QUEENS LAW JOURNAL最新文献

“Who Gets the Dog?” A Family Law Approach “谁得到了狗?”家庭法方法

IF 2 Q3 LAW

QUEENS LAW JOURNAL

Pub Date : 2020-01-01 DOI: 10.2139/ssrn.3514178

Jodi Lazare

引用次数: 0

R V Bingley and the Importance of Scientifically-Guided Legal Analysis 宾利与科学指导法律分析的重要性

IF 2 Q3 LAW

QUEENS LAW JOURNAL

Pub Date : 2017-07-10 DOI: 10.31228/osf.io/4p7eg

J. Chin, Helena Likwornik

In R v Bingley, the Supreme Court considered a controversial subjective methodology used by police officers trained as drug recognition experts (DREs) pursuant to the Criminal Code. At issue was the admissibility of these experts’ evidence. A 5-2 majority held that Parliament conclusively established the reliability the DRE program’s methodology and the DRE’s qualifications to perform that methodology, and thus trial judges may not exclude DREs for those reasons. Bingley is problematic on multiple fronts. Most fundamentally, the Majority’s statutory interpretation was insensitive to the science behind the drug recognition program. Their analysis put this subjective methodology on the same footing as objective forms of evidence, like breathalyser analysis, where human judgment and bias play almost no role. More broadly, the Majority’s decision comes in light of recent findings that several forensic scientific disciplines are not as reliable as they purport to be. The Majority’s reasoning seemed largely driven by concerns about judicial economy, and in particular the worry that evaluating DREs would take too much court time. In response, we provide a more scientifically rigorous but less time-consuming way for trial judges to scrutinize DREs.

在R诉Bingley案中，最高法院审议了根据《刑法》接受毒品识别专家培训的警察使用的一种有争议的主观方法。争论的焦点是这些专家证据的可采性。5-2的多数票认为，议会最终确定了DRE项目方法的可靠性以及DRE执行该方法的资格，因此审判法官不得出于这些原因排除DRE。宾利在许多方面都有问题。最根本的是，多数党的法定解释对药物识别计划背后的科学不敏感。他们的分析将这种主观方法与客观形式的证据建立在相同的基础上，如酒精测试仪分析，人类的判断和偏见几乎没有起到任何作用。更广泛地说，多数党的决定是基于最近的调查结果，即一些法医科学学科并不像他们声称的那样可靠。多数党的推理似乎主要是出于对司法经济的担忧，尤其是担心评估DRE会花费太多的法庭时间。作为回应，我们为审判法官提供了一种更科学、更严格但耗时更少的方式来审查DRE。

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引用次数: 2

The regulation of science and the Charter of Rights: would a ban on non-reproductive human cloning unjustifiably violate freedom of expression? 科学管理和《权利宪章》:禁止非生殖性人类克隆是否会无理侵犯言论自由?

IF 2 Q3 LAW

QUEENS LAW JOURNAL

Pub Date : 2004-01-01 DOI: 10.7939/R30863K93

B. Billingsley, T. Caulfield

Non-Reproductive Human Cloning (NRHC) allows researchers to develop and clone cells, including non-reproductive cells, and to research the etiology and transmission of disease. The ability to clone specific stem cells may also allow researchers to clone cells with genetic defects and analyze those cells with more precisions. Despite those potential benefits, Parliament has banned such cloning due to a myriad of social and ethical concerns. In May 2002, the Canadian Government introduced Bill C-13 on assisted human reproductive technologies. Bill C-13 deals with both the scientific and the clinical use of human reproductive materials, and it prohibits a number of other activities, including NRHC. Although the Supreme Court of Canada has never ruled on whether scientific experiments area form of expression, academic support exists for this notion. The authors go through the legal analysis that would be required to find that scientific experiments are expression, focusing in part on whether NRHC could be considered violent and thus fall outside the protection of section 2(b). The latter question is complicated by the ongoing policy debate over whether an "embryonic cell" is property of human life. The authors then consider whether a ban on NRHC could be justified under section 1 of the Charter. They conclude that both the breadth of the legislative purpose and the proportionality of the measure are problematic. Proportionality is a specific concern because the ban could be viewed as an outright denial of scientific freedom of expression. Although consistent with current jurisprudence on freedom of expression, this paper runs against the flow of government policy in the areas of regulation and prohibition of non-reproductive human cloning. As there has been no Charter litigation to date on whether scientific research is a form of expression, the authors introduce a new way of looking at the legality of the regulation of new reproductive technologies.

非生殖性人类克隆(NRHC)允许研究人员开发和克隆细胞，包括非生殖细胞，并研究疾病的病因和传播。克隆特定干细胞的能力也可能使研究人员能够克隆具有遗传缺陷的细胞，并更精确地分析这些细胞。尽管有这些潜在的好处，但由于无数的社会和伦理问题，议会已经禁止了这种克隆。2002年5月，加拿大政府提出了关于辅助人类生殖技术的C-13号法案。第C-13号法案涉及人类生殖材料的科学和临床使用，并禁止一些其他活动，包括NRHC。尽管加拿大最高法院从未就科学实验是否属于表达形式作出裁决，但学术界对这一概念的支持是存在的。作者进行了必要的法律分析，以发现科学实验是一种表达，部分侧重于NRHC是否可以被视为暴力，从而不受第2(b)条的保护。关于“胚胎细胞”是否属于人类生命财产的政策争论使后一个问题变得复杂。然后，作者考虑根据《宪章》第1条禁止NRHC是否合理。他们的结论是，立法目的的广度和措施的相称性都存在问题。相称性是一个特别值得关注的问题，因为这项禁令可能被视为对科学言论自由的彻底否定。虽然与当前关于言论自由的判例一致，但本文违背了政府在监管和禁止非生殖性人类克隆方面的政策。由于迄今为止还没有关于科学研究是否是一种表达形式的《宪章》诉讼，作者介绍了一种看待新生殖技术管制合法性的新方法。

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引用次数: 4

The regulation of science and the Charter of Rights: would a ban on non-reproductive human cloning unjustifiably violate freedom of expression? 科学管理和《权利宪章》:禁止非生殖性人类克隆是否会无理侵犯言论自由?

IF 2 Q3 LAW

QUEENS LAW JOURNAL

Pub Date : 2004-01-01

Barbara Billingsley, Timothy Caulfield

Non-Reproductive Human Cloning (NRHC) allows researchers to develop and clone cells, including non-reproductive cells, and to research the etiology and transmission of disease. The ability to clone specific stem cells may also allow researchers to clone cells with genetic defects and analyze those cells with more precisions. Despite those potential benefits, Parliament has banned such cloning due to a myriad of social and ethical concerns. In May 2002, the Canadian Government introduced Bill C-13 on assisted human reproductive technologies. Bill C-13 deals with both the scientific and the clinical use of human reproductive materials, and it prohibits a number of other activities, including NRHC. Although the Supreme Court of Canada has never ruled on whether scientific experiments area form of expression, academic support exists for this notion. The authors go through the legal analysis that would be required to find that scientific experiments are expression, focusing in part on whether NRHC could be considered violent and thus fall outside the protection of section 2(b). The latter question is complicated by the ongoing policy debate over whether an "embryonic cell" is property of human life. The authors then consider whether a ban on NRHC could be justified under section 1 of the Charter. They conclude that both the breadth of the legislative purpose and the proportionality of the measure are problematic. Proportionality is a specific concern because the ban could be viewed as an outright denial of scientific freedom of expression. Although consistent with current jurisprudence on freedom of expression, this paper runs against the flow of government policy in the areas of regulation and prohibition of non-reproductive human cloning. As there has been no Charter litigation to date on whether scientific research is a form of expression, the authors introduce a new way of looking at the legality of the regulation of new reproductive technologies.

非生殖性人类克隆(NRHC)允许研究人员开发和克隆细胞，包括非生殖细胞，并研究疾病的病因和传播。克隆特定干细胞的能力也可能使研究人员能够克隆具有遗传缺陷的细胞，并更精确地分析这些细胞。尽管有这些潜在的好处，但由于无数的社会和伦理问题，议会已经禁止了这种克隆。2002年5月，加拿大政府提出了关于辅助人类生殖技术的C-13号法案。第C-13号法案涉及人类生殖材料的科学和临床使用，并禁止一些其他活动，包括NRHC。尽管加拿大最高法院从未就科学实验是否属于表达形式作出裁决，但学术界对这一概念的支持是存在的。作者进行了必要的法律分析，以发现科学实验是一种表达，部分侧重于NRHC是否可以被视为暴力，从而不受第2(b)条的保护。关于“胚胎细胞”是否属于人类生命财产的政策争论使后一个问题变得复杂。然后，作者考虑根据《宪章》第1条禁止NRHC是否合理。他们的结论是，立法目的的广度和措施的相称性都存在问题。相称性是一个特别值得关注的问题，因为这项禁令可能被视为对科学言论自由的彻底否定。虽然与当前关于言论自由的判例一致，但本文违背了政府在监管和禁止非生殖性人类克隆方面的政策。由于迄今为止还没有关于科学研究是否是一种表达形式的《宪章》诉讼，作者介绍了一种看待新生殖技术管制合法性的新方法。

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引用次数: 0

When things go wrong: the duty to disclose medical error. 当事情出错时:披露医疗错误的责任。

IF 2 Q3 LAW

QUEENS LAW JOURNAL

Pub Date : 2002-01-01

Gerald B Robertson

引用次数: 0

IF 2 Q3 LAW

QUEENS LAW JOURNAL

Pub Date : 1993-01-01

W F Flanagan

Do patients and health care workers have the legal right to know each other's HIV status? Professor Flanagan argues that they do not. Given that with appropriate precautions the risk of transmitting HIV in the health care setting is extremely small and that the discriminatory consequences of HIV disclosure can be extremely high, it is suggested that the right of a patient or a health care worker not to disclose their HIV status must outweigh the other's "right to know."

病人和医护人员是否有法律权利了解彼此的艾滋病毒状况?弗拉纳根教授认为，他们没有。鉴于采取适当预防措施，在保健环境中传播艾滋病毒的风险极低，而披露艾滋病毒的歧视性后果可能非常高，因此，建议患者或保健工作者不披露其艾滋病毒状况的权利必须高于另一方的"知情权"。

引用次数: 0

Envisaging Constitutional Space for Aboriginal Governments 设想土著政府的宪法空间

IF 2 Q3 LAW

QUEENS LAW JOURNAL

Pub Date : 1993-01-01 DOI: 10.2139/SSRN.2259647

Kent McNeil

When the Supreme Court decided Sparrow, it could have interpreted s. 35 of the Constitution to give Aboriginal peoples absolute power over Aboriginal and treaty rights, a power which neither Parliament nor the Provinces could trump. Instead, the Court interpreted s. 35 to mean that Parliament could still infringe Aboriginal rights if the infringement could be justified by a strict test. Professor McNeil suggests that this interpretation does not originate in the constitutional text so much as in the British constitutional concepts of Parliamentary sovereignty and the rule of law. He argues that the Court maintained Parliament's power to regulate Aboriginal rights because it combined these constitutional concepts with an assumption that these rights are not effectively regulated by Aboriginal governments and laws. The Court's unarticulated fear was that an intolerable legal vacuum would be created if s. 35 was interpreted as excluding all federal regulatory power. The author argues, however, that to decolonize Canadian constitutional law, we must redefine Parliamentary sovereignty and the rule of law to include Aboriginal governments and laws, which could fill the constitutional space that s. 35 provided and avoid the vacuum that the Court feared.

当最高法院判决斯派洛一案时，它本可以解释宪法第35条，赋予土著人民对土著和条约权利的绝对权力，这是议会和各省都无法超越的权力。相反，法院对第35条的解释是，如果议会可以通过严格的检验证明侵权是正当的，那么议会仍然可以侵犯土著居民的权利。麦克尼尔教授认为，这种解释与其说源于宪法文本，不如说是源于英国宪法中关于议会主权和法治的概念。他认为，法院维持了议会调节土著权利的权力，因为它将这些宪法概念与土著政府和法律没有有效调节这些权利的假设结合在一起。最高法院的隐隐约约的担心是，如果将第35条解释为排除所有联邦管理权力，将会造成无法容忍的法律真空。然而，作者认为，为了使加拿大宪法非殖民化，我们必须重新定义议会主权和法治，以包括土著政府和法律，这可以填补第35条提供的宪法空间，避免法院担心的真空。

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引用次数: 13

The Constitutional Guarantee of Aboriginal and Treaty Rights 原住民与条约权利之宪法保障

IF 2 Q3 LAW

QUEENS LAW JOURNAL

Pub Date : 1982-01-01 DOI: 10.2139/ssrn.3351443

B. Slattery

引用次数: 18