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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.
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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.
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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 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.