Browsing by Author "Lau, Benjamin"
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- ItemOpen AccessThe Contours of what is Criminal(Legal Resource Centre of Alberta Ltd. (LRC), 2005) Bowal, Peter; Lau, BenjaminThis definition would appear to enable Parliament to expand its jurisdiction indefinitely by framing its legislation as a formal prohibition accompanied by a penalty. In the Margarine Reference (1948), the Supreme Court of Canada said that, in addition to a prohibition and penal sanction, criminal legislation must "serve a public purpose which can support it as being in relation to criminal law." Public purposes include "public peace, order, security, health, morality . . . these are the ordinary though not exclusive ends served by the law." The Margarine Reference case also established that criminal law must contemplate conduct harmful to an individual or to the public. In establishing the relation between harm and the criminal law, Justice Rand stated, In RJR-MacDonald Inc. v. Canada (Attorney-General), 1995, federal legislation banning cigarette advertisements was challenged as ultra vires Parliament's criminal law jurisdiction. The Supreme Court invoked the Margarine Reference test to determine the constitutional validity of the legislation. Did the prohibition "serve some legitimate public purpose" and prevent harm? The Court ruled seven to two in favour of constitutionality. Justice La Forest said the "public evil" was "the detrimental effects caused by tobacco consumption" and the fact that "tobacco kills". The legitimate public purpose was protection of Canadians from a harmful drug. In R. v. Hydro-Quebec, 1997, the Supreme Court considered whether the regulatory nature of the Canadian Environmental Protection Act was criminal. In a five to four decision, the Court upheld the legislation which was intended to safeguard the public against the "public evil" of pollution. For something to be a crime, it must risk harming an individual or the public. In the years following, this reasoning was affirmed in R. v. Cuerrier, 1998, where Justice Cory held that there was "no prerequisite that any harm must actually have resulted." A "significant risk" of harm suffices for an act to be criminal.
- ItemOpen AccessThe International Court of Justice(Legal Resource Centre of Alberta Ltd. (LRC), 2005) Bowal, Peter; Lau, BenjaminThe dispute may be settled at any stage of the proceedings or the Court will render judgment on the merits of the case. The Court deliberates in secret to facilitate unhampered and effective deliberations. Like the Supreme Court of Canada, the ICJ delivers judgment in French and English. The judgment of the ICJ, by a simple majority of judges present, is binding on the parties to the dispute only and there is no appeal. It is a part-time court. Despite the whole world having access to the ICJ (including non-members of the UN), it has rendered only 89 judgments in almost 60 years. The Supreme Court of Canada decides almost that many cases each year with nine judges. The full text of all ICJ judgments is found at http://www.icj-cij.org/icjwww/idecisions.htm The ICJ can decide a dispute ("has jurisdiction") only if the countries involved have consented to it. This consent may be manifested by making a special agreement or declaration to submit an existing dispute to the Court, or by incorporating ICJ jurisdictional clauses into international agreements. Such jurisdictional clauses (similar to arbitration clauses in private contracts) have been incorporated into hundreds of international treaties and conventions. Sixty-five countries, including Canada, have also declared their consent to the Court's compulsory jurisdiction (article 36(2) of the Statute). This means that each one of these countries can bring any other signatory states before the Court. Yet states can still limit their consent to the ICJ. Several of these states have excluded from compulsory jurisdiction all domestic legal matters. In cases where jurisdiction is not clear, the Court determines at the beginning of the case whether or not it has jurisdiction. The Spanish case against Canada in 1995 argued that the ICJ had jurisdiction as both states had accepted its compulsory jurisdiction. Canada said that the ICJ lacked jurisdiction because this was a domestic fisheries matter. Since the Court comprised neither a Spanish nor Canadian judge, each party selected a judge ad hoc to sit on the case. The Court resolved 12-5 that it had no jurisdiction to decide the dispute. Canada had declared compulsory acceptance of the ICJ's jurisdiction, but it had limited its consent with another declaration excluding the jurisdiction of the ICJ in "... disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in the Northwest Atlantic Fisheries Organization Regulatory Area, ... and the enforcement of such measures."
- ItemOpen AccessProfessional Ethics(Legal Resource Centre of Alberta Ltd. (LRC), 2005) Bowal, Peter; Lau, BenjaminA defining characteristic of a profession is that it is self-governing and independent of direct daily government regulation. In general, each professional worker is autonomous and free to accept any work and any client, or to turn down any work or client. However, professional ethics usually restrict this choice when the prospective client is desperate for the professional services and turning the client down would leave him or her without practical help. After agreeing to serve the client, the professional cannot terminate the relationship and abandon the client at a vulnerable stage. If a professional is going to terminate services in midstream, he or she should endeavour to assist the client to find another professional to carry on. A professional may have an ethical duty to render services to a client or patient, and not abandon that person, even without payment. Provincial legislation that organizes professions also creates, delegates, and vests each self-governing body with considerable power to regulate the profession. These bodies are composed, primarily, of senior and respected active members of the profession, who are elected every few years by the total membership to manage the profession (hence "self-governing"). Often there are a few laypersons on these regulatory bodies, which are variously known by the terms "society" (as in Law Society), "board" or "college" (as in the College of Physicians and Surgeons). These bodies are divided into a number of committees to manage various functions such as administration, education and admission, ethics, insurance, and public relations. All have a discipline committee. A client or a third party who believes that a professional has violated the code will find it easy to complain to the governing body. There is no cost or risk to the complainant to bring a concern to the governing body. In addition to child welfare, professionals must report other forms of misconduct. Lawyers must keep their client information strictly confidential, but Canadian law societies have long prescribed special circumstances under which the disclosure of confidential client information to external authorities is permitted and even required. For example, professional codes of conduct contain rules that permit lawyers to disclose confidential client information where they have reasonable grounds for believing that a crime is likely to be committed in the future. This reporting becomes a mandatory requirement, under provincial or federal statutes, when the lawyer suspects that the crime involves violence or "there is an imminent risk to an identifiable person or group of death or serious bodily harm."