Alberta Law Review (ALR)
Not a member yet
2493 research outputs found
Sort by
A Crack in Everything: Restorative Possibilities of Plea-Based Sentencing Courts
Get PDFRestorative justice, as a philosophy and set of practices, has traditionally been conceived of as existing separate from, indeed in opposition to, the more retributive ethic of mainstream, court-based justice proceses. Considered as such a polarized alternative, restorative justice has largely been unable to dislodge the dominant hold that formal, professionally managed public courts maintain over the resolution of criminal wrongs. Other commentators, however, argue that restorative and retributive concepts of justice are not necessarily mutually exclusive. This article explores court-based sentencing processes through a restorative lens, and suggests that while Canadian law formally privileges a retributive approach to sentencing, it also endorses practices that are more resonant with restorative values. In practice. sentencing courts that draw energy and guidance from restorative justice principles are more successful at including offenders in dialogues and determinations of just outcomes. Thus, a formally retributive sentencing framework actually benefits from the incorporation of restorative principles and practices. The marriage of these concepts of justice, is however, hampered by the antagonistic concerns of efficiency and uniformity in sentencing
Seeking More Than Truth: A Rationalization of the Principled Exception to the Hearsay Rule
Get PDFCanadian treatment of hearsay evidence has changed significantly in the preceding 20 years. Since 1990, the Supreme Court of Canada has adopted a more flexible approach to hearsay evidence through the development of the "principled exception." In this article, the author examines the purpose of evidence law and trial procedure from three different perspectives: as a tempered "truth-seeking" process, as a medium to communicate the acceptability of verdicts, and as a tool to regulate the epistemic and ethical conduct of decision-makers. He suggests that these three purposes are complementary and examines the principled exception to the hearsay rule using this pluralist approach. Overall, the author concludes that while the principled exception is primarily directed at promoting "truth-seeking," the necessity criterion and the current procedural format are also designed to enhance the communicative role of the trial process and to assist in the deliberation by the adjudicator. As such, the principled approach has been designed to seek more than the "truth.
Fullowka v. Pinkerton’s of Canada Ltd. and the Material Contribution Test for Factual Causation in Negligence
Get PDFOn 18 February 2010 the Supreme Court of Canada released its judgment in Fullowka v. Pinkerton’s of Canada Ltd. In a unanimous decision, the Court canvassed issues including duty and standard of care, factual causation, and the vicarious liability of unions, focusing especially upon duty and standard of care. This case comment examines, in particular, the decision’s treatment of factual causation in negligence
The Negotiable Constitution: On the Limitation of Rights, Grégoire C.N. Webber
No full text(Cambridge: Cambridge University Press, 2009
The Jurisdiction of the Alberta Surface Rights Board Under Section 30 of the Surface Rights Act
Get PDFThis article examines the jurisdiction of the Surface Rights Board of Alberta to award damages under section 30 of the Surface Rights Act. Section 30 provides owners and occupiers with a statutory cause of action for losses or damages caused to their lands through the activities of an operator. In examining and contrasting jurisprudence under section 30 of the Surface Rights Act with common law tort causes of action, the authors opine that while section 30 does not prevent an owner or occupier from bringing a tort action in relation to loss or damage, a tort action may not be a viable option. The authors therefore propose that in particular situations, section 30 of the Surface Rights Act provides an alternative cause of action through which an owner or occupier may seek damages. The article concludes by finding that section 30 possesses a lower threshold regarding the elements of the cause of action as well as the issue of causation in comparison to common law tort causes of action
Reconciliation and Conflict: A Review of Practice
Get PDFIn this article I provide a review of two connected events. The first is the conference "Prairie Perspectives on Indian Residential Schools, Truth and Reconciliation," which was held in June 2010 in Winnipeg, Manitoba. This conference was just one of many concurrent events taking place at the Truth and Reconciliation Commission of Canada\u27s first national event. Specific themes and aspects of the conference are covered here. Secondly, I parallel my discussion of the conference to my experiences with the national event - experiences can be complex and do not happen in isolation from the broader context around them. Overall, I argue that while the conference and the national event made some meaningful contributions to ongoing dialogue about reconciliation in Canada, it is clear that understanding how to deal with and discuss the conflict that arises from discussions of residential school, "race relations," and reconciliation more broadly is an ongoing learning experience. I offer some recommendations concerning how conflict could be better dealt with at future conferences and national events. Reconciliation processes can be more effective if there is not only space for dissent but, most importantly, that mechanisms are in place for encouraging productive discussions about the conflict that arises and that will continue to arise
The Northern Territory Emergency Response: The More Things Change, The More They Stay the Same
Get PDFThe Northern Territory Emergency Response (NTER) was a raft of measures introduced by the Commonwealth of Australia in response to allegations of child sexual abuse in Northern Territory Aboriginal communities. The measures included the compulsory acquisition of Aboriginal lands, the quarantining of welfare payments, prohibitions on alcohol, and the vesting of expansive powers in the Commonwealth Minister to intervene in the affairs of Aboriginal organizations. This article aims to provide a brief historical background of Aboriginal people\u27s experiences with the law in Australia, discuss certain provisoins of the NTER, and, finally, examine the consequences three years after the implementation of the NTER. Through this analysis, the author suggests that history remains a powerful influence, resulting in the NTER being based on assumptions of Aboriginal people that are grounded in a racist past. Further, independent studies have shown that the NTER has been largely ineffective at accomplishing its stated objectives
The Tip of the Iceberg: A Survey of the Philosophy and Practice of Canadian Provincial and Territorial Judges Concerning Judicial Disqualification
Get PDFThe "reasonable apprehension of bias" test for judicial disqualification has been a fixture in the common law world for centuries; despite this settled state of the law, judges and commentators have been concerned that the application of the test might be contentious in a significant number of cases. In this article, the authors report on an empirical study surveying Canadian provincial and territorial judges on common scenarios which raise the possibility of recusal. Situated in the applicable case law, the findings demonstrate a wide divergence of opinion on substance and procedure among respondents in their attitudes toward recusal in situations that are analytically marginal, but not rare. The article concludes with some possible explanations for the divergence
Risk Allocation Provisions in Energy Industry Agreements: Are We Getting it Right?
Get PDFAfter reviewing a number of Canadian legal principles relating to indemnities, this article reviews risk allocation provisions used in certain segments of the oil and gas industry in Canada with a view to exploring the rationale behind the use of different risk allocation regimes and combinations thereof, and constraints to the enforceability of such provisions. The authors then discuss select issues that should be taken into account when reviewing, negotiating, and drafting these types of provisions
Police Use of Conducted Energy Weapons: A Review of the Canadian Jurisprudence
Get PDFThis article analyzes the current Canadian legal framework that governs the deployment of conducted energy weapons (CEWs), such as tasers, and explores the ongoing public debate concerning its use in Canada. The tragic case of Robert Dziekanski’s death at the Vancouver International Airport raised concerns about the use of CEWs and triggered important changes in the CEW policies across Canada. Both the Kennedy and Braidwood Commission Reports have led to restrictions on the use of CEWs. In light of these reports, this article provides some insight into the nature and scope of criminal and civil litigation involving police use of the CEW. It highlights the perception of the CEW as a weapon reserved for use only in the absence of other less forceful options. This article also identifies the various grounds for bringing criminal charges and/or civil suits against individual officers, local governments, and manufacturers