Law Commons^™

Organized Crime Outlaws: An Evaluation Of Criminal Organization Legislation In Canada, Carol Fleischhaker

PhD Dissertations

This thesis explains how some organized crime outlaws, such as anti-Prohibitionists, the North American Mafia or La Cosa Nostra, outlaw motorcycle gangs, and Aboriginal street gangs, come to exist and thrive in Canadian society. It sets forth the historical development and nature of criminal organization laws in Canada, and compares the definition of “criminal organization” in the Criminal Code with other criminal law concepts, such as corporate criminals and white-collar criminals; conventional criminality or garden-variety predatory crime; terrorists; and criminal conspirators, parties, and accessories. It uses various concepts and assertions within criminological, sociological and psychological theories to explain the formation …

Will The Rotterdam Rules Be Accepted? A Liner Cargo Interest Perspective, Mary Brooks, Jason Mackey

Dalhousie Law Journal

The paper begins with some background on modern liner shipping and cargo interest perspectives before considering the Rotterdam Rules 2008 (The Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea), which could ultimately replace Canada's existing carriage of goods legislation. The authors explore the key issues arising from the implementation of the Rules, and discuss why, from a manufactured goods perspective, there will likely be limited acceptance by cargo owners. They conclude that the gains made in the areas of electronic documentation and greater clarity on delay, as well as altered limits of liability do …

The Tabling Of International Treaties Inthe Parliament Of Canada: The First Four Years, Ted L. Mcdorman

Dalhousie Law Journal

In January 2008, the government ofCanada announced the adoption of the policy that international treaties would be tabled in the House of Commons following their signature or adoption and prior to Canada formally notifying its intention to be bound by the treaty. This article provides an overview of the Tabling Policy, the domestic legal structure of treaty-making in Canada, a description of the international instruments that have been tabled under the Policy from 2008 to 2011, and a review of the one treaty that has been discussed at length in the House of Commons.

The Myth Of Jus Tractatus In La Belle Province: Quebec's Gérin-Lajoie Statement, Stéphane Beaulac

Dalhousie Law Journal

There is much debate in Quebec challenging the traditional stance on jus tractatus," prevalent for nearly 100 years, to the effect that the federal government enjoys plenary power to enter into international treaties, whether the subject matter is federal or provincial. The paper argues that Quebec's Gdrin-Lajoie "doctrine" has become a myth over the years, liable to have a huge semiotic effect, creating the perception that there is an incontestably true legal basis for provincial treatymaking power After dwelling upon the ontological understanding of mythology, the author shows that the constitutional practice since the emancipation from Great Britain, as well …

The Continuum Of International Maritime Law And Canadian Maritime Law: Explaining A Complex Relationship, Aldo Chircop, Sarah Shiels

Dalhousie Law Journal

This article discusses the relationship between international maritime law and Canadian maritime law from legislative and judicial perspectives. It explains the relationship through Canada's implementation of international maritime conventions and a study of Canadian case law The article concludes that the relationship has a well-developed pattern based on legislative structures and judicial processes. With strong historical roots and traditions, the relationship is motivated by international comity and has firm grounding in international and domestic public policyin support ofinternational uniformity to facilitate international commerce. Canadian maritime law has a unique heritage underscored by commercial necessity The consequence is a relationship between …

Hugh M. Kindred: A Tribute, Robert J. Currie, Phillip Saunders

Dalhousie Law Journal

We are pleased to introduce this special issue of the Dalhousie Law Journal, which is essentially a mini-festschriftin honour of Professor Hugh Kindred. Hugh began teaching at what was then Dalhousie Law School in 1971 and retired from full-time teaching in 2008, with a well-deserved Professor Emeritus status bestowed on him in 2010. In between Hugh provided wisdom, quiet counsel and gracious generosity to generations of students and faculty at what is now called the Schulich School of Law, and became a pillar of the Canadian legal academic community. His legacy is enormous and ongoing, as Hugh has continued to …

Hugh Kindred And The Teaching Of International Law In Canada, Don Mcrae

Dalhousie Law Journal

The casebook, International Law, Chiefly as Interpreted and Applied in Canada under the general editorship of Hugh Kindred, which first appeared in 1987, was a milestone in the teaching of international law in Canada. It was an important teaching tool that made international law accessible to students. Seeing international law through the eyes of Canadian practice, Canadian materials and Canadian experience, the book was an introduction to the fundamentals of the field and to the developments and debates of contemporary international law Engaging on the editorial board Canadian academics from different law schools, Hugh Kindred has been able to provide …

The Eu As An Arctic Power: Analysis Of The Competence Of The Eu In The Arctic By Policy Areas, Armand De Mestral

Dalhousie Law Journal

The European Union is not generally perceived as an Arctic power However, the ever-expanding list of EU competences implies that it will have both an interest in participating in the governance of the Arctic and the authority to do so, should the seven Arctic states agree to make room. This development holds both challenges and opportunities for Canada and other Arctic states. The challenges stem from the factthat the EU will seek topromote the economic interests ofits Member States in resource extraction and freedom of navigation where Canada and Russia, in particular, have asserted strong national policies. The opportunities lie …

Bio-Cultural Knowledge And The Challenges Of Intellectual Property Rights Regimes For African Development, Ikechi Mgbeoji

Dalhousie Law Journal

African states have, since the colonial encounter, been part of the international regimes on intellectual property rights. Formal accession to various treaties and conventions on intellectual property rights instruments should not be mistaken for actual internalization of the policies, structures and norms required for reaping the promised benefits of participation in such regimes. There is ample evidence showing that most African states do not have the requisite structures for fruitful engagement with international intellectual property rights regimes. Until this anomaly is rectified, African states' engagement with international intellectual property regimes will remain structurally flawed and inimical to the human development …

Science On Law's Terms: Implications Of Procedural Legitimacy On Scientific Evidence, Nayha Acharya

LLM Theses

Scientific evidence is relied on more and more in litigation. Discussions and debates aimed at enabling courts to make the best use scientific evidence are increasingly critical. This thesis adds the perspective of procedural legitimacy to the science and law discussion. Procedural Legitimacy is the concept that consistent adherence to legal procedure maintains the overall legitimacy of the legal system, and the validity of its outcomes. I argue that the integrity of legal procedures must be maintained where scientific evidence is presented, so that judicial decisions that rely on scientific evidence are legitimate.

The Progress Of Science And The Useful Arts: Misadventures In Canadian Law On Patent-Eligible Subject Matter, Ken Bousfield

Canadian Journal of Law and Technology

Patent-Eligible Subject-Matter in Canada

The law of patent-eligible subject-matter in Canada has become badly muddled. There has been repeated confusion of subject-matter issues with non-subject matter issues such as novelty, obviousness, and utility. There has also been repeated confusion within the following group of issues pertaining to whether subject-matter is patent-eligible: whether a claim is for a mere idea or aggregation or for a patentable invention; whether claimed subject-matter falls within science and the useful arts; and whether claimed subject-matter falls within the statutory classes listed in the definition of “invention”. Echoes of older UK-based cases, relating to statutory provisions …

Harvesting The "Forbidden Fruit" Of Biotechnology Research: Genetic Engineering, International Law And The Patentability Of Higher Life Forms In Canada, Eugene C. Lim

Canadian Journal of Law and Technology

As the frontiers of science are constantly redefined by the emergence of new technology, patent law often has to struggle to keep pace with the changing conception of what constitutes a protectable “invention”. A key challenge facing patent law in the age of biotechnology lies in ascertaining the extent to which genetically engineered life forms should be protected. A major concern relates to whether such life forms should be excluded from patentability on grounds of ordre public, ethics and morality.

This article critically explores the extent to which patent law in Canada protects this “forbidden fruit” of biotechnological innovation, and …

A Delicate Balance: Defining The Line Between Open Civil Proceedings And The Protection Of Children In The Online Digital Era, Courtney Retter, Shaheen Shariff

Canadian Journal of Law and Technology

He thought of the telescreen with its never-sleeping ear. They could spy upon you night and day, but if you kept your head you could still outwit them. [. . .] They could lay bare in the utmost detail everything that you had done or said or thought; but the inner heart, whose workings were mysterious even to yourself, remained impregnable.

— George Orwell, 1984

On Thursday September 27, 2012, a few months after our paper was written, the Supreme Court of Canada solidified the rights of children victimized by cyberbullying in the landmark decision of AB (Litigation Guardian of) …

Understanding The Internet As A Human Right, Michael Karanicolas

Canadian Journal of Law and Technology

Around the world, fundamental human rights have undergone a dramatic conceptual shift as a result of the spread of the Internet. The right to freedom of expression, once largely limited to printing, has exploded in a digital world that provides users with an unprecedented megaphone to broadcast their views. The right to political participation and the right to free assembly have similarly been reborn in an age of instant communication, allowing activists to mobilise hundreds of thousands of followers with a single email, text or tweet. Although these are the most notable examples, the Internet has also had a transformative …

The Limitations Of Regulatory Oversight On Online Video, Jennifer Simpson

Canadian Journal of Law and Technology

Discussion in this paper focuses on the factors, attributes, and elements of telecom and broadcast regulation in Canada. Part I of this study briefly outlines the history of online video regulation in Canada to date. In Part II speculation as to how online video might be regulated, based on prior decisions of the CRTC, is presented. Part III considers the challenges of applying the Broadcasting Act to new media entities in order to create a regulatory framework for online video. Part IV looks at judicial decisions related to broadcast law that may be used to define the nature of the …

Pereira’S Attack On Legalizing Euthanasia Or Assisted Suicide: Smoke And Mirrors, Jocelyn Downie, Kenneth Chambaere, Jan L. Bernheim

Articles, Book Chapters, & Popular Press

Objective: To review the empirical claims made in: Pereira J. Legalizing euthanasia or assisted suicide: the illusion of safeguards and controls. Curr Oncol 2011;18:e38–45.

Design: We collected all of the empirical claims made by Jose Pereira in “Legalizing euthanasia or assisted suicide: the illusion of safeguards and controls.” We then collected all reference sources provided for those claims. We compared the claims with the sources (where sources were provided) and evaluated the level of support, if any, the sources provide for the claims. We also reviewed other available literature to assess the veracity of the empirical claims made in the …

The African Union Commission On International Law And The Proposed African Institute Of International Law: Where Do We Go From Here?, Olabisi Akinkugbe

Articles, Book Chapters, & Popular Press

The author critically reflects on the African Union Commission on International Law (AUCIL) statute of 2009 particularly in relation to its mandate to advance the teaching and development of international law in Africa; examines its relationship with proposed African Union Institute of International Law (AIIL) in Arusha, Tanzania; and calls for an amendment of the AUCIL Statute in order to enhance the achievement of its goals and clarification of some vague areas.

Intellectual Property, Traditional Knowledge, And Biodiversity In The Global Economy: The Potential Of Geographical Indications For Protecting Traditional Knowledge-Based Agricultural Products, Teshager W. Dagne

PhD Dissertations

The relationship between international regimes regulating intellectual property, traditional knowledge and biodiversity has received much attention in recent times. Of the many complex and controversial issues in contemporary international legal discourse on this matter, the protection of traditional knowledge (TK) stands out as a significant challenge. Choices abound in the search for modalities to regulate rights to use and control TK systems and their underlying biodiversity. In recent times, the protection of geographical indications (GIs) has emerged as an option for protecting TK. Despite the considerable enthusiasm over it, there is appreciable research dearth on how far and in what …

"And The People Of The Province": Egspa's Social Deficit, Susan Tirone, Lkaren Gallant, Katie Sykes

Dalhousie Law Journal

The success of the Nova Scotia Environmental Goals and Sustainable Prosperity Act (EGSPA) depends on citizen action, changes in attitudes and in the way citizens conduct their lives. In this article the authors discuss the challenges associated with encouraging citizen engagement with EGSPA, and in promoting public awareness and attitudes that support sustainability in Nova Scotia.

Searching And Seizing After 9/11: Developing And Applying Empirical Methodology To Measure Judicial Output Inthe Supreme Court's Section 8 Jurisprudence, Richard Jochelson, Michael Weinrath, Melaine Janelle Murchison

Dalhousie Law Journal

In 2005, Margit Cohn and Mordechai Kremnitzer created a multidimensional model to measure judicial discourse inherent in the decision making of constitutional courts. Their model set out multiple indicia bywhich to measure whether the court acted within proper constitutional constraints in order to determine the extent to which a court rendered a decision that was activist or restrained. This study attempts to operationalize that model. We use this model to analyze changes in interpretation of search and seizure law under section 8 after the enactment of the Canadian Charter of Rights and Freedoms at the Supreme Court of Canada. The …

Negotiating The Interface Of Environmental And Economic Governance: Nova Scotia's Environmental Goals And Sustainable Prosperity Act, William Lahey, Meinhard Doelle

Dalhousie Law Journal

The year 2012 marks the fifth anniversary of the Environmental Goals and Sustainable Prosperity Act (EGSPA). The Act is an experiment in improving government performance in promoting sustainable prosperity through the process of setting legislative goals and enhancing accountability This article provides an overview of the Act and an assessment of its performance over these first five years. As such, it supplies the context for the other contributions to the collection of essays on EGSPA in this issue of the Journal. The authors conclude that the Act has had a positive impact on government action on sustainable prosperity and that …

From Idea To Practice: Sustainable Development Efforts In Manitoba, A John Sinclair, Lisa Quinn

Dalhousie Law Journal

With a renewed global interest in achieving a more sustainable society, the authors reflect on the history of institutionalizing sustainable development in their province, Manitoba, and consider its future. This paper outlines that province's approaches to developing and advancing sustainable development and discusses the success of these approaches in shaping, guiding, and furthering sustainable development in the province. This is achieved through examination of legislation and review of sustainable development documents as well as interviews with various participants in the process including members of the Manitoba Round Table for Environment and Economy and members of the more recent Manitoba Round …

In Search Of "Compass And Gyroscope": Where Were Adaptive Management And Principled Negotiation In Nova Scotia's Forest-Strategy Process?, Peter N. Duinker

Dalhousie Law Journal

In his landmark 1993 book entitled Compass and Gyroscope: Integrating Science and Politics for the Environment, Kai Lee outlined the need for stronger processes in support of sustainable development. The science of adaptive management and the politics of principled negotiation were offered as the most promising approaches. The author uses these concepts to evaluate the process used to develop Nova Scotia's natural resources strategies of August 2011, specifically the forest strategy following the Environmental Goals and Sustainable Prosperity Act. The findings show that, by comparison with similar policy-development processes used elsewhere in Canada, the Nova Scotia process lacked both foresight …

Whistleblowing And Freedom Of Conscience: Towards A New Legal Analysis, Richard Haigh, Peter Bowal

Dalhousie Law Journal

"Whistleblowing" is the act or process of alerting others to scandal, danger, malpractice, corruption or other wrongdoing. In this article, the authors assert that a strongly developed freedom of conscience, distinct from freedom of religion. could contribute to the development of socially-valuable whistleblowing. While conscience is often treated as inseparable from religion, the authors suggest that the deliberate inclusion of "conscience" in s. 2(a) of the Charter implies that "conscience" ought to be recognized as an independent and robust freedom. This then provides the framework for accepting and recognizing the importance of whistleblowing and lessening its socialstigma. The article presents …

Are Climate Change Policies Fair To Vulnerable Communities? The Impact Of British Columbia's Carbon Tax And Australia's Carbon Pricing Policy On Indigenous Communities, Karen Bubna-Litic, Nathalie J. Chalifour

Dalhousie Law Journal

This paper compares carbon pricing policies in British Columbia and Australia in order to identify differences between carbon taxes and emissions trading schemes (ETS) from a fairness perspective. We examine how taxes and trading systems impact indigenous communities in both jurisdictions. While the regressivity of carbon pricing is a critical part of any fairness assessment, we argue that socioeconomic and cultural factors must also be taken into consideration. We discuss the importance of accompanying carbon pricing with policies that mitigate not only distributional impacts, but also additional impacts. These may be funded by the revenue generated by the policy or …

Assessing Exclusion Clauses: The Supreme Court Of Canada's Three Issue Framework In Tercon Contractors Ltd V British Columbia (Transportation And Highways), Shannon O'Byrne

Dalhousie Law Journal

The Supreme Court of Canada's 2010 decision in Tercon Contractors Ltd v British Columbia (Transportation and Highways) concerned the enforceability of a broadly drafted exclusion clause in the context of public procurement tendering. It is noteworthy for several reasons. First, the decision unanimously articulated a three-issue framework for determining the enforceability of exclusion clauses. Second, and on a more theoretical front, Tercon offered competing visions as to how contracts are to be interpreted. Though the Supreme Court was unanimous that parties to a contract should-of course-generally be bound by its terms, the majority and dissent followed significantly different paths for …

Study On The Implementation And Effect In Member States' Laws Of Directive 2001/29/Ec On The Harmonisation Of Certain Aspects Of Copyright And Related Rights In The Information Society: Final Report, Lucie Guibault, Guido Westkamp, Thomas Rieber-Mohn

Reports & Public Policy Documents

This study, commissioned by the European Commission, examines the application of Directive 2001/29/EC in the light of the development of the digital market. Its purpose is to consider how Member States have implemented the Directive into national law and to assist the Commission in evaluating whether the Directive, as currently formulated, remains the appropriate response to the continuing challenges faced by the stakeholders concerned, such as rights holders, commercial users, consumers, educational and scientific users. As set out in specifications of the study set out by the Commission, its aim is 'to assess the role that the Directive has played …

Changing Tactics: Rehabilitating Canadian Justice For Traumatized Veterans, J. Jason Samson

LLM Theses

This thesis examines how military members and veterans with Operational Stress Injuries are treated by Canadian justice systems. It suggests a correlation between mental injuries sustained on operations by military personnel and propensities for military and societal misconduct. By comparing civilian and military processes with American justice counterparts, a plan to improve the existing Canadian legal landscape is proposed. Using an analysis of the underlying philosophy and purpose of military justice, a problem solving diversionary court is recommended, along with legislative and policy amendments. The use of a consent-based "Treatment Standing Court Martial" would place military justice officials parallel to …

Making Informed Consent Work In Nigerian Health Care, Oluchukwu Jacinta Aniaka

LLM Theses

The notion of informed consent to medical treatment is a fundamental precept in law. It recognizes autonomy and the right to personal inviolability, irrespective of nationality, socio-economic situation and ideological orientation. A full realization of autonomy in the Nigerian legal system is severely constricted by sociological and cultural factors. Of particular concern is the impact of oppression which may arise from socialization, arbitrary disclosure practice by physicians, or as a result of legislative enactment. To remedy the elemental defects in the Nigerian Code of Medical Ethics, without addressing the impediments posed by the social environment from which a patient operates, …

Social Networking And The Employment Relationship: Is Your Boss Creeping Up On You?, Michael Keliher

LLM Theses

There are currently over 900 million Facebook users worldwide (and counting). With increased use of social networking comes new concerns for personal privacy and control of social networking information. More and more, Facebook activity trickles its way into offline contexts, perhaps none more so than the employment context. A new trend in the hiring process is social networking background checks, where some employers go so far as to request a candidate's Facebook password. Not only this, but the frequency of Facebook activity resulting in employment law disputes is increasing, and has even been found to constitute sufficient grounds for discipline …