Law Commons^™

The International Maritime Law Response To Climate Change: The Quest For The Shipping Industry's 'Fair Share' Of Ghg Emissions Reduction, Aldo Chircop

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This paper discusses the role of international shipping in climate change mitigation, i.e., its emerging contribution to reduce carbon emissions in the wake of the Paris Agreement, 2015 and the expectation that the International Maritime Organization (IMO) will orchestrate the industry's contribution. The adoption of appropriate targets and standards is expected to be a particularly difficult task because of the global and transnational nature of the shipping industry and the difficulty in establishing the basis for a fair contribution for this industry. While considerable progress has been achieved in enhancing technical and operational regulations to improve efficiencies and reduce harmful …

Preserving Canadian Music Culture: The Case Of The Silver Dollar Room And The Intangible Cultural Heritage Management Of Urban Spaces Of Culture, Sara Gwendolyn Ross

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On January 13, 2015, one of Toronto, Canada’s, iconic live music venues, the Silver Dollar Room, officially received cultural heritage designation pursuant to the City of Toronto By-law 57-2015 under Part IV, Section 29 of the Ontario Heritage Act (“OHA”). What is significant about this designation, is that it was awarded, not on the basis of its physical or tangible heritage attributes but, instead, on the intangible cultural heritage value embodied within the space. Receiving cultural heritage designation is important for the future of the Silver Dollar Room as it has effectively led to the end of plans for its …

Legislating Tolerance: Article 976 Of The Civil Code Of Quebec And Its Application To Mixed-Income And Mixed-Use City Redevelopment Projects, Sara Gwendolyn Ross

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I first examine the increasing need for tolerance required for the cultural sustainability of city redevelopment projects that seek to establish communities of a mixed-use or mixed-income variety. Next, some difficulties that arise in terms of inequality, clashing differences, and a lack of inclusion felt by those within these redeveloped spaces in the urban cores of our cities are discussed with reference to Boaventura de Sousa Santos’s notion of cosmopolitan legal struggles and the subaltern cosmopolitan contact zones generated within the small social spaces of mixed-use and mixed-income developments in the urban core. I then undertake a discussion of article …

The ‘Hart’ Of The (Mr.) Big Problem, Adelina Iftene

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In 2014, the Supreme Court of Canada in R v Hart reviewed the application and evidentiary consequences of Mr. Big operation. For the majority, Moldaver J. changed the common law confessions rule so that it applies in Mr. Big scenarios based on a two-pronged test. Immediately after Hart, the SCC rendered a new decision in R v Mack where the two pronged test was leniently applied in favour of the Crown. In this article I argue that the SCC approach in Hart and its application in Mack failed to address to the core problems that Mr. Big operations pose. It …

The Immunity Of The Attorney General To Law Society Discipline, Andrew Martin

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English Abstract: The Attorney General is both the minister responsible to the legislature for oversight of the law society and a practicing member of the law society. This dual status raises important questions: Is the Attorney General subject to discipline by the law society? Should she be? This article argues that the Attorney General is immune, absent bad faith, both for prosecutorial discretion and core policy advice and decisions, as well as absolutely immune under parliamentary privilege for anything said in the legislature. The Attorney General enjoys no special immunity otherwise, i.e. for the practice of law outside prosecutorial discretion …

Res Extra Commercium And The Barriers Faced When Seeking The Repatriation And Return Of Potent Cultural Objects: A Transsystemic Critical Post-Colonial Approach, Sara Gwendolyn Ross

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The repatriation and return of objects of cultural value are often linked to decolonization projects and efforts to repair past wrongs suffered as a result of colonialism. Yet significant barriers hinder these efforts. These barriers primarily take the shape of time limitations, diverging conceptions of property and ownership, the high costs involved, and the domestic export and cultural heritage laws of both the source country and the destination country. I argue that these barriers are relics of colonialism that replicate and perpetuate the continued imposition of Eurocentric and Western legal notions and values on subaltern source countries and source indigenous …

Unlocking The Doors To Canadian Older Inmate Mental Health Data: Rates And Potential Legal Responses, Adelina Iftene

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This article is based on a quantitative study investigating the quality of life of older Canadian prisoners. For this study, social science methodology was used to answer certain legal questions, such as: what are the mental health issues of older male offenders and how are these needs influencing the exercise of their legal rights? Are institutions prepared to deal with the increased needs of older offenders? If no, is this an infringement of this group's rights? In this article, the mental health problems of older offenders are first outlined. Second, the legal, policy, and institutional limitations in responding to these …

Section 276 Misconstrued: The Failure To Properly Interpret And Apply Canada's Rape Shield Provisions, Elaine Craig

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Despite the vintage of Canada’s rape shield provisions (which in their current manifestation have been in force since 1992), some trial judges continue to misinterpret and/or misapply the Criminal Code provisions limiting the use of evidence of a sexual assault complainant’s other sexual activity. These errors seem to flow from a combination of factors including a general misunderstanding on the part of some trial judges as to what section 276 requires and a failure on the part of some trial judges to properly identify, and fully remove, problematic assumptions about sex and gender from their analytical approach to the use …

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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No abstract provided.

‘And Miles To Go Before I Sleep’: The Future Of End Of Life Law And Policy In Canada, Jocelyn Downie

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This paper reviews the legal status of a number of end-of-life law and policy issues that have, to date, been overshadowed by debates about medical assistance in dying. It suggests that law reform is needed in relation to palliative sedation without artificial hydration and nutrition, advance directives for the withholding and withdrawal of oral hydration and nutrition, unilateral withholding and withdrawal of potentially life-sustaining treatment, and the determination of death. To leave the law in its current uncertain state is to leave patients vulnerable to having no access to interventions that they want or, at the other extreme, being forced …

Sustainable Arctic Shipping: Are Current International Rules For Polar Shipping Sufficient?, Aldo Chircop

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On January 1, 2017, the International Code for Ships Operating in Polar Waters (Polar Code) will enter into force, ushering in a new era in regulation of shipping in Arctic and Antarctic waters. The Polar Code was adopted by the International Maritime Organization (IMO) after years of difficult deliberations. The adoption of the Code required amendment of two of the most important conventions concerning safety of life at sea and vessel-source pollution. A third convention on standards of training for seafarers was also amended after the Code was adopted and the changes will come into effect on January 1, 2018. …

Polyjural And Polycentric Sustainability Assessment: A Once-In-A-Generation Law Reform Opportunity, Jason Maclean, Meinhard Doelle, Chris Tollefson

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The Canadian environmental assessment (EA) regime is broken. At a time when the Canadian economy is both increasingly sluggish and unsustainable, we have an obligation – and perhaps a once-in-a-generation opportunity – to fundamentally reform EA to enable it to finally live up to its promise of promoting sound and sustainability-based decisions. This task is even more pressing in light of the global commitment under the Paris Climate Change Agreement to rapidly transition to greenhouse gas emissions neutrality. Among the many priorities of meaningful EA reform – moving beyond project-level assessments, focusing on net positive contributions to sustainability, avoiding costly …

Reviewing Implementation & Compliance Under The Paris Climate Agreement: Preliminary Thoughts On Process Design For Articles 13-15, Meinhard Doelle

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Articles 13 to 15 of the Paris Climate Agreement establish four key elements of an overall cycle of review as part of the pledge and review approach adopted in the Agreement, a technical review of progress reports filed by Parties, a multilateral review of these progress reports, a global stocktake of progress toward the collective long-term goal, and an implementation and compliance mechanism. The design, timing and sequencing of these reviews will have to be negotiated before the Paris Agreement can be fully operationalized. This working paper considers some of the key issues negotiators will have to consider in designing …

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.

Judging The Social Sciences In Carter V Canada (Ag), Jodi Lazare

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This paper examines a recent example of evidence-based decision making affecting social policy at the trial court level. It offers a close reading of Carter v Canada (AG), decided by the British Columbia Supreme Court, and of Justice Lynn Smith's careful scrutiny of the social science evidence when invalidating the Criminal Code prohibition on assistance in dying. Drawing on literature which examines the legal system's use of social science evidence and expert witnesses, this paper suggests that Justice Smith's treatment of the evidence in Carter provides an example of skilled judicial treatment of the extensive amounts of social science evidence …

Individual Licensing Models And Consumer Protection, Lucie Guibault

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Copyright law is not primarily directed at consumers. Their interests are therefore only marginally accounted for, as the copyright rules exempt specific uses of works from the right holder’s control. This chapter examines the impact of digital technology on the position of consumers of licensed copyrighted content. While ownership of the physical embodiment of a work does not entail the ownership of the rights in the work, how does copyright law deal with ‘disembodied’ works? Whereas digital content is now commonly distributed on the basis of individual licensing schemes, what does it mean for consumers? Do they have a claim …

Bend Or Break: Enhancing The Responsibilities Of Law Societies To Promote Access To Justice, Richard Devlin Frsc

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There now appears to be a consensus in Canada that we have a serious access to justice problem. Chief Justices have been vocal. The Governor-General has made an intervention. Legal newspapers and websites have weekly, if not daily, stories on access to justice concerns. There have been several thorough reports which both detail the problems and propose possible paths forward. And one CEO of a national law firm has lamented that “access to justice is the legal profession’s equivalent of global warming.”

However, in my opinion, despite all this alarm, attention, and progress, two key components tend to be missing …

The Paris Agreement: Historic Breakthrough Or High Stakes Experiment?, Meinhard Doelle

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This article offers an overview of the two key outcomes of the 2015 Paris climate negotiations, the Paris COP decision, and the Paris Agreement. They chart a new course for the UN climate regime that started in earnest in Copenhagen in 2009. The Paris Agreement represents a course away from the top down approach and rigid differentiation among parties reflected in the Kyoto Protocol, toward a bottom up and flexible approach focused on collective long term goals and principles. It represents an approach to reaching these long term goals that is focused on self differentiation, support, transparency and review. The …

The Ethical Identity Of Sexual Assault Lawyers, Elaine Craig

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Despite progressive law reforms, sexual assault complainants continue to experience the criminal justice response to the violations that they have suffered as unsatisfactory, if not traumatic. One emerging response to this dilemma involves greater consideration of the ethical boundaries imposed on lawyers that practice sexual assault law. What is the relationship between a criminal lawyer’s ethical duties and the reforms to the law of sexual assault in Canada? How do lawyers themselves understand the ethical limits imposed on their conduct of a sexual assault case? How do lawyers that practice in this area of law comprehend their role in the …

The Inhospitable Court, Elaine Craig

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Who speaks and with what authority, who is believed, what evidence is introduced, and how it is presented, is informed not only by the substantive law and the rules of evidence but also by the rituals of the trial. It is from this legal process as a whole that a judge or jury determines the (legal) ‘truth’ about a woman’s allegation of rape. A sexual assault complainant’s capacity to be believed in court, to share in the production of meaning about an incidence of what she alleges was unwanted sexual contact, requires her to play a part in certain rituals …

Judging The Social Sciences In Carter V. Canada, Jodi Lazare

Articles, Book Chapters, & Popular Press

This paper examines a recent example of evidence-based decision making affecting social policy at the trial court level. It offers a close reading of Carter v Canada (AG), decided by the British Columbia Supreme Court, and of Justice Lynn Smith’s careful scrutiny of the social science evidence when invalidating the Criminal Code prohibition on assistance in dying. Drawing on literature which examines the legal system’s use of social science evidence and expert witnesses, this paper suggests that Justice Smith’s treatment of the evidence in Carter provides an example of skilled judicial treatment of the extensive amounts of social science evidence …

Business, Human Rights And The Iba Climate Justice Report, Sara Seck, Michael Slattery

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The 2014 Climate Justice Report by the International Bar Association (IBA) makes many recommendations designed to contribute to the fight against climate change. One important step forward is its explicit recognition of the responsibility of business to respect human rights affected by climate change. This commentary explores the extent to which the IBA’s approach to this issue aligns with the business responsibility to respect human rights as described in the 2011 United Nations Guiding Principles on Business and Human Rights. The commentary also considers other international standards that incorporate business responsibilities for human rights in order to determine whether sufficient …

Human Rights And Extractive Industries: Environmental Law And Standards, Sara Seck

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The importance of environmental laws and standards for sustainable development of extractive industries has been well recognized by the international community for decades. More recently, the relationship between human rights and environmental protection has received greater attention in light of increased global and local recognition of both substantive and procedural environmental rights. Extractive industries search for, discover and develop natural resources in countries in which the governmental and civil society institutions necessary to protect human rights may not exist or where governments lack the capacity or will to effectively ensure the protection of human rights. Allegations of human rights violations …

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 …

Cross-Cutting Conflicts: Developments In The Use Of Norwich Orders In Internet Defamation Cases, Robert Currie

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The anonymity afforded to those wishing to post commentary on the internet has given rise to a number of procedural issues in Canadian case law. This paper focuses on one such issue: the need for prospective plaintiffs in defamation actions to "unmask" anonymous commentators in order to be able to bring proceedings against them. It tracks the increasing use of the "Norwich order," A.K.A an order for pre-action discovery, as a means of accomplishing this objective, by examining the leading case of Warman v. Fournier and analyzing how this issue has played out in litigation to date. It also considers …

Cross-Border Evidence Gathering In Transnational Crime Cases: Is The Microsoft Ireland Case The ‘Next Frontier'?, Robert Currie

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A recent and prominent American appeals court case has revived a controversial international law question: can a state compel an individual on its territory to obtain and produce material which the individual owns or controls, but which is stored on the territory of a foreign state? The case involved, United States v. Microsoft, features electronic data stored offshore which was sought in the context of a criminal prosecution. It highlights the current legal complexity surrounding the cross-border gathering of electronic evidence, which has produced friction and divergent state practice. The author here contends that the problems involved are best understood—and …

Electronic Devices At The Border: The Next Frontier Of Canadian Search And Seizure Law?, Robert Currie

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Over the last several years the Supreme Court of Canada has developed its jurisprudence regarding the search and seizure of electronic devices, applying section 8 of the Canadian Charter of Rights and Freedoms in such a way as to assert and protect a significant amount of privacy in the devices and their data. Recent cases regarding the search of devices at Canada’s borders, however, do not reflect this case law. This is a situation made all the more complex by the generally attenuated expectation of privacy in the border context, and is worthy of inquiry. Using a pending border case …

Land Claim Settlement In Canadian Arctic: Pragmatism And Instrumentalism At Work, Diana Ginn

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In Canada, comprehensive land claims based on Aboriginal title can be pursued through either litigation or negotiation. Generally, the relationship between litigation and negotiation of these claims is understood as one where the Supreme Court of Canada initially prodded the Canadian state to action, and then in a series of decisions developed the legal parameters within which the political realities of negotiation occur. Thus, settlement tends to follow and be shaped by the contours of the legal doctrine. However, settlement of land claims in Canada’s Arctic moved ahead of the case law in two key areas, as manifested in: (a) …

Carter, Medical Aid In Dying, And Mature Minors, Constance Macintosh

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The Supreme Court of Canada’s decision in Carter v Canada (AG) decriminalized medical aid in dying in certain defined circumstances. One of those circumstances is that the person seeking assistance be an “adult.” This article argues that the regulatory response to this decision must approach the idea of “adult” in terms of the actual medical-decisional capacity of any given individual, and not rely upon age as a substitute for capacity. This article surveys jurisdictions where minors are included in physician-assisted dying regimes, and identifies what little empirical evidence exists regarding requests from minors. The heart of the article considers the …

Section 276 Misconstrued: The Failure To Properly Interpret And Apply Canada's Rape Shield Provisions, Elaine Craig

Articles, Book Chapters, & Popular Press

Despite the vintage of Canada’s rape shield provisions (which in their current manifestation have been in force since 1992), some trial judges continue to misinterpret and/or misapply the Criminal Code provisions limiting the use of evidence of a sexual assault complainant’s other sexual activity. These errors seem to flow from a combination of factors including a general misunderstanding on the part of some trial judges as to what section 276 requires and a failure on the part of some trial judges to properly identify, and fully remove, problematic assumptions about sex and gender from their analytical approach to the use …