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This chapter considers the effect of section 1, the “justification” section of the Canadian Charter, on the doctrinal development of section 15, the equality section. It begins by describing the development of the section 15 substantive equality analysis, including the claim of a conceptually complete separation from the section 1 analysis of state justification. The chapter then identifies some features of section 15 which suggest that this separation is less than complete, including the existence of section 15(2), and anxieties over constraining government action. The chapter then turns to three post-2001 cases in which the Supreme Court of Canada found discrimination under the Charter but then held that discrimination was “justified” through section 1, and asks what these cases might reveal about the symbolic significance of a finding of discrimination and the Court’s struggle with institutional competence concerns in equality claims.
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This paper proposes a fundamental reshaping of the law regarding presumptions of legislative intent in statutory interpretation. Looking to substantive presumptions in particular, it reviews the jurisprudence and concludes that greater consistency would be desirable and that tensions should be resolved between the traditional approach to substantive presumptions and the modern approach to statutory interpretation consistently adopted by the Supreme Court of Canada. Our proposal seeks to provide a uniform methodology for the use of substantive presumptions by incorporating them into the contextual analysis mandated by the modern approach set out in Re Rizzo & Rizzo Shoes Ltd, [1998] 1 SCR 27, 154 DLR (4th) 193. Rejecting the language of “presumptions” and rules of “strict” or “liberal” construction, it argues in favour of interpretation that relies on a transparent discussion of all relevant sources of statutory meaning (including textual and contextual sources, such as the values underlying substantive presumptions) and against a reflexive or mechanical application of substantive presumptions.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Disclaimer: This summary was generated by AI based on the content of the source document.
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Has French law abandoned the concept of « cause » ? That is the impression one might have on reading the new provisions of the Civil Code, introduced by the Ordonnance of 10 February 2016, and certain commentaries. Accused of being a source of deviance and misunderstanding, the « cause » had to be eradicated, it was said, so that clarity, security and attractiveness of the Code be restored. A closer look, however, shows how far from reality this much-told fable actually is. Two sets of factors bear witness to the perennity of the « cause » in the new law. Firstly, the vast majority of previous « cause »-based solutions are taken up by new provisions. The « cause » remains but its presence is masked by a new designation (« motive » or « purpose », for example). Secondly, there are situations where, in a quest for coherence or in order to fill a gap, a « cause »-based reasoning will prevail exactly as it did before the reform. When all is said and done, it is a strange reform that removes the name while allowing the substance to remain.
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'As this study will show, a significant proportion of persons with disabilities, aged 15 or older, report experiencing bullying, encountering barriers and being excluded at school. Students with disabilities are lacking the institutional support, the accommodation, the funding and the programs and infrastructure required to access and benefit from the same quality of education as their fellow students. Moreover, students with disabilities are grappling with social exclusion, avoidance and bullying. These issues are the reality for both Indigenous and non-Indigenous students with disabilities alike-whether they are living in remote areas of Canada, on First Nations reserves, or in cities and urban centres across the country. The data contained in this report is the compilation of data from both the 2012 Canadian Survey on Disability as well as consultations with expert organizations from across Canada. This report is the second in a series that the Canadian Human Rights Commission (CHRC), in collaboration with
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"How do judges sentence? In particular, how important is judicial discretion in sentencing? Sentencing guidelines are often said to promote consistency, but is consistency in sentencing achievable or even desirable? Whilst the passing of a sentence is arguably the most public stage of the criminal justice process, there have been few attempts to examine judicial perceptions of, and attitudes towards, the sentencing process. Through interviews with Scottish judges and by presenting a comprehensive review and analysis of recent scholarship on sentencing ? including a comparative study of UK, Irish and Commonwealth sentencing jurisprudence ? this book explores these issues to present a systematic theory of sentencing. Through an integration of the concept of equity as particularised justice, the Aristotelian concept of phronesis (or 'practical wisdom'), the concept of value pluralism, and the focus of appellate courts throughout the Commonwealth on sentencing by way of 'instinctive synthesis', it is argued that judicial sentencing methodology is best viewed in terms of a phronetic synthesis of the relevant facts and circumstances of the particular case. The author concludes that sentencing is best conceptualised as a form of case-orientated, concrete and intuitive decision making; one that seeks individualisation through judicial recognition of the profoundly contextualised nature of the process" --publisher's description.
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