attention in Canadian jurisprudence. This article begins with an examination of how the doctrine has been recently used in areas such as family law to bring a diversity of community interests into the legal decision-making process. The history of the doctrine in American and Canadian jurisprudence is reviewed along with its principal characterizations in the works of Thayer, Morgan, and Davis. The article goes on to uncover several epistemological problems to which the doctrine is prone and proposes a means of getting out of these philosophical dilemmas while keeping the integrity of the doctrine intact. The article concludes by alluding to the communitarian uses to which the doctrine might be put.

Particular Social Group: A Human Rights Based Approach in Canadian Jurisprudence

Increased international attention over the years on the interpretation of the 1951 Convention refugee definition reflects a growing interest in how elements of the definition are applied both within and between domestic jurisdictions. In Canada, this interest is reflected in legal commentary and in the jurisprudence of both the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board (IRB) and the higher courts that have jurisdiction to review CRDD decisions. This article focuses on how «particular social group» has been interpreted in Canadian law. The central issue is whether there is a framework of analysis, consistent with the overall purposes of the Convention, which, if applied rigorously would yield consistent and principled results. The authors approach this by looking first at the human rights framework of analysis for the particular social group ground articulated by the Supreme Court of Canada in 1993 and the development of the relevant Canadian jurisprudence since then. They identify a rather diverse body of jurisprudence not united by a consistent and principled analytical approach, and provide examples of how a human rights framework of analysis could be applied to the various types of claims which are brought on the particular social group ground. They conclude that such a framework of analysis promises to provide consistent and principled results that are in keeping with the purposes of the Convention and the underlying themes of human rights.

E-mail, the Police, and the Canadian Charter of Rights and Freedoms: Retooling Our Understanding of a Reasonable Expectation of Privacy in the Cyber Age

As in other jurisdictions, technological innovation continues to impose burdens on our understanding of the reasonable expectation of privacy in Canada. Recently, the Alberta Court of Queen's Bench was forced to weigh the privacy rights guaranteed under section 8 of the Canadian Charter of Rights and Freedoms against Her Majesty's interest in collecting electronic evidence (in order to facilitate criminal proceedings against an individual who was accused of using e-mail to gain possession of child pornography). For the first time ever in Canada, the Court's analysis focused specifically on the technological aspects of e-mail. Although technological enthusiasts applaud this approach, it has resulted in a decision which, if followed, is sure to render ineffectual the ability of the Canadian Charter of Rights and Freedoms to protect the privacy of Canadian e-mail users against overly intrusive police wire-tap interceptions. Upon a detailed review of this decision (within the context of an overview of the Canadian jurisprudence on unreasonable search and seizure), the author of this paper argues that the traditional test for sanctioning privacy protection must shift away from a merely technological analysis of the actual security offered by the communications medium in question. The author submits that the proper analysis should focus instead on the reasonable Canadian e-mail user's typical understanding and perception of the medium.

White Man's Law: Native People in Nineteenth-Century Canadian Jurisprudence, Sidney L. Harring (Toronto: University of Toronto Press and the Osgoode Society for Canadian Legal History, 1998)

White Man's Law: Native People in Nineteenth-Century Canadian Jurisprudence, Sidney L. Harring (Toronto: University of Toronto Press and the Osgoode Society for Canadian Legal History, 1998)

White man's law: native people in nineteenth-century Canadian jurisprudence

In the nineteenth century many Canadians took pride in their country's policy of liberal treatment of Indians. In this thorough reinvestigation of Canadian legal history, Sidney L. Harring sets the record straight, showing how Canada has consistently denied Aboriginal peoples even the most basic civil rights. Drawing on scores of nineteenth-century legal cases, Harring reveals that colonial and early Canadian judges were largely ignorant of British policy concerning Indians and their lands. He also provides an account of the remarkable tenacity of First Nations in continuing their own legal traditions despite obstruction by the settler society that came to dominate them. The recognition of 'pre-existing Aboriginal rights' in the Constitutional Act of 1982 has shown that Aboriginal legal traditions have a definite place in contemporary Canadian law. This study clearly demonstrates that Canadian Native legal culture requires further study by scholars and more serious attention by courts in rendering decisions.

Contractual Economic Loss in New Zealand - "Who, then, is my neighbour" Really?

This article is concerned with the issue of when contractual relational economic loss is, and should be, recoverable in New Zealand.Traditionally this question has been narrowly framed as a debate over whether an ancient legal rule should continue to apply. Recent cases, however, have injected this rule with modern analysis. It has become clear that the debate over the rule is really a debate over which concepts should control negligence liability. This article examines both the rule and its modern day implications. The article examines in turn the New Zealand approach, comparative approaches, and the conceptual underpinnings of the debate. The sophisticated Canadian jurisprudence receives particular emphasis. The conclusion is that not only should New Zealand courts reaffirm the old rule, but that doing so now requires a radical rethinking of the basic New Zealand approach to the law of negligence.

Madam Justice Bertha Wilson: A Different Voice in the Supreme Court of Canada

This article discusses the impact of the appointment of Madam Justice Wilson, the first woman judge, to the Supreme Court of Canada. The author explores the thesis that Justice Wilson provided a "different voice" to the highest court of Canada with an analysis of two opposing forces underlying her work. On the one hand. Justice Wilson adhered to the restraints of judicial decision-making regarding principles of law and community morality. On the other hand, with the influence of psychologist Carol Gilligan, Justice Wilson aspired to infuse Canadian jurisprudence with a "feminine morality" comprised of a contextual humanist approach to justice. The author applies this analysis to the jurisprudence of Madam Justice Wilson. With a detailed examination of R. v. Morgentaler and R. v. Lavallee, the author demonstrates Justice Wilson's ability to look beyond traditional abstract principles of justice and its normative standard. Justice Wilson constructed a legal framework, based on a contextual justice, that took a subjective and holistic view of the issues of the court. This article concludes with an outlook of the manner in which Madam Justice Wilson's mode of analysis will impact Canadian jurisprudence.

Fighting words: individuals, communities, and liberties of speech

Should hate be made a criminal offence, or does the First Amendment oblige Americans to permit the use of epithets directed against a person's race, religion, ethnic origin, gender, or sexual preference? Does a campus speech code enhance or degrade democratic values? When someone burns an American flag or a draft card to express dismay with US policy, what rights of free speech are involved? In a balanced analysis of contemporary court cases dealing with these problems, as well as those of obscenity and workplace harassment, First Amendment scholar Kent Greenawalt aims to address a broad general audience of readers interested in the most current free-speech issues. For a number of purposes, Greenawalt finds it instructive to compare US and Canadian jurisprudence. He points out, for instance, that the theory under which the Canadian Supreme Court supports suppression of obscenity is strikingly in line with the claims of those feminists who regard obscenity as a major evil: equality, especially the aspirations to equality of groups victimized in the past, rates highly as a constitutional value in Canada. In addition to discussing the sometimes conflicting claims of those seeking freedom of speech and those working to promote equality and protect citizens from oppression, Greenawalt looks at what speech does as well as what it says. He also compares the importance of the motive of the speaker to the actual effect of speech on its audience.

International Commercial Arbitration and the Canadian Experience

International Commercial Arbitration although enjoying a long pedigree, has only recently become a "hot topic." This is due to the growing trends towards institutionalizing and unifying ICA processes. These trends are signified by the rise in private, neutral arbitration institutions and by the adoption, in many states, of international conventions and model laws. The unification of laws is the most recent process in this trend. These trends are all examined in some detail. It is noted how the lex arbitri, or law of the situs of the arbitration, can affect the rules and procedures of the arbitration. The UNCITRAL Model Law is examined as the key example of the unification of laws movement. The alternative dispute resolution provision of NAFTA is also commented on. The authors then focus specifically on Canada's contributions to and participation in ICA. In an important closing section, Canadian jurisprudence interpreting the new Canadian ICA legislation is comprehensively surveyed. The authors conclude by giving an outlook on the future of ICA and Canada's role therein.