Your search

Proportionality: Constitutional Rights and their Limitation is the most comprehensive and authoritative account of the vast literature on proportionality and would be indispensable to anyone interested in the field. Barak evaluates several justifications for the use of proportionality and several defences of proportionality against its critics. This review article concentrates on one such defence: viewing proportionality as a structured and analytically coherent set of tests requiring the government to provide reasons and justifications for all of its actions. We identify several prominent recent writers, Barak among them, who represent a shift in the literature on proportionality towards a justification-based approach, and assess their rationales for the duty of the government to give justifications and provide reasons for its actions. However, we claim that those rationales do not necessarily support proportionality and that a more categorical approach, such as ‘exclusionary reasons,’ follows just as much from the ideas underlying justification and provides a better anchor for proportionality.

In Canada, like the USA, exclusions to patentable subject matter are driven primarily by the courts. Two recent decisions by the Canadian Patent Appeal Board (one on patentability of business methods and the other on the patentability of methods of medical treatment) have highlighted the inherent difficulty of crafting exclusions to patentable subject matter grounded not on legislative intent but on judicial activism.Courts, patent examiners, and the patent appeal board should be slow to deny patents where their subject matter is considered ineligible; rather patent applications should be assessed by the traditional criteria of patentability (namely, novelty, inventiveness, and utility). If the subject matter can be made to fit within the definition of ‘invention’ (even if slightly uncomfortably), the courts should aim to ‘breathe life’ into the bare, sometimes dated, words of the patent statute. Since the patent statutes are drafted with a view to the unforeseen, any judicial interpretation of the word ‘invention’ must give deference to this vision. A theory of subject-matter eligibility is also proposed.

This article examines, from the standpoint of corrective justice, three basic situations of causal uncertainty in the law of negligence. In the first situation the uncertainty is about which of the possible defendants wrongfully caused the injury. In the second situation the uncertainty is whether the injury resulted from the innocent or the wrongful aspect of the defendant’s activity. In the third situation the uncertainty is whether the defendant’s negligence failed to prevent the materialisation of an independently existing risk. In viewing the parties as the doer and the sufferer of the same injustice, corrective justice confirms the centrality of causation to negligence liability. The article shows, nonetheless, how these three situations of uncertainty can be resolved within the corrective justice framework. Moreover, what emerges from the corrective justice analysis is that causal uncertainty is not a homogeneous problem; its solution varies with the kind of situation in which the uncertainty appears.

Polls have had a number of high-profile misses in recent elections. We review the current polling environment, the performance of polls in a historical context, the mechanisms of polling error, and the causes of several recent misses in Britain and the US. Contrary to conventional wisdom, polling errors have been constant over time, although the level of error has always been substantially beyond that implied by stated margins of error. Generally, there is little evidence that voters lying about their vote intention (so-called ‘shy’ voters) is a substantial cause of polling error. Instead, polling errors have most commonly resulted from problems with representative samples and weighting, undecided voters breaking in one direction, and to a lesser extent late swings and turnout models. We conclude with a discussion of future directions for polling both in terms of fixing the problems identified and new approaches to understanding public opinion.

This article reviews Canadian cases involving claims for misfeasance in a public office that have been decided since the Supreme Court of Canada’s decision in Odhavji Estate v. Woodhouse. Three main trends are apparent. First, plaintiffs who claim in misfeasance have some procedural advantages, including an expanded scope of discovery and greater resistance to defendants’ motions to strike. Second, the misfeasance tort serves an “ombudsman” function, tainting the defendant’s conduct as abusive and providing a greater degree of psychological vindication to plaintiffs. Finally, in some limited circumstances, misfeasance claims may have a better chance of success than negligence claims, as they dispense with the somewhat troublesome requirements of proximity and policy.

In 2015 a new offence came into effect in England and Wales: controlling or coercive behaviour in an intimate or family relationship. Three years later, similar offences were introduced in Scotland and Ireland. And it is perhaps less well known that France introduced a comparable offence in 2010 and the Australian State of Tasmania had introduced related offences of economic and emotional abuse in 2004. These offences, which criminalise non-physical abuse in domestic relationships, constitute a novel development in the criminal law, with distinctive features and challenges. This article discusses a number of legal issues that have emerged from the operation of the new offence in England and Wales. An analysis of prosecutions for controlling or coercive behaviour (235 successful convictions have been identified as of December 2018) gives some insight into special features of the offence and its impact. In the absence of primary data (such as case reports) or comprehensive secondary statistical data, media reports of cases in which people have been charged with and/or convicted of the new offence in England and Wales since it came into operation in December 2015 provide a useful basis on which to explore the operation of the offence. Our research appears to have identified about half of all successful prosecutions (107 cases) as of 28 April 2018, which was 28 months after the offence came into effect. As these reports were primarily descriptive accounts of judges’ in-court remarks, they provide an adequate basis on which to make some preliminary observations. This article identifies four legal issues that have emerged in the operation of the offence of controlling or coercive behaviour: uncertainty about which relationships are captured by the new offence; how to preserve the principle of non-retroactivity when criminalising courses of conduct (involving behaviours that may have been manifest for many years); evidentiary difficulties in criminalising courses of conduct (patterns of behaviour); and reconciling an apparent overlap between the new offence and traditional assault and threat offences.

There has been a growing momentum toward a greater recognition and explicit use of Indigenous laws in the past several years. According to the Truth and Reconciliation Commission’s final report, the revitalization and recognition of Indigenous laws are essential to reconciliation in Canada. How, then, do we go about doing this? In this article, we introduce one method, which we believe has great potential for working respectfully and productively with Indigenous laws today. We engage with Indigenous legal traditions by carefully and consciously applying adapted common law tools, such as legal analysis and synthesis, to existing and often publicly available Indigenous resources: stories, narratives, and oral histories. By bringing common pedagogical approaches from many Indigenous legal traditions together with standard common law legal education, we hope to help people learn Indigenous laws from an internal point of view. We share experiences that reveal that this method holds great potential as a pedagogical bridge “into” respectful engagement with Indigenous laws and legal thought, within and across Indigenous, academic, and professional communities. In conclusion, we argue that, while this method is a useful tool, it is not intended to supplant existing learning and teaching methods, but rather to supplement them. In practice, we have seen that this method can be complementary to learning deeply through other means. There are many methods to engage with Indigenous laws, and there needs to be critical reflection and conversations about them all.

This article seeks to identify the nature of vindication as a distinctive function within the English law of torts. It argues that a specific conception of vindication explains fundamental features of the law of torts, variations in the structure of different torts, as well as variations in the approach to damages from one tort to another, which are not explicable by reference to well-documented functions of torts, such as compensation and punishment. According to this conception vindication entails attesting to, affirming and reinforcing the importance of those interests that are the subject of the law’s protection and their inherent value, and by association the importance of the overlying legal rights. The emphasis on vindication varies across torts; the torts actionable per se are paradigm examples of torts that have vindication as their primary function.The focus of this article is on how the over-arching vindicatory function of a tort shapes the approach to compensatory damages. It is submitted that for torts which have vindication as their primary function damages are available for the wrongful interference with the interest protected by the tort, in and of itself. Such damages compensate for a damage that is ‘normative’ in nature, are assessed objectively, and are awarded notwithstanding whether the claimant suffers any negative psychological, physical, emotional or economic effects in consequence of the wrong. The article goes on to analyse the relationship between vindication and non-compensatory damages, including the novel head of ‘vindicatory damages’.

McGill Law Journal Revue de droit de McGill PRIVACY, CORRECTIVE JUSTICE, AND INCREMENTALISM: LEGAL IMAGINATION AND THE RECOGNITION OF A PRIVACY TORT IN ONTARIO Thomas DC Bennett* This article considers the nature of com- mon law development as exemplified by the re- cent privacy case of Jones v. Tsige. The author focuses on Jones, in … Continued