Law Commons^™

Federalism And Health Care In Canada: A Troubled Romance?, Colleen M. M. Flood, William Lahey Prof., Bryan P. Thomas

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Canadian federalism fragments health system governance. Although the Constitution has been interpreted as providing shared jurisdiction over health generally, with respect to health care, the courts have interpreted it as giving direct jurisdiction to the provinces. The federal role in health care is therefore indirect, but nevertheless potentially powerful. For example, the federal government has used its spending powers to establish the Canada Health Act (CHA), which commits funding to provinces on condition they provide first-dollar public coverage of hospital and physician services. However, in recent times, as federal contributions have declined, the CHA has been weakly enforced. …

Revisiting The Economic Community Of West African States: A Socio-Legal Analysis, Olabisi D. Akinkugbe

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Recent years have seen a growing scholarly interest in the conditions of emergence of regional trade agreements in Africa. These analyses have advanced our knowledge on a range of technical issues, from specific institutional transformation of regional economic communities such as the Economic Community of West African States (ECOWAS) to broad legal issues relating to the provisions of the regional trade agreements. Most literature on ECOWAS is, however, informed by legal formalism that interprets the text of the treaties strictly and without context, leading to a dominant interpretation of failure.

By contrast, this thesis adopts a socio-legal approach and argues …

Chilling Effects: Online Surveillance And Wikipedia Use, Jonathon Penney

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This article discusses the results of the first empirical study providing evidence of regulatory “chilling effects” of Wikipedia users associated with online government surveillance. The study explores how traffic to Wikipedia articles on topics that raise privacy concerns for Wikipedia users decreased after the widespread publicity about NSA/PRISM surveillance revelations in June 2013. Using an interdisciplinary research design, the study tests the hypothesis, based on chilling effects theory, that traffic to privacy-sensitive Wikipedia articles reduced after the mass surveillance revelations. The Article finds not only a statistically significant immediate decline in traffic for these Wikipedia articles after June 2013, but …

La Publication En Libre Accès Au Cœur De La Demande Européenne. État Des Lieux Et Enjeux Juridiques En Matière De Diffusion De La Recherche, Lucie Guibault

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Impulsées par le numérique, de nouvelles méthodes de travail scientifique se sont développées, favorisant la diffusion et le partage des résultats et des données de la recherche dans un objectif d’intérêt public. Dans ce nouveau contexte, les acteurs de la recherche s’appuient de plus en plus sur des programmes européens afin de financer leurs projets scientifiques. Or, les pays de l’Union européenne ne sont pas dotés d’une législation harmonisée en matière de droit d’auteur. Ces nouveaux modes de diffusion bouleversent les systèmes de pensée, les modèles économiques mais aussi les usages. Une journée d'étude permettra d'aborder ces questions.

Ocean Law Reform: A Multi-Level Comparative Law Analysis Of Nigerian Maritime Zone Legislation, Aldo Chircop, David Dzidzornu, Chidi Oguamanam

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Recently, Nigeria introduced a Bill in the House and Senate that aims at modernizing its maritime zone legislation to enable it to maximize benefits it has received from the United Nations Convention on the Law of the Sea, 1982. Although Nigeria has been a party to the Convention for many years, the legislative initiative was triggered only recently by a mixture of events, including a submission to the Commission on the Limits of the Continental Shelf and the delimitation of maritime boundaries and adoption of joint development zones with neighboring States, including the implementation of a judgment of the International …

Is It Time To Adopt A No-Fault Scheme To Compensate Injured Patients?, Elaine Gibson

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The tort system is roundly indicted for its inadequacies in providing compensation in response to injury. More egregious is its response to injuries incurred due to negligence in the provision of healthcare services specifically. Despite numerous calls for reform, tort-based compensation has persisted as the norm to date. However, recent developments regarding physician malpractice lead to consideration of the possibility of a move to “no-fault” compensation for healthcare-related injuries. In this paper, I explore these developments, examine programs in various foreign jurisdictions which have adopted no-fault compensation for medical injury, and discuss the wisdom and feasibility of adopting an administratively-based …

Permitting Voluntary Euthanasia And Assisted Suicide: Law Reform Pathways For Common Law Jurisdictions, Jocelyn Downie

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End of life law and policy reform is the subject of much discussion around the world. This paper explores the pathways to permissive legal regimes that have been tried in various common law jurisdictions. These include legislation, prosecutorial charging guidelines, court challenges, jury nullification, the exercise of prosecutorial discretion in the absence of offence-specific charging guidelines, and the exercise of judicial discretion in sentencing. In this paper, I describe these pathways as taken (or attempted) in five common law jurisdictions (USA, UK, Australia, New Zealand, and Canada) and reflect briefly on lessons that can be drawn from the recent experiences …

The Cycles Of Global Telecommunication Censorship And Surveillance, Jonathon Penney

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Internet censorship and surveillance is on the rise globally and cyber-warfare increasing in scope and intensity. To help understand these new threats commentators have grasped at historical analogies often with little regard for historical complexity or international perspective. Unfortunately, helpful new works on telecommunications history have focused primarily on U.S. history with little focus on international developments. There is thus a need for further internationally oriented investigation of telecommunications technologies, and their history. This essay attempts to help fill that void, drawing on case studies wherein global telecommunications technologies have been disrupted or censored — telegram censorship and surveillance, high …

Making Private Copies In The Cloud: Yes, No, Maybe?, Lucie Guibault

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Presentation at the Private Use in EU Copyright Law Seminar, Adam Mickiewicz University in Poznań, Poland.

Is Europe Falling Behind In Data Mining? Copyright's Impact On Data Mining In Academic Research, Christian Handke, Lucie Guibault, Joan-Josep Vallbé

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This empirical paper discusses how copyright affects data mining (DM) by academic researchers. Based on bibliometric data, we show that where DM for academic research requires the express consent of rights holders: (1) DM makes up a significantly lower share of total research output; and (2) stronger rule-of-law is associated with less DM research. To our knowledge, this is the first time that an empirical study bears out a significant negative association between copyright protection and innovation.

Unasur: The Newest 'Global Player' Or Neo-Boliverian Fantasy?, Sara Gwendolyn Ross

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The Union of South American Nations (Unasur) presents the most recent vision for trade liberalization and political, economic, and social integration amongst South American countries. Unasur has set 2019 as the year by which it hopes to accomplish many of its goals, such as full regional integration and tariff elimination. But, as 2019 slowly approaches, it remains to be seen whether Unasur will in fact be able to reach these goals. While Unasur’s future is certainly compelling, before heralding Unasur as the long-awaited panacea for pure regional integration, important lessons can be drawn from previous attempts at and iterations of …

Faustian Perspective On Digitization: Making A Deal With The Devil, Lucie Guibault

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Digitization of library material, archives and museum collections, arts organizations repositories is progressing rapidly, and opens up new possibilities of accessing, using and re-using the knowledge embodied in cultural heritage. By giving new purpose and function to works, it enhances the value of the public domain and enriches the public sphere. However, digitization also creates the conditions for the rise of new proprietary entitlements over cultural objects. Such ‘informational monopolies’ are often justified as necessary to recoup the high costs of digitization, or as the basis to provide additional sources of income for the cultural institutions. At the same time, …

Warrant Canaries Beyond The First Amendment: A Comment, Jonathon Penney

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Warrant canaries have emerged as an intriguing tool for Internet companies to provide some measure of transparency for users while also complying with national security laws. Though there is at least a reasonable argument for the legality of warrant canaries in the U.S. based primarily on First Amendment "compelled speech" doctrine, the same cannot be said for the use of warrant canaries in other "Five Eyes” intelligence agency countries — United Kingdom, Canada, New Zealand, and Australia — where the legality of warrant canaries has yet to be examined in either cases or scholarship. This comment, which provides an overview …

A Community Of Procedure Scholars: Teaching Procedure And The Legal Academy, Elizabeth Thornburg, Erik S. Knutsen, Carla Crifo', Camille Cameron

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This article asks whether the way in which procedure is taught has an impact on the extent and accomplishments of a scholarly community of proceduralists. Not surprisingly, we find a strong correlation between the placement of procedure as a required course in an academic context and the resulting body of scholars and scholarship. Those countries in which more civil procedure is taught as part of a university degree — and in which procedure is recognized as a legitimate academic subject — have larger scholarly communities, a larger and broader corpus of works analyzing procedural issues, and a richer web of …

The Dilemma Of Public–Private Partnerships As A Vehicle For The Provision Of Regional Transport Infrastructure Development In Africa, Olabisi D. Akinkugbe

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With regional economic integration (REI) as a major strategy for development, the African continent hosts a plethora of regional economic communities of varying ambition longevity and success. While in the 1970s, political-economic ideas built mainly on the “developmental state” informed the design of most of these agreements, the change in economic thought in the 1980s which ushered in the “neoliberal turn” has since influenced the design of most REI schemes in Africa, including the New Partnership for African Development. However, among other factors, inadequate transport infrastructure linking regions poses a major impediment to regional trade and development in Africa. The …

Access To Justice And The Ethics And Politics Of Alternative Business Structures, Richard Devlin, Ora Morison

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Despite ongoing concern about access to justice in Canada, the problem persists. Meanwhile, the basic model for legal practice in Canada is the same as when the profession first emerged centuries ago in England. Only lawyers can own and control legal practices. This is not the case in other common law jurisdictions where rules have evolved to allow nonlawyers to own the companies that provide legal services. Based on a comparative analysis of the development of these alternative business structures (ABSs) in Australia and the United Kingdom, and the nondevelopment of ABSs in the United States, the authors argue that …

Ontario’S Administrative Tribunal Clusters: A Glass Half-Full Or Half-Empty For Administrative Justice?, Lorne Sossin, Jamie Baxter

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Claimants who come to administrative tribunals in Canada, as elsewhere, expecting a convenient forum to resolve their problems may discover that institutional resources and expertise, their own knowledge of the system, and their statutory entitlements and legal rights are fragmented between agencies with diverse norms and mandates. The provincial government of Ontario in Canada has recently enacted a novel strategy called tribunal clustering to confront these challenges. This paper explores the structure and rationales behind Ontario’s new tribunal clusters and compares these with reform models in Australia and the United Kingdom. The authors argue that tribunal clusters offer a flexible …

Open Connectivity, Open Data: Two Dimensions Of The Freedom To Seek, Receive And Impart Information In The New Zealand Bill Of Rights, Jonathon Penney

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Recently, ideas about "rights" to Internet access or connectivity have received growing recognition from governments, legal institutions, and other political actors in several countries, including New Zealand Despite this emerging political and legal recognition, there are few, if any, systematic studies exploring such ideas. This paper aims to change this. First, it offers a theoretical exploration of the idea of a "right" to Internet access, including the diferent versions of such rights talk. Secondly, it examines whether there is any legal basis for such rights claims in New Zealand and ultimately argues that section 14 of the New Zealand Bill …

Criminal Justice Models: Canadian Experience In European And Islamic Comparative Perspective, Bruce P. Archibald

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This paper examines Canadian models of criminal justice in a European and Islamic comparative perspective. The traditional model of Canadian criminal justice is a state centred adversarial one intended to punish, deter and/or rehabilitate offenders who are accorded formal due process protections embedded in a liberal constitutional and procedural rights. This model has been transformed recently into an ambiguously tripartite adversarial model through an overlay of victims’ rights at all stages. However, Canadian law also recognizes alternative processes through various forms of problem solving courts and sometimes comprehensive restorative justice approaches, the latter rooted in relational notions of rights. Meanwhile, …

Pereira's Attack On Legalizing Euthanasia Or Assisted Suicide: Smoke And Mirrors, Jocelyn Downie, Kenneth Chambaere, Jan L. Bernheim

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In a paper published in Current Oncology, University of Ottawa palliative care physician Jose Pereira states that the, “laws and safeguards [in countries in which euthanasia or assisted suicide have been legalized] are regularly ignored and transgressed in all the jurisdictions, and that transgressions are not prosecuted.” He purports to demonstrate that the safeguards and controls put in place in the permissive jurisdictions are an “illusion.”

In the present paper, we expose problems with the evidence base provided and relied upon by Pereira. It should be noted that we provide only examples of each of the categories of mistakes made …

Prosecutorial Discretion In Assisted Dying In Canada: A Proposal For Charging Guidelines, Jocelyn Downie, Ben White

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English Abstract: An Expert Panel of the Royal Society of Canada and a Select Committee of the Québec National Assembly both recently recommended the issuance of permissive guidelines for the exercise of prosecutorial discretion on voluntary euthanasia and assisted suicide and “medical aid in dying” respectively. It seems timely, therefore, to propose a set of offence-specific guidelines for how prosecutorial discretion should be exercised in cases of voluntary euthanasia and assisted suicide in Canadian provinces and territories. We take as our starting point the only existing guidelines of this sort currently in force in the world (i.e. the British Columbia …

Cross-Border Extended Collective Licensing: A Solution To Online Dissemination Of Europe’S Cultural Heritage, Johan Axhamn, Lucie Guibault

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The ever increasing use of the Internet and of digitisation technologies have opened up new possibilities for distributing and accessing creative content online, including for cultural heritage institutions. However, the digitisation and dissemination of a substantial proportion of the collections held by European cultural institutions may be considerably hindered due to high transaction costs related to clearance of copyright and related rights. This holds equally true for the cultural institutions taking part in the Europeana project. This study examines whether the Nordic “extended collective licensing” (ECL) model could provide a viable solution to the problems of digitisation and dissemination of …

Defining Civil Disputes: Lessons From Two Jurisdictions, Elizabeth Thornburg, Camille Cameron

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Court systems have adopted a variety of mechanisms to narrow the issues in dispute and expedite litigation. This article analyses the largely unsuccessful attempts in two jurisdictions - the United States and Australia - to achieve early and efficient issue identification in civil disputes. Procedures that rely on pleadings to provide focus have failed for centuries, from the common (English) origins of these two systems to their divergent modern paths. Case management practices that are developing in the United States and Australia offer greater promise in the continuing quest for early, efficient dispute definition. Based on a historical and contemporary …

The Price Of Access To The Civil Courts In Australia: Old Problems And New Solutions - A Commercial Litigation Funding Case Study, Camille Cameron

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In the past decade litigation funding companies have assumed an increasingly prominent role in commercial litigation and class actions in Australia. The growth of commercial litigation funding is a predictable response to various features of Australia’s costs and fee allocation rules and practices, including the “loser pays” rule, the prohibition on lawyer’s charging contingency fees, the hourly billing practices of lawyers, and the open-ended and unpredictable nature of much civil litigation. This chapter explores the growth of commercial litigation funding in Australia and uses it as a window through which to view how Australia’s costs and fee allocation rules operate …

Why Cherry Picking Never Leads To Harmonisation: The Case Of The Limitations On Copyright Under Directive 2001/29/Ec, Lucie Guibault

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The article examines whether the norms laid down in the Directive in relation to the exceptions and limitations on copyright and related rights can be conducive to a sensible degree of harmonisation across the European Union. Before discussing the degree of harmonisation achieved so far by the Directive, the first part gives a short overview of the main characteristics of the list of exceptions and limitations contained in Article 5 of the Directive. A comprehensive review of the implementation of each limitation by the Member States is beyond the scope of this article. The following section takes a closer look …

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 …

Harmonizing European Copyright Law: The Challenges Of Better Lawmaking, Mireille Van Eechoud, P Bernt Hugenholtz, Stef Van Gompel, Lucie Guibault, Natali Helberger

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Nobody likes today’s copyright law. Widespread unauthorized use of copyright material proliferates with impunity, while citizens and users protest that intrusive copyright and related rights law stifle cultural expression. Equipment manufacturers and intermediaries complain about yet more ’security’ features that complicate their products and services and encumber marketing, while content owners desperately want enforcement to work. And of course it is crucial that whatever regulatory instruments come into play must not age prematurely in Internet time. The European Union faces the daunting challenge of articulating coherent copyright policies that satisfy these contradictory multiple demands. Yet the legal framework must conform …

The End(S) Of Self Regulation?, Richard Devlin, Porter Heffernan

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Self-regulation is a sacred cow of the Canadian legal profession. The authors question this assumption on several levels and ask whether, in a liberal democratic society such as Canada, self-regulation really is in the public interest. The advantages and disadvantages of self-regulation are discussed in the context of other Commonwealth nations who have moved away from this type of regulatory structure. Though the self-regulation debate has been traditionally viewed as a "one way or the other" argument, calibrated regulation seems to be a possibility in Canada and, in fact, steps have already been taken in this direction. Devlin and Heffernan …

Prenatal Management Of Anencephaly, Rebecca J. Cook, Joanna Erdman, Martin Hevia, Bernard M. Dickens

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About a third of anencephalic fetuses are born alive, but they are not conscious or viable, and soon die. This neural tube defect can be limited by dietary consumption of foliates, and detected prenatally by ultrasound and other means. Many laws permit abortion, on this indication or on the effects of pregnancy and prospects of delivery on a woman's physical or mental health. However, abortion is limited under some legal systems, particularly in South America. To avoid criminal liability, physicians will not terminate pregnancies, by induced birth or abortion, without prior judicial approval. Argentinian courts have developed means to resolve …

Accommodating The Needs Of Iconsumers: Making Sure They Get Their Money’S Worth Of Digital Entertainment, Lucie Guibault

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The current methods of distributing music and film on the mass-market, either off-line or on-line, raise two types of consumer protection issues. First, consumers are not always in a position to know what they can and cannot do with their digital hardware and content. A lack of proper information and the ensuing failure of the products to meet the consumer’s expectations inevitably leads to discontent. In addition, as weaker party in the transaction, consumers have often no other choice but to accept or refuse the restrictive terms of use, even if these could be regarded as unfair. This paper examines …