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Wednesday, January 8th, 2014 technology  research  practice

A Research Tip

  • Research & Writing

It is pretty easy to remember to look for legislation that applies to an issue. In the legal research card game legislation trumps case law unless an argument can be made that the legislation is wrong or should in turn be trumped by some other legislation – the Charter is a Joker.

Some legal research arguments require a searcher to be aware of policies.  All kinds of policy references appear in judicial decisions including this reference to Peter Hogg at para 107 of Canada (Attorney General) v. Bedford, 2013 SCC 72 (CanLII).

The doctrines of overbreadth, disproportionality and arbitrariness are all at bottom intended to address what Hamish Stewart calls “failures of instrumental rationality”, by which he means that the Court accepts the legislative objective, but scrutinizes the policy instrument enacted as the means to achieve the objective. If the policy instrument is not a rational means to achieve the objective, then the law is dysfunctional in terms of its own objective.

Today’s Tip: Remember to look for policies. Thanks to the Workers’ Compensation Board of Alberta for their email reminders of policy updates for inspiring this tip.

 

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