Law Commons^™

A Mixed Bag: Critical Reflections On The Revised Ethical Principles For Judges, Richard Devlin, Jula Hughes, Pooja Parmar, Stephen Ga Pitel, Amy Salyzyn

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In 2021 the Canadian Judicial Council completed a multi-year review and update of Ethical Principles for Judges (EPJ), the ethical and professional guidance for all federally-appointed judges in Canada. The revisions address issues such as case management and settlement conferences, technological competence and the use of social media, interactions with self-represented litigants, professional development for judges, confidentiality, and the return of former judges to the practice of law. In this article, five directors of the Canadian Association for Legal Ethics/Association canadienne pour l’éthique juridique analyze the revised EPJ and offer their observations.

The article covers five important topics. On impartiality, …

Lower-Income Countries’ Ongoing Quest For International Tax Justice: A Case Study Of The Oecd’S Tax Allocation Proposal, Okanga Ogbu Okanga, Kim Brooks

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The viability of our international tax system hinges on two things: (1) safeguarding the effective flow of international activities and (2) ensuring that countries can adequately collect tax on the income derived from those activities. Each of these fundamentals relies on a defensible/fair allocation of taxing rights between countries with competing tax jurisdiction (inter-nation equity).

The recent Organisation for Economic Co-operation and Development (OECD)-led multilateral effort to transform international tax rules to ensure that countries can adequately tax multinational enterprises (MNEs) operating in the global digital economy (OECD proposal) has reignited inter-nation equity conversations. Although important to all countries, inter-nation …

Advocates’ Perspectives On The Canadian Prison Mother Child Program, Martha Paynter, Clare Heggie, Ruth Martin-Misener, Adelina Iftene, Gail Tomblin Murphy

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Over twenty years ago, Correctional Services Canada launched the Mother Child Program (MCP) to mitigate harms of separating incarcerated mothers from their babies. It has never been subjected to internal evaluation or independent study. The aim of the qualitative study was to explore the experiences of advocates employed by Elizabeth Fry Societies (EFS), community organizations dedicated to the support of incarcerated women, with respect to supporting people who were pregnant or had young children while federally incarcerated and did or did not participate in the MCP.

Zen And The Art Of Repair Manuals: Enabling A Participatory Right To Repair Through An Autonomous Concept Of Eu Copyright Law, Anthony D. Rosborough

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Repair manuals are an essential resource for repairing today’s modern and computerised devices. And though these manuals may contain purely utilitarian and uncopyrightable facts, they often receive copyright protection in their entirety as literary works. This protection can impede community-based efforts toward fostering a culture of participatory repair throughout the EU, including repair cafés and tool libraries. Participatory repair activities provide numerous environmental, social, and economic benefits. This article explores whether directive 2001/29/EC’s exception for “uses in connection with the repair or demonstration of equipment” at Article 5(3)(l) (the “Repair Exception”) may offer an avenue for enabling such non-profit participatory …

Checking Our Attachment To The Charter And Respecting Indigenous Legal Orders: A Framework For Charter Application To Indigenous Governments, Naiomi Metallic

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The Canadian Charter of Rights and Freedom looms large in our national identity. As a constitutional law professor at a Canadian law school, my experience is that most students and lawyers see the Charter as intrinsically tied to fundamental notions of justice and fairness in our country. Because of this, Canadian lawyers and judges, who believe the Charter to be inherently good, may find it hard to understand why Indigenous peoples resist application of the Charter to their own institutions. But Canadian jurists’ attachment to the Charter, if not kept in check, can easily lead to dismissing important objections …

Guthrie's Guide To Better Legal Writing, 2nd Ed, Hannah Steeves

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The second edition of Guthrie’s Guide to Better Legal Writing is Neil Guthrie’s revised anthology of email queries and blog posts. The scope of the book is in its title: it offers practical tips and advice to legal writers. Guthrie’s definition of “legal writing” addresses written communication between lawyers, law students, and the layperson, although legal drafting is addressed intermittently. The book is not intended to be a comprehensive review of grammar and punctuation. Instead, it has an approximate agenda that is enhanced by the author’s personal narrative.

The author follows their own advice as outlined in the suggestions for …

Business, Human Rights, & The Triple Planetary Crisis: Confronting Overconsumption, Sara Seck

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According to the United Nations, the world is facing a triple planetary crisis of climate change, nature (biodiversity) loss, and pollution and waste, with the most egregious consequences felt by those least responsible. These crises are also intertwined: nature-based solutions are promoted as climate change solutions even as heat domes fuel forest fires; extraction of minerals for green energy solutions negatively impacts biodiversity and creates pollution and waste; and carbon major companies are also among the largest producers of plastic pollution. International human rights law is increasingly grappling with environmental rights and responsibilities, as evidenced by the work of special …

Introduction To Julie Bilotta’S Story, Sheila Wildeman

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Julie Bilotta’s contribution to this special volume is a straightforward denunciation of prison-based inhumanity and institutionalized misogyny. I write to show solidarity with her and to alert the reader to some of the ways her story exposes intersectional injustice while enlivening feminist abolitionist prison resistance. I write, too, to challenge my own and others’ thinking about whether or how law (litigation, law reform) might contribute to that resistance.

In her essay, Julie offers an intimate glimpse of prisons as sites of reproductive injustice. As this special volume attests, incarceration in Canada and elsewhere produces systematic gendered harms, including lack of …

Introduction: Responding To A Changing Arctic Ocean: Canadian And Russian Experiences And Challenges, Viatcheslav Gavrilov, David Vanderzwaag, Susan J. Rolston

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This article is the guest editors' introduction to the special series entitled Responding to a Changing Arctic Ocean: Canadian and Russian Experiences and Challenges.

Feminist Relational Theory, Christine M. Koggel, Ami Harbin, Jennifer Llewellyn

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Accounts of human beings as essentially social have had a long history in philosophy as reflected in the Ancient Greeks; in African and Asian philosophy; in Modern European thinkers such as Mary Wollstonecraft, David Hume, Adam Smith, and Karl Marx; in continental philosophy; in pragmatism; in Indigenous thought, and in contemporary communitarian theories. It can be said, then, that the language of relational theory has taken a variety of forms. That relational theory is broad and captures various threads in the history of philosophy is captured in the main title of this special issue, Relational Theory. That this special …

Platforms, Encryption, And The Cfaa: The Case Of Whatsapp V Nso Group, Jonathon Penney, Bruce Schneier

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End-to-end encryption technology has gone mainstream. But this wider use has led hackers, cybercriminals, foreign governments, and other threat actors to employ creative and novel attacks to compromise or workaround these protections, raising important questions as to how the Computer Fraud and Abuse Act (CFAA), the primary federal anti-hacking statute, is best applied to these new encryption implementations. Now, after the Supreme Court recently narrowed the CFAA’s scope in Van Buren and suggested it favors a code-based approach to liability under the statute, understanding how best to theorize sophisticated code-based access barriers like end-to-end encryption, and their circumvention, is now …

The Law Of Independent Legal Advice, Hannah Steeves

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This third edition includes the analysis of over 250 new decisions with excerpts highlighting important legal reasoning and principles. Along with the standard detailed table of contents, table of cases, and index, it offers the reader ample material to pursue further research on subtopics of independent legal advice (ILA) through extensive footnotes. Tjaden organizes each chapter in approximately the same way, beginning with an introduction to ILA as it relates to the area of law, a summary of jurisprudence reflecting both support for and criticism of the provision of ILA in certain circumstance, practical advice for lawyers, and, a new …

Six Examples Applying The Meta-Principle Linguistic Method: Lessons For Indigenous Law Implementation, Naiomi Metallic

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Building on "Five Linguistic Methods for Revitalizing Indigenous Laws," this article explains and analyses six examples of implementation of the 'meta-principle' or 'word-bundle' linguistic method for Indigenous law revitalization. The method refers to using a word in an Indigenous language that conveys an overarching, normative principle of the Indigenous group, and is the most utilized form of the five linguistic methods to date. The examples span its use by judges, public governments as well as Indigenous governments, and these actors employ different methods for identifying and interpreting the meta-principles. The variations between them reveal four categories of approaches to identifying, …

Assistance In Dying: A Comparative Look At Legal Definitions, Jocelyn Downie, Mona Gupta, Stefano Cavalli, Samuel Blouin

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Euthanasia, assisted suicide, medical assistance in dying, death with dignity: these and many other different terms are used around the world to capture various types of assistance in dying. This diversity in terminology can create confusion both in academic debates and in policy-making if it is unclear what type of action or inaction is intended to be captured, by whom, and under what circumstances. By defining and contrasting several terms and legal status of assistance in dying in jurisdictions authorizing it, this comparative glossary aims to lay a foundation that prevents linguistic and conceptual confusion.

Admissibility Of Hearsay Gathered Under Mlat: A Tempest In Canada, Robert Currie

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One of the most pervasive and longstanding problems in the practice of mutual legal assistance in criminal matters between states has been ‘form of evidence’–specifically, can the requested state provide evidence in such form as will be useful and admissible under the criminal evidence laws of the requesting state?It tends to be common law states that have difficulties with admissibility of MLAT-sourced evidence, and these often develop ‘work-arounds’ in their laws which attempt to relax admissibility standards. Canada is one such state, but a series of recent prosecutions has revealed judicial resistance to the tools employed. This note examines these …

Effective Integration Of Climate Change Into Impact Assessment: The Importance Of Meaningful Public Engagement, Meinhard Doelle, Adebayo Majekolagbe

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In this chapter, we consider the role of the public and the benefits of participatory approaches for the effective consideration of climate change in impact assessments in the light of three starting assumptions, which we refer to as ‘climate realities’. The first climate reality is the need for full decarbonization within the next 30 years. The second climate reality is that even a ‘well below 2 degrees’ world will result in fundamental changes to ecological and social systems that will require active management, and it is far from clear whether this well below 2 degrees goal will be met. The …

Canadian And Russian Fisheries Management In The Arctic: Complexities, Commonalities And Contrasts, David Vanderzwaag, Vitalii Vorobev, Olga Koubrak

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This article reviews and compares Canadian and Russian approaches to Arctic fisheries management through a three-part format. First, the complex array of laws and policies applicable to Arctic fisheries is described for each country. How Canada and Russia have addressed international fishery issues is also highlighted, including their participation in the 2018 Central Arctic Ocean Fisheries Agreement. Second, commonalities in fisheries governance approaches are summarized, including national commitments to implement precautionary and ecosystem approaches. Finally, contrasts in Arctic fisheries management are discussed. Major differences include the greater devolution of management responsibilities by Canada to Indigenous communities through land-claim agreements and …

Intangible Justice? Intellectual Property Disputes And Canadian Small Claims Courts, Anthony D. Rosborough, Reagan Seidler

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This article investigates the jurisdiction and institutional competence of Canadian small claims courts and tribunals with respect to complex claims, and in particular, intellectual property (IP) claims. Recent research points to an increase in these types of claims. A doctrinal analysis finds small claims bodies have wide jurisdiction over intellectual property infringement, contract, and licensing disputes. They can also rule on issues of validity, though they cannot affect registrations in the databases of the Canadian Intellectual Property Office. Remedies including damages, accountings, and the recovery of infringing goods are available in many provinces. As to their capacity, the article assesses …

A Reflection On African Trade And Investment Wars In Context, Olabisi D. Akinkugbe, Gertrude Amarh

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African trade and investment wars and their implication for the development of international economic law (IEL) in Africa are under-appreciated[1]. Except for a handful of literature in the last two decades, most of the scholarly work on economic integration in Africa has not focused on intra-African trade and investment wars. Yet, some of these trade wars have endured for many years. By trade wars, we mean the fracture of economic (trade and investment) relations between cooperating African States. We do not understand trade wars in the strict sense that trade economist or classic trade law do. These approaches understand trade …

The Role Of The Registry And Legal Division Of The African Court Of Human And People's Rights In Dispute Settlement, Olabisi D. Akinkugbe, Morris K. Odeh

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This Essay explores whether the African Court of Human and People's Rights’ (African Court) Registry and Legal Division have a similar expansive role in the dispute settlement mechanism as the World Trade Organization's (WTO) Secretariat. The African Court is the African Union's regional body for enforcing human rights. This Essay contributes to the scholarship on African international courts by testing the central arguments in Pauwelyn and Pelc's “Who Guards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement” through a comparative analysis of the role of the Secretariat within the African Court. Despite the growing …

Maritime Transportation: Let's Slow Down A Bit, Maxime Sèbe, Pierre Scemama, Anne Choquet, Jean-Luc Jung, Aldo Chircop, Phénia Marras-Aït Razouk, Sylvain Michel, Valérie Stiger-Pouvreau, Laura Recuero-Virto

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Maritime transportation is a major contributor to the world economy, but has significant social and environmental impacts. Each impact calls for different technical or operational solutions. Amongst these solutions, we found that speed reduction measures appear to mitigate several issues: (1) collision with wildlife; (2) collision with non-living objects; (3) underwater noise; (4) invasive species; and (5) gas emission. We do not pretend that speed reduction is the best solution for each individual issue mentioned in this paper, but we argue that it could be a key solution to significantly reduce these threats all together. Further interdisciplinary research is required …

Editors' Note, Robert Currie, Neil Boister, Masha Fedorova, Sabine Gless, Cecily Rose, Sara Wharton

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No abstract provided.

Permissive Regulation: A Critical Review Of The Regulatory History Of Buprenorphine Formulations In Canada, Abhimanyu Sud, Meghan Mcgee, Barbara Mintzes, Matthew Herder

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Suboxone (buprenorphine-naloxone) is an opioid product approved in the US and Canada for the treatment of opioid use disorder. The drug is considered an important response to the opioid overdose epidemic with consistent calls for wider prescribing and deregulation. The history of Suboxone regulation in Canada has not been critically examined. Part of the rationale for doing so stems from the US regulatory experience, with documented irregularities, or what some have called abuses, that support profit-making by Suboxone's manufacturers. This regulatory analysis allows us to determine how opportunities to address health crises through drug innovation are managed at a federal …

Abortion Rights Beyond The Medico-Legal Paradigm, Mariana Prandini Assis, Joanna Erdman

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Abortion rights in international law have historically been framed within a medico-legal paradigm, the belief that regulated systems of legal and medical control guarantee safe abortion. However, a growing worldwide practice of self-managed abortion (SMA) supported by feminist activism challenges key precepts of this paradigm. SMA activism has shown that more than medical service delivery matters to safe abortion and has called into question the legal regulation of abortion beyond criminal prohibitions. This article explores how abortion rights have begun to depart from the medico-legal paradigm and to support the novel norms and practices of SMA activism in a transformation …

Social Equity Is Key To Sustainable Ocean Governance, Katherine M. Crosman, Edward H. Allison, Yoshitaka Ota, Andrés M. Cisneros-Montemayor, Gerald G. Singh, Wilf Swartz, Megan Bailey, Kate M. Barclay, Grant Blume, Mathieu Colléter, Michael Fabinyi, Elaine M. Faustman, Russell Fielding, P. Joshua Griffin, Quentin Hanich, Harriet Harden-Davies, Ryan P. Kelly, Tiff-Annie Kenny, Terrie Klinger, John N. Kittinger, Katrina Nakamura, Annet P. Pauwelussen, Sherry Pictou, Chris Rothschild, Katherine L. Seto, Ana K. Spalding

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Calls to address social equity in ocean governance are expanding. Yet ‘equity’ is seldom clearly defined. Here we present a framework to support contextually-informed assessment of equity in ocean governance. Guiding questions include: (1) Where and (2) Why is equity being examined? (3) Equity for or amongst Whom? (4) What is being distributed? (5) When is equity considered? And (6) How do governance structures impact equity? The framework supports consistent operationalization of equity, challenges oversimplification, and allows evaluation of progress. It is a step toward securing the equitable ocean governance already reflected in national and international commitments.

Understanding Chilling Effects, Jonathon Penney

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With digital surveillance and censorship on the rise, the amount of data available online unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence (AI), machine learning, and facial recognition technology (FRT) for surveillance and data analytics, concerns about “chilling effects”, that is, the capacity for these activities “chill” or deter people from exercising their rights and freedoms have taken on greater urgency and importance. Yet, there remains a clear dearth in systematic theoretical and empirical work point. This has left significant gaps in understanding. This article has attempted to fill that void, synthesizing theoretical and empirical …

Animals As Legal Beings: Contesting Anthropocentric Legal Orders, By Maneesha Deckha, Jodi Lazare

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Scholarship on animal rights has long been dominated by the widely held idea that justice for nonhuman animals will not be achieved until they are granted legal personhood. In Animals as Legal Beings: Contesting Anthropocentric Legal Orders, Maneesha Deckha provides an alternative legal classification for nonhuman animals. “Beingness,” rooted in relational feminism, post-colonial theory, and critical animal studies, recognizes nonhuman animals’ inherent value, while avoiding some of the downsides to legal personhood, namely, its embeddedness in the imperialist liberal individualism that characterizes western legal systems. Given its anthropocentric nature, personhood must be displaced as the aspirational classification for animals. …

State Responsibility For International Bail-Jumping, Robert Currie, Elizabeth Matheson

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Over the last decade, there has been a spate of incidents in Canada and the United States involving Saudi Arabian nationals who, while out on bail for predominantly sexual crimes, were able to abscond from the countries despite having surrendered their passports. Investigation has revealed evidence supporting a reasonable inference that the government of Saudi Arabia has, in fact, assisted its nationals to escape on these occasions. This article makes the case that this kind of conduct amounts not just to unfriendly acts but also to infringements upon the territorial sovereignty of both states and serious breaches of the international …

Reducing Barriers To Accessing Administrative Data On Sars-Cov-2 Vaccination For Research, Andrew Mcrae, Patrick Archambault, Patrick Fok, Hana Wiemer, Laurie Morrison, Matthew Herder

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Public trust in scientific research, especially research regarding vaccines, has proven fragile during the COVID-19 pandemic. To counter abundant misinformation about SARS-CoV-2 vaccines, rigorous, ongoing evaluations of vaccine safety and effectiveness by independent Canadian researchers are important. However, researchers' efforts to conduct timely, national studies of vaccine effectiveness have been hindered by barriers to data sharing that have made it difficult to integrate patients' vaccination status into SARS-CoV-2 clinical and epidemiological studies. Here, McRae et al discuss how a risk-averse data-sharing culture has led to missed opportunities to conduct robust, timely, pan-Canadian SARS-CoV-2 clinical and vaccine effectiveness studies, and outline …

On What Basis Did Health Canada Approve Oxycontin In 1996? A Retrospective Analysis Of Regulatory Data, Jessie Pappin, Itai Bavli, Matthew Herder

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The marketing and sale of oxycodone (OxyContin) by Purdue Pharma has commanded a great deal of legal and policy attention due to the drug’s central role in the ongoing overdose crisis. However, little is known about the basis for OxyContin’s approval by regulators, such as Health Canada in 1996. Taking advantage of a recently created online database containing information pertaining to the safety and effectiveness of drugs, we conducted a retrospective analysis of Purdue Pharma’s submission to Health Canada, including both published and unpublished clinical trials. None of the trials sponsored by Purdue Pharma sought to meaningfully assess the risks …