Authors:Elizabeth Sheehy, Isabel Grant, Lise Gotell Pages: 651 - 651 Abstract: Internationally, the “rough sex defence” appears to be on the rise. Used to suggest that women enjoy violence as part of “sex play,” it invites judges and jurors to find either consent to acts causing bodily harm or an honest but mistaken belief in consent. Our review of the Canadian case law from 1988–2021 examines how courts approach this defence. We found that the defence is gendered, with only men as perpetrators and overwhelmingly women on the receiving end. We explore themes from the cases including the role of pornography, the trivialization of bodily harm, the mischaracterization of strangulation, and how consent to some sexual activity undermines women’s credibility. We conclude that consent should be barred as a defence to causing bodily harm unless that harm was unforeseeable when inflicted. PubDate: 2023-03-08
Authors:Camden Hutchison Pages: 687 - 687 Abstract: When considering restrictions on socially disfavoured expression, the Supreme Court of Canada has often considered the targeted expression’s “value.” In the seminal cases of Ford v. Quebec and Irwin Toy Ltd. v. Quebec, the Supreme Court articulated the importance of expressive freedom by relating it to three core values: (1) seeking and attaining the truth; (2) participation in democratic institutions; and (3) diversity in forms of individual self- fulfillment. Subsequent cases considering restrictions on expression have evaluated the extent to which the targeted expression advances these values. Ironically, although Ford and Irwin Toy embraced a broad conception of expressive freedom, the Supreme Court has used the values analysis developed in these cases to justify limiting disfavoured expression. As applied to marginalized ideas, the Supreme Court has tailored its balancing test under R. v. Oakes such that expression found to be “distant from the core of free expression values” is granted little protection under the Canadian Charter of Rights and Freedoms. Under this test, legal restrictions on hate speech, obscenity, and other forms of disfavoured expression have been upheld based on the Supreme Court’s low assessment of the value of the underlying expression. This article argues that although certain forms of expression may be validly restricted under the Charter, the Supreme Court’s practice of assessing the value of targeted expression when applying the Oakes test is both politically illegitimate and vulnerable to error. This practice should be abandoned in favour of an alternative application of Oakes that balances (1) the severity of the restriction against (2) the harm of the targeted expression. Under this analysis, the value of the expression is not a factor because all expression is considered equally valuable. This approach adopts a relativistic perspective on the value of free expression and denies the ability of courts to mediate absolute truth. According to this view, the only characteristic of targeted expression that may justify its restriction is its likelihood to cause harm, a question more susceptible to judicial determination than its underlying value. The impetus for my argument is that, as applied, the Supreme Court’s values analysis inevitably imposes political preferences onto Charter interpretation. A more politically- neutral framework would be more consistent with section 2’s unqualified protection of “thought, belief, opinion and expression,” as well as section 1’s concern for “a free and democratic society.” PubDate: 2023-03-08
Authors:Nayha Acharya Pages: 719 - 719 Abstract: In this article, I offer a framing of the debates around mandatory mediation that rest on the premise that a legitimate civil justice process depends on unhindered access to an adjudicative system, which must be recognized as a procedural right. This is a keystone of the rule of law, and a valid legal system that deserves the authority that it asserts is contingent on this. My central thesis is that requiring mediation (which is independent of the rule of law) before allowing full access to adjudication compromises the procedural rights of legal subjects, and the rule of law principle. Such a mandate is, therefore, an improper exercise of legal authority. This does not, however, mean that mediation cannot have significant value in enhancing the civil justice commitment to human dignity. The benefits that abound in mediation should be widely accessible, especially because mediation can (when it functions well) offer autonomous, empowered decision-making. The analyses that I offer here pave the road for determining, pragmatically, how mediation should be incorporated into civil justice systems, such that individuals can have legal claims adjudicated in a system that centralizes the rule of law and may also choose an equitable and well-structured mediation system that is responsive to concerns raised by critical race and feminist scholars about informal dispute resolution. PubDate: 2023-03-08
Authors:Colton Fehr Pages: 739 - 739 Abstract: In R. v. Jordan, the Supreme Court of Canada adopted presumptive ceilings for determining whether the right to be tried within a reasonable time is violated. In so doing, the Supreme Court eschewed any balancing of individual and societal interests at the rights stage of analysis. Unfortunately, the Supreme Court did not simultaneously reconsider its prior determination that the only remedy for unreasonable delay is a stay of proceedings. As balancing individual and societal interests is fundamental to determining whether a stay is justified, the next logical step is to shift this balancing to the remedial stage of analysis. In so doing, the accused should typically be required to prove that the harm suffered irreparably undermines fair trial interests before proceedings are stayed in response to unreasonable delay. A stay of proceedings in these circumstances, however, ought not be restricted to “non-serious” crimes. Where the harm relates to the accused’s liberty or security interests, other remedies should be granted. The Senate’s recent proposal to grant monetary rewards is feasible if supplemented with other remedies that limit the continued impact of delay on an accused’s liberty and security interests. I nevertheless maintain that using financial compensation to remedy the impact of delay on these interests ought to be approached with caution as it could encourage complacency towards delay. To counteract this incentive, stays of proceedings should remain available if the Crown uses this narrower remedial structure as a means to “buy time” to conduct prosecutions. PubDate: 2023-03-08
Authors:Lucas Clover Alcolea Pages: 755 - 755 Abstract: In many respects, the tale of the arbitration of consumer and employment disputes in the United States and Canada is a similar one. Both jurisdictions were traditionally hostile to arbitration, both jurisdictions had a complete change of heart in recent years, and in both jurisdictions, arbitration is widely used in the consumer and employment sphere. Moreover, in both jurisdictions questions have been asked regarding the fairness of arbitration agreements in consumer and employment contracts due to the inherent power imbalance between consumers or employees on the one hand and businesses or employers on the other. Despite these similarities, the consumer and employment arbitration landscape in each is radically different, whereas consumer and employment arbitration in the US is almost impossible for consumers and employees to avoid; in Canada, the opposite is true. This radical difference results from key differences in each jurisdiction’s understanding of federalism so that whilst Canadian provinces and courts have been able to protect consumers and employees, US states and courts have found themselves hamstrung by the Supreme Court’s interpretation of the Federal Arbitration Act and the dominance of federal law over state law. This has led to US courts pushing the envelope of the doctrine of unconscionability whilst Canadian courts have found this unnecessary due to provincial regulation. This article analyzes the different paths taken by federalism in each jurisdiction and how that in turn led to almost opposite outcomes for arbitration law north and south of the world’s longest border. Ultimately, the article concludes that in both federalism and arbitration law, Canada and the US each represent the road not taken by the other. PubDate: 2023-03-08
Authors:Donald J. Netolitzky Pages: 795 - 795 Abstract: A US-sourced set of false law concepts, “pseudolaw,” entered into Canada circa 2000. A localized version of pseudolaw was adopted by two ideologically distinct Canadian populations: (1) Detaxers, and (2) Freemen-on-the-Land. This article investigates the fate of these “first-wave” pseudolaw phenomena, and their direct descendants. Each remain largely dead and inactive, despite near ideal conditions for a resurgence. This pattern is unexpected, since pseudolaw thrives and expands in stress situations. PubDate: 2023-03-08
Authors:Tori N. Chiu Pages: 833 - 833 Abstract: This article deals with the test for whether proprietary relief is warranted by way of constructive trust, as set out in Roy Goode’s essay “Property and Unjust Enrichment” and later adopted by the Supreme Court of Canada in Soulos v. Korkontzilas. The article hones in on the second element of the Soulos test — the deemed agency gain — proposing that there cannot be a deemed agency gain where the wrong committed was not connected to an action authorized by the plaintiff. Therefore, the article proposes that deemed agency gains cannot exist in cases involving bribery or other corruption, and as such cannot be used to obtain a constructive trust in these cases, unless the specific act of corruption was in fact authorized by the plaintiff. PubDate: 2023-03-08
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