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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.

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.

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.

2022 CanLIIDocs 1167

Spoliation in the context of civil litigation occurs when a party intentionally destroys, mutilates, alters, or conceals evidence, typically documents, that are relevant to litigation. Spoliation has become easier than ever with the advent and rise of electronically stored information. This article gives a brief overview of the history of spoliation and criteria required to trigger the need to preserve documents relevant to litigation. Following this overview, the article identifies the issues with the current remedies for spoliation in Canada and points to the advances the United States has made to address this pressing issue. The article concludes with recommendations for further research into spoliation in Canada.

An article from McGill Law Journal / Revue de droit de McGill, on Érudit.

In this paper, I defend a deflationary account of proportionality, which suggests that proportionality does not explain anything valuable about a system of punishment. Proportionality, rather, is a conventional means for presenting judgments about whether punishment fits the crime. A system of punishment is proportionate to the degree that it coheres with widely shared norms about punishment. There are many reasons such coherence could be valuable, not all of which are retributive. Hence, while on a deflationary view it may be important for a system of punishment to be proportionate, proportionality does not identify a uniquely important retributive value. I motivate the argument for a deflationary account of proportionality by canvassing some of the problems associated with both relative (“ordinal”) and absolute (“cardinal”) proportionality and examining how both legal theorists and courts have actually used the concept. I focus on the work of Doug Husak, and the jurisprudence of the Supreme Court of Canada.

Federal elections between 2008 and 2019 saw a great of volatility in Quebec, with important consequences for election outcomes. The surge in New Democratic Party (NDP) support in Quebec led the party to official opposition, while Liberal gains in 2011 led the party to a majority government, and Bloc Québécois gains in 2019 helped to reduce the Liberals to a minority. To what extent was this volatility driven by voters switching parties and to what degree was it driven by voters entering and exiting the electorate? This article uses ecological inference based on riding-level data to examine the dynamics of party competition in Quebec from 2008 to 2019. We show that while voter mobilization mattered to volatility, vote switching was the important driver of changing party fortunes during this period., RésuméLes élections fédérales entre 2008 et 2019 ont connu une grande volatilité au Québec, avec des conséquences importantes sur les résultats électoraux. La poussée du soutien du NPD au Québec a conduit le parti à l'opposition officielle, tandis que les gains des libéraux en 2011 ont conduit le parti à un gouvernement majoritaire et que les gains du Bloc Québécois en 2019 ont contribué à réduire les libéraux à une minorité. Dans quelle mesure cette volatilité est-elle due au fait que les électeurs changent de parti et dans quelle mesure est-elle due au fait que les électeurs entrent et sortent de l'électorat ? Cet article utilise l'inférence écologique basée sur des données au niveau des circonscriptions pour examiner la dynamique de la concurrence entre les partis au Québec de 2008 à 2019. Nous montrons que, bien que la mobilisation des électeurs ait joué un rôle dans la volatilité, le changement de parti a été le principal moteur de l'évolution de la situation des partis au cours de cette période.

Disclaimer: This summary was generated by AI based on the content of the source document.

L’article 2926.1 CcQ rend imprescriptibles les actions civiles liées aux violences sexuelles, conjugales et infantiles, dans la mesure où elles constituent un préjudice corporel. Or, le critère du préjudice corporel qu’impose cet article soulève plusieurs enjeux lorsqu’il s’agit de déterminer quelles victimes de violences sexuelles, conjugales et infantiles peuvent bénéficier de l’imprescriptibilité de leur action en réparation. Ces enjeux découlent d’une incertitude entourant le concept de préjudice corporel, dont la définition exige qu’un certain seuil soit dépassé pour qu’un acte sur le corps soit considéré comme une atteinte à l’intégrité physique.

Personal autonomy is a constitutive element of all rights. It confers upon a right-holder the power to decide whether, and under what circumstances, to exercise her right. Every right infringement thus invariably involves a violation of its holder’s autonomy. The autonomy violation consists of the deprivation of a right-holder of a choice that was rightfully hers – the choice as to how to go about her life. Harms resulting from the right’s infringement and from the autonomy violation are often readily distinguishable, as is the case when someone uses the property of a right-holder without securing her permission or, worse, causes her bodily injury. At other times, however, the two harms overlap, as in the case when a right-holder is unlawfully barred from exercising her free speech right or is denied the right to vote. Furthermore, the autonomy harm may sometimes exceed the physical harm sustained by the victim, as is the case in many sexual harassment incidents. At other times, however, the victim’s physical harm or economic loss will outweigh the autonomy harm, as is often the case in automobile accidents. Even though autonomy violations are omnipresent, and the harm resulting from them can be severe, the law rarely recognizes a cause of action for violations of autonomy, nor does it provide redress for autonomy harms. The current legal approach to autonomy protection can best be characterized as anomalous and unprincipled. Therefore, from a normative perspective, it is untenable. In this article, we set out to make three novel theoretical and doctrinal contributions. First, we advance a comprehensive jurisprudential account of the relationship between rights and autonomy. Second, we show why existing law should be replaced with a legal regime that respects and protects individual autonomy in all cases. Finally, we develop a remedial framework designed to address autonomy violations. Mindful of administrability constraints, we incorporate three limitations to ensure that our proposal does not overwhelm the court system: (a) suits for autonomy violations would only be allowed when the plaintiff has a cause of action originating from the defendant’s infringement of her recognized legal right; (b) any such suit would undergo a strict de minimis scrutiny; and (c) no double recovery would be allowed in cases in which the plaintiff’s autonomy harm is subsumed in her physical or economic loss.

This paper explores Canadian family law cases involving claims of parental alienation and of family violence from 2014–2018, reporting the data on these claims, their resolution, and their impacts upon custody and access. A close reading of those cases where both alienation and intimate partner violence claims are made reveals troubling patterns in how intimate partner violence is discounted in this context. We suggest that the rise of shared parenting as a dominant norm assists in understanding why alienation has achieved such unquestioned status, and call for greater focus on safety and women’s and children’s voices.

Canadian courts have held that parents stand in a fiduciary relationship with their children. Some commentators take the view that this is an inappropriate and unwarranted extension of a set of concepts that were originally elaborated in the context of the management of property rights and other pecuniary interests. The goal of this article is to assess the characterization of parents as fiduciaries in the light of recent scholarship on fiduciary law. I argue that, while there are significant differences between the parent-child context and more established fiduciary categories, the characterization of the parent as a fiduciary toward his or her child nonetheless captures a central – indeed, a defining – element of the parent-child relationship, which is also a characteristic element of all established fiduciary relationships: namely, the possession of legal powers that are held in a managerial or other-regarding capacity for the benefit of another person. Every aspect of the traditional property-based fiduciary relationship finds its counterpart in the juridical relationship between a parent and his or her minor child. The ability of a parent to take account of his or her own interests in relation to some exercises of the parent’s decision-making powers is also found in many established fiduciary relationships. The recognition of parenthood as a fiduciary relationship leads to a better understanding of fiduciary relationships because it clarifies how such relationships are constituted, and it clarifies that they extend to any situation where one person is empowered and authorized to look after the interests of another, whether those interests be financial or entirely personal.