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McGill Law Journal Revue de droit de McGill PRIVACY, CORRECTIVE JUSTICE, AND INCREMENTALISM: LEGAL IMAGINATION AND THE RECOGNITION OF A PRIVACY TORT IN ONTARIO Thomas DC Bennett* This article considers the nature of com- mon law development as exemplified by the re- cent privacy case of Jones v. Tsige. The author focuses on Jones, in … Continued

Many scholars have offered theories that purport to explain the whole of the law of torts. At least some of these theories do not seem to be specific to a single jurisdiction. Several appear to endeavor to account for tort law in at least the major common law jurisdictions or even throughout the common law world. These include Ernest Weinrib's corrective justice theory, Robert Stevens's rights theory, and Richard Posner's economic theory. This article begins by explaining why it is appropriate to understand these three theories as universal theories of tort law and why it is important that they be so understood. This explanation draws upon various overt claims (or other strong intimations) made by the theorists themselves to the effect that this is how their respective accounts should be understood. The article then proceeds to test these theories, all of which are leading accounts of tort law, against the evidence in Australia, Canada, the United Kingdom, and the United States. The parts of tort law on which we focus are (1) the breach element of the action in negligence, (2) the law that determines when a duty of care will be owed in respect of pure economic loss, (3) the law that governs the availability of punitive damages, (4) the defense of illegality, and (5) the rule in Rylands v. Fletcher and its descendants. The article concludes that none of the theories is a satisfactory universal account of tort law. All of them suffer from significant problems of fit in that they cannot accommodate (often even approximately) the areas of law that we discuss. Although each of the theories contains a great many valuable insights, they all nonetheless fall well short of accomplishing that which they are held out as providing. In the course of this analysis, the article explains why this is an appropriate line of criticism and identifies the degree of lack of fit that we regard as being “significant.”

This article reviews the background, introduction, and critical response to new criminal offenses of coercive control in England/Wales and Scotland. How the new Scottish offense is implemented will determine whether it can overcome the shortcomings of the English law. We then review new evidence on four dimensions of coercive control: the relationship between “control” and “violence,” coercive control in same-sex couples, measuring coercive control, and children’s experience of coercive control. Coercive control is not a type of violence. Indeed, level of control predicts a range of negative outcomes heretofore associated with physical abuse, including post-separation violence and sexual assault; important differences in coercive control dynamics distinguish male homosexual from lesbian couples; measuring coercive control requires innovative ways of aggregating and categorizing data; and how children experience coercive control is a problem area that offers enormous promise for the years ahead.

For women seeking to extricate themselves from the web of entrapment woven together by the multiple threads that make up the coercive control repertoire of their abusive intimate partners, it is often difficult to avoid engagement with legal systems. Yet, the legal systems they encounter—criminal, family, child welfare, immigration among them—are frequently unwelcoming (if not hostile), controlling, demeaning, fragmented and contradictory. While there has been a recent explosion of interest in “access to justice,” little attention has been paid to how we might conceptualize access to justice in a manner that speaks meaningfully to the circumstances of women who experience abuse in their intimate relationships. For such women, access to justice is curtailed not only by lack of representation, delays, costs, and procedural complexities—the obstacles commonly associated with access to justice failings—but by three inter-related phenomena: the enduring hold of an incident-based understanding of domestic violence; the failure of legal actors to curb men’s strategic use of legal systems to further their power; and the host of complications—contradictory expectations, inconsistent orders, repetitious proceedings, sweeping surveillance—that arise when women are compelled to navigate multiple intersecting legal systems. What is required, I argue, is a conceptualization of access to justice that places women’s safety and well-being at its core.

This article examines sentencing for male intimate partner violence against women since the 1996 enactment of s 718.2(a)(ii) of the Criminal Code, which requires that a spousal/common-law relationship between an offender and victim be considered an aggravating factor in sentencing. The article argues that, while in general appellate courts in Canada are taking this violence seriously, cases involving level I sexual assaults still demonstrate the longstanding tendency to treat the intimate relationship as mitigating. Further appellate guidance is necessary on how courts should reconcile s 718.2(a)(ii) with s 718.2(e), which requires that all options other than incarceration be considered when sentencing an Indigenous offender. The author argues that it is important for courts to at least consider the systemic problem of intimate violence against Indigenous women when sentencing male offenders in these cases.

Heather MacIvor, 2010 19-1 Constitutional Forum 11, 2010 CanLIIDocs 534

This article begins with a review of the first manifestations of the civilian institution of absence in Roman law and the French Napoleonic Code.  It then retraces the historical and conceptual origins of Quebec’s law of absence detailing its evolution from the Civil Code of Lower-Canada to the Civil Code of Quebec.

This Article advances the comparative constitutional literature by examining the exercise of remedial discretion in rights litigation. It compares how the Supreme Court of Canada and the Constitutional Court of South Africa remedy unconstitutional legislation under their respective, relatively new, bills of rights. It uses an internal legal approach and, rejecting universalism and convergence, it pays attention to difference in constitutional texts. By reporting remedial practices and studying the written and unwritten factors that judges identify as conditioning their remedial determinations, the Article studies the significant gap between authoritative text and practice. In a warning for those who draft bills of rights, who rely on their texts to forecast judicial practice, or who simply aim to delineate and understand the exercise of judicial power under bills of rights, judges’ discussion reveals that the scope of action they perceive as legitimate may differ from what a rights instrument’s text implies. This gap has implications for efforts to classify forms of judicial review as strong-form or weak-form, as it may reduce the effective distance between different models as they appear on paper. The Article identifies shifting and contradictory views about reading-in versus invalidating legislation, and about immediate versus delayed orders. Based on its comparison of judicial remedial practices, the Article flags the unavoidable uncertainty of applying a bill of rights to legislation. It interprets the practices of the two countries’ highest courts as embodying a preference for a judicial posture of legislative engagement over one of constitutional enforcement. This conception of the judicial role emerges from similarities in practice, despite differences in the authorizing constitutional texts. The Article establishes a firm basis for normative evaluation of the legitimacy of judicial remedial discretion exercised with a view to engaging the democratic branches of government.