Law Commons^™

The United States Should Take A Page Out Of Canadian Law When It Comes To Privacy, Genetic And Otherwise, Ashley Rahaim

University of Miami Inter-American Law Review

Genetic information is intimate and telling data warranting privacy in public and private realms. The privacy protections offered in the United States and Canada vastly differ when it comes to genetic privacy. Search and seizure law mirrors the privacy gap in the countries, as well as their treatment of DNA database information.

This note explores the foreshadowing of the creation of genetic privacy laws and their varying levels of protection based on the way private information was treated by state actors through search and seizure caselaw, the creation of legal precedent, and the treatment of intimate personal data in the …

Are We Atoning For Our Past Or Creating More Problems: How Covid-19 Legislative Relief Laws Are Shaping The Identities Of Indigenous Populations In North America, Samuel Kramer

University of Miami Inter-American Law Review

This student’s note will attempt to answer three questions: 1) How Canadian and American legal precedent affects the modern identity of Indigenous Populations? 2) How COVID-19 legislative relief continues to shape indigenous identities? and 3) Can a comparative study teach legislators about enacting legislation that withstands shifts in political climates?

Mapping Governmental Engagement With Community Engaged Learning In Canadian Higher Education: An Environmental Scan Of Key Trends, Hannah R. Argiloff

Undergraduate Student Research Internships Conference

This is an environmental survey my supervisor and I conducted pertaining to the landscape of government engagement with Community Engaged Learning in Canadian Universities.

Community Engaged Learning (CEL) is a valuable type of experiential learning characterized by collaboration between student and community partner/ stakeholder for the creation of a mutual outcome.

Given the relations between provincial governments and their influence over publicly funded universities, compounded by a recent uptick in CEL programs across Canada, we wanted to survey government rhetoric, policy, and legislation across the country to create a picture of the interactions between provincial governments and CEL in the …

'The Perfect Shouldn't Be The Enemy Of The Good' — What Canada Can Do Today, Tomorrow & Next Week To Enhance Equitable Access To Covid-19 Biopharmaceutical Interventions, Matthew Herder

Reports & Public Policy Documents

There is overwhelming evidence of inequitable access to a range of COVID-19 targeting biopharmaceutical interventions, including not only vaccines but also anti-viral drug therapies, diagnostic tests, and various materials that are incorporated into these products. As recently explained by Yamey et al. in the British Medical Journal, inequitable access is baked into every phase of the biopharmaceutical system—from production and allocation to affordability and deployment. Yet, it is still possible to improve access to these critically important biopharmaceutical interventions in low and middle-income countries (LMICs). Intellectual property (IP) rights are one crucial site where policy intervention can make an immediate …

Fifth-Dimensional Warfare And National Security In Canada: Situating Microdeviation Theory Within C-59: An Act Respecting National Security Matters, Hayden Slight

Theses and Dissertations (Comprehensive)

In an era of rapid technological change, the growing threat environment in the cyber dimension will continue to influence how a sovereign nation contends with attacks that can occur from any corner of the world. The growing adaptation and expansion of technology belonging to the Internet of Things (IoT) and the increasing prevalence of social media (Facebook, Twitter) has also influenced the spreading of attack surfaces that can become victim to exploitation by motivated parties including foreign states and terrorist groups. Against this backdrop, Canada’s own efforts to modernize and reinforce its own national security agencies resulted in the developing …

A Modern Copyright Framework For Artificial Intelligence: Ip Scholars' Joint Submission To The Canadian Government Consultation, Carys Craig, Bita Amani, Sara Bannerman, Céline Castets-Renard, Pascale Chapdelaine, Lucie Guibault, Gregory R. Hagen, Cameron J. Hutchison, Ariel Katz, Alexandra Mogyoros, Graham Reynolds, Anthony D. Rosborough, Teresa Scassa, Myra Tawfik

Reports & Public Policy Documents

In response to the Canadian government consultation process on the modernization of the copyright framework launched in the summer 2021, we hereby present our analysis and recommendations concerning the interaction between copyright and artificial intelligence (AI). The recommendations herein reflect the shared opinion of the intellectual property scholars who are signatories to this brief. They are informed by many combined decades of study, teaching, and practice in Canadian and international intellectual property law.

In what follows, we explain:
- The importance of approaching the questions raised in the consultation with a firm commitment to maintaining the appropriate balance of rights …

Sustaining Canadian Marine Biodiversity: Policy And Statutory Progress, Jeffrey A. Hutchings, Julia K. Baum, Susanna D. Fuller, Josh Laughren, David Vanderzwaag

Articles, Book Chapters, & Popular Press

A 2012 Expert Panel Report on marine biodiversity by the Royal Society of Canada (RSC) concluded that Canada faced significant challenges in achieving sustainable fisheries, regulating aquacul- ture, and accounting for climate change. Relative to many countries, progress by Canada in fulfilling international obligations to sustain biodiversity was deemed poor. To track progress by Canada since 2012, the RSC struck a committee to track policy and statutory developments on matters pertaining to marine biodiversity and to identify policy challenges, and leading options for implementation that lie ahead. The report by the Policy Briefing Committee is presented here. It concluded that …

End-Of-Life Decision Making: Policy And Statutory Progress (2011-2020), Jocelyn Downie, Mona Gupta, L. Wayne Sumner, Joshua Wales

Reports & Public Policy Documents

In 2009, the Royal Society of Canada (RSC) identified a series of urgent scientific and public policy questions. It established a series of five Expert Panels to study the issues and provide recommendations for next steps. It is now timely to revisit the findings of these Expert Panel Reports. What impact have they had? Have their recommendations been implemented? What are the next steps in terms of policy options?

To answer these questions, the RSC is establishing Policy Briefing Committees (PBC) to:

• describe the context, findings, and recommendations of the report;
• track policy developments in relation to the panel’s findings …

The Science, Law, And Politics Of Canada's Pathways To Paris: Introduction To Ubc Law Review's Special Section On Climate Change And Canada, Jason Maclean, Meinhard Doelle, Chris Tollefson

Articles, Book Chapters, & Popular Press

This brief essay introduces two articles comprising a special section of the UBC Law Review on climate change law and policy in Canada.

From Paris To Projects: Clarifying The Implications Of Canada’S Climate Change Mitigation Commitments For The Planning And Assessment Of Projects And Strategic Undertakings (Full Report), Robert B. Gibson, Karine Peloffy, Daniel Horen Greenford, Meinhard Doelle, H Damon Matthews, Christian Holz, Kiri Staples, Bradley Wiseman, Frédérique Grenier

Reports & Public Policy Documents

Canada has signed the Paris Agreement and made other international commitments to doing our fair share of what is needed to keep overall global warming to the Paris Agreement limit of well below 2ºC, and to aim for 1.5ºC, to avoid devastating climate change. However, we have not yet progressed far in translating these commitments into implications for decision making on proposed undertakings with significant implications for meeting those commitments.

Clarifying those implications and determining how best to incorporate them in deliberations and decision making is overdue and now imperative. The federal government’s new Impact Assessment Act, which is now …

Towards A Distinctive Trademark Law For The 21st Century, David Vaver

Articles & Book Chapters

Canada's Trade Marks Act, when passed in 1953, was probably the best then around, but 65 years later it is ready to be pensioned off. The Act's deficiencies have become more evident as new markets and interests have gained prominence. A broadly-based Committee to reconsider the reform ofall intellectual property laws, with trademark law as one component, should be struck to produce a user-friendly code fit for 21st century commerce.

Comparative Cannabis: Approaches To Marijuana Agriculture Regulation In The United States And Canada, Ryan Stoa

Ryan B. Stoa

The United States and Canada may be friends and allies, but the two countries' approaches to the regulation of marijuana agriculture have not evolved in tandem. On the contrary, their respective paths toward legalization and regulation of marijuana agriculture are remarkably divergent. In the United States, where marijuana remains a federally prohibited and tightly-controlled substance, legalization and regulation have remained the province of state legislatures and their administrative agencies for decades. In Canada, a succession of court cases paving the way toward medicinal marijuana use has prompted the federal government to develop a national framework committed to "legalize, regulate, and …

Interpreting Canada's Medical Assistance In Dying Legislation, Jocelyn Downie, Jennifer A. Chandler

Reports & Public Policy Documents

When the Canadian medical assistance in dying (MAiD) legislation came into force in June 2016, it was widely noted that the meaning of some of its key terms and phrases was unclear. For example, questions were immediately raised about the meaning of “incurable illness, disease, or disability,” “advanced state of irreversible decline in capability,” and “natural death has become reasonably foreseeable.” Interpretation challenges are not uncommon with new legislation. However, in the context of something as significant as access to MAiD and potential criminal liability for getting the meaning of the legislation wrong, these challenges must be confronted by those …

Gaars And The Nexus Between Statutory Interpretation And Legislative Drafting: Lessons For The U.S. From Canada, Reuven S. Avi-Yonah, Amir Pichhadze

Articles

Rules targeting specific known schemes are not the only tools available in the battle against tax avoidance. Legal systems also use measures that apply generally. The U.S. for example has tended to rely heavily on general doctrines. One such doctrine which is discussed in part 2 of this chapter is the “economic substance” doctrine. Yet as Xiong and Evans recently pointed out “although such judicial doctrines can be used to deal with various aspects of complicated tax abuse judges tended sometimes to limit and sometimes to enlarge the scope of jurisprudential interpretation leading to substantial uncertainty and risk.” One way …

Next Up: A Proposal For Values-Based Law Reform On Unilateral Withholding And Withdrawal Of Potentially Life-Sustaining Treatment, Jocelyn Downie, Lindy Willmott, Ben White

Articles, Book Chapters, & Popular Press

As the legalization of assisted dying shifts from a project for law reform to one of implementation, the gaze for Canadian end of life law and policy academics and practitioners should be turned quickly to another pressing issue – the unilateral withholding and withdrawal of potentially life-sustaining treatment. What should happen when the health care team believes that treatment should not be provided and the patient’s loved ones believe that it should? While the future of end of life law and policy no doubt includes many other issues, this is an urgent and immediate horizon issue for Canada as well …

Ea Expert Panel Report: Reflections On Canada's Proposed Next Generation Assessment Process, Meinhard Doelle, A. John Sinclair

Articles, Book Chapters, & Popular Press

In this paper, we share our preliminary reflections on the Expert Panel Report on the reform of the federal environmental assessment process. The report, entitled: Building Common Ground: A New Vision for Impact Assessment in Canada, was released by Minister McKenna on April 5, 2017. The report is the result of an open and thorough public engagement process that heard from a large number of Canadians with a keen interest in EA. The Expert Panel Report offers a blueprint broadly consistent with proposals for next generation federal assessment. Some elements will require further thought, and much of the critical detail …

Ea Expert Panel Report: A Preliminary Assessment Of Canada's Proposed New Federal Assessment Process, Meinhard Doelle

Articles, Book Chapters, & Popular Press

The paper offers an overview and assessment of the key recommendations of the EA Expert Panel's report on the reform of the federal environmental assessment process in Canada. The paper covers the proposed application of the process, the process and institutions, the proposed approach to jurisdictional cooperation, the scope, the role of regional and strategic assessments, public participation, the role of indigenous peoples, and follow up and compliance. The paper concludes that the report offers a very useful blueprint for reform, but that many details have yet to be worked out.

Payment Law: Legislative Competence In Canada, Benjamin Geva

Benjamin Geva

This article addresses the legislative competence in Canada in relation to regulatory and transactional aspects of payment of law. Setting out the parameters of "payment law", the article examines the federal legislative powers in relation to bills and notes as well as baking, in broader constitutional and historical context, and argues for federal jurisdiction. A possible legislative role for the provinces is also discussed.

Immigration And Disability In The United States And Canada, Mark Weber

College of Law Faculty

Disability arises from the dynamic between people’s physical and mental conditions andthe physical and attitudinal barriers in the environment. Applying this idea aboutdisability to United States and Canadian immigration law draws attention to barriers toentry and eventual citizenship for individuals who have disabilities. Historically, NorthAmerican law excluded many classes of immigrants, including those with intellectualdisabilities, mental illness, physical defects, and conditions likely to cause dependency.Though exclusions for individuals likely to draw excessive public resources and thosewith communicable diseases still exist in Canada and the United States, in recent yearsthe United States permitted legalization for severely disabled undocumented immigrantsalready in the …

Payment Law: Legislative Competence In Canada, Benjamin Geva

Osgoode Legal Studies Research Paper Series

This article addresses the legislative competence in Canada in relation to regulatory and transactional aspects of payment of law. Setting out the parameters of "payment law", the article examines the federal legislative powers in relation to bills and notes as well as baking, in broader constitutional and historical context, and argues for federal jurisdiction. A possible legislative role for the provinces is also discussed.

A Comparative Analysis Of The Efficacy Of Bilateral Agreements In Resolving Disputes Between Sovereigns Arising From Extraterritorial Application Of Antitrust Law: The Australian Agreement, James W. King

Georgia Journal of International & Comparative Law

No abstract provided.

The Sarbanes-Oxley Act Of 2002: Are Stricter Internal Controls Constricting International Companies?, Jennifer K. Coalson

Georgia Journal of International & Comparative Law

No abstract provided.

Ignorance Of International Law Is No Excuse, Or How The Florida Legislature Ticked Off Canada, Patricia Morgan, Loren Turner, Edward T. Hart

UF Law Faculty Publications

During its 2012 session the Florida Legislature amended the text of Florida Statute 322.04 to add a requirement for nonresidents. International visitors would be required to have in their possession not only a valid drivers' license, but also an International Driving Permit (IDP) that translated into English the personal identification information of the driver. The change took effect January 1, 2013, but even before that date, Florida faced allegations that it was violating international law with this new requirement.

Employee Free Choice: Amplifying Employee Voice Without Silencing Employers - A Proposal For Reforming The National Labor Relations Act, Amy Livingston

University of Michigan Journal of Law Reform

This Note investigates the effectiveness of the National Labor Relations Act (NLRA) in balancing unions, employers', and employees' rights during the course of union organizing drives. After reviewing case law and commentary, it concludes that the NLRA's certification regime is ineffective and permits pressures that inhibit employees from expressing their real desires about whether or not to be represented by a union. This Note then examines proposed alternatives for certifying unions, and takes note of Canada's federal and ten provincial certification regimes. Finally, it concludes that the NLRA must be amended to protect worker free choice, and proposes reforms including …

Ability To Pay, John A. E. Pottow

Articles

The landmark Dodd-Frank Act of 2010 ("Dodd-Frank") transforms the regulation of consumer credit in the United States. Many of its changes have been high-profile, attracting considerable media and scholarly attention, most notably the establishment of the Consumer Financial Protection Bureau ("CFPB"). Even specific consumer reforms, such as a so-called "plain vanilla" proposal, drew hot debate and lobbying firepower. But when the dust settled, one profoundly transformative innovation that did not garner the same outrage as plain vanilla or the CFPB did get into the law: imposing upon lenders a duty to assure a borrower's ability to repay. Ensuring a borrower's …

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

Articles

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 …

Pursuing The Perfect Mother: Why America's Criminalization Of Maternal Substance Abuse Is Not The Answer- A Compartive Legal Analysis, Linda C. Fentiman

Michigan Journal of Gender & Law

In this Article the author will examine not only the substantive legal differences between the United States, Canada, and France, but will also explore how these legal rules fit within a broader social, political, and religious setting. This Article will pursue four lines of inquiry. First, it will briefly chronicle the history of criminal prosecution of pregnant women in America and show how these prosecutions have become markedly more aggressive over the last twenty years. Second, it will situate these prosecutions in the full context of American law and culture, demonstrating how the fetus has received increasing legal recognition in …

From Judging Culture To Taxing 'Indians': Tracing The Legal Discourse Of The 'Indian Mode Of Life', Constance Macintosh

Articles, Book Chapters, & Popular Press

In this article I consider how judicial decision making characterizes Indigenous peoples’ culture outside the context of determinations under section 35(1) of the Constitution Act, 1982. I am concerned with how contemporary jurisprudence sometimes subjects Indigenous people to stereotyped tests of Aboriginality when they seek to exercise legislated rights. These common law tests of Aboriginality tend to turn on troubling oppositional logics, such as whether or not the Indigenous person engages in waged labour or commercial activities. These tests arose in historic legislation and policy that were premised on social evolutionary theory and were directed at determining whether an Indigenous …

Personal Health Information In Canada: A Comparison Of Citizen Expectations And Legislation, Wilhelm Peekhaus

Wilhelm Peekhaus

This paper explores whether the Canadian legislative protections in place to safeguard medical privacy meet the expectations of Canadians. An overview of current governance systems designed to protect the privacy of personal health information at both the federal and provincial levels is first presented. This is followed by an empirical analysis of the results of a public opinion survey conducted to determine Canadian attitudes about medical privacy, particularly genetic privacy. The analysis highlights areas where legislation and public opinion converge and diverge.

Carbon Taxation In British Columbia, David G. Duff

All Faculty Publications

Among alternative public policies to reduce emissions of carbon dioxide and other greenhouse gases (GHGs), environmental taxation represents a promising but often under-utilized approach-particularly in North America where the introduction of any new tax involves enormous political challenges. In Canada, however, British Columbia became the first North American jurisdiction to implement a consumption-based environmental tax specifically designed to reduce GHG emissions when BC's provincial government enacted a carbon tax effective July 1, 2008.

This paper provides a general overview and initial evaluation of British Columbia's carbon tax, explaining the background to the announcement of the tax in the Provincial Government's …