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The Peter A. Allard School of Law

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2010

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Articles 1 - 30 of 33

Full-Text Articles in Law

Cctv And Human Rights, Benjamin J. Goold Jan 2010

Cctv And Human Rights, Benjamin J. Goold

All Faculty Publications

This chapter provides a brief overview of the human rights implications of closed circuit television (CCTV) surveillance, and aims to help CCTV managers and operators develop public area surveillance policies and practices that are consistent with a commitment to the protection of individual rights and a respect for civil liberties.

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Towards A Right To Engage In The Fair Transformative Use Of Copyright‑Protected Expression, Graham Reynolds Jan 2010

Towards A Right To Engage In The Fair Transformative Use Of Copyright‑Protected Expression, Graham Reynolds

All Faculty Publications

Networked digital technologies have given Canadians the opportunity to engage with culture in a way that has never before been possible. Empowered and inspired, individuals from Prince George to the Georgian Bay to George Street are rejecting their former role as passive consumers of culture in order to participate in a continuing process of cultural (re)creation, production, and dialogue. One way in which they are doing so is by engaging in the transformative use of existing expression, a type of creative activity in which previously existing expression is reworked for a new purpose, with new interpretations or with a new …

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Securities Class Actions Move North: A Doctrinal And Empirical Analysis Of Securities Class Actions In Canada, A. C. Pritchard, Janis P. Sarra Jan 2010

Securities Class Actions Move North: A Doctrinal And Empirical Analysis Of Securities Class Actions In Canada, A. C. Pritchard, Janis P. Sarra

All Faculty Publications

The article explores securities class actions involving Canadian issuers since the provinces added secondary market class action provisions to their securities legislation. It examines the development of civil liability provisions, and class proceedings legislation and their effect on one another. Through analyses of the substance and framework of the statutory provisions, the article presents an empirical and comparative examination of cases involving Canadian issuers in both Canada and the United States. In addition, it explores how both the availability and pricing of director and officer insurance have been affected by the potential for secondary market class action liability. The article …

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The Olympic Games And The Triple Bottom Line Of Sustainability: Opportunities And Challenges, Joseph Weiler, Arun Mohan Jan 2010

The Olympic Games And The Triple Bottom Line Of Sustainability: Opportunities And Challenges, Joseph Weiler, Arun Mohan

All Faculty Publications

Growing public expectations that the Olympic Movement and Olympic Host City Organizing Committees be socially, environmentally and economically responsible has made a commitment to integrate sustainability principles and practices a common theme in the bids of cities competing to host the Games. To understand the growing role of sustainability as an Olympic theme, the authors trace the evolution of the sustainability aspirations of the Olympic Movement by looking at the key Olympic Games and bids in this process. The authors determine that unlocking the potential of the Olympic Games to use sport to attract new audiences to sustainable living cannot …

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La Loi Sur La Protection Des Obtentions Végétales; Entre Compétitivité Et Utopie, Y A-T-Il Un Avenir Pour Le Modèle?, Régine Tremblay Jan 2010

La Loi Sur La Protection Des Obtentions Végétales; Entre Compétitivité Et Utopie, Y A-T-Il Un Avenir Pour Le Modèle?, Régine Tremblay

All Faculty Publications

Y a-t-il un avenir pour le régime de la Loi sur la protection des obtentions végétales? Cet article analyse les deux vagues majeures de législation entourant la protection et la stimulation des investissements dans le domaine des obtentions végétales au Canada et dans l‘Union européenne. Le Canada pourrait-il saisir sa chance et devenir un acteur de premier plan? Qui plus est, que peut-on apprendre et transposer d‘un régime de propriété intellectuelle sectoriel vers un régime general?

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Unequal To The Task: ‘Kapp’Ing The Substantive Potential Of Section 15, Margot Young Jan 2010

Unequal To The Task: ‘Kapp’Ing The Substantive Potential Of Section 15, Margot Young

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This paper reviews the Supreme Court of Canada’s interpretation of s. 15 as a guarantee of substantive equality focusing on R. v. Kapp, a recent key section 15 case, as seen in perspective of Andrews v. Law Society of British Columbia (1989). R. v. Kapp (2008) brings together a dense complex of issues involving equality, affirmative action, race and Aboriginal rights. This paper takes on only a piece of this tangle – focusing on three issues that speak to the Court’s continuing failure to engage fully with the promise of Andrews’ rejection of a formal equality framework for section 15. …

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The Ioc Made Me Do It: Women's Ski Jumping, Vanoc And The 2010 Winter Olympics, Margot Young Jan 2010

The Ioc Made Me Do It: Women's Ski Jumping, Vanoc And The 2010 Winter Olympics, Margot Young

All Faculty Publications

This case comment discusses the judicial decisions in Sagen v. VANOC regarding the constitutional challenge brought by women ski jumpers to their exclusion from the 2010 Vancouver Winter Olympics. While the claimants argued that the constitutional equality provision (section 15 of the Canadian Charter of Rights and Freedoms) had been infringed, the BC courts' decisions focussed on the novelty of the state action problem. At least one level of court accepted that the exclusion was discriminatory but the challenge failed because the decision to exclude lay within the power of the International Olympic Committee, an entity beyond the ambit of …

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Witnessing Arbitrariness: Roncarelli V. Duplessis Fifty Years On, Mary Liston Jan 2010

Witnessing Arbitrariness: Roncarelli V. Duplessis Fifty Years On, Mary Liston

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In Canadian public law, the foundational case of Roncarelli v. Duplessis stands for the proposition that arbitrariness and the rule of law are conceptually antithetical values. This article examines multiple forms of arbitrariness in Roncarelli, going beyond the usual focus on discretionary power arbitrarily exercised by the executive branch of government. A close reading of the case not only brings to the surface other forms of arbitrariness, notably under-acknowledged forms of judicial arbitrariness, but also illuminates how legal actors attempt to constrain arbitrariness within the activity of judging. Furthermore, repositioning the case in its larger social and political context provides …

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Food Fish, Commercial Fish, And Fish To Support A Moderate Livelihood: Characterizing Aboriginal And Treaty Rights To Canadian Fisheries, Douglas C. Harris, Peter Millerd Jan 2010

Food Fish, Commercial Fish, And Fish To Support A Moderate Livelihood: Characterizing Aboriginal And Treaty Rights To Canadian Fisheries, Douglas C. Harris, Peter Millerd

All Faculty Publications

The Aboriginal peoples of Canada stand in a different legal relationship to the fisheries than non-Aboriginal Canadians. They do so by virtue of a long history with the fisheries that precedes non-Aboriginal settlement in North America, and because of the constitutional entrenchment of Aboriginal and treaty rights in Canadian law. This article describes the characterizations of Aboriginal and treaty rights to fish in Canadian law and discusses what it means for rights characterized in terms of food fishing, commercial fishing, and fishing to support a moderate livelihood, to receive constitutional protection. The article then problematizes these characterizations and suggests that …

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The Market For Treaties, Natasha Affolder Jan 2010

The Market For Treaties, Natasha Affolder

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Corporations are consumers of treaty law. In this article, I empirically examine three biodiversity treaty regimes - the Convention on Biological Diversity, Ramsar Convention, and World Heritage Convention - to demonstrate that corporations implement or internalize treaty norms in a variety of ways that are not captured by the dominant model of treaty implementation – national implementation. As an exegetical model, I explore how corporations use biodiversity treaties as a source of private environmental standards. I focus on the interactions between mining and oil and gas companies and biodiversity treaties, as revealed through transactional documents, corporate reports, security law filings, …

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Power Without Property, Still: Unger, Berle, And The Derivatives Revolution, Cristie Ford, Carol Liao Jan 2010

Power Without Property, Still: Unger, Berle, And The Derivatives Revolution, Cristie Ford, Carol Liao

All Faculty Publications

This paper was produced for “In Berle’s Footsteps,” a symposium marking the launch of the Adolf A. Berle, Jr. Center on Corporations, Law and Society at the University of Seattle School of Law. It considers the light that the “derivatives revolution” sheds on the theoretical perspectives of Roberto Unger and Adolf Berle. While an unlikely pair, both Unger and Berle focused, in different ways, on the same issues: property, the power associated with property, and the impact of “smashing the atom” of traditional property rights. For Unger, breaking down consolidated property holding at the societal level was a pro-democratic move. …

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Rethinking Environmental Contracting, Natasha Affolder Jan 2010

Rethinking Environmental Contracting, Natasha Affolder

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Environmental contracts occupy an ill-defined middle ground between command and control regulation and voluntary initiatives. These agreements have captured the imagination of policymakers and scholars in the U.S. and Europe in particular. They are heralded as promising examples of “new governance.” This Article explores a little known example of environmental contracting which emerged in the context of a Canadian diamond mine — the Ekati Environmental Agreement. Through a fine-grained case study of the Ekati Agreement, this article challenges some of the assumptions that shape the “environmental contracting literature as well as the wider literature on “new governance.” By debunking the …

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The Slave Trade Is Back: Confronting Human Trafficking In Canada And Beyond, Benjamin Perrin Jan 2010

The Slave Trade Is Back: Confronting Human Trafficking In Canada And Beyond, Benjamin Perrin

All Faculty Publications

Individual liberty is being systematically attacked in Canada and around the world with a resurgence in the last two decades of human trafficking — a modern-day form of slavery. Modern-day slavery is thriving in countries as diverse as Cambodia and Costa Rica, India and Italy, as well as the Ukraine and the United States itself. International policing agencies say that illegal profits from modern-day slavery rival that of drug and weapons trafficking. While countries around the world have been tackling the issue for over a decade, Canada’s response has been comparatively lethargic due to a lack of widespread awareness about …

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Intimate Femicide: A Study Of Sentencing Trends For Men Who Kill Their Intimate Partners, Isabel Grant Jan 2010

Intimate Femicide: A Study Of Sentencing Trends For Men Who Kill Their Intimate Partners, Isabel Grant

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This article examines sentencing trends over the past 18 years for men who kill their intimate partners. Using a sample of 252 cases, the article demonstrates that periods of parole ineligibility for second degree murder rose significantly after the Supreme Court of Canada’s decision in Shropshire but have more recently levelled off to a range that is still higher than the pre-Shropshire era. With respect to manslaughter, changing social attitudes and the amendments to the Criminal Code making the spousal nature of the crime an aggravating factor have resulted in increasingly severe sentences for spousal manslaughters. While a large number …

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Tax Classification Of Foreign Entities In China: The Current State Of Play, Wei Cui Jan 2010

Tax Classification Of Foreign Entities In China: The Current State Of Play, Wei Cui

All Faculty Publications

This article considers recent changes to the classification of foreign entities under Chinese tax law, the implications for China’s treaty partners in this regard and the general legal framework within which future changes may occur.

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Electronic Records And The Law Of Evidence In Canada: The Uniform Electronic Evidence Act Twelve Years Later, Luciana Duranti, Corinne M. Rogers, Anthony F. Sheppard Jan 2010

Electronic Records And The Law Of Evidence In Canada: The Uniform Electronic Evidence Act Twelve Years Later, Luciana Duranti, Corinne M. Rogers, Anthony F. Sheppard

All Faculty Publications

This article analyzes the adequacy of The Uniform Electronic Evidence Act, twelve years after its adoption, in dealing with the complexity of the records created, used, or stored in the digital environment. In the face of rapidly changing technology, the authors believe that the nature and characteristics of electronic records cannot be accounted for by simple modifications to the existing law of evidence, but require a new enactment following upon a close collaboration among records professions, legal and law enforcement professions, and the information technology profession. The new rules, comprehensively encompassing issues of relevance, admissibility, and weight of electronic documentary …

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Religion-Based Claims For Impinging On Queer Citizenship, Bruce Macdougall, Donn Short Jan 2010

Religion-Based Claims For Impinging On Queer Citizenship, Bruce Macdougall, Donn Short

All Faculty Publications

Competing claims for legal protection based on religion and on sexual orientation have arisen fairly frequently in Canada in the past decade or so. The authors place such competitions into five categories based on the nature of who is making the claim and who is impacted, the site of the competition, and the extent to which the usual legal and constitutional norms applicable are affected. Three of the five categories identified involve a claim that a religion operate in some form in the public area so as to impinge on the usual protection of equality on the basis of sexual …

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The Age Of Innocence: A Cautious Defence Of Raising The Age Of Consent In Canadian Sexual Assault Law, Janine Benedet Jan 2010

The Age Of Innocence: A Cautious Defence Of Raising The Age Of Consent In Canadian Sexual Assault Law, Janine Benedet

All Faculty Publications

In 2008, Canada raised the age of consent to sexual activity with an adult from 14 years of age to 16. This change was motivated, in part, by several high profile cases of internet “luring” of younger teenagers. This article considers whether raising the age of consent has had any benefits. It begins by discussing the history and development of age of consent laws in Canada. The justification for a statutory age of consent has shifted from one based on the age at which a girl is deemed to be sexually available to one based on her capacity to give …

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Responses To Tax Treaty Shopping: A Comparative Evaluation, David G. Duff Jan 2010

Responses To Tax Treaty Shopping: A Comparative Evaluation, David G. Duff

All Faculty Publications

Over the last 40 years, the world has experienced exponential growth in international trade and investment, as well as the number of bilateral tax treaties which now number roughly 3,000. As the globalization of economic activity has greatly increased opportunities for tax avoidance and evasion, so also has the expansion of the international tax treaty network increased opportunities for taxpayers to take advantage of domestic tax rules and bilateral tax treaties by arranging their affairs in ways that reduce taxes otherwise owing or eliminate them altogether. Regarding many of these arrangements as abusive treaty shopping, the OECD and several member …

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Establishment': A Core Concept In Chinese Inbound Income Taxation, Wei Cui Jan 2010

Establishment': A Core Concept In Chinese Inbound Income Taxation, Wei Cui

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Analogous with the concept of a US "trade or business" in US federal income tax law, the concept of "establishment" under Chinese tax law determines the boundary between net-income and gross-income taxation of inbound investments. As central as the concept is, it has received surprisingly little interpretation. As China increasingly opens to foreign portfolio investment and makes new non-corporate business forms available to foreigners, the term is urgently in need of clarification. This Article describes the recent regulatory and commercial developments in China that may rekindle interest in elaborating the meaning of "establishment." It then discusses the interpretations that have …

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Forced Marriage As A Harm In Domestic And International Law, Catherine Dauvergne, Jenni Millbank Jan 2010

Forced Marriage As A Harm In Domestic And International Law, Catherine Dauvergne, Jenni Millbank

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This article reports on our analysis of 120 refugee cases from Australia, Canada, and Britain where an actual or threatened forced marriage was part of the claim for protection. We found that forced marriage was rarely considered by refugee decision makers to be a harm in and of itself. This finding contributes to understanding how gender and sexuality are analysed within refugee law, because the harm of forced marriage is experienced differently by lesbians, gay men and heterosexual women. We contrast our findings in the refugee case law with domestic initiatives in Europe aimed at protecting nationals from forced marriages …

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Forced Marriage And The Exoticization Of Gendered Harms In United States Asylum Law, Jenni Millbank, Catherine Dauvergne Jan 2010

Forced Marriage And The Exoticization Of Gendered Harms In United States Asylum Law, Jenni Millbank, Catherine Dauvergne

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While claims of forced marriage or pressure to marry represent only a tiny portion of refugee claims overall, they provide an illuminating sliver reflecting the major recurring themes in gender and sexuality claims from recent decades. Refusal to marry is a flashpoint for expressing non-conformity with expected gender roles for heterosexual women, lesbians and gay men. This paper presents results from our study of 168 refugee decisions from Australia, Canada, the United Kingdom and the United States where part of the claim for refugee protection concerned actual or threatened forced marriage. In the present discussion, we highlight our findings from …

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Charities And Terrorist Financing, David G. Duff Jan 2010

Charities And Terrorist Financing, David G. Duff

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A decade after the bombing of Air India Flight 182 in June 1985, many Canadians were shocked to learn that the Babbar Khalsa Society – a militant organization dedicated to the establishment of an independent state in northern India, members of which are believed to have planned the Air India bombing – had been granted charitable status in Canada. Although the organization’s charitable status was revoked in 1996, reports also suggested that funds collected to support Sikh temples in Canada may have been diverted to support Sikh militancy in India. This article examines the relationship between charities and terrorist financing …

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China, Wei Cui Jan 2010

China, Wei Cui

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The Chinese indirect tax system is on the eve of a major overhaul, with the integration of the VAT and business tax (BT) to start in select industries in Shanghai on January 1, 2012. This paper provides an overview of China's idiosyncratic VAT as well as the BT as they stood towards the end of 2010. BT law and practice are discussed only in connection with select conceptual issues such as the exclusion from the VAT/BT base, place of supply, etc. This decision is based on the considerations that many of the legal issues arising under the VAT cannot be …

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Corporate War Crimes: Prosecuting Pillage Of Natural Resources, James G. Stewart Jan 2010

Corporate War Crimes: Prosecuting Pillage Of Natural Resources, James G. Stewart

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Pillage means theft during war. Although the prohibition against pillage dates to antiquity, pillaging is a modern war crime that can be enforced before international and domestic criminal courts. Following World War II, several businessmen were convicted for the pillage of natural resources. And yet modern commercial actors are seldom held accountable for their role in the illegal exploitation of natural resources from modern conflict zones, even though pillage is prosecuted as a matter of course in other contexts. This book offers a doctrinal road-map of the law governing pillage as applied to the illegal exploitation of natural resources by …

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In Defence Of The Sphere Of Influence: Why The Wgsr Should Not Follow Professor Ruggie's Advice On Defining The Scope Of Social Responsibility, Stepan Wood Jan 2010

In Defence Of The Sphere Of Influence: Why The Wgsr Should Not Follow Professor Ruggie's Advice On Defining The Scope Of Social Responsibility, Stepan Wood

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The Working Group on Social Responsibility (WGSR) of the International Organization for Standardization (ISO) will meet in Copenhagen from May 17 to 21, 2010 for what is likely to be its last meeting to work on ISO 26000, an international guide on social responsibility. One of the central challenges for the WGSR is to define the scope of an organization’s responsibility for human rights abuses committed by third parties. ISO 26000, approved by a large majority in a recent "Draft International Standard" ballot, answers this question largely in terms of an organization’s degree of control or influence over others’ conduct. …

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The Psychology Of Good Character, Alice Woolley, Jocelyn Stacey Jan 2010

The Psychology Of Good Character, Alice Woolley, Jocelyn Stacey

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This paper explores the significance of the changing nature of the good character requirement for law society admission in Canada. It posits that good character has shifted from a philosophical concept into a psychological concept, with evidence of past bad acts claimed to be relevant for whether an applicant represents a future risk to the public. This shifting conception of character has, however, been only partial, and the decision-making processes of Canadian law societies have not kept pace with it. Instead, the decision-making process defines character generally and generically, with only occasional emphasis on character as a relevant predictor of …

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Incrementalism, Civil Unions, And The Possibility Of Predicting Legal Recognition Of Same-Sex Marriage, Erez Aloni Jan 2010

Incrementalism, Civil Unions, And The Possibility Of Predicting Legal Recognition Of Same-Sex Marriage, Erez Aloni

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Scholars who have examined the legal recognition of same-sex partnerships in European countries have concluded that the path to the legalization of same-sex marriage follows an incremental process involving specific stages. They suggest that it is possible to predict, based on certain visible social and legal processes or assessable parameters, which U.S. states will be the next to recognize same-sex marriage. These scholars argue that such small cumulative legal changes at the state level constitute the best means of legalizing same-sex marriage in the United States, and that civil unions are a necessary step in this process. This article shows …

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The Backlash Against Investment Arbitration: Perceptions And Reality, Michael Waibel, Asha Kaushal, Kwo-Hwa Liz Chung, Claire Balchin Jan 2010

The Backlash Against Investment Arbitration: Perceptions And Reality, Michael Waibel, Asha Kaushal, Kwo-Hwa Liz Chung, Claire Balchin

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Commentators increasingly question whether a backlash against the foreign investment regime is underway. This book, the outgrowth of a conference organized by the editors at Harvard Law School on April 19, 2008, aims to uncover the drivers behind the backlash against the current international investment regime. A diverse set of contributors reflect on the current state and the future direction of the international investment regime, and offer some tentative solutions for improvement: academics, practitioners, government officials and civil society. Contributors assess whether the current regime of investment arbitration is in crisis. They take a step back to look at the …

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The Sexual Assault Of Intoxicated Women, Janine Benedet Jan 2010

The Sexual Assault Of Intoxicated Women, Janine Benedet

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This article considers how the criminal law of sexual assault in Canada deals with cases of women who have been consuming intoxicants (e.g. alcohol and or drugs). In particular, it considers under what circumstances the doctrines of incapacity to consent and involuntariness have been applied to cases in which the complainant was impaired by alcohol or drugs. It also reflects on problems of proof in such cases. Finally, it examines whether the treatment of this class of complaints tells us anything about the law’s understanding of consent, and capacity to consent, more generally, in the context of competing social understandings …

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