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2007

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Articles 1 - 27 of 27

Full-Text Articles in Law

Faster, Higher, Stronger: Preventing Human Trafficking At The 2010 Olympics, Benjamin Perrin Nov 2007

Faster, Higher, Stronger: Preventing Human Trafficking At The 2010 Olympics, Benjamin Perrin

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This report considers the upcoming 2010 Olympics in Vancouver in the context of Canada’s human trafficking response to date, and makes recommendations to ensure that this event showcases our best to the world – and is not a flashpoint for human trafficking.

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The Prospect Of New Partnership Taxation In China, Wei Cui May 2007

The Prospect Of New Partnership Taxation In China, Wei Cui

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China's revised Partnership Law requires the government to tax partners but not partnerships. Previous partnership tax rules applied only to partnerships with individual partners, and suffered from major flaws, the most important of which is that the character of income received by a partnership is not completely preserved when allocated to the partners, with the result that individual partners are overtaxed on both labor and investment income. In other words, there was no true flow-through taxation. The paper recommends improving the flow-through treatment of income, but argues that because Chinese partnerships are unlikely to be prepared in the short-term to …

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Civil Liability Relief For Brownfields Developers, Stepan Wood Jan 2007

Civil Liability Relief For Brownfields Developers, Stepan Wood

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The paper examines the extent to which state and federal governments in the United States seek to stimulate brownfields redevelopment by legislating immunity against third-party civil (common law) liability for "innocent" owners or operators who purchase contaminated land. Surveying developments in Alabama, California, Connecticut, Florida, Georgia, Iowa, Massachusetts, Michigan, Missouri, New Jersey and Virginia, it shows that such liability relief is uncommon, narrow, and largely unknown to brownfields lawyers. It concludes by identifying implications for Canadian lawmakers grappling with similar issues.

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Protecting Constitutionalism In Treacherous Times: Why 'Rights' Don't Matter, W. Wesley Pue Jan 2007

Protecting Constitutionalism In Treacherous Times: Why 'Rights' Don't Matter, W. Wesley Pue

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Common lawyers have focused too much on rights talk and especially on constitutionally entrenched Bills of Rights in critiquing Anti-Terrorism legislation enacted by democratic common law countries since September 11, 2001. This paper illustrates the ways in which rights talk acts as a distraction from fundamental principles of legality when Anti-Terrorism laws are considered, arguing that embedded rights play three roles antithetical to sustaining governance in accordance with fundamental principles of legality: the roles of paper tiger, Trojan horse, and narcotic.

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Police Powers, Trespass And Expressive Rights Under The Canadian Constitution, W. Wesley Pue Jan 2007

Police Powers, Trespass And Expressive Rights Under The Canadian Constitution, W. Wesley Pue

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This paper traces the history of the ancillary police powers doctrine in Canadian police law/ constitutional law over the past 40 years. It identifies a doctrine creep wherein a heading of police power which had modest origins has expanded massively. The expansion is spatial and conceptual and reached its reductio ad absurdum when the entire central area of Quebec city was zoned into no-go areas by police acting without legislative authority, claiming the right to erect barricades in public streets, to issue passes (or not) as necessarily ancillary to police powers. The paper includes the only English translation of the …

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Law's Empire, W. Wesley Pue, Rob Mcqueen Jan 2007

Law's Empire, W. Wesley Pue, Rob Mcqueen

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Scholars of culture, humanities and social sciences have increasingly come to an appreciation of the importance of the legal domain in social life, while critically engaged socio-legal scholars around the world have taken up the task of understanding "Law's Empire" in all of its cultural, political, and economic dimensions. The questions arising from these intersections, and addressing imperialisms past and present forms the subject matter of a special symposium issue of Social Identities under the editorship of Griffith University's Rob McQueen, and UBC's Wes Pue and with contributions from McQueen, Ian Duncanson, Renisa Mawani, David Williams, Emma Cunliffe, Chidi Oguamanam, …

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China's New Personal Income Tax Return Filing Regime, Wei Cui Jan 2007

China's New Personal Income Tax Return Filing Regime, Wei Cui

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In December 2005, as newly authorized under the amended Personal Income Tax Law (PITL), China’s State Council announced that taxpayers with annual income in excess of RMB 120,000 (US$15,000) would be required to file annual tax re-turns.The task of designing the procedures for the new return filing requirement was delegated to the State Administration of Taxation (SAT). On November 6, 2006, 11 months after the new return filing requirement was announced, and less than two months before the first filing season was to begin,the SAT finally issued a set of rules on filing procedures, including a new sample annual tax …

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Assurance Services As A Substitute For Law In Global Commerce, Margaret M. Blair, Cynthia A. Williams, Li-Wen Lin Jan 2007

Assurance Services As A Substitute For Law In Global Commerce, Margaret M. Blair, Cynthia A. Williams, Li-Wen Lin

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In this article we examine the rapid emergence and expansion of a private-sector compliance and enforcement infrastructure that we believe may increasingly be providing a substitute for public and legal regulatory infrastructure in global commerce, especially in developing countries where rule of law is weak and court systems are absent or inadequate. This infrastructure is provided by a proliferation of performance codes and standards, and a rapidly-growing global army of privately-trained and authorized inspectors and certifiers that we call the "third-party assurance industry." The growth in the third party assurance business has been phenomenal in the last decade. The business …

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Justice Iacobucci And The 'Golden And Straight Metwand' Of Canadian Tax Law, David G. Duff Jan 2007

Justice Iacobucci And The 'Golden And Straight Metwand' Of Canadian Tax Law, David G. Duff

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The article examines the contributions of Supreme Court Justice Frank Iacobucci in the Canadian tax jurisprudence. The traditional Anglo-Canadian and American judicial approaches to tax statutes was taken into account. Key information about significant tax decisions made by Iacobucci is presented. On the other hand, his judicial restraint and legislative supremacy was also evaluated.

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Hearing The Sexual Assault Complaints Of Women With Mental Disabilities: Consent, Capacity, And Mistaken Belief, Janine Benedet, Isabel Grant Jan 2007

Hearing The Sexual Assault Complaints Of Women With Mental Disabilities: Consent, Capacity, And Mistaken Belief, Janine Benedet, Isabel Grant

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Women with mental disabilities experience high rates of sexual assault. The authors trace the history of the criminal law's treatment of cases involving such acts in order to evaluate whether the substantive law of sexual assault is meeting the needs of this group of women. In particular, the authors focus on the legal issues of consent, capacity, and mistaken belief. The authors situate this discussion in the context of current debates in feminist and critical disability theory, grounding the theory in scholarly research on sexual assault of women with mental disabilities. In considering the law's treatment of sexual violence against …

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Privacy, Identity And Security, Benjamin J. Goold Jan 2007

Privacy, Identity And Security, Benjamin J. Goold

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This paper examines the relationship between security, surveillance, privacy and identity, both in the context of legislation such as the Anti-terrorism Act and the PATRIOT Act, and also in the light of ongoing changes in how that personal information is gathered, processed and used. It is argued that prevailing notions of privacy — and the legal frameworks that aim to protect privacy interests — are ill-suited to defending individuals from an increasingly sophisticated array of surveillance and data processing techniques, which enable information to be acquired and shared at almost zero-cost and which threaten to establish the ‘categorical identity’ as …

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Writing The Circle: Judicially Convened Sentencing Circles And The Textual Organization Of Criminal Justice, Emma Cunliffe, Angela Cameron Jan 2007

Writing The Circle: Judicially Convened Sentencing Circles And The Textual Organization Of Criminal Justice, Emma Cunliffe, Angela Cameron

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Trial court judges who work in remote Northern Canadian Aboriginal communities use judicially convened sentencing circles to gather information and develop sentencing recommendations in some intimate violence cases. Proponents claim that judicially convened sentencing circles are a restorative justice practice that heals the offender, his community, and the survivor of the violence. Proponents also look to sentencing circles as a tool to find a just outcome that minimizes Aboriginal men's incarceration. We use a methodology developed by feminist sociologist Dorothy Smith to consider whether the institutional priorities being established and approved by courts in sentencing circle cases provide adequate protection …

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Security And Human Rights, Liora Lazarus, Benjamin J. Goold Jan 2007

Security And Human Rights, Liora Lazarus, Benjamin J. Goold

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In the wake of the events of September 11th, the task of reconciling issues of security with a respect for fundamental human rights has emerged as one of the key challenges facing governments throughout the world. Although the issues raised by the rise of security have been the subject of considerable academic interest, to date much of the debate surrounding the impact of security on human rights has taken place within particular disciplinary confines. In contrast, this collection of essays from leading academics and practitioners in the fields of criminal justice, public law, international law, international relations and legal philosophy …

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Democratising Or Demonising The World Heritage Convention?, Natasha Affolder Jan 2007

Democratising Or Demonising The World Heritage Convention?, Natasha Affolder

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In recent disputes surrounding mining projects in and around World Heritage sites, the legitimacy of the World Heritage Convention regime has been attacked for a host of democratic failings. These accusations of 'democratic deficits' originate from both opponents and supporters of the Convention regime. They challenge the compatibility of international processes with national law and institutions, raise questions of accountability and transparency, and revisit tensions between state sovereignty and common heritage. This paper traces these perceptions of democratic shortcomings in the Convention regime to certain misunderstandings of the Convention, to failed participatory processes at the national level, and to the …

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Anywhere But Here: Race And Empire In The Mabo Decision, Emma Cunliffe Jan 2007

Anywhere But Here: Race And Empire In The Mabo Decision, Emma Cunliffe

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The High Court of Australia's decision in Mabo v. Queensland (No.2) is among the most widely known and controversial decisions the Court has yet delivered. In Mabo, a majority of the Court recognised a common law right to native title subject to certain criteria. In this article, I explore the competing visions of legal history that are implicit within Brennan J's leading judgment and Dawson J's dissent. In particular, I discuss the ways in which both of these judgments render an incomplete and contradictory documentary record more coherent than it really is. Suggesting that neither judgment manages to escape the …

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The Problem Of Official Discretion In Anti-Terrorism Law: Comment On Khawajah, W. Wesley Pue, Robert Russo Jan 2007

The Problem Of Official Discretion In Anti-Terrorism Law: Comment On Khawajah, W. Wesley Pue, Robert Russo

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This paper assesses the first judicial ruling on key provisions of the Anti Terrorism Act. Rutherford J.'s ruling struck down provisions creating a motive requirement in the definition of terrorist activity while upholding the overall structure of the act against challenges on the basis of overbreadth and vagueness. A fault-line divides the two sides of the ruling. On one side the court looked to the lived-experience of legal rules, concluding that including motive requirements would mislead officials in the direction of improper and unconstitutional racial or religious profiling. On the other side of the fault-line the court restricted itself to …

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The Supreme Court Of Canada Crumbles Mr. Christie's Cookie, Anthony F. Sheppard Jan 2007

The Supreme Court Of Canada Crumbles Mr. Christie's Cookie, Anthony F. Sheppard

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In British Columbia (Attorney General) v. Christie, 2007 SCC 21, [2007] 1 SCR 873, the unanimous full bench of the Supreme Court of Canada upheld a provincial sales tax ("PST") on legal services, rejecting a Charter challenge and overturning the lower courts' decisions that partially invalidated the tax. The taxpayer, a lawyer practising poverty law in British Columbia, challenged the validity of a provincial sales tax charging 7 percent on fees billed for legal services and payable on billing. The PST on legal services required lawyers and notaries public in private practice to add the tax onto their billings. The …

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Mining And The World Heritage Convention: Democratic Legitimacy And Treaty Compliance, Natasha Affolder Jan 2007

Mining And The World Heritage Convention: Democratic Legitimacy And Treaty Compliance, Natasha Affolder

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International treaties and the institutions which administer them are increasingly the subjects of democratic scrutiny. In recent disputes surrounding mining projects in and around World Heritage Sites, the legitimacy of the World Heritage Convention regime has been attacked for a host of democratic failings. These accusations of democratic deficits originate from both opponents and supporters of the Convention regime. They challenge the compatibility of international processes with national law and institutions, raise questions of accountability and transparency, and revisit tensions between state sovereignty and common heritage. To foster compliance with the World Heritage Convention, we need to boldly engage with …

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Hearing The Sexual Assault Complaints Of Women With Mental Disabilities: Evidentiary And Procedural Issues, Janine Benedet Jan 2007

Hearing The Sexual Assault Complaints Of Women With Mental Disabilities: Evidentiary And Procedural Issues, Janine Benedet

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When a woman with a mental disability makes a complaint of sexual assault, she must confront a criminal trial process that was not designed in contemplation of her as a witness. The requirements of repeated testimony under oath and the ability to be cross-examined are not always well-suited to the particular needs and capacities of women with mental disabilities. These problems are magnified by the tendency to infantilize women with mental disabilities, thereby diminishing their credibility and depicting them as hypersexual when they engage in any sexual activity. These stereotypes also manifest themselves in the application of evidentiary rules relating …

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Public Protection, Proportionality, And The Search For Balance, Benjamin J. Goold, Liora Lazarus, Gabriel Swiney Jan 2007

Public Protection, Proportionality, And The Search For Balance, Benjamin J. Goold, Liora Lazarus, Gabriel Swiney

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This report examines how courts in the UK and Europe respond when human rights and security appear to conflict. It compares cases from the United Kingdom, France, Germany, Spain, and the European Court of Human Rights (ECtHR). It examines how rights are applied and how courts use the concept of proportionality to mediate conflicts between rights and security. The report concludes that British courts are less consistent in their application of proportionality than countries with constitutional rights protections which tend to be more rigorous in their protections of rights than are countries, like the UK, that rely instead on the …

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Counting Outsiders: A Critical Exploration Of Outsider Course Enrollment In Canadian Legal Education, Natasha Bakht, Kim Brooks, Gillian Calder, Jennifer Koshan, Sonia Lawrence, Carissima Mathen, Debra Parkes Jan 2007

Counting Outsiders: A Critical Exploration Of Outsider Course Enrollment In Canadian Legal Education, Natasha Bakht, Kim Brooks, Gillian Calder, Jennifer Koshan, Sonia Lawrence, Carissima Mathen, Debra Parkes

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In response to anecdotal concerns that student enrollment in "outsider" courses, and in particular feminist courses, is on the decline in Canadian law schools, the authors explore patterns of course enrollment at seven Canadian law schools. Articulating a definition of "outsider" that describes those who are members of groups historically lacking power in society, or traditionally outside the realms of fashioning, teaching, and adjudicating the law, the authors document the results of quantitative and qualitative surveys conducted at their respective schools to argue that outsider pedagogy remains a critical component of legal education. The article situates the numerical survey results …

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Precedent Unbound? Contemporary Approaches To Precedent In Canada, Debra Parkes Jan 2007

Precedent Unbound? Contemporary Approaches To Precedent In Canada, Debra Parkes

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This paper examines some key aspects of the contemporary treatment of precedent in Canada, including consideration of the vertical convention of precedent (lower courts being bound by decisions of higher courts) and the horizontal convention of precedent (courts being willing and/or able to overrule or depart from decisions of the same court). On the latter topic of horizontal precedent, particular attention will be paid to three recent decisions of the Supreme Court of Canada, Ontario Court of Appeal, and Manitoba Court of Appeal respectively, which take a more functional and pragmatic approach to the issue and demonstrate a greater willingness …

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A Prisoners' Charter? Reflections On Prisoner Litigation Under The Canadian Charter Of Rights And Freedoms, Debra Parkes Jan 2007

A Prisoners' Charter? Reflections On Prisoner Litigation Under The Canadian Charter Of Rights And Freedoms, Debra Parkes

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This paper examines over twenty years of prisoner litigation under the Canadian Charter of Rights and Freedoms, beginning with a brief consideration of the social and political context for prisoners into which the Charter was entrenched in 1982, before moving on to consider a variety of successful and unsuccessful prisoners' Charter claims. The author notes some ways in which the impact of the Charter has been diminished at the prison walls, including through a lack of full and meaningful access by prisoners to courts or other means of independent review of prison decisions and conditions, as well as by the …

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An Emerging International Criminal Law Tradition: Gaps In Applicable Law And Transnational Common Laws, Benjamin Perrin Jan 2007

An Emerging International Criminal Law Tradition: Gaps In Applicable Law And Transnational Common Laws, Benjamin Perrin

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This thesis critically examines the origins and development of international criminal lave to identify the defining features of this emerging legal tradition. It critically evaluates the experimental approach taken in Article 21 of the Rome Statute of the International Criminal Court, which attempts to codify an untested normative super-structure to guide this legal tradition. International criminal law is a hybrid tradition which seeks legitimacy and answers to difficult questions by drawing on other established legal traditions. Its development at the confluence of public international law, international humanitarian law, international human rights law and national criminal laws has resulted in gaps …

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Criminal Jumping On And Off The Curb - Discretion And The Idea Of An Impartial And Independent Police Force, W. Wesley Pue Jan 2007

Criminal Jumping On And Off The Curb - Discretion And The Idea Of An Impartial And Independent Police Force, W. Wesley Pue

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This paper presents a commentary on the idea of independence of the police, arguing that notions of independence are complicated considerably when the reality of police discretion is taken into account. The notion of colourability is identified as central (where goals not unlawful in themselves are pursued for unlawful reasons - eg. to vicitimize one's political foes) as is the possibility of police powers being deployed lawfully in the strict sense, but in a fashion that is nonetheless constitutionally improper.

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Corporate Corruption And Reform Undertakings: A New Approach To An Old Problem, David Hess, Cristie Ford Jan 2007

Corporate Corruption And Reform Undertakings: A New Approach To An Old Problem, David Hess, Cristie Ford

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Over the past few years the Securities Exchange Commission (SEC) and Department of Justice (DOJ) have finally started making serious efforts at enforcing the United States' anti-bribery laws against corporations. These efforts will not be effective against the worst offenders, however, if they do not address the issue of corporate ethical culture. Over time, the use of improper payments can become embedded in a corporation's culture. The organizational actors treat payments of bribes, or the use of agents the company suspects of paying bribes, solely as economic issues and not as legal and ethical issues. Through the DOJ's use of …

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Culture, Self-Determination And Colonialism: Issues Around The Revitalization Of Indigenous Legal Traditions, Gordon Christie Jan 2007

Culture, Self-Determination And Colonialism: Issues Around The Revitalization Of Indigenous Legal Traditions, Gordon Christie

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This paper works from the assumption that the power of the state to determine and regulate debate around the reinvigoration of Indigenous legal traditions must be set aside, and that the path forward must be laid out by Indigenous peoples. Working out the implications of this assumption leads to ruminations on the roles that identity, colonialism, culture and self- determination must play in structuring debate around the rebuilding of these legal traditions. The position that begins to emerge from these ruminations focuses attention on the need to control processes of identity formation. Given the historical and ongoing impacts of colonial …

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