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In recent years, property theorists have offered varying accounts as to what exactly ownership is, typically focusing on one or more key rights to the owned thing. However, most of these theories are articulated in the abstract and do not engage the jurisprudence. This article uses the jurisprudence concerning expropriation and adverse possession to show that Canadian courts have in fact developed their own definition of ownership-one that is not reflected in the property theory discourse. The author goes on to argue that this narrower definition of ownership-made up by the rights to exclude and to primary use-is preferable to those offered by the property theorists, as it better balances the competing interests of owners, non-owners and the state.
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This article attempts to update a Canadian classic - the realist account of statutory interpretation published by John Willis in the Canadian Bar Review in 1938. Willis' insights are compelling and they remain relevant today. However, by focusing on the rhetoric of statutory interpretation, by far its weakest point, Willis disregards the considerable work that goes on when statutory interpretation is well done. This article draws attention to that work. Part 2 looks at the kinds of analyses relied on by good interpreters to establish that elusive goal, the intention of the legislature. These include textual, purposive, scheme, policy and consequential analysis. Part 2 examines the difference between easy and hard cases, then focuses on the techniques used by interpreters to carry out the different kinds of analyses and how these relate to the formal rules. Part 3 looks at the range of arguments interpreters may construct based on their preliminary analysis. Not every argument in statutory interpretation is about the meaning of words. Interpreters also confront drafter's mistakes, gaps in the legislative scheme, overlap and conflict, and language that is over- or under-inclusive. The structure of these different kinds of arguments is set out and illustrated in Part 3.
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Giuseppina D’Agostino, 2008 53-2 McGill Law Journal 309, 2008 CanLIIDocs 166
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This article examines the possibility that innocent accused might be compensated for the expense of defending themselves through cost awards or other payments. It reviews traditional and contemporary approaches, and challenges current Canadian thought on the subject on the basis that it does not address adequately the problem, and that it compromises unacceptably the presumption of innocence. Finally the article considers three leading cases which support the argument.
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Bruce A MacFarlane, 2006 31-3 Manitoba Law Journal 403, 2006 CanLIIDocs 132
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This paper draws from the wrongful convictions of women to interrogate the limits of dominant conceptions of wrongful conviction. Most North American innocence projects turn on a conception of demonstrable factual innocence. The paper argues that this focus is problematic as a matter of criminal law principle and presents particular difficulties for women. The paper identifies that family violence forms the primary context for both the conviction of women for violent crimes, and for women's wrongful convictions. Taking two key examples of family violence – child homicide and intimate partner violence – we illustrate that the prevailing focus on demonstrable factual innocence fits awkwardly with identified wrongful convictions in these areas, and argue that this focus may deflect attention from unidentified miscarriages of justice. We suggest that focusing on factual innocence undermines the criminal justice system's proper focus on state responsibilities, including the responsibility to protect women and children from harm, and the asymmetric burden of proof that applies in criminal cases.
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