Your search

"Class actions are increasingly playing a significant role in providing access to justice to people who have experienced a common wrong. The volume of class actions jurisprudence in Canada has increased exponentially in recent years. Containing insights from two of the foremost Canadian class action jurists and a leading academic in the field, this text offers a comprehensive review of the ever-expanding law of class actions from trial and appellate courts across Canada"--Publisher.

"In 1984, the Supreme Court of Canada, in Hunter v Southam, declared warrantless searches unreasonable under section 8 of the Charter. Police would henceforth require authorization based on "reasonable and probable grounds." The decision promised to protect individuals from encroaching state power, but as Richard Jochelson and David Ireland argue, post-Hunter search and seizure law took a turn away from the landmark decision. A close examination of dozens of post-Hunter cases reveals that section 8 protections have become more difficult to obtain in the post-9/11 era. Rather than developing rigorous standards for new search and surveillance techniques and technologies, the court has used the Charter to sanction broader police powers. Yet, even as it demonstrates that the core principles of Dickson's vision for section 8 rights have been diminished in an era of heightened security and expanding police powers, Privacy in Peril suggests that increasing citation of Hunter in the halls of justice offers hope that some protection of civil liberties will endure in the twenty-first century."-- Provided by publisher.

Since the coming into force of the Youth Protection Act (YPA), the Court of Québec (Youth Division) has only issued a small number of decisions declaring that the rights of a child have been violated. Notwithstanding the foregoing, children’s rights violations continue to occur. Considering that enforcement of children’s rights is critical to the YPA, it being closely tied to the legislation’s objective, the author examines these type of decisions by analyzing jurisprudence from the last decade while bringing up certain elements for thought. Firstly, the article discusses the notion of children’s rights violation as well as the possible recourses in the event thereof. Secondly, it examines recent decisions, focusing on the type of rights that have been violated, defenses that have been brought forward and corrective measures ordered by the tribunal. The author highlights issues, introduces distinctions and attempts to clarify certain obligations of the different parties involved. A large and liberal interpretation regarding the violation of children’s rights is generally proposed, specifically while considering corrective measures.

Comprehensive article-by-article analysis of the United Nations Convention on the Rights of the Child. Addresses a wide range of related issues including key interpretive questions. Contributions from specialist scholars in the field. Select bibliography at the end of each chapter directs readers to useful resources for further enquiry.

Partisan self-dealing in the design of election laws is a central challenge for democratic governance. This article develops a new conceptual framework, which I call a structural rights approach, that would enable the Supreme Court of Canada to respond effectively to this problem. A structural rights approach uses the language and logic of individual rights to regulate the structure of democratic institutions. In particular, I argue that courts should design democratic rights to remedy the structural deficiencies of the political system. To this end, I claim that the Supreme Court should interpret the right to vote as encompassing a new democratic right – the right to a fair and legitimate democratic process. In addition, I argue that the right to a fair and legitimate democratic process is best understood as a ‘structural right.’ I define ‘structural rights’ as individual rights that take into account the broader institutional framework within which rights are defined, held, and exercised. This article focuses on two cases studies – electoral redistricting and campaign finance – to show how the Court could use the right to a fair and legitimate democratic process to remedy the problem of partisan self-dealing. In addition, this article canvasses a wide array of structural approaches in the Canadian and American law of democracy literatures, and it locates the structural rights approach within this body of scholarship. The article also considers the structural rights approach with reference to theories of dialogue and deference. The structural rights approach not only provides a new paradigm for the Supreme Court’s oversight of the democratic process; it also offers an alternative way to conceptualize democratic rights.

Introduces citizens to solutions for reforming the American campaign finance system

Prisons present a special context for the interpretation of constitutional rights, where prisoner complaints are pitched against the justifications of prison administrators. In the United States, the history of prisoner rights can be told as a story of the ebb and flow of judicial willingness to defer to the expertise-infused claims of prison administrators. Deference is ostensibly justified by a judicial worry that prison administrators possess specialized knowledge and navigate unique risks, beyond the purview of courts. In recent years, expansive judicial deference in the face of “correctional expertise” has eroded the scope and viability of prisoners’ rights, serving to restore elements of the historical category of “civil death” to the legal conception of the American prisoner. In Canada too, courts have often articulated standards of extreme deference to prison administrators, both before and after the advent of the Charter of Rights and Freedoms, and notwithstanding that the Charter places a burden on government to justify any infringement of rights. Recently, however, two cases from the Supreme Court of British Columbia mark a break from excessive deference and signify the (late) arrival of a Charter-based prison jurisprudence. In each case, prisoner success depended on expert evidence that challenged the assertions and presumed expertise of institutional defendants. In order to prove a rights infringement and avoid justification under section 1, the evidence must illuminate and specify the effects of penal techniques and policies on both prisoners and third parties. The litigation must interrogate the internal penal world, including presumptions about the workings of prisoner society and conceptions of risk management.

The adoption of a new Code of Civil Procedure in Quebec provides an opportune moment to consider the reasons for, and consequences of, a new direction in adjectival law. Moreover, it is an appropriate time to reflect on the influence of legal traditions on civil procedure, and the role played by such traditions in the legislative evolution and judicial interpretation of procedural law. This paper analyzes the current trends in civil procedure in Quebec, from both legislative and judicial standpoints, and seeks to relate these trends to tradition-based influences. Ultimately, this study demonstrates that Quebec’s procedural law has experienced great swings of the pendulum – originally inheriting continental civilian procedure from the French, gradually evolving towards a very common law/adversarial notion of procedure, and nowreverting back in a civiliste direction.