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1
Rousselle, Serge. "La diversité culturelle et le droit constitutionnel canadien au regard du développement durable des cultures minoritaires /." Thesis, McGill University, 2005. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=102241.
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Within the framework of international trade liberalization which has given rise to considerable thought about the fundamental contribution of cultural diversity to sustainable development, we explore the upholding of the educational rights of recognized linguistic minorities and of the aboriginal and treaty rights of First Nations under the Constitution Act, 1982. We examine these rights in the light of relevant judgments of the Supreme Court of Canada in order to confirm our initial hypothesis that the highest court in the land can show governments here and abroad the steps to take to ensure that the cultural rights specific to some communities and the citizenship common to the population as a whole can coexist in a free and democratic nation.Our analysis shows that, while relying on the historical, equality and cultural-based justification of the existence of these rights, the Court favours an approach centred on three fundamental principles: the duty of the State to act equitably in the "best interest" of cultural minorities through a flexible approach to the interpretation of established rights; a fair participation in the management of and access to resources by minority groups; and finally, the fostering of social cohesion in order for unity in diversity to be maintained through a reconciliation of existing rights which must be achieved, first and foremost, by political discussion aimed at finding durable solutions.
From a cultural sustainable development perspective, the specific cultural rights of minority groups must thus favour a common citizenship within a context of respect for cultural diversity, while still being compatible with and promoting the values of a liberal democracy.
2
Frank, Robert 1966. "Creditor's use of the oppression remedy." Thesis, McGill University, 2000. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=30298.
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This thesis examines creditors' use of the oppression remedy under the Canada Business Corporations Act and its provincial equivalents from historical and critical perspectives, assesses the consequences of the increasing willingness of Canadian courts to make the remedy available to creditors and concludes by offering some solutions to the problems that are identified. Part I traces the historical development of the oppression remedy, first in the United Kingdom and then in common law Canada. Next, the current state of the law relating to the oppression remedy is briefly examined, followed by a review of recent developments with respect to the use of the oppression remedy by creditors. Part II is a critical review of the evolving law with respect to creditors' use of the oppression remedy. This part of the thesis focuses on: (i) the relationship and potential conflict between the oppression remedy and other available remedies; and (ii) the impact of creditors' uses of the oppression remedy on the relationship between the corporation and its other stakeholders, including issues of shareholders' and directors' liability. In Part III, it is argued that the present use of the oppression remedy by creditors is not being developed in a coherent and principled manner. Certain guidelines are offered to provide the courts with reasonable controls on and principles to guide the use of the oppression remedy by creditors. In particular, it is argued that the oppression remedy should not be available to creditors when there are, either under corporate legislation or other, general legislation, appropriate remedies already available. The result would be that the oppression remedy should be available to creditors only in the limited category of cases where the creditor has no other effective remedy and the conditions for the use of the oppression remedy are met.
3
Takami, Chieko. "Defining women as a particular social group in the Canadian refugee determination process." Thesis, McGill University, 2000. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=31175.
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Recent feminist criticism has resulted in remarkable changes to the interpretation of the refugee definition. Case law, academic commentaries and gender guidelines now recognize that women may constitute a particular social group under the definition of refugee. However, only those who belong to certain subgroups of women are usually granted asylum because being a woman only is considered too broad to comprise a particular social group. Such restrictive interpretation is theoretically and practically problematic, and it is the primary cause for the inconsistency in the interpretation of the definition of a particular social group and refugee determination in gender-based claims. Through an analysis of recent gender-based cases before the Canadian courts and the Immigration and Refugee Board, this paper argues that this inconsistency will be avoided when categorization of women does not require female claimants to prove characteristics other than their gender. Female refugees who are persecuted for being women do not need to provide additional reasons for their suffering, and this broad categorization of women should be consistently applied in Canada.
4
Hinkson, Heather A. (Heather Antonia). "Canadian refugee policy : international developments and debates on the role of gender in refugee determination procedures." Thesis, McGill University, 1996. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=23843.
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Through the evolution of international human rights law and policy, gender has become a prohibited ground for persecution. However the international definition of a refugee contained in the Convention Relating to the Status of Refugees does not explicitly include gender as an enumerated ground on which persecution can be feared. This omission has required women who fear gender-based persecution to use the Convention's "membership in a particular social group" provision. Traditionally, judicial interpretation of criteria establishing a "particular social group" was not consistent in cases alleging gender-based persecution. In 1993, Canada developed guidelines that attempt to establish a coherent and consistent application of the "particular social group" category. This represents a state policy initiative to recognize the international evolution of policy on gender as a basis for persecution. Although the guidelines challenge theories of state sovereignty in the design and execution of domestic policy, they demonstrate that a coherent and consistent framework for granting asylum status to women who fear gender-based persecution can be developed in such policy.
5
Borovan, Nicole A. "The Canada-United States Safe Third Country Agreement : a constitutional analysis." Thesis, McGill University, 2006. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=98604.
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This thesis examines the Safe Third Country Agreement between Canada and the United States from the perspective of Canada's obligations vis-a-vis asylum seekers under the Canadian Charter of Rights and Freedoms. The Safe Third Country Agreement requires asylum seekers to lodge their refugee claims in the first country of arrival, as between Canada and the United States. Asylum seekers on the United States side of the border who are seeking to enter Canada for the purpose of claiming refugee status will be deflected to the United States to lodge their claims there. By deflecting asylum seekers in this manner, Canada effectively conscripts the United States to carry out its obligations under the Charter to furnish procedural and substantive protections to asylum seekers. This thesis examines certain features of the United States asylum system to which asylum seekers deflected under the Safe Third Country Agreement would be subjected, in order to determine whether, according to relevant Charter jurisprudence, deflection constitutes a deprivation of security of the person under section 7 of the Charter and whether such deprivation can be justified under section 1.
6
Baker, Dana Lee. "Children's disability policy in Canada, the United States and Mexico : a question of convergence /." Access restricted to users with UT Austin EID Full text (PDF) from UMI/Dissertation Abstracts International, 2001. http://wwwlib.umi.com/cr/utexas/fullcit?p3025136.
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7
Richards, Nathan. "Normative dimensions of cultural identity." Thesis, McGill University, 2005. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=82669.
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Dominant theories of aboriginal rights articulate the relation between rights and identity in terms of a logic which treats identity as an irreducible good and rights as the instrumental means of its protection. However, identity claims and legal claims emerge in our use of language. Identity and the institutions in which identities are expressed and experienced are constituted in speech. A close analysis reveals the degree to which law and identity are a systemic imbrication of normative claims characterized by an innate indeterminacy. This indeterminacy renders all rights and identity claims contingent on their reception and validation by others.
8
Ye, Xiangxiang 1983. "The impact of the Plant Breeders' Rights Act on wheat productivity : evidence from western Canada." Thesis, McGill University, 2007. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=100216.
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Plant Breeders' Rights (PBR) are a form of intellectual property rights enabling breeders of new plant varieties to have the exclusive right to produce and sell propagating material of their new plant varieties. The existence of effective property rights has been pointed to as a stimulus of increased R&D and productivity. Canada has had legislation to provide PBR protection for about two decades, and is considering further strengthening of the regulatory framework. However, there are few studies that have examined the effectiveness of the legislation on crop productivity. This thesis investigates the hypothesis that the adoption of wheat varieties qualifying for Plant Breeders' Rights has increased overall wheat yields and rate of yield increase. The yield response function models are applied to industry data for western Canada and Alberta, respectively. The empirical results show that the PBR Act had a relatively small impact on wheat yields. Among wheat classes, it had a positive impact for Durum wheat in Alberta.
9
Panet-Raymond, Louise. "Toward a reconceptualization of battered women : appealing to partial agency." Thesis, McGill University, 2003. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=78223.
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Despite growing awareness of the severity of domestic violence, the lives of battered women are too often misconstrued by the Canadian public and the judicial system. The author argues that stereotypes of victimized battered women emanating from the courts and feminist theory may both prevent women who kill their partner from making valid claims of self-defence and generally undermine women's fight against oppression. The author reviews the doctrine of the battered woman syndrome and its application in the context of self-defence to illustrate how the courts' treatment of the doctrine conveys a narrow and incomplete depiction of battered women. An alternative theoretical framework based on battered women's partial agency is proposed as a means to address feminist theory's simplified representation of battered women. Various law and policy reform initiatives in the criminal justice system are explored to assess how the law may validate and promote battered women's partial agency.
10
Correa, Elaine. "Get out of my space! :"illusionary practices of equity"." Thesis, McGill University, 2000. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=36758.
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This thesis explores the experiences of Canadian academic women in terms of location, space and voice. Within this qualitative study, the spaces of and for women within the university are examined by way of women's subjective experiences of 'value' and 'being valued'. Differences in experiences between women based on age, colour, tenure and academic rank are described through the voices of thirty academic women. The study argues that the "illusionary practices of equity" operating within the university milieu, exacerbate the tensions inherent in contradictory subject locations that women occupy within academe. The struggles of representation and identity within these contested spaces raise the challenges of whose voice will have space within the privileged locations of higher learning.
11
Mainville, Robert. "Compensation in cases of infringement to aboriginal and treaty rights." Thesis, McGill University, 1999. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=30317.
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This paper discusses the legal principles which are relevant in determining the appropriate level of compensation for infringements to aboriginal and treaty rights. This issue has been left open by the Supreme Court of Canada in the seminal case of Delgamuukw. The nature of aboriginal and treaty rights as well as the fiduciary relationship and duties of the Crown are briefly described. The basic constitutional context in which these rights evolve is also discussed, including the federal common law of aboriginal rights and the constitutional position of these rights in Canada. Having set the general context, the paper then reviews the legal principles governing the infringement of aboriginal and treaty rights, including the requirement for just compensation. Reviews of the legal principles applicable to compensation in cases of expropriation and of the experience in the United States in regards to compensation in cases of the taking of aboriginal lands are also carried out. Six basic legal principles relevant for determining appropriate compensation in cases of infringement to aboriginal and treaty rights are then suggested, justified and explained. (Abstract shortened by UMI.)
12
Lavoie, Manon 1975. "The need fo a principled framework to effectively negotiate and implement the aboriginal right to self-government in Canada /." Thesis, McGill University, 2002. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=78221.
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The aim of this thesis is to reveal the need for a principled framework that would establish an effective implementation of the aboriginal peoples' right to self-government in Canada. In recent decades, many agreements instituting the right to self-government of First Nations have been concluded between the federal and provincial governments and aboriginal peoples. It then becomes important to evaluate the attempts of the two existing orders of government and the courts of Canada as regards the right to self-government and assess the potential usefulness of the two's efforts at defining and implementing the right. Firstly, the importance and legitimacy of the right to self-government is recognized through its beginnings in the human right norm of self-determination in international law to the establishment of the right in Canadian domestic law. Secondly, an evaluation of the principal attempts, on behalf of the governments and the courts, to give meaning and scope to the aboriginal right to self-government, which culminate in the conclusion of modern agreements, reveals their many inefficiencies and the need for a workable and concrete alternative. Lastly, the main lacunae of the negotiation process, the main process by which the right is concluded and implemented, and the use of the courts to determine the scope and protection of the right to self-government, are revealed. An analysis of European initiatives to entrench the right to self-government, mainly the European Charter of Self-Government and its established set of principles that guide the creation of self-government agreements, are also used in order to propose a viable option for the establishment of a principled framework for the aboriginal right to self-government in Canada.
13
Fuentes, Carlos Iván. "Redefining Canadian Aboriginal title : a critique towards an Inter-American doctrine of indigenous right to land." Thesis, McGill University, 2006. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=101816.
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Is it possible to redefine Aboriginal title? This study intends to answer this question through the construction of an integral doctrine of aboriginal title based on a detailed analysis of its criticisms. The author uses international law to show a possible way to redefine this part of Canadian law. After a careful review of the most important aspects of aboriginal land in international law, the author chooses the law of the InterAmerican Court of Human Rights as its framework. Using the decisions of this Court he produces an internationalized redefinition of Aboriginal title.
14
Labman, Shauna. "The invisibles : an examination of refugee resettlement." Thesis, University of British Columbia, 2007. http://hdl.handle.net/2429/33004.
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Resettlement is one of three durable solutions, which the United Nations High Commissioner for Refugees (UNHCR) uses to achieve refugee rotection. Refugees are assumed to locally integrate, voluntarily repatriate or resettle. Too many of the world's refugees, however, are left to linger in non-durable conditions in countries of first asylum that are often only minimally safer than the countries they have fled. Where neither local integration nor repatriation is possible, resettlement is the only option. Resettlement
requires a third country to be willing to accept refugees into its territory. While signatory
states to the 1951 Convention relating to the Status of Refugees (1951 Convention) are obliged not to refoule asylum seekers at their borders, they have not committed to accept refugees for resettlement.
By geographic distance, presumptions of safety, and a lack of legal obligations, those refugees who fail to make it to the frontiers of safe states are simply not seen. These refugees remain so far removed in a vague, far-off realm that they are rendered invisible. Their invisibility is reflected in the 1951 Convention's silence on obligations to them, the dearth of academic examination of resettlement, and media and government attention only in the celebratory act of making a small number of such refugees visible and legal, through the act of bringing them within a protective state's borders. Despite their
invisibility, the protection needs of those refugees left outside the borders of safe states
remains.
The goals of this thesis are therefore to create visibility and increase resettlement. Resettlement is examined from its theoretical motivations, historical origins, current manipulations, and future possibilities - both generally and through an examination of the Canadian scheme. The thesis closes with recommendations for resettlement reform. They are targeted at UNHCR, the international community, national governments, and
Canada in particular. For resettlement to offer a fair mode of protection a comprehensive and global model of resettlement must be designed and, ultimately, implemented.Law, Peter A. Allard School of
Graduate
15
Donovan, Brian. "The common law basis of Aboriginal entitlements to land in Canada, the law's crooked path." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 2001. http://www.collectionscanada.ca/obj/s4/f2/dsk3/ftp04/MQ62720.pdf.
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SIMON, MICHAEL PAUL PATRICK. "INDIGENOUS PEOPLES IN DEVELOPED FRAGMENT SOCIETIES: A COMPARATIVE ANALYSIS OF INTERNAL COLONIALISM IN THE UNITED STATES, CANADA AND NORTHERN IRELAND." Diss., The University of Arizona, 1986. http://hdl.handle.net/10150/183996.
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The purpose of this dissertation was to compare British policy towards Ireland/Northern Ireland and United States and Canadian Indian policies. Despite apparent differences, it was hypothesized that closer examination would reveal significant similarities. A conceptual framework was provided by the utilization of Hartzian fragment theory and the theory of internal colonialism. Eighteen research questions and a series of questions concerned with the applicability of the theoretical constructs were tested using largely historical data and statistical indices of social and economic development. The research demonstrated that Gaelic-Irish and North American Indian societies came under pressure from, and were ultimately subjugated by colonizing fragments marked by their high level of ideological cohesiveness. In the Irish case the decisive moment was the Ulster fragmentation of the seventeenth century which set in juxtaposition a defiant, uncompromising, zealously Protestant, "Planter" community and an equally defiant, recalcitrant, native Gaelic-Catholic population. In the United States traditional Indian society was confronted by a largely British-derived, single-fragment regime which was characterized by a profound sense of mission and an Indian policy rooted in its liberal ideology. In Canada the clash between two competing settler fragments led to the victory of the British over the French, and the pursuit of Indian policies based on many of the same premises that underlay United States policies. The indigenous populations in each of the cases under consideration suffered enormous loss of land, physical and cultural destruction, racial discrimination, economic exploitation and were stripped of their political independence. They responded through collective violence, by the formation of cultural revitalization movements, and by intense domestic and international lobbying. They continue to exist today as internal colonies of the developed fragment states within which they are subsumed.
17
Turner, Dale A. (Dale Antony) 1960. ""This is not a peace pipe" : towards an understanding of aboriginal sovereignty." Thesis, McGill University, 1997. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=35637.
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This dissertation attempts to show that Aboriginal peoples' ways of thinking have not been recognized by early colonial European political thinkers. I begin with an examination of Kymlicka's political theory of minority rights and show that, although Kymlicka is a strong advocate of the right of Aboriginal self-government in Canada, he fails to consider Aboriginal ways of thinking within his own political system. From an Aboriginal perspective this is not surprising. However, I claim that Kymlicka opens the conceptual space for the inclusion of Aboriginal voices. The notion of "incorporation" means that Aboriginal peoples became included in the Canadian state and in this process their Aboriginal sovereignty was extinguished. Aboriginal peoples question the legitimacy of such a claim. A consequence of the Canadian government unilaterally asserting its sovereignty over Aboriginal peoples is that Aboriginal ways of thinking are not recognized as valuable within the legal and political discourse of sovereignty. In chapters two through five, respectively, I examine the Valladolid debate of 1550 between the Spanish monk Bartolome de Las Casas and Juan Sepulveda, The Great Law of Peace of the Iroquois Confederacy, Thomas Hobbes's distinction between the state of nature and a civil society, and Alexis de Tocqueville's account of democracy in America. Each of the examples, except for The Great Law of Peace, generate a philosophical dialogue that includes judgments about Aboriginal peoples. However, none of these European thinkers considers the possibility that Aboriginal voices could play a valuable role in shaping their political thought. To show the value of an Aboriginal exemplar of political thinking I consider the Iroquois Great Law of Peace. The Iroquois view of political sovereignty respects the diversity of voices found within a political relationship. This was put into practice and enforced in early colonial northeast America until the power dynamic shifted betwe
18
Ahmed, Shameem. "Day in and day out : women's experience in the family and the reconstruction of their secondary status." Thesis, McGill University, 1991. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=59959.
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The basic research question this thesis addresses is how the secondary status of Bangladeshi women is reinforced through household labour. It is argued that gender relations and housework shape each other. To develop this, it examines the degree of participation of women in different areas of housework and family decisions. The thesis further explores whether the autonomy of women coming from the traditional Bangladeshi family set-up has increased as a result of their immigration to Canada and their exposure to Canadian family values. This is done by a comparison of the family experiences of Canadian and Bangladeshi women. Finally, it is suggested that age, position in the family and length of immigration are the indices of the autonomy of Bangladeshi women in Canada.
19
Dupuis-Rossi, Riel. "Modernizing colonialism : an examination of the political agenda of the First Nations Governance Act (2002)." Thesis, McGill University, 2007. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=112335.
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In this thesis, I argue that the First Nations Governance Act (FNGA) shares the colonial aspirations of other pieces of historical legislation in the Canadian context. The FNGA attempted to have First Nations' local governing structures mirror those of the Canadian state. As a result, this piece of legislation fails to recognize and respect the jurisdictional authority of First Nations over their own internal socio-political structures and systems. The FNGA is therefore a colonial assault on First Nations' jurisdiction in the realm of governance undermining the right to self-government and self-determination of First Nations.I demonstrate this by examining three major issues dealt with in the FNGA: the status of historical and modern Canada-First Nations treaties, the jurisdiction of First Nations governance authority as well as control over band membership and Indian status classification systems.
20
Chiringa, Kudakwashe E. M. "Human rights implications of the compulsory HIV/AIDS testing policy: a critical appraisal of the law and practice in South Africa, Uganda and Canada." Thesis, University of Fort Hare, 2013. http://hdl.handle.net/10353/d1017298.
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HIV/AIDS has been an obstacle to socio-economic development and a major cause of loss of human life. It has also caused vast inequities and frustration to the public health sector. One of the significant efforts made by the public health sector to combat the epidemic is the implementation of a mandatory HIV/AIDS testing policy to scale-up HIV treatment. This dissertation examines the impact of this policy on the human rights of people infected with and affected by HIV/AIDS. Coercive government policies aimed at controlling the AIDS pandemic often infringe on the rights of individuals known to be or suspected of living with HIV/AIDS and this decreases the effectiveness of public health measures. The research methodology involved the study of written literature and a comparative literature study of the law and practice obtaining in South Africa, Uganda and Canada. It revealed that voluntary testing is effective and suitable in South Africa. This dissertation aimed to show that any public health approach that aims to achieve a comprehensive prevention strategy must be consistent with respect for human rights as enshrined in regional and international human rights law. Public health and human rights should, therefore, not be regarded as opposing forces; rather they should be seen as a unified system of protection of human welfare under the Bill of Rights and the Constitution. The solution to the crisis lies not only in testing every single person but also requires a shift of focus to more pressing issues that include gender equality, stigma and discrimination; prioritizing human rights, institutional capacity and resources; and an end to extreme poverty. A human rights-based approach to HIV/AIDS testing, such as the Voluntary Counselling and Testing (VCT) is recommended. Therefore, failure to adhere to the core principles of testing - which are informed consent, counselling and confidentiality of the test result - will only hinder the global fight against HIV/AIDS. The rights of those affected by HIV/AIDS need to be protected in order to address public health imperatives. This can be done through the use of the law as an instrument of social change as well as education and awareness. Key words, HIV/AIDS, mandatory testing, Voluntary Counselling and Testing, public health, human rights-based approach.
21
Rebolone, Ana Maria. "Feminists in unchartered water, the legal pursuit of reproductive autonomy in the Supreme Court of Canada in the 1990s." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 1999. http://www.collectionscanada.ca/obj/s4/f2/dsk1/tape10/PQDD_0003/MQ45377.pdf.
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Peszle, T. L. (Theresa L. ). "Language rights in Québec education : sources of law." Thesis, McGill University, 1996. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=26751.
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This study first provides general background on the public education system of Quebec, and the Canadian and Quebec legal systems. Legal background information includes: the classification of Canadian laws; the Common Law and Civil Law traditions of law, and the definitions of sources of law of each tradition; Quebec's bijurisdictional legal system; the court system of Quebec; Constitutional sources of law; and, the role of the Judiciary in Canadian education.This thesis is a documentary study of the sources of law which establish language of instruction rights in Quebec. Its purpose is to assist educators, students of education, and other lay persons of law to gain understanding of the legal bases upon which the Judiciary formulate decisions in matters of language of instruction. Common Law and Civil Law legislative and case law sources, which are applicable to Quebec, are identified and examined, and relevant sources presented.
In addition to providing a summary for Common Law sources, and for Civil Law sources, a chronological summary is given, which reveals six main periods in the development of language of instruction provisions in Quebec.
The conclusion is that the primary sources of law for language of instruction in Quebec are: s. 93 of the Constitution Act, 1867, and case law thereunder; and, the judicial interpretation and provisions of s. 23 of the Constitution Act, 1982. Future case law in Quebec may reveal s. 23 of the Canadian Charter of Rights and Freedoms, 1982 to be the most significant source of law for the preservation of minority English language instruction, institutions, and rights of management and control.
23
Singer, Kate. "Aboriginal injustice, a Canadian reponsibility : an Algonquian perspective of Canada's criminal justice system." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 2001. http://www.collectionscanada.ca/obj/s4/f2/dsk3/ftp05/MQ63368.pdf.
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Pinero, Veronica B. "Transformations in the Canadian Youth Justice System. Creation of Statutes and the Judicial Waiver in Quebec." Thèse, Université d'Ottawa / University of Ottawa, 2013. http://hdl.handle.net/10393/24065.
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The objectives of this thesis were to observe how the Canadian youth justice system has dealt with the regulation of the transfer of young offenders to the adult court and how the Canadian statutes have regulated the imposition of adult offences for young offenders.
For this, I drew a distinction between two levels of observation: first, I observed the process of "creation of statutes" by the political system. Second, I observed the process of "understanding and interpretation of statutes" by the judicial system. The notion of "political system" includes the legislation enacted by Parliament, parliamentary debates, and reports published by the Government of Canada. The notion of "judicial system" includes the decisions of the Montreal Youth Court.
For the first level of observation ("creation of statutes"), I observed and analyzed the work of the political system for the period 1842 to 2012. Starting in 1857, many statutes regulated different aspects of the criminal law system as it applied to young people. The first statute to deal with youth offenders comprehensively and different from adult offenders was the Juvenile Delinquents Act (1908); this statute was replaced by the Young Offenders Act (1982). The current statute is the Youth Criminal Justice Act (2002).
With regard to the Juvenile Delinquents Act (1908) and the Young Offenders Act (1982), I observed how the political system regulated the mechanism of transferring a young person to the adult court. This mechanism allowed the youth court to decide a question of jurisdiction: whether the young person would be processed and sentenced within the youth justice system, or whether the young person would be sent to the adult court for him to be dealt with and sentenced therein. With regard to the Youth Criminal Justice Act (2002), I observed how the political system has regulated the imposition of adult sentences by the youth court. This statute replaced the mechanism of transfer under the two previous statutes by the imposition of adult sentences within the youth justice system.
For the second level of observation ("the understanding and interpretation of statutes"), I observed how the Montreal Youth Court had understood and interpreted the statutory provision that allowed the youth court to transfer a young person to the adult court for the young person to be dealt with and sentenced therein. My period of observation is from 1911 to 1995.
I argue that both the political and the judicial systems have been strongly influenced by the theories of deterrence, denunciation, retribution, and rehabilitation. The influence that each theory has exercised on each system varies. The political system, originally focused on the rehabilitation of young people, has been slowly “contaminated” by the most punitive theories, such as deterrence and denunciation. This shift started in the 70’s and slowly increased over the years. Conversely, while the judicial system does not seem to have been originally influenced by the theories of rehabilitation, its focus has slowly shifted towards this objective as the primary goal of their intervention towards young offenders since the 70’s. However, the “successful rehabilitation” of a young person has become a goal in itself, where “unsuccessful offenders” have been transferred to the adult court and dealt with the adult punitive justice system.
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Calverley, David. "Who controls the hunt? Ontario's Game Act, the Canadian government and the Ojibwa, 1800-1940." Thesis, National Library of Canada = Bibliothèque nationale du Canada, 1999. http://www.collectionscanada.ca/obj/s4/f2/dsk1/tape9/PQDD_0025/NQ48091.pdf.
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Patch, Tom W. "Equal in theory : an assessment of anti-discrimination statutes as equality tools for people with disabilities." Thesis, 2005. http://hdl.handle.net/2429/16657.
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In recent years, the enforcement of Canadian human rights statutes has been the subject of
much criticism. That criticism comes not only from organizations that are required to change
their practices to comply with the statutes, but from advocates who question the effectiveness
of human rights enforcement. Studies which attempt to address these criticisms generally
review the criticisms and then seek to modify the enforcement models to ameliorate the
problems which have generated the criticism. This thesis considers the problem from a more
theoretical perspective. With a focus on disability, this thesis considers whether Canadian
anti-discrimination statutes, which were created when the prevailing theory of equality was a
formal one, are capable of achieving substantive equality as it is now conceived.
Applying a disability rights perspective, substantive equality for people with disabilities
requires that a wide and complex variety of barriers be removed. These barriers may result
from intended or unintended discrimination. They may be physical or attitudinal. They may
be isolated, individual acts or they may reflect widespread societal norms. To eliminate such
an array of barriers, anti-discrimination statutes must include a range of powers and
procedures: they must incorporate provisions that protect people with disabilities from such
barriers; they must provide mechanisms to identify the barriers; there must be mechanisms to
determine whether the barriers contravene the protected right; and the statutes must provide
effective remedies.
This thesis concludes that contemporary human rights enforcement models are capable of
effectively addressing many individual barriers to equality for people with disabilities.
However, under a complaint-based model, human rights agencies cannot effectively address
barriers that result from the operation of widespread norms. Canadian human rights agencies
are therefore limited in their ability to achieve the societal transformation that is necessary to
achieve substantive equality for people with disabilities. For such equality to be realized,
anti-discrimination statutes must be seen as just one facet of a much broader approach.Law, Peter A. Allard School of
Graduate
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Bonini-Baraldi, Matteo. "Equality for same-sex couples : a Canadian approach." Thesis, 2002. http://hdl.handle.net/2429/12065.
Full textAbstract:
In this thesis I start by reviewing the theoretical perspectives that have informed the debate
around equality rights for gays and lesbians. Next, I will analyze the concept of equality
developed by the Supreme Court of Canada under section 15 of the Canadian Charter of Rights
and Freedoms. In the Andrews case, decided in 1989, the Supreme Court of Canada rejected a
model based on formal equality, embracing instead the far-reaching concept of substantive
equality as a way to redress historical prejudice and disadvantage of individuals and groups that
fall within enumerated or analogous grounds of discrimination. In the last decade, a number of
courts have applied this model to equality claims brought under the Charter by same-sex
couples. I will explore the details of several of these cases as well as a variety of statutes
relating to same-sex couples. Finally, I will discuss recent law reform proposals that
recommend that state benefits should be allocated regardless of the relationship status of the
beneficiaries, thereby envisaging more radical changes to the legal system. I conclude that the
Canadian approach to equality for same-sex couples has followed an interpretive method that
seems to apply a definition of family that is shifting and varies on an ad hoc basis, but that the
denial of spousal status under marriage laws represents a limitation of equality rights still to be
overcome. I also conclude that, in fact, the concept of status may still influence the adjudication
process under section 15 of the Charter as far as marriage rights are concerned. This is
because the framework of analysis under section 15 calls for an assessment of the claimant's
position in the larger socio-political context, and this element, if not properly circumscribed,
risks being corrupted by existing prejudices and biases relating to family.
28
Simm, Gabrielle Anne. "Exotic others : gender and refugee law in Canada, Australia and the United States." Thesis, 2005. http://hdl.handle.net/2429/16718.
Full textAbstract:
In this thesis I argue that race, culture and imperialism intersect with gender at the site
of refugee law to produce 'racialized and exotic others.' These exotic others are
refugee women whose differences from refugee decision makers in destination
countries are made crucial to their refugee claims by refugee lawyers, decision
makers and the system of refugee determination. I use a comparative methodology to
examine the gender guidelines for refugee decision makers and selected key cases
from Canada, the United States and Australia.
The gender guidelines represent a human rights approach to refugee law. I critique the
guidelines and relevant cases from an anti-essential ist perspective informed by
postcolonial, feminist and critical race theory. My discussion is organized by
contrasting 'exotic harms,' transgression of social mores and female genital cutting,
with treatment of 'familiar harms', domestic violence and sexual assault. I aim to
show how the distinctions between the exotic and the familiar are founded on
orientalist notions about other women in other places. I seek to suggest strategies for
refugee advocates, decision makers and academic lawyers to avoid perpetuating
orientalist notions of other countries and other cultures. I conclude, however, that
refugee law is a limited project whose solutions to the problems faced by refugee
claimants can only ever be incomplete.Law, Peter A. Allard School of
Graduate
29
Walkem, Ardith Alison. "Bringing water to the land : re-cognize-ing indigenous oral traditions and the laws embodied within them." Thesis, 2000. http://hdl.handle.net/2429/16800.
Full textAbstract:
This is a study of whether, in the introduction of Indigenous oral traditions as
evidence in court, they are being in the complex cultural interplay that occurs in courts, and
whether, given the central role of oral traditions in Indigenous cultures, the nature of
Indigenous Peoples are being transformed in the process when their rights are adjudicated
before the courts. Chapter 2 discusses the ways that the Supreme Court of Canada has
defined s. 3 5 Aboriginal Title, Rights and Treaty Rights (as unlimited or lawless and
therefore a danger to general public interests; assimilated into Canadian sovereignty;
removing the source of these rights from the land in their legal definition; and, removing
Indigenous laws from their definition). Chapter 3 examines the role that history has played
in the legal interpretation of oral traditions, and argues that a primarily historical
consideration obscures the alive, legal, and dynamic elements of oral traditions. Chapter 4
discusses the ways in which a methodology of suspicion has operated to reduce and diminish
Indigenous oral traditions when they are introduced as evidence in court (rating them as
faulty, light weight historic evidence while obscuring their legal content) through a survey of
cases that have considered oral traditions at the trial level. Chapter 5 explores the
devaluation of the Indigenous laws contained in oral traditions through an acceptance of the
common sense assumption that Canadian conservation and safety laws are both rational and
necessary. Chapter 6 argues that recognition (or denial) of Indigenous laws is politically
contingent, and that despite limited legal recognition (in cases such as Delgamuukw v. B.C.
and R. v. Van der Peef), these laws have yet to flow back onto the land, and are yet to be
invigorated in Canadian law. There remains a lack of recognition of the legal content of oral
traditions, and Indigenous jurisprudences risk being subsumed and transformed when they
are introduced as evidence in Canadian courts.Law, Peter A. Allard School of
Graduate
30
Aylwin, José Antonio. "Indigenous peoples’ rights in Chile and Canada : a comparative study." Thesis, 1999. http://hdl.handle.net/2429/9390.
Full textAbstract:
This thesis analyses the past and present realities of the rights of Indigenous peoples in
Chile and Canada from a comparative perspective.
In Chapter I, the author explains the international human rights and Indigenous peoples'
law that provide the theoretical framework behind this study. The political and territorial rights that
different international forums have acknowledged to these peoples in recent years are identified.
The methodology used in the elaboration of this study, which includes the analysis of documentary
data, the case study and the interview methods, is explained. The author describes the objective of
this study, characterizing it as applied social research aimed at providing information that can be
useful for the transformation process in which the peoples that are subject of this study are
involved.
In Chapters II and III, the author analyses the rights of Indigenous peoples in Chile and
Canada respectively from pre-contact until today. The central aspects of their pre-contact cultures
and organizations are described. The author also describes main characteristics of the relationships
that were established with Indigenous peoples by the Spanish in Chile and by the French and the
English in Canada, and later by the states in the two contexts. Special importance is given to those
changes recently introduced in the Indigenous-state relationship in both contexts, focusing on their
implications for these peoples' rights.
In Chapter IV, the author attempts to expand upon the past and present situation of the
Indigenous peoples who live in what is now Canada and Chile by including a case study related to
each context: the Pehuenche people of the Alto Bio Bio in Chile and the Nisga'a people of the Nass
Valley in Canada.
In the last Chapter of this thesis (V) the author concludes that, notwithstanding the changes
introduced in recent years in the relationship between Indigenous peoples and the Chilean and
Canadian states, many and significant problems still impede their ability to enjoy the rights they
claim. The author acknowledges, nevertheless, that Indigenous peoples in Canada, through
different means, including negotiation and litigation, have achieved a much broader recognition of
their political and territorial rights today than have the Indigenous peoples in Chile. The legal,
political, cultural and economic factors that explain these differences are also highlighted in this
final Chapter.
31
Van, der Meide Wayne. "Who guards the borders of ’gay’? : an examination of the implications of the extension of ’spousal’ status to queer people who experience multiple oppression." Thesis, 2001. http://hdl.handle.net/2429/11599.
Full textAbstract:
In this thesis I explore the implications of the extension of 'spousal' status to samesex
couples from the perspective of queer people who experience intersectional or
complex oppression. This study is grounded in a rejection of the necessity or efficacy of
attempting to understanding the oppressions facing queer people from only one
perspective. I reject the notion that such a simplistic approach to understanding
oppression is conceptually honest. Put simply, I argue that what is often characterised
as a purely 'gay and lesbian' approach to reform—namely, the consideration of only
oppression related to 'sexual orientation' or 'heterosexism'—is in reality the prioritisation
of the limited perspective of those who only experience systemic disadvantage related
to their race. These people are a small minority of queer people.
Unlike many other academics and activists, I do not conclude with a 'yes' or 'no'
response to the question of whether same-sex spousal status should be sought. The
analysis presented in this thesis does not permit such a final conclusion for three
reasons. First, I argue that the implications of the extension of spousal status vary
depending on the institutional context; in other words, the extension of spousal status is
very different in the context of social assistance law as compared to the provision of
employment-related benefits. Secondly, I argue that the extension of spousal status
also varies among queer people; for example, the implications of the extension of
spousal status to poor queers are vastly different from those who are wealthy. Thirdly, I
argue that the decision to support the extension of spousal status to same-sex couples
is inherently political; this decision cannot be immunised from political challenge on the
basis that it is derived from some allegedly objective legal or socio-scientific calculus.
Although I have endeavoured adopt a inter-disciplinary approach, this thesis does
focus on legal rights discourse. To my mind, this focus is appropriate given the
emphasis on 'rights talk' and the assumed benefits of formal equality within the
community of academics and activists working on queer issues. In various parts of this
thesis, I focus on the approaches of activists, academics, judges and legislators to the
issue of the rights of queer people and the nature of equality.
Ultimately, I conclude that until we begin to appreciate the complexity of the
oppressions facing queer people, and avoid the false prioritisation of a 'purely gay and
lesbian oppression' perspective, we will be unable to work in coalition or to effect
progressive social change.
32
Lokhorst, Augusta Louise. "Through the eyes of Convention Refugee claimants : the social organization of a refugee determination system." Thesis, 2003. http://hdl.handle.net/2429/14289.
Full textAbstract:
The social organization of Canada's inland refugee determination system is explored in
this institutional ethnographic study. First listening to refugee claimants' experience from their
vantagepoint on the margins of society, the research then explicates the complementary social
relations of the refugee determination system in order to examine the contributing social
organization and underlying ideology of the politico-administrative system.
Three adult, English-speaking single Nigerian men, seeking Convention refugee status or
permanent resident status, were interviewed. Phenomenological methods were utilized to analyze
the data. An initial explication of the social relations of the system was conducted through the
observation of refugee determination hearings and interviews with knowledgeable informants.
Through these interviews and textual analysis, ideology at the politico-administrative level was
explored.
The findings reveal a contradiction between refugees' expectations based on Canada's
international reputation in refugee protection and support of democratic rights, and their
reception in Canada. Refugee claimants spoke of their dual experience as characterized by
exclusion and marginalization from Canadian society at the very time that they needed to
reconstruct their sense of self and adapt; of being held suspect as 'criminals' and 'illegals' by the
refugee determination system until proven 'genuine'. Inclusion depended on success in the
socially, culturally, and politically constructed Canadian refugee determination system; a process
that was foreign to them. Comprehension and successful participation in this process depended in
part on the support, resources, and information they accessed during their initial settlement
period.
The organization of the refugee determination system with a focus on the Immigration
and Refugee Board (IRB) revealed complex independent decision-making in a highly
decentralized, but hierarchical and non-transparent administrative system. Inconsistencies in
decision making and in the degree to which refugees had the opportunity to relate their
experience in refugee determination hearings were articulated and observed. Aspects of the
system such as selection of members, institutional culture, independence of the IRB, and
discourse on refugees in the Canadian media and society were indicators of how the social
relations of the system were organized by an underlying ideology. Implications for the profession
of social work and for social change were examined.
33
Koshan, Jennifer. "Doing the "right" thing : aboriginal women, violence and justice." Thesis, 1997. http://hdl.handle.net/2429/6533.
Full textAbstract:
This thesis focuses on Aboriginal women as survivors of intimate violence, and as
participants in debates about justice and rights in the academic, political and legal spheres.
While several federal and provincial reports have documented the adverse impact of the
dominant criminal justice system on Aboriginal peoples, most of the reports fail to consider
the impact of the dominant system, and of reform initiatives on Aboriginal women, who
engage with such systems primarily as survivors of violence. Although feminist legal
scholars and activists have focused on survivors of violence in critiquing the dominant justice
system, such discourses have also tended to ignore the needs and concerns of Aboriginal
women in recommending reforms to the dominant system, as well as in theorizing the causes
and sites of intimate violence.
Using feminist methods, I explore how the writings of Aboriginal women have begun
to fill these gaps. In focusing on gender and racial oppression, Aboriginal women have
complicated theories on and reforms around intimate violence, and have demanded that they
be included in the shaping of public institutions in both the Canadian legal system, and in
the context of Aboriginal self-government. While Aboriginal women largely support the
creation of Aboriginal justice systems, some have expressed concerns about the willingness
of Aboriginal and non-Aboriginal leaders to include women in the process of creating,
implementing and operating such systems. The Canadian Charter of Rights and Freedoms,
as well as Aboriginal rights under the Constitution Act, 1982 have been advocated as means
of achieving Aboriginal women's participation in this context.
This gives rise to a number of fundamental questions which I examine in my thesis.
What is the historical basis for the participation of Aboriginal women in the political process,
and for survivors of violence in both the dominant and Aboriginal justice systems? What is
the significance of the absence of Aboriginal women from dominant discourses on justice and
intimate violence? Might a broader level of participation for survivors of violence, both
Aboriginal and non-Aboriginal, ameliorate the problematic aspects of the dominant justice
system? Does the Canadian Charter of Rights and Freedoms provide a vehicle for survivors
of violence who seek a greater level of protection and participation in the dominant justice
system? Can the Charter, or Aboriginal rights under the Canadian constitution, assist
Aboriginal women in establishing a right of participation in the processes leading to the
creation of Aboriginal justice systems, and their participation in such systems once they have
been created? What are the limitations of rights discourse in this context?
My analysis suggests that the Supreme Court of Canada's conservative approach to
rights, as well as more fundamental limitations in rights discourse, make constitutional
litigation within the dominant system a sometimes necessary, but not ideal strategy for
Aboriginal women in defining their involvement in the political and justice arenas. On the
other hand, there is potential for rights discourse to bear more fruit once Aboriginal decision
making fora are in place, in keeping with holistic approaches to interpretation, and the
traditional roles of Aboriginal women and survivors of violence in justice and in the
community.
34
Ghitter, Corinne Louise. "Potential value: a challenge to the quantification of damages for loss of earning capacity for female and aboriginal plaintiffs." Thesis, 2000. http://hdl.handle.net/2429/10468.
Full textAbstract:
This thesis questions why young female and aboriginal plaintiffs consistently
receive lower damage awards for loss of future earning capacity than young white male
plaintiffs. I argue that due to the social construction of law, and specifically tort law, the
dividing line between public and private law should be challenged. The effect of tort is
partially "public" in nature due to the broad impact tort has on valuing the potential of
individual plaintiffs. When damages for female and aboriginal plaintiffs are assessed on
a reduced scale due to gender and race, a message is sent that the potential of these
plaintiffs, and the potential of the groups to which they belong, is somehow less. Due to
the "public" impacts of damages quantification, principles of equality derived from the
Canadian Charter of Rights and Freedoms should be considered in the quantification
process.
I argue further, that the current practice of damages quantification has been the
result of the court's over-reliance on "formalist" notions of tort law which has insulated
the area from the social context of law. In addition, I suggest that the acceptance by
courts of economic evidence, which is often reflective of discriminatory norms in the
labour market and our society generally, has had the effect of de-valuing certain members
of Canadian society; in particular women and aboriginal plaintiffs. I demonstrate this
analysis through an examination of cases dealing with young, catastrophically injured,
female and aboriginal plaintiffs. Finally, I suggest that, though an imperfect solution,
currently the only equitable method of quantifying damages for loss of future earning
capacity is to adopt white male earning tables for all young plaintiffs with no
demonstrated earning history.
35
Hannigan, David. "From aboriginality to governmentality:the meaning of section 35(1) and the power of legal discourse." Thesis, 1998. http://hdl.handle.net/2429/8122.
Full textAbstract:
This thesis examines recent doctrinal developments regarding the aboriginal and treaty
rights which are recognised and affirmed in s.35(l) of the Constitution Act, 1982.
Specifically, it explores how the meaning of such rights is being constituted by diverse
relations of power operating within specific 'cites' of struggle.
Chapter I is a brief introduction to recent transformations in the legal discourse of the
Supreme Court and an overview of the methodologies being employed in this thesis. In
this regard, the author undertakes an interdisciplinary approach to discourse analysis.
Chapter II draws upon the writings of Michel Foucault to make the argument for the
analytical framework being utilised; namely, the study of 'law' within a 'sovereign- discipline-
government' society.
Chapter III examines the relationship between the productive power of the disciplines
and the legal discourse constituting the content of aboriginal rights; the purpose being to
explore to what extent law 'operates as a norm' within this area. Additionally, it provides
a lead into the discussion of 'government' by outlining the rationality underpinning the
test for the justified governmental infringement of aboriginal and treaty rights.
Chapter IV, examines the relationship between the regulatory power of 'government'
and the legal discourse around current treaty negotiations. Specifically, it explores the
inter-dependency between rationalities of self-government and the governmental
technologies associated with 'advanced' liberalism. In doing so, it focuses on an
emerging treaty from British Columbia to assess the extent to which law is being used as
'a tactic of government'.
Chapter V, examines the relationship between the deductive power of 'sovereignty' and
the legal discourse constituting the content of Aboriginal title. It argues that recent developments require the Court to deal with the issue of legal pluralism. And to do so, in
a way that lays a more successful foundation in law for the legitimate reconciling of the
pre-existence of First Nations societies and the sovereignty of the Crown.
Chapter VI provides some concluding comments about the insights gained from the
proceeding analysis. In doing so, it offers a brief discussion of how the proceeding
specific analysis may relate to some recent work in post-colonial studies.
36
Toovey, Karilyn. "Decolonizing or recolonizing : indigenous peoples and the law in Canada." 2005. http://hdl.handle.net/1828/744.
Full text
37
Schlecker, Regan Dawn. "Dreamcatcher 22 : commissions of inquiry and Aboriginal criminal justice reforms." Thesis, 2001. http://hdl.handle.net/2429/11856.
Full textAbstract:
The last decade has seen the development of an unprecedented profile for
aboriginal concerns over the inadequacies of the criminal justice system. This thesis
examines the major commissions of inquiry that were established to address criminal
justice reforms for aboriginal Canadians. Through a comparison of these inquiries, it is
my intention to provide a greater understanding as to why some commissions have had a
more positive role to play in initiating policy change, while others have been less than
satisfactory in promoting the needs of aboriginal persons.
Analysis reveals that commissions of inquiry are most often established to address
more general concerns about the impact of the criminal justice system on aboriginal
peoples, rather than to investigate specific cases in which there was a miscarriage of
justice. My findings also reveal that the current criminal justice system can and should be
improved, without in any way detracting from the movement toward the larger social,
political and economic goal of self- determination. Due to the fact that autonomous
solutions remain prevalent in the academic literature, future inquiries will be required to
acknowledge this perspective. An appreciation of the variety of concerns held by
aboriginal individuals can only be made possible through extensive consultation with
aboriginal communities and utilizing creative and innovative means of gathering
research. By providing an open process, commissions will be able to encompass views
that may not be prevalent in academic circles, but accepted at a grass roots level.
On the much larger question of the policy impact of commissions of inquiry, they
have been useful institutions for opening up the policy debate in regards to criminal
justice reforms for aboriginal Canadians. Frequently these inquiries have been faulted
because their specific recommendations are not accepted. However, inquiries are valuable
because they provide one of the few occasions for defining public issues, including
debate about reformist and radical conceptions of the issues. Consequently it is more
useful to assess commissions of inquiry for their role in the development of policy
debate.
38
Duncan, Emmet John. "Challenging the monologues: toward an intercultural approach to aboriginal rights." Thesis, 1998. http://hdl.handle.net/2429/8106.
Full textAbstract:
The author critiques various strands of liberal moral and political theory as they relate to
Aboriginal rights. In particular, he rejects the formulation of liberal theory by philosopher Will
Kymlicka, as failing to respond to the unique realities and perspectives of First Nations. He then
draws on the insights of philosophers Charles Taylor and James Tully to argue for a new
approach to Aboriginal rights, premised on principles of dialogue, recognition and the
willingness to engage in an "intercultural journey" in which a middle ground of law, informed by
Canadian and indigenous norms, is created.
In chapters two through four, the author employs Wittgenstein's "perspicuous contrast" in
order to reveal the dialogical basis of Gitksan and Wet'suwet'en legal and political structures, as
well as to reveal the dominant role that "monologues" play in the Canadian law of Aboriginal
rights. He identifies three monologues: discovery, sovereignty and the "authentic Indian," by
which Canadian law marginalizes and subjugates First Nations and their legal systems. Such
monologues depend for their coherence and success upon Aboriginal silence.
In chapter five, the author argues that notwithstanding the persistence of monologues,
Canadian law can be open to dialogue and to the broadening of understanding that is required for
the construction of an intercultural legal middle ground. He issues a strong call for the legal
system to turn to Aboriginal law as a major source for the middle ground, and argues that doing
so will help preserve the ability of First Nations to participate in the intercultural dialogue in their
own voices and ways of knowing, which is essential to the successful deployment of the
approach argued for in chapter one.
The author concludes that the middle ground will best be achieved through treaties,
backed by an intercultural legal duty on all parties to negotiate in good faith. He also argues that
a rethinking of sovereignty is necessary, in order to preserve the ability of First Nations to
participate in intercultural dialogue secure in their autonomy and self-determination. To that end,
he argues that courts can provide a useful "backdrop" to the intercultural middle ground, by
continuously identifying intercultural legal norms which respect bedrock principles of each
community's legal system in order to preserve the autonomy and self-determination of each.
39
McCue, Lorna June. "Treaty-making from an indigenous perspective : a ned’u’ten-canadian treaty model." Thesis, 1998. http://hdl.handle.net/2429/8320.
Full textAbstract:
This thesis argues that the Ned'u'ten, an indigenous people, have the right to decolonize
and self-determine their political and legal status at the international level. The Ned'u'ten are
currently negotiating a new relationship with Canada and are considering various treaty models
to achieve this goal. This thesis advocates principles for a peace treaty model that accomplishes
both Ned'u'ten decolonization and self-determination.
The first chapter of this thesis demonstrates that indigenous perspectives in legal culture
are diverse and not homogeneous. My Ned'u'ten perspective on treaty-making contributes to
these perspectives.
The second chapter challenges the legitimacy of the Canadian state, over Ned'u'ten
subjects and territories. This is accomplished through the rejection of dispossession doctrines that
Canada has used to justify colonial and oppressive practices against the Ned'u'ten.
Decolonization principles are prescribed in this chapter.
The third chapter takes a historical view of the right to self-determination and shows how
state practice, indigenous peoples' participation, and international scholars have attempted to
articulate the scope and content of this right in the contemporary context of indigenous self-determination.
A Ned'u'ten self-determination framework is proposed based on indigenous
formulations of the right to self-determination. Self-determination principles are also prescribed
in this chapter.
The final chapter compares two cases where indigenous peoples in Canada are attempting
to create a new relationship with the state: the James Bay Cree and "First Nations" in the British
Columbia Treaty Commission Process. This comparison will show that the degree of
participation that indigenous peoples have in implementing their rights to self-determination, will
determine the parameters of any new relationship that indigenous peoples create with the state.
Negotiating principles are prescribed for a Ned'u'ten-Canada relationship as well as a peace
treaty process to accomplish this goal.
It is my thesis that the Ned'u'ten and Canada can achieve a peaceful and balanced
relationship through the peace treaty model I propose.
40
Ghedia, Jayshree. "Prisoners : rights, rhetoric and reality." Thesis, 2002. http://hdl.handle.net/2429/12915.
Full textAbstract:
Prisoners rights has become an issue of ever increasing visibility since the middle of the
last century. Concern for the rights of those incarcerated within our prisons has
intensified with the rise of civil liberties in both Canada and England. Both countries
have introduced measures which purport to guarantee fundamental rights and freedoms
to their citizens, measures which it would be reasonable to assume, would further the
advance of prisoners rights. And yet, progress remains decidedly sluggish.
This thesis traces the evolution of rights philosophy, then considers the parallel
developments of prisoners rights, penal philosophy and civil liberties and seeks to
explain why the potential for advancement has not been fully realized.
Prisoners are incarcerated having been found guilty of the most grave of criminal
offences and as a consequence, it is perhaps a basic instinct which determines that
retribution, and only retribution is warranted in such circumstances. In the age of human
rights however, there is the wider picture to consider. This is an age where compassion,
mercy and benevolence are to triumph over barbarism, destruction and senseless harm.
The conflict between these competing perspectives cannot be dealt with merely by
enacting legislation which compels the judiciary to consider claims in a different light,
and can only be resolved through a revolution beginning with definitive stance in
judicial treatment of prisoner right claims which embraces the philosophy of international human rights provisions. In order to be effective, this must be assisted by
bringing about changes within the prison system itself which empower the prisoner and
seek to eliminate the feelings of embitterment and resentment which commonly prevail
amongst prisoners. The introduction of such measures will only be acceptable if society
itself recognizes that imprisonment is transitory and that those who we incarcerate
within the walls of our prison, will soon be among us.
41
Sharma, Parnesh. "Aboriginal fishing rights, Sparrow, the law and social transformation : a case study of the Supreme Court of Canada decision in R. v. Sparrow." Thesis, 1996. http://hdl.handle.net/2429/4659.
Full textAbstract:
Aboriginal rights, and aboriginal fishing rights in particular, are topics which elicit a
variety of responses ranging from the positive to hostile. In British Columbia, fish is big
business and it is the fourth largest industry in the province. The stakes are high and the
positions of the various user groups and stakeholders are clearly demarcated. The fight over fish
has pitted aboriginal groups against other aboriginal groups as well as against the federal
government and its department of fisheries and oceans - however, the fight becomes vicious,
underhanded, and mean spirited when the aboriginal groups are matched against the commercial
industry.
In an attempt to even the odds the aboriginal peoples have turned to the courts for
recognition and protection of what they view as inherent rights - that is a right to fish arising out
of the very nature of being an aboriginal person. Up until the Supreme Court of Canada decision
in R. v. Sparrow aboriginal rights had been virtually ignored by both the courts and the state.
However Sparrow changed all that and significantly altered the fight over fish. And that fight
has become a virtual no-holds barred battle.
The Sparrow decision remains to this day one of the most important Supreme Court
decisions pertaining to aboriginal rights. This thesis is a case study of Sparrow - it will examine
the decision from a perspective of whether subordinate or disadvantaged groups are able to use
the law to advance their causes of social progress and equality. The thesis examines the status and nature of aboriginal fishing rights before and after the
Sparrow decision. The thesis will examine whether the principles of the decision have been
upheld or followed by the courts and the government of Canada. Data will consist of interviews
with representatives of the key players in the fishing industry, namely, the Musqueam Indian
Band, the Department of Fisheries and Oceans, and the commercial industry.
In brief, the findings of my research do not bode well for the aboriginal peoples - the
principles of the Sparrow decision have not been followed by the government of Canada and
aboriginal fishing rights remain subject to arbitrary control. The thesis will examine why and
how this happened.
42
Rigg, Jeremy. "Performance under pressure: the impact of coercive authority upon consent to treatment for sex offenders." Thesis, 1998. http://hdl.handle.net/2429/9026.
Full textAbstract:
This thesis is concerned with the correctional treatment process for sex offenders, and the
problems that criminal justice system authority poses for treatment settings. A particular
focus is whether inmate participation in treatment programs is voluntary or coerced, given
the link between programs and prospects of release.
In examining this question, the author considers the results of an empirical project in
which a group of inmates were interviewed about their perceptions of the correctional
treatment process. Background to this project includes discussion of the doctrine of
informed consent and respect for autonomy as its underlying rationale; discussion of the
concepts of coercion and voluntariness; and examination of the development of
rehabilitative ideals. A conclusion drawn from the discussion is that the presence of
coercive authority may impact adversely upon correctional treatment efforts. Coercive
authority creates difficulties in relation to the voluntariness of inmates' consent, the
confidentiality of the treatment relationship, and the professional autonomy of the
clinician. These problems in turn raise questions as to whether correctional programs
retain the character of treatment, or are more properly considered as part of punishment,
or as tools of social control. However, coercive authority is a necessary presence if
correctional services are to work towards the goal of protection of society.
The central question to be addressed therefore is whether the prospects of release can be
used to motivate inmates for treatment in a way that is consistent with the requirement of
voluntary consent to treatment. The results of the empirical project suggest that for the
majority of inmates, the link between treatment and release is not coercive. However, a
number of inmates did indicate they felt coerced into treatment programs. Reforms may
thus be necessary to avoid coercive authority resulting in coerced treatment. In discussing
these results, the author considers a number of directions for reform, including the
introduction of an operational presumption of coerced referrals to treatment, which would
place greater emphasis on clinicians' obligations to secure voluntary consent.
43
Leger, Sylvie N. ""People" and "minority" from theory to reality." Thesis, 1999. http://hdl.handle.net/2429/9165.
Full text
44
McGregor, Cara. "From theory to practice : the Canadian courts and the adjudication of (post-modern) identities." Thesis, 2004. http://hdl.handle.net/2429/15766.
Full textAbstract:
In this work, I introduce the concept of identity, outline its importance, and argue in
favour of a post-modem conception of identity, underpinned by the principles of
contestation, anti-essentialism and hybridity. This notion of identity, which is supported
by both theoretical and case evidence, is in tension with the practices of the courts, which
are often asked to make determinations that impact identities. The court's conventions
and practices privilege a modernist notion of identity; given these restrictions, how are
post-modern identities, such as the Metis, to be recognized? Using the case ofK v.
Powley, / explore the possibilities and openings for a post-modern concept of identity to
be realized in the courts. While there are conflicts and restrictions, judges, courts and the
law demonstrate sufficient flexibility to allow for post-modern principles to be realized. I
conclude by arguing that the courts should go further in developing a post-modern
conception of identity in their work, and explore the issues and implications of doing so. I
also reflect on the broader question this work presents, namely the role of the law and the
possibilities for change therein.Arts, Faculty of
Political Science, Department of
Graduate
45
Chartier, Mélanie. "The Crown’s duty to consult with First Nations." Thesis, 2001. http://hdl.handle.net/2429/11932.
Full textAbstract:
The Crown has fiduciary obligations to First Nations and must act in
consequence. One of this consequence is that the Crown has a duty to consult with
aboriginal peoples when it infringes aboriginal or treaty right. The thesis deals with the
principles related to the Crown's duty to consult with First Nations. I elaborate on
principles established by the courts and also on questions that remain unanswered to date.
Those questions include when, how and with whom the consultation should be done. I
also examine the situation in New Zealand, where the consultation process is a little more
advanced than here in Canada and compare the principles elaborated by New Zealand
courts with those existing in Canada. From the New Zealand experience, I suggest
consultation guidelines to be used in Canada by the Crown and its representatives.
46
Johnston, William Wayne. "Autonomous aboriginal criminal justice and the Charter of Rights." Thesis, 1992. http://hdl.handle.net/2429/3337.
Full textAbstract:
The imminent recognition of an inherent Aboriginal right to selfgovernment
signals the beginning of the reversal of a colonization process
which threatened the cultural survival of a people. The Report of the Aboriginal
Justice Inquiry of Manitoba , hereinafter referred to as the Inquiry, advocates an
autonomous Aboriginal criminal justice system as a significant component of
this cultural revitalization. This Aboriginal criminal justice system would differ
markedly from the conventional system in giving priority to collective rights over
conflicting individual rights. The Inquiry rejects the Charter as alien to Aboriginal
values and advocates a “tailor-made” Aboriginal charter that would incorporate
“only those fundamental freedoms and civil liberties that do not violate the
beliefs and paramount collective rights of the Aboriginal peoples.”
The conventional justice system’s paramount concern for individual
rights is premised on the potential of punishment. The Inquiry’s starkly
contrasting paramount emphasis on collective rights is premised on an
Aboriginal view of justice which this thesis refers to as the “harmony ethos”:
The underlying philosophy in Aboriginal societies in
dealing with crime was the resolution of disputes, the
healing of wounds and the restoration of social
harmony… Atonement and restoration of harmony
were the goals - not punishment.
The tension between individual and collective rights apparent in the
proposal of the Inquiry is the specific focus of this thesis. The colonization
process may justify a separate Aboriginal justice system. However, the harmony
ethos premise, while appropriate to the mediation-reconciliation communitarian
model of justice advocated by the Inquiry, blinds the Inquiry to the additional,
and crucially different, adjudicative-rights imperatives of the contemporary
Aboriginal society.
Actually existing Indianism reveals conflict-generating fault lines in the
harmony premise which challenge the sufficiency of the Inquiry’s group-based justice paradigm and indicate a need and desire for an adjudication justice
component and concomitant Charter values.
This adjudication hiatus in the Inquiry position is a reflection of a similar
void in historical Aboriginal justice which challenges the asserted rationale of
cultural survival for the paramountcy of collective rights in the contemporary
Aboriginal justice system. This historical adjudication hiatus does not preclude
a separate Aboriginal justice system, but favours the inclusion of Charter values
to strengthen an adjudication cultural foundation which is frail relative to its
reconciliation-mediation strength.
This thesis is a modest attempt to address the interface between two
systems; one mature, but in need of change, the other, fledging and in need of
assistance. The Charter provides a ready and flexible framework to join the
Aboriginal community both to the larger society and to the unlanded Aboriginal
diaspora by principled standards of justice. These fundamental indicia of
fairness, recognized by all civilized self-governing units, constitute no significant
threat to the cultural survival of the Aboriginal mediation justice heritage, while
buttressing its inherent adjudication frailty.
47
Sandford, Christie. "Kymlicka and the aboriginal right." Thesis, 1996. http://hdl.handle.net/2429/5662.
Full textAbstract:
This thesis is concerned with two central questions. The first is theoretical and asks,
"Can a direct appeal be made to the foundational principles of liberalism to support
collective rights?" The second question is practical and asks: "Would such a defense
serve the interests of contemporary Canadian Aboriginal claims to special
constitutionally recognized collective rights known as the Aboriginal Right?" I utilize
Will Kymlicka's defense of minority rights as the theoretical framework in assessing this
first question and in assessing the latter, I refer to various reported Aboriginal
conceptions of the so-called Aboriginal Right which have been formalized by Aboriginal
people themselves through constitutional addresses, Royal Commission hearings,
discussion papers and legal claims.
Part I of the thesis involves an enquiry into the nature of the revisions that Kymlicka
proposes to make to liberal theory, and asks whether, in making such changes, he is able
to retain identification with the so-called "modern" liberals, with whom Kymlicka
identifies himself, and consistently defend the kind of group minority rights of the sort
actually being claimed in Canadian society today. I conclude that Kymlicka argument
fails in two respects: it fails to do the work required of it by modern liberals and it
ultimately fails to do the work required by the standards of Kymlicka own theory.
In Part II, I argue that even if it were theoretically possible to protect the good of culture
in the way that Kymlicka hopes, such a defense of collective rights fails in the most
important respect: that is, it cannot do the work required of it by the Aboriginal people
for whom it was designed.
48
Schouls, Timothy A. "Shifting boundaries : aboriginal identity, pluralist theory, and the politics of self-government in Canada." Thesis, 2002. http://hdl.handle.net/2429/13235.
Full textAbstract:
While Canada is often called a pluralist state, there are no sustained studies by political
scientists in which aboriginal self-government is discussed specifically in terms of the
analytical tradition of pluralist thought. Aboriginal self-government is usually discussed as an
issue of cultural preservation or national self-determination. Aboriginal identity is framed in
terms of cultural and national traits that are unique to an aboriginal community and selfgovernment
is taken to represent the aboriginal communal desire to protect and preserve those
traits. Is such an understanding of what motivates aboriginal self-government accurate, or
does it yield an incomplete understanding of the complex phenomenon that aboriginal selfgovernment
in Canada represents?
The political tradition of pluralism allows for analysis of aboriginal self-government
that addresses questions left unattended by the cultural and nationalist frameworks. Pluralism
is often viewed as a public arrangement in which distinct groups are given room to live side by
side, characterized by mutual recognition and affirmation. At the same time, there are
different faces of pluralist theory and each addresses questions about the recognition and
affirmation of aboriginal self-government in different ways. Those three contemporary faces
can be distinguished by the labels communitarian, individualist, and relational.
The major hypothesis advanced is that aboriginal self-government is better understood
if an "identification" perspective on aboriginal identity is adopted as opposed to a "cultural" or
"national" one and if that perspective is linked to a relational theory of pluralism as opposed to
a communitarian or individualist one. The identification approach examines aboriginal identity
not in terms of cultural and political traits, but in terms of identification with, and political
commitment to, an aboriginal community. Relational pluralism in turn, examines the challenge
of aboriginal self-government in terms of power differences within aboriginal communities and
between aboriginal and Canadian governments.
Applying these approaches to aboriginal politics in Canada confirms their suitability.
Contrary to what previous scholarship has assumed, aboriginal self-government should not be
seen primarily as a tool to preserve cultural and national differences as goods in and of
themselves. The politics of aboriginal self-government should be seen as involving demands
to equalize current imbalances in power so that aboriginal communities and the individuals
within them can construct aboriginal identities according to their own design.
49
Swart, Willem Jacobus Christiaan. "Relief from oppressive or prejudicial conduct in terms of the South African Companies Act 71 of 2008." Thesis, 2019. http://hdl.handle.net/10500/26620.
Full textAbstract:
This thesis critically examines the statutory unfair prejudice remedy provided for in section 163 of the Companies Act 71 of 2008 (‘the Act’). Section 163 is evaluated against its equivalents in England, Australia and Canada. Section 163 is considered against its predecessors to determine whether problems associated with the formulation and application of its predecessors have now been eradicated. It is argued that although it is important to ensure that company legislation is able to provide protection of an international standard to shareholders to be able to attract capital investment in a competitive market, one has to be cautious of slavishly following legislative trends in foreign jurisdictions. The South African legislature indiscriminately incorporated only parts of the Canadian unfair prejudice remedy in section 163. This approach also resulted, amongst others, in the introduction of foreign concepts. The legislature further failed to take cognisance of the unique historical developments relating to the unfair prejudice remedy in South Africa. This has led to the reintroduction of problems experienced with previous formulations of the statutory unfair prejudice remedy in South Africa and left certain problems relating to the interpretation and application of the statutory unfair prejudice remedy unresolved. Consideration is also given to the interrelationship between section 163 and some of the statutory remedies in the Act. Section 163 is also assessed in the context of the Constitution of the Republic of South Africa, 1996. In conclusion, recommendations for possible legislative amendments are made and an interpretational framework for the interpretation and application of the statutory unfair prejudice remedy in section 163 is provided.Mercantile Law
LL. D. (Mercantile Law)
50
Rush, Joan L. "Stillborn autonomy : why the Representation Agreement Act of British Columbia fails as advance directive legislation." Thesis, 2005. http://hdl.handle.net/2429/17543.
Full textAbstract:
An advance directive is an instruction made by a competent person about his or her
preferred health care choices, should the person become incapable to make treatment
decisions. Legal recognition of advance directives has developed over the last half
century in response to medical advances that can prolong the life of a patient who is no
longer sentient, and who has decided to forego some or all treatment under such
circumstances. Two types of directive have emerged in the law: an instructional
directive, in which a person sets out treatment choices, and a proxy directive, which
enables the person to appoint a proxy to make treatment decisions.
Development of the law has been impeded by fear that advance directives diminish
regard for the sanctity of life and potentially authorize euthanasia or assisted suicide. In
Canada, this fear explains the continued existence of outdated criminal law prohibitions
and contributes to provincial advance directive legislation that is disharmonized and
restrictive, in some provinces limiting personal choice about the type of advance directive
that can be made. The British Columbia Representation Agreement Act (RAA)1 is an
example of such restrictive legislation. The RAA imposes onerous execution
requirements, is unduly complex and restricts choice of planning instrument.
Respect for patient autonomy requires that health care providers honour patients'
prospective treatment preferences. Capable persons must have ready access to a choice
of health care planning instruments which can be easily executed. B.C. should
implement advance directive legislation that meets the needs and respects the autonomy
of B.C. citizens. The Criminal Code must be amended to eliminate physicians' concern
about potential criminal liability for following an advance directive. Advance directive
legislation across Canada should be harmonized. Finally, health care providers should
receive training on effective ways to communicate with patients about end-of-life
treatment decisions to ensure that patients' health care choices are known and respected.Law, Peter A. Allard School of
Graduate