Law Commons^™

Scholarship As Fun, Thomas Schultz

Dalhousie Law Journal

One theme that traverses much of Pierre Schlag’s work is a sense of profound humanity—the idea that thinking and writing about the law can and should be a deeply, genuinely human activity—an activity for which we can, and should, break up many of the barriers that stand between us, between who we really are, and what we think and write. It is an activity for which we should put aside our pretences and insecurities and the attached formalisms and exaggerations behind which we so often hide, and which in the end constrain our humanity so much, as they take on …

Humour, A Meditation, John Henry Schlegel

Dalhousie Law Journal

Back in 1987 when Critical Legal Studies was still “hot,” I was shopping a piece that was a long review essay on Laura Kalman’s history, Legal Realism at Yale. An acquaintance who was on that faculty invited me to present the piece—which I am still quite proud of—at the workshop he was running. Owen Fiss was the first person to ask a question. He wanted to know whether the piece was “serious” work or whether it was just an elaborate joke. Surprised and bewildered by the question, I answered, “Both.” In response he asserted that unless it were one or …

Show And Tell, Liam Mchugh-Russell

Dalhousie Law Journal

...to break the rules wisely, you have to know the rules well.

–Le Guin, Steering the Craft

I finished my doctorate in June of 2019. Most of my waking hours that late summer and early fall were spent writing and rewriting cover letters, teaching statements, and research agendas (and equity statements, long CVs, short CVs, etc.)—all the variegated materials demanded from applicants to tenure-track positions in North American law faculties. Writing those materials, and integrating the feedback on early drafts that I received from a host of generous peers and colleagues, became an accidental study in the principal subtext of …

Conflicting Decisions: Why The Privy Council Drifted From Precedent In Deciding Cunningham V Homma, Keita Szemok-Uto

Dalhousie Law Journal

his paper highlights the structural barriers to voting rights that Japanese-Canadians in BC faced in the early 20th century. It documents Tomekichi Homma’s challenge of provincial legislation which prevented the Japanese from voting in local elections. His fight went to the Judicial Committee of the Privy Council, then the highest court of appeal in Canada. While Homma challenged the law because it denied voting rights based on racial grounds, the courts made little to no reference to race or ethnicity in hearing the issue; their focus was on questions of constitutionality and the division of powers. The Privy Council employed …

Why The Multilateral Investment Court Is A Bad Idea For Africa, Akinwumi Ogunranti

Dalhousie Law Journal

The UNCITRAL Working Group III (WG III) is discussing procedural reforms in the investor state dispute settlement system (ISDS). The ISDS framework is criticized on various grounds, including arbitrator bias, lack of transparency, and inconsistent arbitral decisions. One of the recent reform proposals before the WG III is the possibility of a multilateral investment court (MIC). This proposal is championed by European Union states and supported by Canada. The proposal recommends replacing ISDS’ Ad hoc investment tribunals with an established and permanent court where states appoint judges. This paper examines the MIC reform option and argues that replacing the ISDS …

Mixing Mathematics And Morality: Precarity And Moral Hazard In Employment Insurance And Personal Insolvency Law, Anna J. Lund

Dalhousie Law Journal

This article examines how financially precarious Canadians face particular challenges to accessing the benefits of employment insurance and personal insolvency because these two systems include features designed to guard against moral hazard. However, these design features do not adequately account for how an increasing number of Canadians are precariously employed and precariously indebted. This article synthesizes the research on precarious employment in Canada, and uses it to suggest how one might conceptualize precarious indebtedness. It then traces how the Canadian employment insurance and personal insolvency systems treat characteristics of financial precarity as evidence of misconduct. As a result, precariously employed …

Law’S Sexual Infections, Kyle Kirkup

Dalhousie Law Journal

In 2019, the House of Commons Standing Committee on Justice and Human Rights published its study on the criminalization of HIV non-disclosure in Canada. The report recommended removing HIV non-disclosure from sexual assault laws in Canada. This constituted a welcome development for many HIV advocates. Yet other recommendations proved more controversial. In order to counter the exceptional targeting of HIV, the Committee proposed an offence for the non disclosure of all infectious diseases. This article uses the proposal to develop three arguments. First, the idea of creating an offence for all infectious diseases finds its origins in criminal laws dating …

Lost: Heritage Stock. The Heritage Property Act And Heritage Conservation In Downtown Halifax, Nova Scotia, Eliza Richardson

Dalhousie Law Journal

This article considers heritage conservation in Halifax, examining the Heritage Property Act and its implementation. As one of the oldest cities in Canada, Halifax, Nova Scotia was graced with an abundance of built heritage. However, historic properties have been disappearing at an alarming rate, with 41 per cent of potential heritage buildings in downtown Halifax, Nova Scotia having been demolished since 2009. This article argues that the current approach to heritage conservation in Halifax is nominally successful but consistently falls short of the spirit in which it was enacted. The Act performs well in specific situations, namely where the owners …

Masthead & Table Of Contents

Dalhousie Law Journal

No abstract provided.

Police-Generated Evidence In Bail Hearings: Generating Criminality And Mass Pretrial Incarceration In Canada, Jillian Rogin

Dalhousie Law Journal

Systemic racism in policing impacts many aspects of the criminal legal system including the system of judicial interim release. This paper traces the ways in which reliance on police-created evidence at bail hearings might contribute to mass pretrial incarceration in Canada which is disproportionately felt by Indigenous, Black, and marginalized people. The police synopsis and police-created criminal records are state knowledge created for state purposes. This state-created evidence in fact generates race and racialization; all of the structural inequalities built into the system of policing become relied on at bail hearings through police-created evidence which contributes to mass pretrial incarceration …

Masthead & Table Of Contents

Dalhousie Law Journal

No abstract provided.

Citizenship And The First-Generation Limitation In Canada, Michael Pal, Luka Ryder-Bunting

Dalhousie Law Journal

This article considers the current Canadian regime for citizenship by descent and what is known as the “first-generation limitation.” In 2009, Parliament legislated to limit the transmission of citizenship by descent. Known as the “first-generation limitation,” the new rules mean that a Canadian parent is only entitled to pass on their citizenship to their children born abroad if the parent themselves became a citizen by birth inside Canada or by naturalization. In other words, if an individual acquired Canadian citizenship by descent, they are not entitled to pass on their citizenship to their children unless those children are born in …

Masthead & Table Of Contents

Dalhousie Law Journal

No abstract provided.

But Why Him? A Review Of The Tenth Justice: Judicial Appointments, Marc Nadon, And The Supreme Court Act Reference, By Carissima Mathen And Michael Plaxton, Andrew Flavelle Martin

Dalhousie Law Journal

To the great benefit of the Canadian legal community and the Canadian public, the authors have created an extensive, concise, and highly readable account of the Nadon saga. Anyone unfamiliar with the purported appointment of Justice Nadon to the Supreme Court of Canada, the Reference re Supreme Court Act, ss 5 and 6 (also known as the Nadon Reference), and the aftermath will find this book invaluable. I expect this work will become the definitive and authoritative account of this saga and that it will be indispensable to future scholars.

I begin this review with a brief overview of the …

Designing A More Sustainable Global Tax System, Allison Christians

Dalhousie Law Journal

The international tax system incentivizes unsustainable business practices because it ignores the private profits created by externalizing human, societal, and environmental costs. This paper proposes a novel reform: applying living wage and externality assessment tools to the rules for establishing where income arises for tax purposes. To do so, I propose a method that is relatively complex but arguably more accurate (in tax terms) and a complementary but relatively simpler proxy method. I examine how each method would implicate treaty-based and domestic rules and processes and conclude that the proposed design provides a viable starting point to make the global …

Cross-Border Tax Transparency: A Study Of Recent Policy Developments In Turkey, Leyla Ateş

Dalhousie Law Journal

Transnational tax information cooperation has the crucial role of empowering tax administrations to collect tax revenues in full and on time, thereby narrowing the tax gap created by international evasion and avoidance. However, the adequacy of established transnational tax information exchange systems in combatting international tax evasion and avoidance has been severely criticized and a new wave of progress on transparency has started after the 2008 global economic crisis. In this direction, Turkey set cross-border tax transparency high on its political agenda. Though, Turkey has operationalized new transnational tax cooperation agreements very slowly. Furthermore, Turkey’s approach to exchanging information has …

Masthead & Table Of Contents

Dalhousie Law Journal

No abstract provided.

Domestic Revenue Mobilization Through Corporate Income Tax In An East African Developing Country Context, Afton Titus

Dalhousie Law Journal

The laudable objective of making the Sustainable Development Goals (SDGs) a reality requires the targeted use of financial resources. It has become imperative for governments to raise such financial resources through mechanisms that facilitate the domestic mobilization of revenues. This paper argues that in an African developing country context, corporate income tax represents the most effective means by which governments may raise the required funds. Corporate income tax remains an important source of revenue for African countries. This paper further proposes: (i) the design of the essential features of a corporate income tax system that properly accounts for the economy …

Origin And Differentiation In International Income Allocation, Ivan Ozai

Dalhousie Law Journal

The present international tax rules are typically justified by origin-based theories. These theories align countries’ tax entitlements with the geographical location of the economic factors that contribute to the creation of income. Two recent phenomena have rendered origin-based approaches limited in scope. First, the economic integration of multinational corporations and the relevance of intangibles have made it infeasible to precisely pinpoint the factors contributing to the generation of income. Second, the growing disputes between countries about which economic factors should be considered relevant for sharing the international tax base have recently led to increased consideration of distributional consequences, thus moving …

International Arbitration: The New Frontier Of Business And Human Rights Dispute Resolution?, Tamar Meshel

Dalhousie Law Journal

The question of redress for corporate human rights violations remains daunting. Access to justice challenges faced by rights holders before domestic courts have placed this issue at the forefront of international discourse, and many initiatives have attempted to improve rights holders’ access to effective remedies. This article examines one such initiative, namely international arbitration. The article focuses on the use of international arbitration in the business and human rights context pursuant to the 2013 Accord on Fire and Building Safety in Bangladesh and the recently launched Hague Rules on Business and Human Rights Arbitration. It evaluates the extent to which …

Employment Law Revisited, Mark Freedland

Dalhousie Law Journal

This critique of Brian Langille’s famous “Subset” article considers the historical and current meaning of “employment law” in Canada and in the UK. In Canada, “employment law” was fashioned by Innis Christie in the 1980s as the law of personal work relations for the non-unionized sector, with “labour law” applying to the unionized sector of the economy. In the UK, “individual employment law” appeared in the 1970s to be a distinct discipline; but since that time it has largely re-merged with labour law, with the terms “employment law” and “labour law” becoming virtually synonymous. An enlarged scope is proposed for …

“Labour Law Is A Subset Of Employment Law” Revisited, Alan Bogg

Dalhousie Law Journal

This article revisits the arguments in Brian Langille’s seminal law review article, “Labour Law is a Subset of Employment Law.” Langille’s article was based upon two main claims: (a) that (individual) employment law should be understood as the “set” and (collective) labour law the “subset” of employment law (the primacy of employment law); (b) that “public values” have priority over “private values” in the regulation of work (the primacy of public values). These two claims were presented as mutually reinforcing in “Subset.” Drawing on specific examples from UK and Canadian law, this article endorses the first claim but rejects the …

A Leap Of Faith: Twail Meets Caribbean Queer Rights Jurisprudence—Intersections With International Human Rights Law, H. Patrick Wells

Dalhousie Law Journal

This article examines the legal status of queer rights in Caribbean jurisprudence. It conducts an analysis of Caribbean queer rights case law, in order to arrive at an understanding of the extent and dynamics of constitutional protection for these rights. It then uses the revelations from this analysis to determine how Caribbean queer rights jurisprudence has intersected with international human rights norms, values and rules. Finally, the article applies the TWAIL methodological approach to international law to argue that the Caribbean queer rights jurisprudence has not so far reflected the counter-hegemonic, resistance, anti-imperialist discourse that TWAIL champions, in spite of …

Searching For A Summary Judgment Equivalent In Quebec Procedural Law, Kathleen Hammond

Dalhousie Law Journal

The summary judgment is a procedural mechanism that is meant to improve the efficiency of civil litigation by allowing a judgment to be delivered in a summary way, and without the need for a full trial. It is seen as an important tool for dealing with the growing problem of access to justice in Canada. Reform to Ontario’s summary judgment rules in 2010, and a liberal interpretation of the Ontario rules in the case of Hryniak v Mauldin, 2014, have led to a greater reliance by parties on summary judgment motions in Ontario. This trend is also apparent in other …

Providing For Victim Redress Within The Legislative Scheme For Tackling Foreign Corruption, Joanna Harrington

Dalhousie Law Journal

This article examines the prospects for victim redress for the corporate commission of foreign corruption, using Canada as a case study. Such cases are typically addressed by negotiated settlements, with Canada’s new “remediation agreement” regime embracing an intention to provide “reparations for harm done to victims or to the community.” Further work, however, needs to be done on defining who is a victim, with the SNC-Lavalin affair having focussed much attention on employees, pensioners and shareholders, with barely a mention of the overseas victims of the alleged crimes. To this end, the article examines comparable efforts undertaken in England to …

Acceptance Speech For Lifetime Achievement Award From Canadian Prison Lawyers Association, Michael Jackson Qc

Dalhousie Law Journal

Acceptance Speech for Lifetime Achievement Award from Canadian Prison Lawyers Association

Protecting Identity By Ignoring It? A Critical Look At The French And Rwandan Paradoxes, Frédéric Mégret

Dalhousie Law Journal

This article seeks to critically examine political and legal practices of "racial blindness" by comparing two countries that have most enthusiastically embraced it as an official policy and even ideology: France and Rwanda. By highlighting the differences but also the significant commonalities between the two, it seeks to dynamically emphasize their explicit and implicit construction of race and ethnicity The case for racial blindness is first presented in the terms in which it is largely understood in those countries, and taken seriously as an effort to deal with their unique legacies and political circumstances, notably as part of a desire …

A Proposed Transjudicial Approach To S. 15(2) Charter Adjudication, Vanita Goela

Dalhousie Law Journal

Canada and India are both pluralistic democracies with diverse populations. Both countries have drafted constitutional provisions which enshrine equality rights and permit affirmative action. In India, various disadvantaged groups receive special protection from the Constitution of India, such as the Other Backward Classes (OBC). The Supreme Court of India has held that States and the Central government must identify the "creamy layer" within the OBC category so that reservations target members who are most in need. Otherwise, the OBC category is overinclusive. The creamy layer includes those who are socially and economically advanced and who no longer require the benefits …

Child Pornography In Canada And The United States: The Myth Of Right Answers, Travis Johnson

Dalhousie Law Journal

Child pornography is an increasing worldwide concern and is one of the most active fronts in the ongoing battle between freedom of expression and public safety and morality. In 2005, the child pornography provisions of the Canadian Criminal Code were amended in response to the controversial decision of the Supreme Court in R. v. Sharpe. Similar legislative response has occurred in the United States following the U.S. Supreme Court decision inAshcroft v. Free Speech Coalition. A comparative examination of the legislative and judicial treatments of the issue of child pornography in these countries reveals that despite reaching differing rights-balancing positions, …

Reforming Testamentary Undue Influence In Canadian And English Law, Fiona R. Burns

Dalhousie Law Journal

The traditional doctrine of testamentary undue influence developed in nineteenth century England. Its utility, however, is limited since the doctrine requires the person alleging undue influence to provide direct proof of coercion according to a high standard. In England the doctrine has remained static and there have been calls for reform. In Canada, some courts have ceased to apply the traditional doctrine so that today there is no one consistent and coherent doctrine of testamentary undue influence. This article explores two possible reforms of the doctrine both of which are evident in recent Canadian case law: a presumption of testamentary …