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Neil Duxbury examines how precedents constrain legal decision-makers and how legal decision-makers relax and avoid those constraints. There is no single principle or theory which explains the authority of precedent but rather a number of arguments which raise rebuttable presumptions in favour of precedent-following. This book examines the force and the limitations of these arguments and shows that although the principal requirement of the doctrine of precedent is that courts respect earlier judicial decisions on materially identical facts, the doctrine also requires courts to depart from such decisions when following them would perpetuate legal error or injustice. Not only do judicial precedents not 'bind' judges in the classical-positivist sense, but, were they to do so, they would be ill suited to common-law decision-making. Combining historical inquiry and philosophical analysis, this book will assist anyone seeking to understand how precedent operates as a common-law doctrine.
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Lee Stuesser, 2002 29-2 Manitoba Law Journal 149, 2002 CanLIIDocs 65
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The confessions rule—the requirement that the Crown prove the voluntariness of the accused’s statements to persons in authority—is a well-established rule of criminal evidence and is closely connected with the constitutional principle against self-incrimination that it structures. The confessions rule is thus a natural candidate for recognition as a principle of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms. However, there are two distinct routes by which the confessions rule might be constitutionalized. Under the “rule of evidence” approach, the confessions rule would be recognized as an aspect of the accused’s constitutional right to a fair trial. Under the “rights violation” approach, the conduct of the state in obtaining an involuntary statement would be treated as a violation of the accused’s constitutional rights.
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The high rates of Aboriginal admissions to custody have been noted by Commissions of Inquiry, all levels of government, and Corrections texts in Canada for some time. In the most recent year for which data are available (2000–2001), Aboriginal offenders accounted for 19% of provincial admissions and 17% of federal admissions to custody. This article examines provincial custodial sentenced admissions for Aboriginal and non-Aboriginal offenders since 1978, when national statistics including the ethnicity of the offender were first published. Particular emphasis is paid in this analysis to recent trends during a period in which Parliament and the Supreme Court have tried to address the problem, the former by statutory recognition of the unique nature of Aboriginal offenders, the latter by judgments interpreting Criminal Code sentencing provisions introduced in 1996. The findings suggest that little progress has been made in reducing the number of Aboriginal sentenced admissions over the past few decades. Although the volume of Aboriginal admissions to custody has declined since 1993–1994, non-Aboriginal admissions have declined at an even faster rate, suggesting that specific policy changes are not responsible for the Aboriginal decline.
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