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Remoteness of damage in tort is nowadays a largely neglected topic among tort law jurists. Yet why this should be so is perplexing: not just because remoteness rules possess considerable theoretical and practical significance, but also because the law lacks clarity—there being several different tort remoteness rules in operation—and because the theoretical justifications that are frequently offered in support of these various rules fail to withstand rigorous analysis. This article seeks to explore these matters. In particular, it aims to expose the shortcomings of the rationales for the various remoteness rules that we have, and to advocate a way forward that would render the law simpler, clearer and more defensible.
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The Supreme Court of Canada imported preexisting remoteness rules into Canadian tort law without justifying why they apply in the distinctively Canadian negligence framework endorsed in Cooper v. Hobart. This paper attempts to justify remoteness in this framework. Justifying remoteness as a standalone policy tool is unsatisfactory because it cannot explain why remoteness requires a reasonable foreseeability standard nor that remoteness operates as a fair limit on liability. Justifying remoteness in relation to the duty of care is satisfying. Remoteness supports the duty of care by allowing decision-makers to identify sufficiently general categories of duty of care that apply beyond the individual facts of the case. They can then confirm or deny liability by particularizing the risk at the remoteness stage. This ensures the framework applies as intended, adheres to decision-makers’ sense of justice, and achieves fair and socially useful results.
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The remoteness enquiry in negligence, which serves to exclude the liability of defendants for harmful consequences that their careless conduct caused, but for which it seems unfair to penalise them, has long been beset by uncertainty. Indeed, a common view is that this area of the law can be explained only by reference to diffuse considerations of 'legal policy'. This paper, however, argues that the remoteness enquiry represents a principled response to a problem that can arise, at a deep level, in ascribing a harmful outcome to the negligent exercise of individual agency. The relevant problem concerns the possible mismatch between the hypothetical 'risk-claim' in virtue of which conduct was faulty and the causal set that subsequently materialised for harm. The 'revised risk theory' that emerges from this analysis accounts for the majority of remoteness determinations. However, a few exceptions are also considered where 'policy', in a restricted sense, operates to extend or curtail a negligent agent's legal responsibility.
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Section 718.2(e) of the Criminal Code directs sentencing judges to exercise restraint in the use of incarceration ‘with particular attention to the circumstances of Aboriginal offenders.’ In R v Gladue, the Supreme Court of Canada interpreted this as a remedial provision aiming to reduce the incarceration of Indigenous people. That has made it appear to be a failure by its own lights. Yet to write off section 718.2(e) and the Gladue principles would be to fail properly to understand their moral foundations and structure. Judges are called upon to reduce the incarceration of Indigenous people neither by working backwards from prison demographic targets nor merely by combating implicit bias. Rather, Gladue requires judges to open their minds to hitherto unappreciated reasons that many Indigenous offenders should be afforded mitigation, restorative justice, and community-based accountability. One reason, we argue, relates to the unfair criminogenic disadvantages disproportionately faced by Indigenous offenders. Another reason is that the Canadian state’s complicity in such disadvantages calls into question its legitimate authority and its standing to blame Indigenous offenders. In sum, Gladue calls upon our courts to widen the horizon of fairness in their treatment of Indigenous people. This matters for its own sake in each and every case, whether or not it brings about an appreciable reduction in Indigenous incarceration in the aggregate. Our reconstruction of Gladue not only rescues it from cynical dismissals but also helps to solve the central doctrinal puzzles surrounding it: how Indigenous offenders’ unique life circumstances must be connected to their offences to be mitigating; how Gladue principles should apply differently to more and less serious offences; how a variant of Gladue principles should be extended to members of other disadvantaged groups such as Black Canadians; and how judges should weigh the interests of Indigenous victims when sentencing Indigenous offenders.
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Aboriginal representation in Canadian correctional institutions has increased rapidly over the past decade. We calculated “years of life lost to incarceration” for Aboriginal and non-Aboriginal Canadians.
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In this article, practices of Canadian electoral management bodies at federal provincial and territorial levels are examined, especially those methods designed to assist electors with disabilities with voting. Different models of disability co-exist within and around electoral rules, procedures, practices and overall systems. Electoral arrangements in Canada incorporate three distinct models of disability: an individualistic-biomedical approach to disability, a functional model of disability, and a social model of disability. These models have distinctive implications for addressing barriers and making access and inclusion real for voters with disabilities. Electoral reforms address different broad categories of impairments: electors with permanent disabilities, serious illness or infirmity; electors with physical mobility issues; electors with hearing challenges; electors with visual impairments; and, electors with any significant disability, whether chronic or episodic in nature, visible or invisible in appearance. Changes to election processes are shifting the mix of disability models embedded in electoral systems, away from individual and medical conceptions and toward functional and contextual notions of disability.
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