Law Commons^™

Recalibrating Nigeria’S Whistleblowing Policy: An Urgent Plea For A Comprehensive Whistleblower Protection Legislation, Olabisi Akinkugbe

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This short essay draws attention to the current gap in regulatory framework for the protection of whistleblowers in Nigeria and its potential to derail any meaningful sustained and long-term success of the country’s nascent whistleblower program. The other socio-political factors that would contribute to the effectiveness of the program in Nigeria are discussed in a forthcoming article by the author.

Medical Assistance In Dying: Lessons For Australia From Canada, Jocelyn Downie

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Canada has recently witnessed dramatic changes in end-of-life law and policy. Most notably, we have moved from a prohibitive to a permissive regime with respect to medical assistance in dying (MAiD). As a number of Australian states are actively engaged in debates about whether to decriminalise MAiD, it is worth reviewing the Canadian experience and drawing out any lessons that might usefully inform the current processes in Australia.

The Governance Of Indigenous Health, Constance Macintosh

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This chapter explores these dynamics of Indigenous health governance in Canada. It opens by describing how Indigenous peoples have successfully used constitutional arguments to assert their own vision of well-being, within the broader context of colonial oppression and attempts to erase Indigenous knowledge and culture. The chapter then tracks federal initiatives on Indigenous health, in their design and outcomes, and how they evolved into the contemporary state governance regime. The next part turns to provincial and self-government initiatives that have expanded, but also complicated, Indigenous health governance in Canada. The chapter closes by considering different ways in which provinces, territories …

Epistemologies Of The South: Justice Against Epistemicide, Bonaventura De Sousa Santos (Boulder: Paradigm, 2014), Sara Gwendolyn Ross

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As injustice and discrimination persist across the globe and the socioeconomic gaps of access and privilege continue to widen the binary divide — or what Boaventura de Sousa Santos describes as an abyssal line — between the valued and un(under)valued, the recognized and un(under)recognized, the visible and invisible, and the groups and individuals that occupy these sides of the line, Santos outlines the epistemological basis for a decolonial ascendance beyond the line in order to achieve a good life or buen vivir for all.1 Santos’ richly theoretical contribution and call to action through a postcolonial or decolonial approach and legal …

The Canadian Country Visit Of The United Nations Working Group On Business And Human Rights, Sara Seck

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The United Nations Human Rights Council (HRC) unanimously endorsed the Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy Framework” (UNGPs) in 2011. In May 2017, members of the United Nations Working Group on Business and Human Rights will conduct a country visit to Canada. This paper will introduce the UNGPs, examine the experience of other countries visited by the working group, including the United States, which was visited in 2013, and consider what to expect during the visit to Canada. It is likely that the working group will consider implementation of the state …

Indigenous Mental Health: Imagining A Future Where Action Follows Obligations And Promises, Constance Macintosh

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This article considers what it would mean if Canada fulfilled select existing commitments and obligations concerning the mental health needs of Indigenous peoples, as identified through current programs and recent jurisprudence: that is, where would we be if Canada carried through on existing commitments? After identifying the role of law in perpetuating poor mental well-being, it assesses programs for First Nations and Inuit peoples and determines they are unlikely to be effective without operational changes and responsive funding. The article then turns to the situation of Metis and non-status First Nations and the implications ofDaniels v. Canada for changing …

Revisiting The Economic Community Of West African States: A Socio-Legal Analysis, Olabisi D. Akinkugbe

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Recent years have seen a growing scholarly interest in the conditions of emergence of regional trade agreements in Africa. These analyses have advanced our knowledge on a range of technical issues, from specific institutional transformation of regional economic communities such as the Economic Community of West African States (ECOWAS) to broad legal issues relating to the provisions of the regional trade agreements. Most literature on ECOWAS is, however, informed by legal formalism that interprets the text of the treaties strictly and without context, leading to a dominant interpretation of failure.

By contrast, this thesis adopts a socio-legal approach and argues …

Causing A Racket: Unpacking The Elements Of Cultural Capital In An Assessment Of Urban Noise Control, Live Music, And The Quiet Enjoyment Of Private Property, Sara Gwendolyn Ross

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I examine the tension between and the treatment of the elements of cultural capital within dynamic mixed-use spaces, and posit that Canada's current noise control and noise pollution legislation, by-laws, and case law demonstrate a hierarchical protection framework placing greater importance on the "quiet enjoyment of private property" over live music culture, where performances are often the subject of noise complaints. While the elements of cultural capital valued by those who favour the value of quiet enjoyment of private property is well represented throughout legislation, by-laws, and case law, the elements of cultural capital valued by those who favour the …

End-Of-Life In Prison Symposium Report, Adelina Iftene, Crystal Dieleman, Hanna Garson

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In 2016, the Canadian Parliament passed “An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying)” (S.C. 2016, c. 3). This statute decriminalized providing medical assistance to the dying in a defined set of circumstances. The Corrections and Conditional Release Act (CCRA) was also amended: section 19 now reads “(1.1) Subsection (1) does not apply to a death that results from an inmate receiving medical assistance in dying, as defined in section 241.1 that Act.”

Pursuant to these amendments, this meeting focused on issues that may arise in implementing MAiD in …

The Case For A New Compassionate Release Statutory Provision, Adelina Iftene

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In the last decade there has been a steady growth in the number of federally incarcerated people aging in prisons. These individuals have a long list of medical needs while they present low risk to communities. However, this category of people tends to spend more time in prison than their younger counterparts and face difficulties in being released. Using original empirical data, as well as the existing literature, I argue that a high number of these individuals need to be released through a compassionate release mechanism. This article has two purposes. One is to show that compassionate release does not …

Business Responsibilities For Human Rights And Climate Change, Sara Seck

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This contribution to the work of the International Law Association’s Study Group on Business and Human Rights considers the relationship between business responsibilities for human rights and climate change. While it is now widely accepted that the adverse effects of climate change undermine the enjoyment of human rights, and that businesses have a responsibility to respect human rights, the relationship between business responsibilities for human rights and climate change is unclear. This paper first considers state duties to protect human rights from climate change harms, including harms arising from business activities, and second, considers how the business responsibility to respect …

Looking Up, Down, And Sideways: Reconceiving Cumulative Effects Assessment As A Mindset, A. John Sinclair, Meinhard Doelle, Peter Duinker

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Despite all the effort that has gone into defining, researching and establishing best practices for cumulative effects assessment (CEA), understanding remains weak and practice wanting. At one extreme of implementation, CEA can be described as merely an irritant to the completion of a project-specific environmental assessment (EA). At the other extreme, the conceptual view is that all effects in EA should be deemed cumulative unless demonstrated otherwise. Our purpose here is to consider how we might reconceive CEA as a mindset that is at the heart of absolutely every assessment of valued ecosystem component (VEC) to ensure that we understand …

Examination Of Witnesses In Criminal Cases, Hannah Steeves

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The newest edition of Examination of Witnesses in Criminal Cases maintains its status as a key text on the topic. Author Earl J Levy, a national leader in the area of criminal law, has worked with the Criminal Lawyers’ Association, taught criminal law courses at various Canadian law schools, and has over 50 years experience as a litigator. The book, now in its seventh edition, contains necessary updates, and improvements have been made to both format and content while maintaining a similar, logical overview as in previous editions.

A Test For Freedom Of Conscience Under The Canadian Charter Of Rights And Freedoms: Regulating And Litigating Conscientious Refusals In Health Care, Jocelyn Downie, Francoise Baylis

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Conscientious refusal to provide insured health care services is a significant point of controversy in Canada, especially in reproductive medicine and end-of-life care. Some provincial and territorial legislatures have developed legislation or regulations, and some professional regulatory bodies have developed policies or guidelines, to better reconcile tensions between health care professionals’ conscience and patients’ access to health care services. As other groups attempt to draft standards and as challenges to existing standards head to court, the fact that the meaning of “freedom of conscience” under the Canadian Charter of Rights and Freedoms is not yet settled will become ever more …

Revisiting Transnational Corporations And Extractive Industries: Climate Justice, Feminism, And State Sovereignty, Sara Seck

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This Article explicitly examines the relationship between climate justice, gender, and transnational fossil fuel extractive industries by drawing upon feminist theoretical insights. First, I provide an overview of the differential impacts of climate change on women and briefly review insights from select international legal scholars who have considered gender and climate change. Second, I describe the Philippines climate petition, a novel attempt to seek an investigation into the accountability of transnational fossil fuel companies for climate harms. Third, I examine three sets of issues arising in the Philippines climate petition and draw explicitly upon Karen Knop’s Re/Statements: Feminism and State …

Judging Sexual Assault Trials: Systemic Failure In The Case Of Regina V Bassam Al-Rawi, Elaine Craig

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The recent decision to acquit a Halifax taxi driver of sexual assault in a case involving a very intoxicated woman, who was found by police in the accused’s vehicle unconscious and naked from the breasts down, rightly sparked public criticism and consternation. A review of the trial record in Al-Rawi, including the examination and cross-examination of witnesses, the closing submissions of the Crown and defence counsel, and the trial judge’s oral decision suggests a failure of our legal system to respond appropriately to allegations of sexual assault - a failure for which, the author argues, both the trial judge and …

Individual Licensing And Consumer Protection, Lucie Guibault

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

The Theoretical Case Against Criminalized Copyright Infringement In Canada, Maria Dugas

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Criminalized copyright infringement has existed in Canada for close to a century. It has continued to expand in scope and severity since its first appeared in the Copyright Act, 1921. As Canada approaches 2017’s scheduled review of the Copyright Act, the time has come to ask whether the criminalization of copyright and its enforcement is theoretically justifiable. Yet, Canadian scholarship on criminalized copyright infringement is particularly scarce; there is a noteworthy gap in the existing literature wherein no one has systematically argued against criminalized copyright infringement from a theoretical perspective. This thesis aims to fill that gap, setting out a …

The Door Has A Tendency To Swing Shut: The Saga Of Aboriginal Peoples' Equality Claims, Naiomi Metallic

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This paper tracks the history of Aboriginal peoples' equality complaints against the state. From the time Aboriginal people started to bring discrimination complaints before the courts, there have been significant obstacles that have operated to effectively — and sometimes even explicitly — prevent Aboriginal peoples from advancing pressing discrimination complaints against governments. Although there have been changes made in the law over time to attempt to eliminate such barriers, what we see is a pattern where new obstacles crop up to replace the old ones. Over and over, Aboriginal peoples see the door to equality open up only to have …

Can Cyber Harassment Laws Encourage Online Speech?, Jonathon Penney

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Do laws criminalizing online harassment and cyberbullying "chill" online speech? Critics often argue that they do. However, this article discusses findings from a new empirical legal study that suggests, counter-intuitively, that while such legal interventions likely have some dampening effect, they may also facilitate and encourage more speech, expression, and sharing by those who are most often the targets of online harassment: women. Relevant findings on this point from this first-of-its-kind study are set out and discussed along with their implications.

The Pains Of Incarceration: Aging, Rights, And Policy In Federal Penitentiaries, Adelina Iftene

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The number of aging people in prison has been on the rise in the last few decades. Their heightened needs place burdens on correctional institutions that have not been encountered before. This article presents the results of a study conducted with 197 older prisoners. This study’s findings identify issues raised by chronic pain in older prisoners and the management of this pain in a prison setting. Correctional Service Canada (CSC) does not acknowledge older prisoners as a vulnerable prison group, and correctional policies thus tend not to include age (and its implications) as a variable worthy of consideration. Data from …

Welcome To The Revolution, Kim Brooks

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If you were able to close your eyes in 1867 and open them in 2017, you’d find that Canada was a surprisingly different place. Women have made sure of that.

The revolution has come along two axes. First, there is the dramatic increase in women’s participation in every aspect of public life—from education to the paid workforce, to public office, to science and the arts. Second, there is the effect of that engagement on the way Canada has evolved. If you could close your eyes again, take women’s public participation out of the equation, and then open them, Canada would …

Internet Surveillance, Regulation, And Chilling Effects Online: A Comparative Case Study, Jonathon Penney

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With internet regulation and censorship on the rise, states increasingly engaging in online surveillance, and state cyber-policing capabilities rapidly evolving globally, concerns about regulatory “chilling effects” online — the idea that laws, regulations, or state surveillance can deter people from exercising their freedoms or engaging in legal activities on the internet have taken on greater urgency and public importance. But just as notions of “chilling effects” are not new, neither is skepticism about their legal, theoretical, and empirical basis; in fact, the concept remains largely un-interrogated with significant gaps in understanding, particularly with respect to chilling effects online. This work …

What Is The Purpose Of The Orphan Drug Act?, Matthew Herder

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The Orphan Drug Act (ODA) [1], first enacted in the United States in 1983, was set up to encourage the development of drugs for rare diseases. At that time, drug therapies for such diseases were rarely developed. Three decades later, a growing proportion of industry research and development (R&D) [2] and regulatory drug approvals [3] target diseases affecting fewer than 200,000 persons in the United States, the prevalence-based threshold of rare disease under the ODA.

In a new article published in PLOS Medicine, Aaron Kesselheim and colleagues document an embedded trend: within the …

Dirty Laundry: Judicial Appointments In Canada, Richard Devlin

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The issue of the appointment of judges is not a freestanding problem. Rather, as Adam Dodek and I have argued, it is part of a larger public policy puzzle, the challenge of designing an appropriate regulatory regime for judges. Any description, analysis, assessment or critique of judicial appointments processes necessarily requires the development and deployment of some conceptual framework. Sometimes such a framework is implicit or taken for granted. However, in our opinion, it is better if we can make that framework—that paradigm—explicit because we can then more clearly understand the nature of the evaluative process in which we are …

Away From The Library, David H. Michels

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"I use Google for my research, I don't use the library." "Can you teach my students to do legal research only with tools they can access after they leave University?" This paper is about me, the librarian, irritated by the assertion and puzzled by the request. It captures just two of many events on a long and incomplete journey of reimagining librarianship and my changing role as librarian. I would test the assertion, plan the classes, and share those experiences. However, I would be dishonest if I did not also share that I am apprehensive about the results of my …

The Lower Churchill Panel Review: Sustainability Assessment Under Legislative Constraints, Meinhard Doelle

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This paper reviews the experience of applying a sustainability framework in the assessment of the Lower Churchill Hydroelectric project in Labrador, Canada. In it's 2011 report, the Joint Review Panel proposed a decision-making framework for determining whether and how the project would make a net contribution to sustainability. In its framework, the panel considered the distribution of environmental, social, and economic impacts, benefits, risks and uncertainties.

Showing Them How It's Done: Justice Cromwell's International Law Jurisprudence, Robert Currie

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This paper examines the international law judgments authored by Justice Tom Cromwell of the Supreme Court of Canada, focusing on the methodology used in applying treaty law within the Canadian legal context. It concludes that Justice Cromwell's decisions in this area are a model of solid methodology, clarity and attention to fairness to all parties.

Making A Music City: The Commodification Of Culture In Toronto’S Urban Redevelopment, Tensions Between Use-Value And Exchange-Value, And The Counterproductive Treatment Of Alternative Cultures Within Municipal Legal Frameworks, Sara Gwendolyn Ross

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English Abstract

Meaningful diversity and inclusion within today’s cities requires attention on many fronts, including that of city redevelopment strategies and policies. To that end, this article focuses on culture-led regeneration strategies—specifically, those of Toronto’s “Music City” initiative and “Creative City” strategy—and unpacks the mechanics of using culture and heritage as tools for redevelopment where their commodification can reveal the clash between divergent value interests that exist within spaces of culture in the city. Sustainable urban development must carefully account for these divergences to avoid the displacement and lack of equitable accounting of relationally vulnerable individuals, groups, (sub)cultures, and space. …

Theorizing Time In Abortion Law And Human Rights, Joanna Erdman

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The legal regulation of abortion by gestational age, or length of pregnancy, is a relatively undertheorized dimension of abortion and human rights. Yet struggles over time in abortion law, and its competing representations and meanings, are ultimately struggles over ethical and political values, authority and power, the very stakes that human rights on abortion engage. This article focuses on three struggles over time in abortion and human rights law: those related to morality, health, and justice. With respect to morality, the article concludes that collective faith and trust should be placed in the moral judgment of those most affected by …