Law Commons^™

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 …

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 …

Access To Justice In The Nova Scotia Small Claims Court 1980-2022, William H. Charles

Dalhousie Law Journal

*This contribution has not been peer-reviewed.

In his latest research paper the author explores the extent or degree to which the Nova Scotia Small Claims Court achieves its declared purpose of providing the citizens of the province with what can accurately be described as a “People’s Court,” that is, a legal agency that would allow ordinary citizens to pursue their legal claims expeditiously and at a reasonable cost with a process that involved lawyers/adjudicators rather than judges. After a review and analysis of several thousand decisions by Nova Scotia Adjudicators/lawyers, the author concluded that the creators of the court had …

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 …

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 …

Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …

Comparative Tax Law Guide, Kim Brooks

OER Texts

This extended bibliography is designed to support comparative tax law study by students, policy-makers, and tax practitioners. Studying comparative tax law is pure joy. And in addition to that, it enables you to:

• more deeply understand your own tax system and context;
• learn about another country’s system and context;
• draw general conclusions about tax law;
• press for or support tax law change;
• facilitate tax law harmonization or coordination among jurisdictions;
• delve into the role of tax in the spread of higher-order values like fairness, equality, transparency, or privacy;
• explain why a country’s tax laws are the way they are; and …

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.

Caesar’S Gambit: Coherence, Justification Of Legal Rules, And The Duty Test: Towards An Interactional Theory Of Government Liability For Negligence In Disaster Management, Irehobhude O. Iyioha

Dalhousie Law Journal

This article examines barriers posed by the duty of care test for government liability for negligence in disaster management. It argues that various aspects of the test raise concerns about coherence, legitimacy of judicial decision-making, and ultimately how we justify liability in tort law. In examining the coherence of the duty test through multiple prisms, including through theoretical justifications for tort principles, this article contends that the duty test, in its framing and interpretations, fails to meet the formal and substantive demands of coherence, correctness and legitimacy. Arguing that justificatory theories offer necessary theoretical lenses through which to understand, critique, …

Toward Justice Epidemiology: Outlining An Approach For Person-Centred Access To Justice, Andrew Pilliar

Dalhousie Law Journal

The COVID-19 pandemic has brought widespread public attention to the fields of epidemiology and public health. These fields share a common commitment to the systematic study of disease across populations, with goals of better understanding, preventing, and treating adverse health events. They are empirical, evidence-based, and person-centred. This paper draws on the histories, norms, and methodologies of public health and epidemiology to construct a novel field of study: justice epidemiology. In recent years, a growing body of unmet legal needs research in Canada and elsewhere has demonstrated that justiciable events are likely ubiquitous, but also that these events tend to …

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 …

Cultivating Versatility: The Multiple Foundations Of The Law School’S Public Mission, David Sandomierski

Dalhousie Law Journal

Law schools should aspire to cultivate versatility. To accomplish this goal, the salient features of the law school should reflect three foundational intellectual pillars: a commitment to the rule of law and legal rationality, an emphasis on multiple legal process, and an appreciation for legal pluralism. Complementing these symbolically “vertical” pillars on which the law school’s activity rests are three transversal virtues that operate “horizontally” to brace the foundations. These include a commitment to critique, context, and diversity. Ultimately, legal educators should concern themselves with how they can best prepare their students for a wide range of contributions to society …

Can A Tribunal’S Former Counsel Appear Before The Tribunal? A Comment On Certain Container Chassis, Andrew Martin

Articles, Book Chapters, & Popular Press

Lawyer mobility has been recognized as an important but not determinative consideration in legal ethics, particularly when it comes to conflicts of interest. Mobility poses particular issues for counsel to a tribunal. Those counsel may well at some point leave that position and pursue other opportunities. Prospective opportunities may sometimes involve appearing as counsel for a party before the same tribunal – especially where the tribunal operates in a highly specialized area of law. Can a lawyer appear before a tribunal if they were previously counsel to that tribunal? This discrete issue, though it rarely arises in the case law, …

Exploring The Role Of Mandatory Mediation In Civil Justice, Nayha Acharya

Articles, Book Chapters, & Popular Press

In this article, I offer a framing of the debates around mandatory mediation that rest on the premise that a legitimate civil justice process depends on unhindered access to an adjudicative system, which must be recognized as a procedural right. This is a keystone of the rule of law, and a valid legal system that deserves the authority that it asserts is contingent on this. My central thesis is that requiring mediation (which is independent of the rule of law) before allowing full access to adjudication compromises the procedural rights of legal subjects, and the rule of law principle. Such …

Masthead & Table Of Contents

Dalhousie Law Journal

No abstract provided.

Masthead & Table Of Contents

Dalhousie Law Journal

No abstract provided.

Introduction To Julie Bilotta’S Story, Sheila Wildeman

Articles, Book Chapters, & Popular Press

Julie Bilotta’s contribution to this special volume is a straightforward denunciation of prison-based inhumanity and institutionalized misogyny. I write to show solidarity with her and to alert the reader to some of the ways her story exposes intersectional injustice while enlivening feminist abolitionist prison resistance. I write, too, to challenge my own and others’ thinking about whether or how law (litigation, law reform) might contribute to that resistance.

In her essay, Julie offers an intimate glimpse of prisons as sites of reproductive injustice. As this special volume attests, incarceration in Canada and elsewhere produces systematic gendered harms, including lack of …

Doing Business Guidance, Legal Origins Theory, And The Politics Of Governance By Knowledge, Liam Mchugh-Russell

Articles, Book Chapters, & Popular Press

This article uses the World Bank’s Doing Business project to illuminate the politics of “governance by knowledge.” It synthesizes scholarship critiquing the project’s legitimacy and contributes to research challenging the instrumental benefits of improved Doing Business performance. The article’s major contribution is an immanent critique of Legal Origins Theory, which was developed largely to provide ex post validation for the project’s core claims, but whose premises, when taken seriously, lead to conclusions that contradict its “one-size-fits-all” logic. The article demonstrates much can be learned about the politics of development by engaging rationalizations of power on their own terms.

A Gender-Based Approach To Historical Child Support: Comment On Colucci V Colucci, Jodi Lazare, Kelsey Warr

Articles, Book Chapters, & Popular Press

In June 2021 the Supreme Court of Canada (the “Court”) released Colucci v Colucci, its second decision in twelve months dealing with the complex subject of historical (commonly referred to as retroactive) child support. The case worked a significant shift in the law, arguably the first major revision to the law since the Court’s initial consideration of historical child support in DBS, in 2006. This comment suggests that Colucci represents a new understanding of the way that claims for historical child support should be considered in Canadian family law. The comment argues that in changing the applicable framework, …

Animals As Legal Beings: Contesting Anthropocentric Legal Orders, By Maneesha Deckha, Jodi Lazare

Articles, Book Chapters, & Popular Press

Scholarship on animal rights has long been dominated by the widely held idea that justice for nonhuman animals will not be achieved until they are granted legal personhood. In Animals as Legal Beings: Contesting Anthropocentric Legal Orders, Maneesha Deckha provides an alternative legal classification for nonhuman animals. “Beingness,” rooted in relational feminism, post-colonial theory, and critical animal studies, recognizes nonhuman animals’ inherent value, while avoiding some of the downsides to legal personhood, namely, its embeddedness in the imperialist liberal individualism that characterizes western legal systems. Given its anthropocentric nature, personhood must be displaced as the aspirational classification for animals. …

Understanding Chilling Effects, Jonathon Penney

Articles, Book Chapters, & Popular Press

With digital surveillance and censorship on the rise, the amount of data available online unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence (AI), machine learning, and facial recognition technology (FRT) for surveillance and data analytics, concerns about “chilling effects”, that is, the capacity for these activities “chill” or deter people from exercising their rights and freedoms have taken on greater urgency and importance. Yet, there remains a clear dearth in systematic theoretical and empirical work point. This has left significant gaps in understanding. This article has attempted to fill that void, synthesizing theoretical and empirical …

Legal Ethics For Government Lawyers: Confronting Doctrinal Gaps, Andrew Martin

Articles, Book Chapters, & Popular Press

Despite the recent growth in the Canadian literature on legal ethics for government lawyers, the leading conceptual models have yet to be applied to resolve many of the most important legal questions facing government lawyers. In this article, I identify four key situations where the obligations of government lawyers as lawyers appear to clash with their obligations as public servants. I provide both a doctrinal analysis of how the current law applies in those situations and proposals for how the law can be clarified and improved. This analysis both provides much needed guidance to government lawyers and promotes a greater …

Judicial Workbook On Bill C-92 — An Act Respecting First Nations, Inuit And Métis Children, Youth And Families, Hadley Friedland, Naiomi Metallic, Koren Lightning-Earle

Articles, Book Chapters, & Popular Press

Objective: Based on the purpose, history, textual wording and relevant interpretative principles, these are the approaches to the provisions of the Act that we believe will best achieve its purpose, which Canada has identified as “to protect and ensure the well-being of Indigenous children, families and communities by promoting culturally sensitive child welfare services, with the goal of putting an end to the overrepresentation of Indigenous children in child and family services systems."

“No Skateboarding Allowed”: Municipal Bylaws, Urban Common And Public Property, And The Regulation Of “Undesirable” Or “Disruptive Use", Sara Gwendolyn Ross

Articles, Book Chapters, & Popular Press

The mechanics of daily local inequality and marginalization can be readily observed within the language of local bylaws that govern urban spaces and places and their use — whether these govern the hours and types of use that can be made of local “public” parks, spaces where loitering is identified as unwelcome, or how and where certain activities can take place. While affinity spaces can be, on the one hand, welcomed and celebrated for the mentorship of youth, extracurricular activity, environmentally friendly transportation, or as a skill-building goal-oriented endeavour, the language of bylaws creates an ecosystem equally predisposed to prohibiting …

Non-Consensual Condom Removal In Canadian Law Before And After R. V. Hutchinson, Lise Gotell, Isabel Grant

Dalhousie Law Journal

This paper examines the phenomenon of non-consensual condom removal (NCCR) and its relationship to sexual assault in Canada. Using empirical studies and the insights of feminist theory, we explore the nature of the harms caused by NCCR and contend that this pervasive practice constitutes sexual assault. We then critique the decision of R v Hutchinson, which held that condom sabotage does not negate subjective consent, ignoring the dignitary harms of NCCR. While lower court decisions before Hutchinson recognized that consent to sex with a condom does not include consent to sex without, courts after Hutchinson have struggled to distinguish the …

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 …

Masthead & Table Of Contents

Dalhousie Law Journal

No abstract provided.

The Incorporation Of Government Lawyering In The Teaching Of Legal Ethics In Canadian Law Schools, Andrew Martin, Leslie Walden

Articles, Book Chapters, & Popular Press

Government lawyers, and the specific legal ethics issues that arise in their practices, remain largely overlooked in Canadian legal education. The authors argue that government lawyering should be better incorporated into legal ethics curricula in law schools, for both practical and conceptual reasons. Most importantly, understanding issues unique to government lawyering helps students better understand core concepts in legal ethics, and thus better prepare for the practice of law both in the public and private sectors. While law teachers face serious challenges in incorporating government lawyering into legal ethics education, many of those challenges can be confronted and ameliorated. The …