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The Harms Caused: A Narrative of Intergenerational Responsibility 造成的伤害:代际责任的叙事
IF 0.5 Pub Date : 2019-03-25 DOI: 10.29173/ALR2526
M. Hough
Born out of the Indian Residential Schools Settlement Agreement, the Independent Assessment Process is a program that provides monetary compensation to former students who suffered sexual and physical abuse at Indian Residential Schools. As “Canada’s Representative” during hearings of the Independent Assessment Process, this author, a young lawyer at the time, bore witness to grizzly accounts of acts perpetrated against claimants that left her unsettled. Unsettled by what was heard, yes, but also in her observations that the process did not satisfy the needs of all claimants, nor did it engage with her own sense of responsibility as a non-Indigenous Canadian. The author weaves together her experiences and observations as “Canada’s Representative” to explore intergenerational justice in a Canadian setting, and what processes might offer a more complete approach in handling the Indian Residential Schools legacy. First, shecanvasses the existing framework of dispute settlement in the context of Indian Residential Schools, namely criminal, tort, and alternative dispute resolution mechanisms. While pointing out the strengths these mechanisms do have to address some of the harms of Indian Residential Schools, she ultimately suggests their inherent legal limitations make them inadequate tools to provide redress to victims and engage society more broadly. The author goes on to define transitional justice, set out its established tenets and themes, and begins to map out a Canadian application of these principles to the Indian Residential Schools policy by drawing on examples from Australia, New Zealand, and the United States. These principles take shape as innovative instruments for advancing the goals of reconciliation and of Canadian society. They are not without their own flaws, however, as the author also points out, that may affect how Canadians—in particular, non-Indigenous Canadians—view their legitimacy. Lastly, the author analyzes prevailing views of societal responsibility to provide a normative underpinning for intergenerational justice in a Canadian context. She concludes by advocating Canadians move from a stance of guilt and blame toward one of a broad assumption of responsibility as they continue to grapple with the legacy of Indian Residential Schools.
独立评估程序源于《印度寄宿学校和解协议》,是一个为在印度寄宿学校遭受性虐待和身体虐待的前学生提供金钱补偿的项目。作为独立评估程序听证会上的“加拿大代表”,提交人当时是一名年轻的律师,她亲眼目睹了对索赔人实施的行为,这些行为让她感到不安。是的,她对所听到的情况感到不安,但也认为这一过程并不能满足所有索赔人的需求,也不符合她作为非土著加拿大人的责任感。作者将她作为“加拿大代表”的经历和观察交织在一起,探讨加拿大环境中的代际正义,以及哪些过程可以为处理印度寄宿学校遗产提供更完整的方法。首先,她探讨了印度寄宿学校背景下的现有争端解决框架,即刑事、侵权和替代争端解决机制。她指出,这些机制在解决印度寄宿学校的一些危害方面确实具有优势,但她最终表示,这些机制固有的法律局限性使其不足以为受害者提供补救,也不足以让社会更广泛地参与进来。作者接着定义了过渡时期司法,阐述了其既定原则和主题,并通过借鉴澳大利亚、新西兰和美国的例子,开始阐述加拿大将这些原则应用于印度寄宿学校政策的情况。这些原则已成为推动和解和加拿大社会目标的创新工具。然而,正如作者所指出的,他们并非没有自己的缺陷,这可能会影响加拿大人——尤其是非土著加拿大人——对其合法性的看法。最后,作者分析了社会责任的主流观点,为加拿大的代际正义提供了规范基础。她最后主张加拿大人在继续努力解决印度寄宿学校的遗留问题时,从内疚和指责的立场转向广泛承担责任的立场。
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引用次数: 4
Envisioning Indigenous Community Courts to Realize Justice in Canada for First Nations 设想土著社区法院在加拿大实现原住民司法
IF 0.5 Pub Date : 2019-03-25 DOI: 10.29173/ALR2516
A. EagleWoman
Recognition continues to grow both within Canada, as well as the wider worldwide community, of the unique issues facing Indigenous people within Canada’s justice system. We see this in the recent wholesale adoption by the Canadian Government of the United Nations Declaration on the Rights of Indigenous Peoples, as well as the Truth and Reconciliation Commission Calls to Action. This article examines the potential development of a system of Indigenous community courts as a way to end colonial suppression of Indigenous self-governance. The article suggests as a model for these courts the tribal courts in the United States, as a means by which Indigenous peoples can re-instate Indigenous law and legal principles.
加拿大国内以及更广泛的世界社会继续认识到加拿大司法系统中土著人民面临的独特问题。我们在加拿大政府最近全面通过的《联合国土著人民权利宣言》以及真相与和解委员会的《行动呼吁》中看到了这一点。本文探讨了土著社区法院系统的潜在发展,以此结束殖民地对土著自治的压制。文章建议将美国的部落法院作为这些法院的模式,作为土著人民恢复土著法律和法律原则的一种手段。
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引用次数: 1
Novel Science or Oral History? The Admissibility of Co-Produced Information in Canadian Courts 小说科学还是口述历史?加拿大法院共同制作资料的可采性
IF 0.5 Pub Date : 2019-03-25 DOI: 10.29173/ALR2528
D. Isaac
Co-production is an emerging source of information about the world, but it is one that has not been adequately theorized in the legal literature. Because co-production contains aspects of both novel science and oral history, it is not clear how it can be admitted. I argue that coproduced information does not clearly fit into either of the admissibility frameworks. With respect to the novel science framework, co-produced information fits into the criteria of testability, peer review, and standards with only a few problems, but would likely fail the general acceptance criterion of the test. However, if scientists are educated about co-production, or if it is possible to delineate a group of scientists who are more likely to accept co-production as the “relevant group,” then it may be possible for co-production to be admitted as evidence through the novel science framework. Turning to the oral history framework, co-produced information is less likely to be admitted because oral history is only a part, and not a necessary part, of co-produced information. As such, courts will likely be reluctant to bend the rules of evidence to admit it. Further research is needed to determine whether co-produced information can be admitted under the novel science framework.
合作生产是一种新兴的关于世界的信息来源,但它在法律文献中还没有得到充分的理论化。因为合拍片既包含了新科学,也包含了口述历史,所以它如何被承认还不清楚。我认为,共同产生的信息并不明显适合任何一个可采性框架。关于新的科学框架,共同产生的信息符合可测试性、同行评审和标准的标准,只有少数问题,但可能无法通过测试的一般接受标准。然而,如果科学家们接受过关于合作生产的教育,或者如果有可能将一群更有可能接受合作生产的科学家描述为“相关群体”,那么通过新的科学框架,合作生产可能被承认为证据。转向口述历史框架,共同制作的信息不太可能被承认,因为口述历史只是共同制作信息的一部分,而不是必要的一部分。因此,法院很可能不愿意改变证据规则来承认这一点。需要进一步的研究来确定在新的科学框架下是否可以接受共同生产的信息。
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引用次数: 0
Introduction 介绍
IF 0.5 Pub Date : 2019-03-25 DOI: 10.29173/alr2532
C. Bell, Hadley Friedland
The articles in this special issue all take up some of the many challenges and opportunities that the Truth and Reconciliation Commission of Canada (TRC) identified as crucial for reconciliation in its 2015 Final Report. Some engage with the current Canadian political and legal system’s impact on Indigenous peoples, while others acknowledge these but focus more on the enduring principles and possibilities of Indigenous legal traditions and the potential for operationalizing jurisdictional spaces for implementation. All speak to the importance of developing a narrative and understanding of intergenerational responsibility and relationality at the core of any enduring reconciliation.
本期特刊中的文章都谈到了加拿大真相与和解委员会在其2015年最后报告中认为对和解至关重要的许多挑战和机遇。一些人关注当前加拿大政治和法律体系对土著人民的影响,而另一些人则承认这些影响,但更多地关注土著法律传统的持久原则和可能性,以及实施管辖空间的潜力。所有这些都表明了对代际责任和关系的叙述和理解的重要性,这是任何持久和解的核心。
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引用次数: 0
“We the North” As the Dispossession of Indigenous Identity and a Slogan of Canada’s Enduring Colonial Legacy “我们北方人”作为土著身份的剥夺和加拿大持久殖民遗产的口号
IF 0.5 Pub Date : 2019-03-25 DOI: 10.29173/ALR2522
Daniel W. Dylan
As the only Canadian team in the professional United States’ National Basketball Association, the Toronto Raptors adopted the slogan “We the North.” The new slogan is designed to invoke historical myths and narratives of what or who Canada is. The slogan emblematically assumes, as a metanarrative, the mythologized national identity of Canada as distinctly “northern,” revealing itself to be a reproduction of banal nationalism in Canada in the process. It is, however, more than that: it is the appropriation of an imagined northern Canadian, and specifically Inuit or authentic northern (indigenous) identity. Something as seemingly innocuous and banal as a Canadian sports team’s slogan can manifest the enduring colonial legacy of Canada. Banal nationalism in Canada is anything but benign, and in the case of the Raptor’s highly appropriative slogan, dispossessive of Inuit identity and an enduring symbol of Canada’s colonial legacy. In the process of attempting to encapsulate the imagined Canadian national identity and fashion it into a metanarrative, the slogan appropriates the uniqueness that makes northerners and northern indigenous peoples what they are, northerners, and dispossesses them of facets of their identity.
作为美国职业篮球协会中唯一一支加拿大球队,多伦多猛龙队采用了“我们北方”的口号。这个新口号旨在唤起关于加拿大是什么或谁的历史神话和叙述。作为一种元叙事,这一口号象征性地假设了加拿大神话化的民族身份是明显的“北方”,在这个过程中,它显示出自己是加拿大平庸民族主义的再现。然而,它不仅如此:它是对一个想象中的加拿大北部,特别是因纽特人或真正的北方(土著)身份的挪用。像加拿大运动队的口号这样看似无害和平庸的东西,可以体现加拿大持久的殖民遗产。在加拿大,平庸的民族主义绝不是良性的,就猛禽号的口号而言,它剥夺了因纽特人的身份,是加拿大殖民遗产的持久象征。在试图概括想象中的加拿大民族身份并将其塑造成一种元叙事的过程中,这个口号挪用了北方人和北方土著人民的独特性,使他们成为北方人,并剥夺了他们身份的各个方面。
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引用次数: 2
Supreme Court of Canada Cases Strengthen Argument for Municipal Obligation to Discharge Duty to Consult: Time to Put Neskonlith to Rest 加拿大最高法院案件强化了市政有义务履行咨询义务的论点:是时候让Neskonlith安息了
IF 0.5 Pub Date : 2019-03-25 DOI: 10.29173/ALR2530
Angela D’Elia Decembrini, Shin Imai
Can municipalities infringe Aboriginal or treaty rights without consulting the affected Indigenous group? In Neskonlith Indian Band v. Salmon Arm (City), the British Columbia Court of Appeal answered this question in the affirmative, finding that the city of Salmon Arm did not need to consult the Neskonlith First Nation about impacts from the construction of a shopping mall. In what was technically obiter dicta, the Court permitted the municipal project to proceed, and told the First Nation that its only recourse was to complain to the provincial government in a separate proceeding.
市政当局是否可以在不咨询受影响的土著群体的情况下侵犯土著或条约权利?在Neskonith Indian Band诉Salmon Arm(City)一案中,不列颠哥伦比亚省上诉法院对这一问题做出了肯定的回答,认为Salon Arm市不需要就购物中心建设的影响咨询Neskonih第一民族。在技术上是附带意见的判决中,法院允许市政项目继续进行,并告诉第一民族,其唯一的途径是在单独的诉讼中向省政府投诉。
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引用次数: 2
A Call to Action: Moving Forward with the Governance of Artificial Intelligence in Canada 行动呼吁:推进加拿大人工智能治理
IF 0.5 Pub Date : 2019-02-04 DOI: 10.29173/ALR2547
A. Gaon, I. Stedman
The Government of Canada has committed to accelerating the growth of the country’s world-class artificial intelligence (AI) sector. This emerging technology has the potential to impact nearly every segment of Canada’s economy, including national security, health care, and government services. To prepare for the key challenges and opportunities that AI will give rise to, we offer an innovative governance model for Canadian governments to adopt. This model recognizes the uncertainty ahead and prioritizes oversight and accountability while also encouraging a flexible policy-first approach. This approach fosters responsible AI innovation and supports Canada’s emergence as a leader in AI technology and governance.
加拿大政府致力于加速该国世界级人工智能(AI)领域的发展。这项新兴技术有可能影响加拿大经济的几乎每一个领域,包括国家安全、医疗保健和政府服务。为了应对人工智能将带来的关键挑战和机遇,我们为加拿大政府提供了一种创新的治理模式。这种模式认识到未来的不确定性,优先考虑监督和问责制,同时也鼓励采取灵活的政策优先方针。这种方法促进了负责任的人工智能创新,并支持加拿大成为人工智能技术和治理的领导者。
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引用次数: 14
Terrorist Speech under Bills C-51 and C-59 and the Othman Hamdan Case: The Continued Incoherence of Canada’s Approach C-51和C-59法案下的恐怖主义言论和奥斯曼·哈姆丹案:加拿大方法的持续不连贯
IF 0.5 Pub Date : 2019-01-10 DOI: 10.2139/ssrn.3313660
Kent Roach
It is argued that neither the approach taken to terrorist speech in Bill C-51 nor Bill C-59 is satisfactory. A case study of the Othman Hamdan case, including his calls on the Internet for “lone wolves” “swiftly to activate,” is featured, along with the use of immigration law after his acquittal for counselling murder and other crimes. Hamdan’s acquittal suggests that the new Bill C-59 terrorist speech offence and take-down powers based on counselling terrorism offences without specifying a particular terrorism offence may not reach Hamdan’s Internet postings. One coherent response would be to repeal terrorist speech offences while making greater use of court-ordered take-downs of speech on the Internet and programs to counter violent extremism. Another coherent response would be to criminalize the promotion and advocacy of terrorist activities (as opposed to terrorist offences in general in Bill C-51 or terrorism offences without identifying a specific terrorist offence in Bill C-59) and provide for defences designed to protect fundamental freedoms such as those under section 319(3) of the Criminal Code that apply to hate speech. Unfortunately, neither Bill C-51 nor Bill C-59 pursues either of these options. The result is that speech such as Hamdan’s will continue to be subject to the vagaries of take-downs by social media companies and immigration law.
有人认为,无论是C-51号法案还是C-59号法案中对恐怖主义言论采取的方法都不令人满意。Othman Hamdan案的一个案例研究,包括他在互联网上呼吁“迅速激活”“独狼”,以及在他因谋杀和其他罪行被无罪释放后使用移民法。哈姆丹的无罪释放表明,新的C-59法案中的恐怖主义言论罪和在没有具体说明特定恐怖主义罪行的情况下撤销基于咨询恐怖主义罪行的权力,可能不会影响哈姆丹在互联网上的帖子。一个连贯的回应是废除恐怖主义言论罪,同时更多地利用法院下令对互联网上的言论和打击暴力极端主义的程序进行删除。另一个连贯一致的对策是将促进和宣传恐怖活动定为刑事犯罪(而不是C-51号法案中的一般恐怖犯罪或C-59号法案中没有确定具体恐怖犯罪的恐怖主义犯罪),并规定旨在保护基本自由的防御措施,如适用于仇恨言论的《刑法》第319(3)条规定的防御措施。不幸的是,无论是C-51号法案还是C-59号法案都没有采取这两种选择。结果是,像哈姆丹这样的言论将继续受到社交媒体公司和移民法的影响。
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引用次数: 0
Keep Calm and ... Understand Cannibis: What Employers in the Energy Sector Want to Know About Legalized Cannabis in the Workplace 保持冷静……了解大麻:能源行业的雇主想知道的关于工作场所大麻合法化的问题
IF 0.5 Pub Date : 2018-12-05 DOI: 10.29173/ALR2507
Shana Wolch, J. Lindner, Dan Demers, Ben Ratelband
With the recent legalization of recreational cannabis in Canada, employers, particularly those with safety sensitive operations, are forced to evaluate the impact that cannabis will have on their workplaces. This article argues that the law has not yet fully evolved with the advances in scientific understanding of the effects of cannabis or the advances in the technology for testing methodologies. The article explores the current legal framework for workplace drug testing and provides best practices regarding drug testing programs and related workplace policies. It cautions that unless carefully designed, these policies may be found to be contrary to human rights or privacy legislation, or, in the case of unionized employers, unreasonable and outside the scope of the collective agreement.
随着加拿大最近娱乐性大麻的合法化,雇主,特别是那些安全敏感业务的雇主,被迫评估大麻对其工作场所的影响。本文认为,随着对大麻影响的科学认识的进步或测试方法技术的进步,法律尚未充分发展。本文探讨了目前工作场所药物检测的法律框架,并提供了有关药物检测项目和相关工作场所政策的最佳实践。委员会警告说,除非精心设计,否则这些政策可能会被认为违反人权或隐私立法,或者,就有工会的雇主而言,这些政策是不合理的,不在集体协议的范围之内。
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引用次数: 0
Continental Energy Trade: What to Expect From NAFTA 2.0 大陆能源贸易:对北美自由贸易协定2.0有何期待
IF 0.5 Pub Date : 2018-12-05 DOI: 10.29173/ALR2505
Paul M. Lalonde, Yohai Baisburd, Joaquin Contreras, J. Jiménez, Vedia Biton Eidelman
The implementation of the North American Free Trade Agreement (NAFTA) in 1994 significantly impacted the North American energy market via the provisions of Chapter 6. The original agreement with respect to Chapter 6 included three important principles: (1) a full respect for the constitutional restrictions of each party; (2) the need to strengthen and increase trade of energy products and services through gradual and sustained liberalization; and (3) the need to create competitive energy sectors. This article examines whether NAFTA continues to serve the interests of the three signatory states and whether potential changes are necessary or would be beneficial. In addition, the authors take an in-depth look at the energy markets of each North American country on an individualized basis. In particular, the authors examine the respective energy industry backgrounds, legal frameworks for natural resource regulation, and trends in the energy markets for Canada, Mexico, and the United States.
1994年《北美自由贸易协定》的实施通过第6章的规定对北美能源市场产生了重大影响。关于第六章的最初协议包括三项重要原则:(1)充分尊重各方的宪法限制;(2) 需要通过逐步和持续的自由化来加强和增加能源产品和服务的贸易;以及(3)需要建立有竞争力的能源部门。本文探讨了北美自由贸易协定是否继续为三个签署国的利益服务,以及潜在的改变是否必要或有益。此外,作者在个性化的基础上深入研究了每个北美国家的能源市场。特别是,作者研究了加拿大、墨西哥和美国各自的能源行业背景、自然资源监管的法律框架以及能源市场的趋势。
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引用次数: 2
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ALBERTA LAW REVIEW
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