Law Commons^™

Foreword, Michael Macdonald

Dalhousie Law Journal

No abstract provided.

The Story Of Law Reform In Nova Scotia: A Perilous Enterprise, Bill Charles

Dalhousie Law Journal

The basic or overarching question addressed by the author is why institutional law reform in Nova Scotia has experienced such operational difficulties and challenges, particularly in relation to funding, to the point where it can be described as a perilous enterprise. In the process of searching for an answer to this question, the author examines the origins and development of organized law reform in Nova Scotia over the last 65 years, with special attention paid to the experience of Nova Scotia's two statutory commissions. As a backdrop to the discussion, the author examines the complicated process of law reform itself …

Equality And The Defence Of Provocation: Irreconcilable Differences, Isabel Grant, Debra Parkes

Dalhousie Law Journal

Recent amendments to the defence of provocation have limited access to the defence to those who are provoked by conduct that, if prosecuted, would have been an indictable offence punishable by at least five years imprisonment. The paper argues that these amendments are both over- and under-inclusive and fail to confront the central problem surrounding provocation which is that it privileges loss-of-control rage often in the context of male violence against women or in response to same-sex advances. The paper supports the abolition of the defence of provocation but only if mandatory minimum sentences for murder are abolished providing trial …

Employing Older Prisoner Empirical Data To Test A Novel S. 7 Charter Claim, Adelina Iftene

Dalhousie Law Journal

This article builds the case for expanding s. 7 of the Charter of Canadian Rights and Freedoms to apply to prison regulations and decisions in the specific context of an aging prison population. As original empirical data shows, prisons are highly insensitive to age-related problems, and inappropriate or insufficient medical treatment receives official sanction from a wide range of correctional documents. The stark inadequacies of the current system endanger older prisoners' security of the person, and sometimes their lives, in ways that violate their rights under s. 7, since the deprivations they suffer result from legislative policies and state conduct …

Connexion: A Note On Praxis For Animal Advocates, John Enman-Beech

Dalhousie Law Journal

Effective animal advocacy requires human-animal connexion. I apply a relational approach to unfold this insight into a praxis for animal advocates. Connexion grounds the affective relationships that so often motivate animal advocates. More importantly, it enables animal agency, the ability of animals to act and communicate in ways humans can experience and respond to. With connexion in mind, some weaknesses of previous reform efforts become apparent. I join these in the slogan "abolitionismas disconnexion." In so far as abolitionism draws humans and animals apart, it undermines the movement's social basis, limits its imaginative resources, and deprives animals of a deeper …

Hit Them Where It Hurts: State Responses To Biker Gangs In Canada, Graema Melcher

Dalhousie Law Journal

From civil and criminal forfeiture, to "gangsterism"offences in the Criminal Code, Canada does not lack for tools to address biker gangs. Yet attempts to stamp out bikers have met with little to no success. State responses to criminal organizations should use those organizations' own structures and symbols of power against them. A gang's reputation may be effectively used against a gang, but this strategy poses significant challenges to prosecution. Attempts to use a gang's internal hierarchy and administrative structure can succeed, but may only produce circumstantial findings if not supported by sufficient and substantial evidence. Attempts to combat gang violence …

The Phenomenology Of Medico-Legal Causation, Nicholas Hooper

Dalhousie Law Journal

The language of counterfactual causation employed from the bench obscures the analytical vacuity of the "butfor" test. This paper takes issue with the consistent recourse to "common sense" as a methodological tool for determining the deeply complex issue of causality. Despite manifestly empty gestures to, e.g., robust pragmatism, the current approach imposes the dominant values of the judiciary in a manner that perpetuates the current distribution of power. Whatever the merits of counterfactual inquiry, its legal iteration requires judges to construct a hypothetical narrative about "how things generally happen." This, in turn, impels a uniquely comprehensive brand ofjudicialcreativity. The results …

Social Membership: Animal Law Beyond The Property/Personhood Impasse, Will Kymlicka

Dalhousie Law Journal

While animal law has been subject to frequent reform in Canada and abroad, the basic legal foundations of animal oppression are largely unchanged. There are many reasons for this impasse, but part of the explanation is that legal reforms are caught in what we might call the property/personhood dilemma. In most legal systems, domesticated animals are defined as property and so long as this remains true, reforms are likely to be marginal and ineffective. However the main alternative-to shift animals from the category of property to personhoodis politically unfeasible, particularly for the domesticated animals who are most intensively exploited in …

The Significance Of The Systemic Relative Autonomy Of Labour Law, Bruce P. Archibald

Dalhousie Law Journal

The extent to which labour and employment law form an autonomous subsystem within the legal order is a significant matter in labour relations scholarship. Human capability theory helps explain how open legal constructs for structuring personal work relations are emerging in a relatively autonomous manner Similarly concepts of relational rights and relational contract theory assist in understanding the relatively autonomous development of restorative labour market regulation, with both substantive and procedural dimensions. Moreover dramatic changes in freedom of association doctrine under the Charter, which now procedurally protect collective bargaining, the right to strike and the independence of unions from management, …

The Only Legitimate Rule: A Reply To Maclean's Critique Of Ecolawgic, Bruce Pardy

Dalhousie Law Journal

Is autonomy "natural"? In Ecolawgic: The Logic of Ecosystems and the Rule of Law, I argue that a legal system of intrinsic neutrality is one over which no political office or branch of government has control and in which individuals have the autonomy to pursue their own interests. In 'Autonomy in the Anthropocene," the preceding article in this issue, Jason MacLean challenges the thesis of Ecolawgic. MacLean argues that autonomy is not a feature of neutral legal systems but a product of cultural norms and regulation. He maintains that Ecolawgic's prescription provides neither optimal economic outcomes nor effective environmental protection. …

Betterment, Michael G. Pratt

Dalhousie Law Journal

When property is wrongfully damaged the cost of reinstatement is often the appropriate measure of damages. Reinstatement by repair or replacement is, however often possible only by replacing old materials with new materials that enhance the value of the property, generating "betterment." In such cases courts are faced with a choice whether to abide the betterment and award the cost of reinstatement, or reduce damages to offset the betterment. Examples of both responses to betterment are found in the cases, but no clear principle has been articulated by Canadian courts as to when one is to be preferred over the …

Of Malls And Campuses: The Regulation Of University Campuses And Section 2(B) Of The Charter, Sarah E. Hamill

Dalhousie Law Journal

There have been a number of recent cases from across Canada about whether the Charter applies to public universities. Courts in Alberta have suggested that the Charter will apply to public universities while courts in British Columbia and Ontario have refused to apply the Charter to such cases. In this article I focus on the cases that also involve a claim to use university space, that is, those cases where there is an argument that by failing to allow an event on campus the university has violated the free expression guarantee in the Charter. If the Charter does apply and …

R. V Comeau And Section 121 Of The Constitution Act, 1867: Freeing The Beer And Fortifying The Economic Union, Malcolm Lavoie

Dalhousie Law Journal

A recent decision from the New Brunswick Provincial Court may have significant implications for Canada's constitutional structure. R. v. Comeau held that s. 121 of the Constitution Act, 1867, the constitution's internal free trade provision, prohibits both interprovincial tariffs as well as non-tariff trade barriers. In doing so, the court departed from a line of precedents holding that s. 121 prohibits only the erection of outright tariffs or duties on interprovincial trade. Ultimately the court held that s. 134(b) of New Brunswick's Liquor Control Act, which effectively prohibits the possession of all but small quantities of liquor purchased out of …

On Being A Second: Grace Wambolt, Legal Professionalism And 'Inter-Wave' Feminism In Nova Scotia, Elizabeth Legge

Dalhousie Law Journal

Grace Wambolt was the fifth female graduate of Dalhousie Law School and the second woman to practise law in Nova Scotia. She was one of the relatively few female lawyers in Canada (up to the influx of the nineteen-seventies) who practiced law following the push by the first female lawyers for the elimination of formal barriers to practice. This paper examines the similarities and differences between the "firsts" and those who followed them, primarily by looking at the life of Wambolt and her letters and speeches preserved in the Wambolt fonds located in the Nova Scotia Archives and donated by …

Autonomy In The Anthropocene? Libertarianism, Liberalism And The Legal Theory Of Environmental Regulation, Jason Maclean

Dalhousie Law Journal

Can there be autonomy in the Anthropocene? Libertarian environmental law scholar Bruce Pardy's Ecolawgic: The Logic of Ecosystems and the Rule of Law argues that contemporary environmental law violates the right to autonomy and runs afoul of the rule of law. Pardyproposes an alternative model ofenvironmental law premised on the logic of ecosystems and free markets. Pardy's Ecolawgic suffers, however from the very same conceptual infirmities that substantially undermine the real-world application of the free market paradigm on which Ecolawgic is largely based. Notwithstanding this critical flaw, Ecolawgic may be read as an aspirational model of environmental law and policy …

Are All Charter Rights And Freedoms Really Non-Absolute?, Brian Bird

Dalhousie Law Journal

This article challenges the conventional legal wisdom that no right or freedom in the Canadian Charter of Rights and Freedoms is absolute. Section 1 of the Charter is the most commonly cited source of this wisdom, but this provision merely sets out the standard that the state must meet to justify a limit on a Charter right or freedom. Section 1 does not provide advance confirmation that limits satisfying this standard exist for all Charter rights and freedoms. This interpretation, if correct, does not automatically render any of the rights or freedoms in the Charter absolute. Indeed, the standard in …

The Intellectually Disabled Witness And The Requirement To Promise To Tell The Truth, Jonas-Sébastien Beaudry

Dalhousie Law Journal

Mentally disabled victims of sexual crimes may be prevented from acting as witnesses in a criminal trial if their mental capacity is challenged. They face an important obstacle to access justice if the case against their alleged aggressor mostly relies on their testimony In R. v. D.A.I., in 2012, the Supreme Court of Canada revisited the Canada Evidence Act's requirement of promising to tell the truth and lowered the previously ambiguous threshold of cognitive capacities required to satisfy this requirement. The Evidence Act has been amended in 2015 to reflect the Court's decision. While apparently facilitating people with mental disabilities' …

War In The Expanse: The Metaphysics Of Cyberspace, Roy Balleste

Canadian Journal of Law and Technology

No abstract provided.

The Law Of Cyber Warfare: Restrictions, Opportunities And Loopholes, Nicholas Tsagourias

Canadian Journal of Law and Technology

The article considers the applicability of existing international rules on the use of force to cyber attacks and assesses their effectiveness. The author’s conclusion is that the current regime on the use of force fails to capture the particularities of cyber attacks and for this reason he makes some tentative proposals for enhancing security in this area.

Cyber Operations And The Humanization Of International Humanitarian Law: Problems And Prospects, Giacomo Biggio

Canadian Journal of Law and Technology

The aim of International Humanitarian Law (‘‘IHL”) is to regulate the conduct of hostilities while, at the same time, balancing the two overarching concepts of military necessity and humanity. While the principle of military necessity allows a party to a conflict to exercise any amount of armed violence which is necessary for the accomplishment of a military purpose, the principle of humanity aims at minimizing the amount of physical violence caused to combatants and the civilian population. From the late 19th century onwards the principle of humanity has progressively eroded the domain of military necessity, influencing the creation and interpretation …

Do They Want To Regulate Online Profiling?, Laura Garcia Vargas

Canadian Journal of Law and Technology

Online profiling or behavioural tracking is the process by which private companies track and gather data about users’ activities in online platforms. The data collected by all the companies is aggregated with the purpose of creating a comprehensive profile about users. Since at least 15 years ago, there have been several attempts to regulate online profiling in order to reduce its privacy implications. In general, these regulations have tried to limit the way the information is used, the type of data that is collected, and impose or suggest the security standards that the companies should take to protect it.

This …

The Dark Web: Some Thoughts For An Educated Debate, Vanessa Henri

Canadian Journal of Law and Technology

The ‘‘dark web” is a part of cyberspace that is only accessible through an anonymity software, such as The Onion Router. This encrypted network has prompted important legal challenges. As jurisprudence develops, many factors are at risk of inhibiting users’ right to privacy. Misunderstandings of the dark web’s functioning or myths regarding its veil of anonymity has justified invasive criminal investigations that has threatened users’ right to remain anonymous online. This article discusses these challenges while analyzing current legal developments in the United States and Canada.

Third-Party Services As Potential Sources For Law Enforcement Procurement Of Genomic Data, Katherine Kwong

Canadian Journal of Law and Technology

This paper examines two cases studies: Ancestry.com’s experience with law enforcement use of its genetic databases, and 23andMe’s responses to requests for users’ genomic data. Analyzing the responses to law enforcement requests by the two of the largest providers of third-party genomic services provides insight into the struggles third-party genomic services are likely to face and possible future directions for companies facing this type of law enforcement request.

Do Androids Dream Of Bad News?, Heidi Liu

Canadian Journal of Law and Technology

Breaking bad news is one of the toughest things to do in any field dealing with client care. As automation and technology increasingly interweave with human experience, there is growing concern about whether automated agents (‘‘AAs”) would be adequate to perform such a complex emotional act. In this paper, I draw from the literature in psychology and computer science to understand how individuals might react to automated agents (AAs) and address some of the strengths and limitations of AAs. I raise several legal and empirical issues that future designers and users of AAs must consider, including disclosure of and liability …

Can You Hear Me Now? Conceptions Of Privacy In Section 8, Chris Sewrattan

Canadian Journal of Law and Technology

This article will examine the different conceptions of privacy that are present in the jurisprudence of s. 8 of the Canadian Charter of Rights and Freedoms. Section 8 guarantees that everyone has the right against unreasonable search and seizure. As a constitutional right, the protection covers the privacy relationship between the state and the individual. It confers privacy over information for which there exists a reasonable expectation of privacy. The article will analyze a taxonomy of four privacy conceptions present in the literature and discuss their presence in s. 8 case law. It will then examine two criticisms that arise …

A Critical Assessment On The Extraterritorial Application Of Human Rights Treaties To Transnational Cyber Surveillance, Wanshu Cong

Canadian Journal of Law and Technology

In this essay, I question the appropriateness of applying the substantive requirements of lawful domestic surveillance developed from international human rights treaties and relevant case law to transnational cyber surveillance. And I argue in the negative. Therefore, for the purpose of this essay, I would not delve into the highly debatable issue of what counts as ‘‘control” in cyber surveillance and which standard of control triggers a state’s jurisdiction. Instead, this essay assumes that a control test was established. In the following section, I shall examine the substantive requirements for states restricting fundamental freedoms drawn on from current human rights …

A Whole New Meaning To Having Our Head In The Clouds: Voice Recognition Technology, The Transmission Of Our Oral Communications To The Cloud And The Ability Of Canadian Law To Protect Us From The Dangers It Presents, Sarit K. Mizrahi

Canadian Journal of Law and Technology

Voice recognition technology is now included in modern devices as a matter of course, being used in anything from our cellular telephones, to our televisions, and even the toys of our children. While we may voluntarily interact with some of our devices using this technology, such as conversing with Siri on our iPhones, many of us remain unaware as to the dangerous implications of using voice recognition technology.

Its ability to record some of our most personal conversations allows private companies to eavesdrop on us in an unprecedented manner and amass highly sensitive information about our lives that would have …

Has The Era Of Privacy Come To An End?, Avner Levin

Canadian Journal of Law and Technology

This keynote address to the 2016 McGill Law Graduate Conference provides a brief history of privacy before discussing contemporary challenges in the form of increasing technological ability to create, store and process personal information, and powerful advocacy against privacy from both government and the private sector. In order for privacy to survive, a new set of personal information protection principles is required and new ways of enforcing these principles must be developed, which will leverage the power of technology to develop hybrid regulatory/ technological solutions, such as Google’s content removal tool.

The Lawful Access Fallacy: Voluntary Warrantless Disclosures, Customer Privacy, And Government Requests For Subscriber Information, Matthew P. Ponsford

Canadian Journal of Law and Technology

This paper explores the recent legal, political, privacy, and communications developments surrounding warrantless government requests for basic subscriber information. I assert the current practice remains marred in secrecy and therefore poses a significant threat to Canadian civil liberties and privacy rights.

Privacy And Insurance In Canada, England, And France - How Does The Responsible Insurer Put Guidelines And Procedures In Place For Retaining And Destroying Personal Information, Christopher Whitehead

Canadian Journal of Law and Technology

In this article, I will be discussing records containing personal data or information, and how ‘‘guidelines and procedures” are ‘‘put . . . in place for retaining and destroying [such] information” by private-sector insurers carrying on business in Canada, England, and France. Where I discuss Canada, I use the examples of the law of Ontario — which belongs to the English legal tradition —and of Quebec — whose private law belongs to the French legal tradition. As it happens, these are the two traditions with which I have the most experience relating to personal information.