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Introduction (Excerpt) In Justice Bertha Wilson: One Woman's Difference, Kim Brooks

Articles, Book Chapters, & Popular Press

Bertha Wilson was the first woman to be appointed to Canada's Supreme Court in 1982. Her appointment capped off a career of firsts. She had been the first woman lawyer and partner at a prominent Toronto law firm and the first woman appointed to the Ontario Court of Appeal. Her career and passing in 2007 have provoked reflection on her contributions to Canadian society and caused many to reflect on the question she herself posed: what difference do women judges make? What follows is an excerpt from the introduction to the book. The chapters of the book explore a broad …

Reflections On Recommendation 12, Naiomi Metallic

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Regarding the Marshall Commission Report’s recommendation for increased representation of racialized persons within the judiciary.

Eligibility For Organ Donation: A Medico-Legal Perspective On Defining And Determining Death, Jocelyn Downie, Matthew R. Kutcher, Chantelle Rajotte, Alison Shea

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Purpose: In the context of post-mortem organ donation, there is an obvious need for certainty regarding the legal definition and determination of death, as individuals must be legally pronounced dead before organs may be procured for donation. Surprisingly then, the legal situation in Canada with regard to the definition and determination of death is uncertain. The purpose of this review is to provide anesthesiologists and critical care specialists with a medico-legal perspective regarding the definition and determination of death (particularly as it relates to non-heart-beating donor protocols) and to contribute to ongoing improvement in policies, protocols, and practices in this …

Marine Protected Areas: Legal Framework For The Gully Off The Coast Of Nova Scotia (Canada), Paul Mcnab, David Vanderzwaag

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The Gully, a submarine canyon hosting a rich diversity of marine life off Nova Scotia, was designated in 2004 under Canada’s Oceans Act 1996 as a marine protected area (MPA). This case study reviews the Gully MPA legal and management framework through a five-part discussion. First described is the overall Canadian law and policy context for establishing MPAs. Next, specific legislative and regulatory provisions governing the Gully MPA are summarized including the three types of management zones adopted, ranging from strict preservation to multi-use. Management approaches to control human activities in and around the MPA are then described, with a …

Moral Authority In English And American Abortion Law, Joanna Erdman

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In R. (on the application of Axon) v. Secretary of State for Health & Another, the English High Court affirmed that young women are entitled to seek and receive sexual health care, including abortion care, without parental notification. This chapter examines the Court’s use of comparative constitutional authorities in its reasoning, focusing on the rejection of American authorities. Contrast and rejection, it is argued, can be an exercise in self-reflection, revealing how a court understands its own constitutional approach. Aversive constitutionalism presents opportunities to deconstruct claimed similarities and differences in constitutional approaches, to uncover and contest characteristics and assumptions otherwise …

Understanding The New Virtualist Paradigm, Jonathon Penney

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This article discusses the central ideas within an emerging body of cyberlaw scholarship I have elsewhere called the "New Virtualism". We now know that the original "virtualists"- those first generation cyberlaw scholars who believed virtual worlds and spaces were immune to corporate and state control - were wrong; these days, such state and corporate interests are ubiquitous in cyberspace and the Internet. But is this it? Is there not anything else we can learn about cyberlaw from the virtualists and their utopian dreams? I think so. In fact, the New Virtualist paradigm of cyberlaw scholarship draws on the insights of …

Pitfalls In Patenting Publicly Funded Research - Comments On Draft South African Regulations, Matthew Herder, Cynthia M. Ho

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South Africa recently enacted legislation similar to the US. Bayh-Dole Act, which permits publicly funded institutions to obtain patent rights in hopes that the patent incentive will foster commercialization, as well as generate revenues to the funded institutions and scientists. While enacting analogs to Bayh-Dole seems presently in vogue, there are definitely concerned about the original legislation that have been voiced. When South Africa recently published proposed guidelines implementing its version of Bayh-Dole, it broadly opened up the opportunity for public comments. The attached paper discusses some of concerns, including problems with delaying timely knowledge dissemination and the need to …

Demythologizing Phosita: Applying The Non-Obviousness Requirement Under Canadian Patent Law To Keep Knowledge In The Public Domain & Foster Innovation, Matthew Herder

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The Supreme Court of Canada recently revised the doctrine of non-obviousness in a pharmaceutical “selection patent” case, Apotex Inc. v. Sanofi-Synthelabo Canada Inc. Although cognizant of changes to the same doctrine in the United States and the United Kingdom, a critical flaw in how the doctrine is being applied in Canada escaped the Court’s attention. Using content analysis methodology, this article shows that Canadian courts frequently fail to characterize the “person having ordinary skill in the art” (PHOSITA) for the purpose of the obviousness inquiry. The article argues that this surprisingly common analytical mistake betrays a deep misunderstanding of innovation, …

Residence Of Companies Under Tax Treaties And Ec Law (Canada), Kim Brooks

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This chapter reviews the development and present Canadian law on the residence of corporations for tax purposes. It highlights a few of the elements of Canada's corporate law regime by way of context; outlines why residence matters to corporations for Canadian tax purposes, traces the history of the Canadian tests for corporate residence, explains how the Canadian Income Tax Act addresses continuances, and reviews the approach to the determination of corporate residence reflected in Canada's tax treaties.

Tax Sparing: A Needed Incentive For Foreign Investment In Low-Income Countries Or An Unnecessary Revenue Sacrifice?, Kim Brooks

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Low income countries often offer tax incentives to induce foreign investment, but the effectiveness of these measures may he limited by the domestic tax practices of investors' high income home countries. Most high-income countries provide a tax credit for the amount of tax paid to a foreign jurisdiction on the international profits of resident companies or individuals. Where no tax, or reduced tax, is paid to the foreign jurisdiction because of a tax incentive, the result is that the investor pays the same amount of tax they would have paid in the absence of the tax incentive, but simply pays …

Myths And Tips On The Support Guidelines, Rollie Thompson, Carol Rogerson

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The spousal support advisory guidelines have now become part of the standard toolkit of lawyers, mediators and judges across the country. The “final version” of the guidelines was released last July, after extensive feedback and some revisions to the 2005 draft proposal. But “myths” or “misses” have developed around the guidelines, frequently found in the case law — and I offer some tips that can help deal with specific cases.

Extending Charter Benefits To Canada’S Poor, A. Wayne Mackay

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While the Canadian Charter of Rights and Freedoms has had a major impact on Canada’s political landscape in its first 25 years, its impact on social and economic rights has been minimal. The courts should assume a larger role in advancing the rights of the many Canadians living in poverty and despair.

Judges have traditionally regarded matters of social and economic policy as falling within the expertise of the legislative and executive branches of the state. The Charter has done little to dispel that view. The elected branches of the state must continue to play a major role, but the …

Human Rights In Health Equity: Cervical Cancer And Hpv Vaccines, Joanna Erdman

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This article seeks to demonstrate that health equity, as an empirical and normative concept, is reflected in the human rights to health and equality under international law. The obligations on government that flow from health equity as a human right are then examined. These include the obligation to act in pursuit of health equity as a policy objective, and the obligation to enact measures to ensure health equity as a policy outcome. These obligations are considered in relation to a promising remedial measure for social disparities in cervical cancer: HPV vaccines.

In The Back Alleys Of Health Care: Abortion, Equality And Community In Canada, Joanna Erdman

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The decriminalization of abortion in Canada ensured neither its availability nor accessibility as an integrated and publicly funded health service. While Canadian women are increasingly referred to or seek abortion services from single-purpose clinics, their exclusion from public health insurance often render these services inaccessible. This article considers denied funding for clinic abortion services from the perspective of the Canadian constitutional guarantee of sex equality. The article focuses on the 2004 Court of Queen's Bench's judgment in Jane Doe I v. Manitoba, which framed denied public funding for clinic abortion services as a violation of women's equality rights under the …

Privacy And The New Virtualism, Jonathon Penney

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First generation cyberlaw scholars were deeply influenced by the uniqueness of cyberspace, and believed its technology and scope meant it could not be controlled by any government. Few still ascribe to this utopian vision. However, there is now a growing body of second generation cyberlaw scholarship that speaks not only to the differential character of cyberspace, but also analyzes legal norms within virtual spaces while drawing connections to our experience in real space. I call this the New Virtualism. Situated within this emerging scholarship, this article offers a new approach to privacy in virtual spaces by drawing on what Orin …

Understanding The New Virtualist Paradigm, Jonathon Penney

Articles, Book Chapters, & Popular Press

This article discusses the central ideas within an emerging body of cyberlaw scholarship I have elsewhere called the "New Virtualism". We now know that the original "virtualists"- those first generation cyberlaw scholars who believed virtual worlds and spaces were immune to corporate and state control - were wrong; these days, such state and corporate interests are ubiquitous in cyberspace and the Internet. But is this it? Is there not anything else we can learn about cyberlaw from the virtualists and their utopian dreams? I think so. In fact, the New Virtualist paradigm of cyberlaw scholarship draws on the insights of …

Nobody Expects The Spanish Inquisition: A Primer On The Use (And Abuse) Of Ex Parte Proceedings In Civil Cases, Robert Currie

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On any ex parte application, the utmost good faith must be observed. That requires full and frank disclosure of all material facts known to the applicant or counsel that could reasonably be expected to have a bearing on the outcome of the application. Because counsel for the applicant is asking the judge to invoke a procedure that runs counter to the fundamental principle of justice that all sides of a dispute should be heard, counsel is under a super-added duty to the court and other parties to ensure that as balanced a consideration of the issue is undertaken as is …

Great Strides In Section 9 Jurisprudence, Steve Coughlan

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The perfect is the enemy of the good. Could the approach to section 9 laid out in Grant have been constructed differently? Yes. But are we, because of that decision, magnitudes of order clearer on how to approach section 9? Also yes. The Supreme Court's decision in Grant, seemingly the product of careful negotiation given the time it has taken for the judgment to be handed down in a fashion having a clear majority, has created what has for over 25 years been lacking with regard to arbitrary detention. Where before we had very few decisions, those decisions not easily …

R. V. Ha: Upholding General Warrants Without Asking The Right Questions, Steve Coughlan

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To date, in considering general warrants, courts have been failing even to think about a distinction which ought to be seen as essential. The distinction arises in connection with the requirement in section 487.01 (l)(c) of the Criminal Code that a general warrant is only available when no other provision in any statute could authorize the search. In R. v. Ha, reported ante p. 24, the Ontario Court of Appeal notes that: The simple fact is that there is no provision in the Code, the CDSA, or in any other federal statute that would authorize an unlimited number of covert …

The Changing Shape Of Legal Information, David H. Michels, Mark Lewis

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As IT, Reference and Instruction librarians, we have experienced significant changes to the shape of legal information over the past five years. The changes are to both the very nature of legal information and how we perceive it. This can be illustrated by our use of the phrase "legal information". Depending on your age and life situation, the words "legal information" will have created specific images in your mind. These changes in perception challenge how we develop our programs of legal research instruction.

Matters Of Faith And Conscience: A Turning Point In The Taking Of Oaths In Canada, David H. Michels

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The global expansion of the British Empire brought to its colonies British legal traditions. Non-British peoples and cultures had to adapt to these imposed legal traditions, but also left their own indelible marks of change. Following years of immigration in Canada, change was necessitated across the social order to accommodate new faiths and cultural practices of non-British origin. One example involved the taking of court oaths, a practice that in the British legal tradition traces its roots to the Protestant Christian faith. Focusing on the example of court oaths, we argue that as immigration surged at the turn of the …

Religious Justification For The Practice Of Ecclesiastical Sanctuary, David H. Michels, David Blaikie

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Stories about Canadian Christian churches engaging in civil disobedience by offering sanctuary to refugee claimants have been much in the news the past several years. Typical is the case of Ms. Sanja Pecelji who fled to St. Mark’s Anglican Church in Halifax to avoid a deportation order back to Serbia-Montenegro. The church minister, Rev. Susan Moxley, stated that Ms. Pecelji and her supporters in the church community were determined that she would reside in the church until the government reviewed her application for refugee status. “The tradition of providing sanctuary to those in need is a long-standing one for the …

Canada, The Eu And Arctic Ocean Governance: A Tangled And Shifting Seascape And Future Directions, David Vanderzwaag, Timo Koivurova, Erik J. Molenaar

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The objective of this paper is to examine (in a historical perspective) the roles of the European Union (EU) and Canada in governance and regulation of human activities in the Arctic Ocean. Section two describes the existing “tangled” nature of governance in the Arctic with a focus on law of the sea, approaches and challenges in the region, as well as on EU and Canadian participation in the activities of the Arctic Council. The “shifting seascape” in governance is next highlighted in section three with a review of increasing calls for change from scholars and other groups, recent governance initiatives …

Canada's Evolving Tax Treaty Policy Toward Low-Income Countries, Kim Brooks

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Relative to at least some high-income countries, Canada has been willing to negotiate tax treaties that leave greater jurisdiction to tax (ie. more source jurisdiction) to low-income countries in its tax treaties. Nevertheless, Canada's tax treaty policy has not been overwhelmingly generous. This essay takes as its starting point Alex Easson's 1988 paper, The Evolution of Canada's Tax Treaty Policy Since the Royal Commission on Taxation. Focusing on the evolution of Canada's tax treaty policy since 1988, the essay examines three aspects of Canada's tax treaties that might increase the scope for source-based taxation by low-income countries. First, it examines …

Global Distributive Justice: The Potential For A Feminist Analysis Of International Tax Revenue Allocation, Kim Brooks

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This article has a modest aim - to engage feminists and progressive international tax scholars in a shared dialogue about the importance of protecting and enhancing the state’s revenue-raising and international revenue distribution roles. To this end, the article reviews some of the feminist and critical race scholarship that might assist international tax scholars and policy makers concerned with issues of international revenue distribution; explains the role of tax treaties in allocating tax revenues between nations; applies a feminist analysis to the problem of this international revenue allocation project; and offers some tentative thoughts about a feminist approach to allocating …

Balancing Necessity And Individual Rights In The Fight Against Transnational Terrorism: 'Targeted Killings' And International Law, Karinne Lantz

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This article explores the restraints international human rights law and international humanitarian law place on a State’s use of lethal force against suspected terrorists. Although the law restricts the ability to target suspected terrorists, it is argued that these limits should be respected in order to protect innocent civilians from undue harm. Under IHRL, it is argued that the right to life as a peremptory norm restricts extra-territorial targeted attacks of suspected terrorists. Accordingly, such action should only be considered lawful when it is necessary to protect the State’s population from a known threat and lesser force would not suffice. …

Shifting Focus: Towards Outcome-Based Policy And Regulation Making For Maritime Safety And Vessel-Source Pollution In Canada, Aldo Chircop, Eric Machum

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A recent publication concluded that “... Canadian water transportation policy is a history of: laissez faire; protection, financing and subsidization; government operation, ownership and privatization; expanded protection; commercialization; and a market oriented philosophy.” Consistent with this larger policy process, subsidiary policy and regulation making for maritime safety and vessel-source pollution in Canada have followed the roller-coaster pattern, punctuated by parallel milestones.

Glass Houses: The Power Of Money In Bioethics Research, Jocelyn Downie

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In this paper I explore the power of money in bioethics research and ask whether, while casting stones regarding financial conflicts of interest in health research, bioethics researchers are in fact living in glass houses. I first review the need for money in bioethics research, the sources of money, and key features of the money (specifically, the amount of money involved and the fact that the money often is embedded, encumbered, and required to be matched). Next, I explore a range of possible objectives for the money transfer. I then examine the effects of this transfer and raise some questions …

From Judging Culture To Taxing 'Indians': Tracing The Legal Discourse Of The 'Indian Mode Of Life', Constance Macintosh

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In this article I consider how judicial decision making characterizes Indigenous peoples’ culture outside the context of determinations under section 35(1) of the Constitution Act, 1982. I am concerned with how contemporary jurisprudence sometimes subjects Indigenous people to stereotyped tests of Aboriginality when they seek to exercise legislated rights. These common law tests of Aboriginality tend to turn on troubling oppositional logics, such as whether or not the Indigenous person engages in waged labour or commercial activities. These tests arose in historic legislation and policy that were premised on social evolutionary theory and were directed at determining whether an Indigenous …

Domestic Violence And Gender-Based Persecution: How Refugee Adjudicators Judge Women Seeking Refuge From Spousal Violence – And Why Reform Is Needed, Constance Macintosh

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This report is an effort to address information gaps regarding how gendered claims are addressed by adjudicators at Canada’s Refugee Protection Division of the Immigration and Refugee Board of Canada (the RPD). It looks at one specific type of gendered claim: persecution through domestic or intimate violence. The study considers all the RPD decisions from 2004 to 2009 and judicial reviews from 2005 to 2009 that were reported in the Quicklaw LexisNexis service. These decisions are analyzed both quantitatively and qualitatively.

This report finds adjudicators consistently identify domestic violence as a form of gendered persecution that can form a nexus …