Results | SCC-Authors-Cited

Girard, M. ‑R. N. (2005). L’article 6 de la *Charte canadienne des droits et libertés*: la liberté de circulation et d’établissement — Un volcan dormant? In G. A. Beaudoin & E. Mendes (Eds.), The Canadian Charter of Rights and Freedoms (4th ed, p. 413). Carswell.

Dionne, P. (2005). La reconnaissance et la définition contemporaines des droits ancestraux: négocier ou s’adresser au juge? In G. Otis (Ed.), Droit, Territoire et Gouvernance des Peuples Autochtones. (1st ed., p. 71). Les Presses de l’Université Laval. https://doi.org/10.1515/9782763750330

Borrows, J. (2005). Creating an Indigenous Legal Community John Tait Memorial Lecture. McGill Law Journal, 50, 153–182.

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Otis, G. (2005). Le titre aborigène : émergence d’une figure nouvelle et durable du foncier autochtone ? Les Cahiers de droit, 46(4), 795–845. https://doi.org/10.7202/043868ar

In the following paper, the author analyzes the central issues raised by the recognition of aboriginal title under State law. He offers answers to the many unresolved issues concerning the sources of aboriginal title, its conditions of existence and attributes. Concerning the sources of aboriginal title, the author highlights the Supreme Court’s stato-centric approach to the defnition of aboriginal rights and argues, in particular, that the doctrine of continuity of pre-colonial law has more of a metaphoric rather than operational meaning. As for the conditions of the title’s existence, the author concludes that they still remain sufficiently undetermined as to generate legal insecurity and allow judges to conduct, under the guise of an assessment of the historical record, contemporary socio-economic arbitrations between indigenous peoples and the non-indigenous majority. Finally, the analysis of the attributes of aboriginal title brings to light the uncertainty which persists with regard to several fundamental issues, such as, for example, the identity of the holder of title. This uncertainty of the law, as well as the failure of the Supreme Court of Canada to reconcile aboriginal title with modernity, cast doubt on the capacity of indigenous peoples to develop their lands according to their contemporary priorities.

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Davies, C. (2005). Retroactive Child Support: the Alberta Trilogy. Canadian Family Law Quarterly, 24, 1.

Langbein, J. H. (2005). The origins of adversary criminal trial. University Press. https://doi.org/10.1093/acprof:oso/9780199287239.001.0001

The adversary system of trial, now the defining feature of Anglo-American criminal procedure, developed late in English legal history. For centuries, defendants were forbidden to have trial counsel. Prosecution counsel was allowed but seldom used. The criminal trial was meant to be a lawyer-free occasion at which the defendant could hear the accusing evidence and respond to it in person. The transformation from lawyer-free to lawyer-dominated criminal trials happened within the space of about a century, from the 1690s to the 1780s. This book explains how the lawyers captured the trial. In addition to conventional legal sources, the book draws upon a rich vein of contemporary pamphlet accounts about trials in London’s Old Bailey. The book also mines these novel sources to provide the first detailed account of the formation of the law of criminal evidence. Responding to menacing prosecutorial initiatives (notably reward-seeking thieftakers and crown witnesses testifying to save their own necks), the judges of the 1730s decided to allow the defendant to have counsel to cross-examine accusing witnesses. By restricting defense counsel to the work of examining and cross-examining witnesses, the judges intended that the accused would still need to respond in person to the charges against him. But defense counsel manipulated the dynamics of adversary procedure to defeat the judges’ design, ultimately silencing the accused and transforming the very purpose of the criminal trial. Trial ceased to be an opportunity for the accused to speak, and became instead an occasion for defense counsel to test the prosecution case.

Page, A. (2005). Batson’s Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge. Boston University Law Review, 85(1), 155–262. https://heinonline.org/HOL/P?h=hein.journals/bulr85&i=167

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Hogg, P. W., & Zwibel, C. F. (2005). The Rule of Law in the Supreme Court of Canada. The University of Toronto Law Journal, 55(3), 715–732. https://www.jstor.org/stable/4491663

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Rotman, L. I. (2005). Fiduciary law. Thomson Carswell.

Rawls, J. (2005). Political liberalism (Expanded ed.). Columbia University Press.

Jestaz, P. (2005). L’obligation et la sanction: à la recherche de l’obligation fondamentale. In P. Jestaz (Ed.), Autour du droit civil: Ecrits dispersés, idées convergentes. Dalloz.

Gall, P. A., Zwack, A. L., & Bayne, K. (2005). Determining Human Rights Issues in the Unionized Workplace: The Case for Exclusive Arbitral Jurisdiction. Canadian Labour & Employment Law Journal, 12, 381–402. https://heinonline.org/HOL/P?h=hein.journals/canlemj12&i=401

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Ward, D. A. (2005). The interpretation of income tax treaties with particular reference to the commentaries on the OECD model. International Fiscal Association Canadian Branch.