Law Commons^™

The Constitutionality Of Classification: Indigenous Overrepresentation And Security Policy In Canadian Federal Penitentiaries, D'Arcy Leitch

Dalhousie Law Journal

This article examines one component of the Correctional Service of Canada's (CSC) risk classification scheme. The CSC uses the Custody Rating Scale (CRS), a 12-item actuarial instrument, to measure risk and to provide security classification recommendations. Empirical data shows that while CRS recommendations may have some predictive validity, certain of the 12 items the CRS includes do not, particularly for Indigenous prisoners. This article makes the case that the inclusion ofsuch items in the CRS violates prisoner's rights under section 7 of the Charter by depriving them of liberty in a manner that is arbitrary and overbroad. Habeas corpus is …

The Impact Of The Honour Of The Crown On The Ethical Obligations Of Government Lawyers: A Duty Of Honourable Dealing, Andrew Flavelle Martin, Candice Telfer

Dalhousie Law Journal

The honour of the Crown is recognized as a Canadian constitutional principle that is essential to reconciliation between Indigenous and non-Indigenous Canadians. As part of the process of reconciliation, this article argues that the honour of the Crown imposes a special ethical obligation on government lawyers in specific circumstances, which we call the duty of honourable dealing. We situate this duty in the divided literature and case law about whether government lawyers have special ethical obligations and in the two dimensions in which the honour of the Crown applies: the Crown as an institution and the Crown as a collection …

A "Reasonable" Expectation Of Sexual Privacy Inthe Digital Age, Moira Aikenhead

Dalhousie Law Journal

Two Criminal Code offences, voyeurism, and the publication of intimate images without consent, were enacted toprotect Canadians' right to sexual privacy in light of invasive digital technologies. Women and girls are overwhelmingly targeted as victims for both of these offences, given the higher value placed on their non-consensual, sexualised images in an unequal society.Both offences require an analysis ofwhether the complainant was in circumstances giving rise to a reasonable expectation of privacy, and the use of this standard is potentially problematic both from a feminist standpoint and in light of the rapidly evolving technological realities of the digital age. This …

Canada's Residential Schools And The Right To Integrity, Amy Anderson, Dallas K. Miller, Dwight Newman

Dalhousie Law Journal

Apart from characterizations of the residential schools system as imposing cultural genocide, it is possible to understand the system in terms of a legal wrong involving violations of family integrity. The 19th and early 20th centuries saw increasing state intervention in families generally so as to impose compulsory education. However, wrongs in this intervention were recognized, and international law developed toward a right of family integrity that led to changes in non-Indigenous contexts. Evidence from the TRC shows that Canada did not respond as quickly in the Indigenous context, thus permitting an identification of how the residential schools system violated …

From Law To Legal Studies And Beyond: 50 Years Of Law And Legal Studies At Carleton University, Vincent Kazmierski, Darren Pacione

Dalhousie Law Journal

This paper considers the evolution of Carleton University's Department of Law and Legal Studies and its approach to the study of law and the legal within the context of the continuing growth of legal studies programs across the country. It starts by outlining the historical development of the Department and the evolution of its perspective of its role and purpose. Part II examines a number of aspects of the architecture of fourteen undergraduate legal studies programs across the country and the ways in which the roles of these programs are described. Part III provides a brief outline of the current …

Duets, Not Solos: The Mclachlin Court's Co-Authorship Legacy, Peter Mccormick

Dalhousie Law Journal

This article explores the recentphenomenon of the formal co-authorship of Supreme Court decisions. It begins with a short history of the practice, primarily in the closing years of the Lamer Court but expanding steadily under McLachlin. A closer investigation reveals two critically important dimensions: first, the practice is skewed toward the Court's more important decisions (measured in terms of subject matter legal complexity, interveners, and subsequent citation); and second, its diffusion across the Court's membership refutes the possibility that it simply reinforces persisting cleavages. This new practice represents a more overtly collegial format directed to the Court's more significant decisions. …

Reassessing The Constitutional Foundation Of Delegated Legislation In Canada, Lorne Neudorf

Dalhousie Law Journal

This article assesses the constitutionalfoundation by which Parliament lends its lawmaking powers to the executive, which rests upon a century-old precedent established by the Supreme Court of Canada in a constitutional challenge to wartime legislation. While the case law demonstrates that courts have continued to follow this earlyprecedent to allow theparliamentary delegation of sweeping lawmaking powers to the executive, it is time for courts to reassess the constitutionality ofdelegation in light ofCanada's status as a liberal democracy embedded within a system of constitutional supremacy. Under the Constitution of Canada, Parliament is placed firmly at the centre ofpublic policymaking by being …

Genderfucking Non-Disclosure: Sexual Fraud, Transgender Bodies, And Messy Identities, Florence Ashley

Dalhousie Law Journal

If I don't tell you that I was assigned male at birth, as a transgender person, can I go to jail for sexual assault by fraud? In some jurisdictionslike England or Israel, the answer is: yes. Previous arguments against this criminalisation have focused on the realness of trans people's genders: since trans men are men and trans women are women, it is not misleading for them to present as they do. Highlighting the limitationsofthis position, which doesn't fully account for the messiness ofgendered experiences, the author puts forward an argument against the criminalisation of (trans)gender history non-disclosure rooted in privacy. …

Case Comment: Heller V. Uber Technologies Inc., Peter Quon

Dalhousie Law Journal

Canadian courts have accepted mandatory arbitration clauses as presumptively enforceable unless there is legislation that precludes their application. This position was confirmed by the Supreme Court in Seidel v. TEL US CommunicationsInc. In Heller v. Uber Technologies Inc., the Ontario Court of Appeal considered an arbitration clause in the context of legislation following the approach in Seidel, but the Court also undertook an unconscionability analysis. Reviewing a motion that was granted to stay a class action proceeding in favour of an arbitration clause, the Court unanimously held that the clause was invalid on two separate grounds. First, the arbitration clause …

Government Lawyering: Duties And Ethical Challenges Of Government Lawyers, Andrew Flavelle Martin

Dalhousie Law Journal

Are government lawyers different than lawyers in private practice? If so, why does it matter? While these questions have been addressed piecemeal in the Canadian legal ethics literature, Elizabeth Sanderson's Government Lawyering: Duties and Ethical Challenges of Government Lawyers is the first comprehensive and long-form answer to them.1 As Adam Dodek hints in the foreword 2 and has noted elsewhere,3 the degree to which government lawyers have been overlooked in the Canadian legal literature is incongruent with their sheer numbers as a proportion of the legal profession in Canada. The need for this book is pronounced.

A Comparative Analysis Of Voluntariness Safeguards And Review Procedure Under Oregon And The Netherlands' Physician Assisted Dying Laws, Michaela Estelle Okninski

Dalhousie Law Journal

This article provides a comparative statutory analysis of the requirements for a voluntary decision in a request for physician assisted dying under Oregon's Death with Dignity Act and the Netherlands' Termination of Life on Request and Assisted Suicide (Review Procedures) Act. This comparative analysis aims to provide insight into how voluntariness is determined in practice and how the review procedure is conducted, with a view to identifying strengths and limitations within a legislative framework. First, the legislative safeguards aimed at protecting a voluntary decision are discussed. This is followed by an examination of the review procedure. This article concludes by …

Legalizing Assisted Dying: Cross Purposes And Unintended Consequences, Emily Jackson

Dalhousie Law Journal

In the UK, assisted dying continues to be unlawful, and pro-legalization campaigners have made use of human rights based applications for judicial review and Private Members Bills in order to try to change the law. Interestingly, however, the proposed statute would not offer an assisted death to many of the litigants who have sought to force Parliament's hand. This article considers whether this a one-off peculiarity, or whether there might be other mismatches between what the law can achieve and what matters most to people who are seeking an assisted death for themselves. It also explores what seems to be …

Euthanasia By Organ Donation, Michael Shapiro

Dalhousie Law Journal

Euthanasia, the administration of therapy designed to hasten death, particularly in patients with intolerable suffering, has been gaining in acceptance in countries around the world, most recently in Canada. Organ donation from deceased organ donors has always been performed under the strictures of the dead donor rule, the requirement that donors be declared dead prior to any organ recovery. Recent scientific and ethical investigations, however, have questioned whether all donors, whether pronounced based on neurologic (brain death) or circulatory criteria are, in fact, dead. One potential approach to this quandary would be to abandon the fiction imposed by the dead …

Foreseeably Unclear: The Meaning Of The "Reasonably Foreseeable" Criterion For Access To Medical Assistance In Dying In Canada, Jocelyn Downie, Kate Scallion

Dalhousie Law Journal

Canada's medical assistance in dying legislation contains the eligibility criterion "naturaldeath has become reasonably foreseeable." The phrase "reasonably foreseeable" is unfamiliar and unclear. As a result of ongoing confusion about its meaning, there is reason to be concerned that under- or over-inclusive interpretations of the phrase are adversely affecting access to MAID. With critical interests at stake (eg access to MAiD and potential criminal liability), it is essential that the meaning of the phrase be clarified. Furthermore, the meaning of "reasonably foreseeable" will be at issue in the Charter challenges to the federal MAiD legislation currently before the courts in …

Legal History And Rights For Nonhuman Animals: An Interview With Steven M. Wise, Angela Fernandez

Dalhousie Law Journal

This article offers a window into the recent work of the Nonhuman Rights Project (NhRP) and its quest to secure legal personhood for cognitively advanced nonhuman animals (chimpanzees, elephants, and orcas). Law& History Professor Angela Fernandez interviews Nonhuman Rights Project founder Steven Wise about the work of his organization, setting the litigation strategy of the NonHuman Rights Project against the background of Wise's historical work on the 1772 British case that ended slavery in England, Somerset v. Stewart. The conversation Fernandez has with Wise ranges across the most recent decisions of the Nonhuman Rights Project cases, what has happened since …

The Stakes In Steak: Examining Barriers To And Opportunities For Alternatives To Animal Products In Canada, Angela Lee

Dalhousie Law Journal

This Article considers some of the different food innovations being presented as potential solutions to the myriad problems associated with conventionalmodels of industrial agriculture. Specifically,in vitro meat (IVM) and plant-based alternatives to animal products-and their corresponding regulatory and market structuresare compared and contrasted. Examining the idiosyncrasies around Canada's approach to regulating these products reveals that the respective degrees of scrutiny may not be commensurate with the respective degrees of risk, due in part to the influence of powerful industry actors who wish to maintain the status quo. Given the significance and scope of the problems implicated by the industrial food …

Physicians' Attitudes, Concerns, And Procedural Understanding Of Medical Aid-In-Dying In Vermont, Teresa Ditommaso, Ari P. Kirshenbaum, Brendan Parent

Dalhousie Law Journal

The general purpose of the current study was to collect data on physicians' attitudes towards Act 39, the medical aid-in-dying act that was legislatively approved in 2013. Given the recent nature of the implementation of Act 39, this is the first such study to be conducted in the State of Vermont. The survey was quantitative in nature and addressed three distinct aspects of legalized prescribing of life-ending medication, these being physicians': (I) attitudes regarding ethics and legality of Act 39, (11)understandings of the policies and procedural requirements under the law, including their belief in legal immunity from penalty, and (I1) …

Trying And Dying: Are Some Wishes At The End Of Life Better Than Others?, Oliver J. Kim

Dalhousie Law Journal

In the United States, efforts to create a "rightto try," or to provide access for the terminally ill to try experimental drugs, have seen overwhelming success in passing state legislatures. This success provided the foundation for advocates' long-term goal of a federal right to try. Yet proposals ranging from very modest advance-care-planning consultations to the "rightto die,"or medical aid in dying, face steep political challenges despite seeming public support. This paper discusses the legal underpinnings of both "rights" and the current political and policy debate over each. More often than not, these "rights" are grantedthrough legislation rather than judicial decisions, …

Questioning Polst: Practical And Religious Issues, Lloyd Steffen

Dalhousie Law Journal

The Physician Orders for Life Sustaining Treatment (POLST) is a one-page transferrable medical chart insert designed to facilitate physician-patient communication about a patient's wishes at the end of life. The document as a chart addition is in widespread use today, but various criticisms have been leveled at POLST, the most serious being that POLST creates a slippery slope to illicit active euthanasia. This article examines the criticisms and finds that they fit two categories, the first being practical implementation problems. These problems are correctable given more and better training of medical care staff. The second and more serious ethical charge …

The Animal Protection Commission: Advancing Social Membership For Animals Through A Novel Administrative Agency, John Maccormick

Dalhousie Law Journal

If the state sought to improve law's treatment of nonhuman animals, what form should its intervention take? This paper questions the assumption that the state would have to choose between incremental welfare reforms and an immediate transition to animal personhood. Drawing on Martha Nussbaum's capabilities theory and on Sue Donaldson and Will Kymlicka's political approach to animal rights, it argues that the focus should be on how the relationship between human and nonhuman animals can be improved. It suggests that the state could intervene by creating an administrative agency with just this task; and that it could look to labour …

A Safe Bet: Regulating Online Gambling And Lotteries Through The Criminal Code, Ian Wilenius

Dalhousie Journal of Legal Studies

This paper examines the links between gambling, moral regulation, and politics in Canada. The proliferation of online gaming platforms has resulted in a new wave of gaming expansion, with online casinos and sports betting growing in market share over traditional land-based betting. Does Canada’s Criminal Code and supporting regulatory scheme effectively address the problems posed by online gambling? This paper examines the origins and history of the gambling provisions in the Criminal Code and reviews their development over time through amendments and judicial interpretation. The paper then establishes how the Criminal Code provisions are applied to bets made over the …

The Missing Hyperlink — An Empirical Study: Can Canadian Laws Effectively Protect Consumers Purchasing Online?, Mariella Montplaisir

Canadian Journal of Law and Technology

Canadian consumer protection legislation applicable to online transactions generally works by a two-pronged method: first, private international law rules ensure that in most cases, consumers can sue in their home province under that province’s law; and, second, a wide range of substantive obligations are imposed on merchants, and failure to comply with these obligations provides consumers with a right of cancellation. This study considers the private international law rules applicable to online consumer contracts, and discusses the unique jurisdictional challenges presented by online transactions. This study also provides an overview of Canadian legislation applicable to online consumer transactions, and examines …

Social Media Threats: Examining The Canadian Criminal Law Response, Benjamin Perrin

Canadian Journal of Law and Technology

This article begins by discussing the legislative history, essential elements, and purpose of the threats offence in s. 264.1(1) of the Criminal Code. It then analyzes major reported Canadian judicial decisions dealing with social media threats, based on the five themes identified above. Finally, this article concludes by highlighting the implications and limitations of this study, as well as areas for future research.

Public Authority Liability And The Regulation Of Nanotechnology: A European Perspective, Nina Natalia Baranowska

Canadian Journal of Law and Technology

This paper argues that in certain circumstances public authorities should be liable for regulating nanotechnology. Nanotechnology is an emerging field of technology that enables to control shape and size of various structures, devices and systems at nanometer scale on which one nanometer is equal to one-billionth of a meter. In spite of being a nascent field of science and technology, its scope of application – in the food, pharmaceuticals, cosmetics, construction, textile, electronics, and agricultural industries – is expanding rapidly. The risks associated to nanotechnology, however, and its long-term consequences are still largely unknown, particularly in regards to its health …

Back To The Future: Reviving The Use Of Video Link Evidence In Canadian Criminal Courts, Helena Gluzman

Canadian Journal of Law and Technology

Section 714.1 of the Criminal Code of Canada allows for witnesses and victims to testify remotely via video link, within Canada. The legal test embedded within this provision — “appropriate in all the circumstances” — has led to inconsistent application across the country. Some jurists have embraced the flexibility provided by the video link process. Others have expressed reluctance, articulating the position that in-court testimony is to be preferred and permitting the use of video link evidence only in exceptional circumstances. R. v. S.D.L. is the first treatment of s. 714.1 by an appellate court. The Nova Scotia Court of …

Government Surveillance Accountability: The Failures Of Contemporary Canadian Interception Reports, Christopher Parsons, Adam Molnar

Canadian Journal of Law and Technology

Real time electronic government surveillance is recognized as amongst the most intrusive types of government activity upon private citizens’ lives. There are usually stringent warranting practices that must be met prior to law enforcement or security agencies engaging in such domestic surveillance. In Canada, federal and provincial governments must report annually on these practices when they are conducted by law enforcement or the Canadian Security Intelligence Service, disclosing how often such warrants are sought and granted, the types of crimes such surveillance is directed towards, and the efficacy of such surveillance in being used as evidence and securing convictions.

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The Aleph Bet: Debating Metaphors For Information, Data Handling And The Right To Be Forgotten, Chris Prince, Micheal Vonn, Lex Gill

Canadian Journal of Law and Technology

Court rulings in the European Union (EU) have now established that individuals may seek erasure of personal information posted online. Typically, this involves de-indexing a website from search results, and in some instances the removal of content from primary sources sites. This has, in turn, led to debate around both the logistics and the unintended consequences of removing information online, and subsequent discussions have grappled with a range of images and metaphors to map that new legal reality. This essay surveys that debate, the imagery it employs, and the various logics associated with these metaphors.