Law Commons^™

Concepts Of Bias And Appointments To The Governing Council Of The Canadian Institutes Of Health Research, Elaine Gibson

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In October 2009, the academic health research community and the pharmaceutical industry were brought closer together with the appointment of Dr. Bernard Prigent, vice-president of Pfizer Canada, to the Governing Council of the Canadian Institutes of Health Research (CIHR). This bridging of the two worlds has stirred up considerable debate before the House of Commons Standing Committee on Health, in letters to CMAJ and in an online petition that garnered more than 4400 signatures. There are at least two distinct and vocal camps in the debate: those categorically in favour (including the federal minister of health and the president of …

A Conflict By Any Other Name Would Smell As Foul: A Comment On The Appointment Of A Vice-President Of Pfizer To The Cihr Governing Council, Jocelyn Downie

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If one had to pick the pharmaceutical company most associated with unethical and illegal conduct this past year, it would likely be Pfizer. So it seems reasonable to respond with disbelief and outrage to the federal government’s October 5, 2009 appointment of Dr. Bernard Prigent – Vice President, Medical Director and registered lobbyist for Pfizer Canada – to the Canadian Institutes of Health Research Governing Council (CIHR GC). This is the body that sets the strategic direction for most federally funded health research in Canada. A senior executive from a for-profit pharmaceutical company should not be given a seat at …

Tackling Disability Discrimination At Work: Toward A Systematic Approach, Dianne Pothier

Dianne Pothier Collection

Approaching disability discrimination in systemic terms is the most fundamental challenge that disability human rights law currently faces. Achieving fundamental change in relation to disability at work necessitates challenging able-bodied norms. To that end, a social construction of disability entails adapting the environment to meet the needs of those with a variety of dis-abilities. Tackling disability discrimination requires contesting what is deemed “normal” be­cause it is the way most able-bodied persons function, necessitating a thorough understanding of adverse effects discrimination, which looks behind purportedly neutral practices to uncover detrimental effects on those who do not function “normally”.

The fact that …

Book Review Of Power Without Law: The Supreme Court Of Canada, The Marshall Decisions, And The Failure Of Judicial Activism By Alex M Cameron, Dianne Pothier

Dianne Pothier Collection

Alex Cameron’s book, Power Without Law, is a scathing critique of the Supreme Court of Canada’s 1999 decisions in R. v. Marshall upholding Donald Marshall Jr.’s Mi’kmaq treaty claim. Cameron’s book has attracted a lot of attention because of the author’s position as Crown counsel for the government of Nova Scotia. Cameron was not involved as a lawyer in the Marshall case itself. As a fisheries prosecution, Marshall was a matter of federal jurisdiction pursuant to s. 91(12) of the Constitution Act, 1867, 3 and Nova Scotia chose not to intervene. However, Cameron did become involved in a subsequent …

The Gulf Of Maine Boundary Dispute And Transboundary Management Challenges: Lessons To Be Learned, David Vanderzwaag

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One might be cynical about the usefulness of trying to draw legal guidance from a judicial determination of a United States-Canada dispute admitted by the judges themselves to be geographically unique. As stated by the majority of the judges in the Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Gulf of Maine Case) decision:

"Although the practice is still rather sparse, owing to the relative newness of the question, it too is there to demonstrate that each specific case is, in the final analysis, different from all the others, that it is monotypic and that, …

Response To The Consultation Paper Of The Task Force On The Canadian Common Law Degree Of The Federation Of Law Societies Of Canada, Canadian Association Of Law Teachers/Canadian Law And Society Association, Richard Devlin Frsc, Hester Lessard, Roderick A. Macdonald, Diana Majury, Annie Rochette

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This Response to the Consultation Paper of the Task Force on the Canadian Common Law Degree (the Task Force) of the Federation of Law Societies of Canada was prepared by a joint Committee of the Canadian Association of Law Teachers (CALT) and the Canadian Law and Society Association (CLSA).

R. V. Munyaneza: Pondering Canada's First Core Crimes Conviction, Robert Currie, Ion Stancu

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Canada recently completed its first genocide trial, which resulted in the conviction of the Rwandan accused, Desiré Munyaneza, for crimes committed during the Rwandan genocide. While the case is still under appeal, it represents a significant success for Canada’s relatively new core crimes legislation, the Crimes Against Humanity and War Crimes Act, and was the first prosecution undertaken pursuant to that law. Drawing upon the Munyaneza case, the authors analyze the legislation and evaluate its effectiveness. They conclude that the model is an effective one that both bodes well for Canada’s future participation in the battle against impunity, and provides …

Too Good To Be True: Second Thoughts On The Proliferation Of Mental Health Counts, H Archibald Kaiser

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The last two decades have witnessed the proliferation of mental health courts, proffered by governments as an efficacious and sometimes exclusive response to the complex social dynamics causing the criminalization of persons who live with mental health problems. the ready embrace of this variant of the problem-solving-courts genre has diverted policy-makers and citizens from confronting the root causes of the challenging intersection of mental illness and crime. the new courts have acquired a legitimacy that belies a wide range of doubts about their existence and operation. this commentary will offer a counterpoint to the accelerating momentum of mental health courts. …

Converging Queer And Feminist Legal Theories: Family Feuds And Family Ties, Elaine Craig

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The notion that queer theory and feminism are inevitably in tension with one another has been well developed both by queer and feminist theorists. Queer theorists have critiqued feminist theories for being anti-sex, overly moralistic, essentialist, and statist. Feminist theorists have rejected queer theory as being un-critically pro-sex and dangerously protective of the private sphere. Unfortunately these reductionist accounts of what constitutes a plethora of diverse, eclectic and overlapping theoretical approaches to issues of sex, gender, and sexuality, often fail to account for the circumstances where these methodological approaches converge on legal projects aimed at advancing the complex justice interests …

R. V. Munyaneza: Pondering Canada's First Core Crimes Conviction, Robert Currie

Articles, Book Chapters, & Popular Press

Canada recently completed its first genocide trial, which resulted in the conviction of the Rwandan accused, Desiré Munyaneza, for crimes committed during the Rwandan genocide. While the case is still under appeal, it represents a significant success for Canada’s relatively new core crimes legislation, the Crimes Against Humanity and War Crimes Act, and was the first prosecution undertaken pursuant to that law. Drawing upon the Munyaneza case, the authors analyze the legislation and evaluate its effectiveness. They conclude that the model is an effective one that both bodes well for Canada’s future participation in the battle against impunity, and provides …

Using Protection Of Privacy Legislation To Erode Privacy: R. V. Chehil, Steve Coughlan

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The Nova Scotia Court of Appeal here in R. v. Chehil overturns the trial judge's conclusion that the accused had a reasonable expectation of privacy in the information the police obtained from the computer manifest. With respect, their application of the totality of the circumstances test is subject to question at several important points. For example, in assessing the objective reasonableness of an expectation of privacy, the Court of Appeal relies on the fact that the Westjet website informs customers that "information will be disclosed to the authorities without your knowledge and consent as required by law." The court then …

Watch Your Language: A Review Of The Use Of Stigmatizing Language By Canadian Judges, Jocelyn Downie, Michelle Black

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Despite ongoing advances in understanding the causes and prevalence of mental health issues, stigmatizing language is still often directed at people who have mental illness. Such language is regularly used by parties, such as the media, who have great influence on public opinion and attitudes. Since the decisions from Canadian courtrooms can also have a strong impact on societal views, we asked whether judges use stigmatizing language in their decisions. To answer this question, we conducted a qualitative study by searching through modern Canadian case law using search terms that were indicative of stigmatizing language. We found that, although judges …

Ivan Rand's Ancient Constitutionalism, Jonathon Penney

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Few names loom larger than Ivan Rand’s in the history of Canadian law. If anything, Rand has retained his image as a courageous judge willing to bend the law in creative ways to seek justice and protect the rights of oppressed minorities. But Rand’s legal ideas have not faired as well. Over the years, his theory of “implied rights,” and view of the judicial role, has been criticized as incoherent and indefensible. The central aim of this paper is to challenge these criticisms. I want to offer a solution by reconstructing an overlooked component of his legal thought: a form …

Why Cherry Picking Never Leads To Harmonisation: The Case Of The Limitations On Copyright Under Directive 2001/29/Ec, Lucie Guibault

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The article examines whether the norms laid down in the Directive in relation to the exceptions and limitations on copyright and related rights can be conducive to a sensible degree of harmonisation across the European Union. Before discussing the degree of harmonisation achieved so far by the Directive, the first part gives a short overview of the main characteristics of the list of exceptions and limitations contained in Article 5 of the Directive. A comprehensive review of the implementation of each limitation by the Member States is beyond the scope of this article. The following section takes a closer look …

The Copenhagen Climate Talks: The End Of The Road For The Unfcc Or A Step Forward In The Evolution Of The Regime, Meinhard Doelle

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This paper offers an overview of the key outcomes of the 2009 climate negotiations in Copenhagen and consider their implications for the evolution of the UN Climate Regime.

Conceptualizing The Home State Duty To Protect Human Rights, Sara Seck

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The Special Representative to the UN Secretary-General on Business and Human Rights (SRSG) has identified the State duty to protect against human rights abuses by non-State actors, including business, as one of the fundamental pillars of the Framework for Business and Human Rights [Framework].1 The Framework “rests on differentiated but complementary responsibilities”, and is comprised of three “core principles”: the State duty to protect, the corporate responsibility to respect human rights, and the need for more effective access to remedies.2 However, the jurisdictional scope of the State duty to protect is disputed. According to the SRSG, international law provides that …

Ivan Rand's Ancient Constitutionalism, Jonathon Penney

Articles, Book Chapters, & Popular Press

Few names loom larger than Ivan Rand’s in the history of Canadian law. If anything, Rand has retained his image as a courageous judge willing to bend the law in creative ways to seek justice and protect the rights of oppressed minorities. But Rand’s legal ideas have not faired as well. Over the years, his theory of “implied rights,” and view of the judicial role, has been criticized as incoherent and indefensible. The central aim of this paper is to challenge these criticisms. I want to offer a solution by reconstructing an overlooked component of his legal thought: a form …

Technology And Judicial Reason: Digital Copyright, Secondary Liability, And The Problem Of Perspective, Jonathon Penney

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Theories abound about how to understand and explain the development copyright law. Few, however, have focused specifically on the development of secondary liability in digital copyright law. Fewer still have analyzed or theorized the factors that may have driven or influenced that development, particularly judicial reasoning, beyond the obvious point that technology or the Internet has played a role. This essay aims to help fill this gap by investigating the nature of judicial reasoning about technology in secondary liability and digital copyright cases. I will argue that two underlying and competing approaches to technology have deeply influenced judicial reasoning and …

Book Review: The International Criminal Court: A Commentary On The Rome Statute By William Schabas, Oxford: Oxford University Press, 2010, Robert Currie

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"A Commentary on the Rome Statute" by William Schabas is a giant of a work by a giant in the field. This review examines the breadth and scope of one of the most important works in the field, concluding that the book is not just an excellent resource but an indispensable one for anyone working in or following the field of international criminal justice.

Law And Mental Health: A Relationship In Crisis? (Introduction), Sheila Wildeman

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An Introduction to the Lectures of Supreme Court of Canada Chief Justice Beverley McLachlin and Nova Scotia Provincial Court Judge Anne Derrick. What is the significance of the rule of law to the area of professional knowledge and practice that is “mental health”—or to the interaction of those two aspirational, one might say euphemistically-named social systems: the mental health and justice systems? This question centres upon the rule of law—specifically, I suggest (as I relate further in closing), a thick conception of the rule of law grounded in an ideal of state-subject reciprocity1 —and not, or not directly, upon the …

'Canada' In Electronic Evidence, Steve Coughlan

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Canada is a bilingual and bi-jurisdictional country. Most provinces and territories are mainly English speaking and have common law as the basis for their legal system. The exception is the province of Quebec which is governed by civil law and where the majority speaks French. However, it must be noted that Quebec civil law has been substantially affected by common law, in particular with respect to discovery rules. The latter are closer to common law discovery rules than they are from, for instance, French civil law. Another important factor for the review of the management of digital evidence in Canada …

Kwiatkowski: Privacy Protection And Risk Analysis: Losing The Forest In The Telephoto Shots Of The Trees, Steve Coughlan

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Checklists of factors are a helpful feature in assisting courts to determine how to find the proper balance in a variety of situations. Properly used they can help to achieve a certain level of uniformity and predictability, though they do not guarantee it. However, it is also important to recognize that checklists are a way of getting at the right analysis — they are not in and of themselves that analysis. Checklists also create the possibility of becoming encumbered in specifics and therefore losing sight of the overall goal. The Supreme Court decided two decades ago that the reasonable expectation …

Stopping Vehicles On A Downhill Slope: R. V. Nolet, Steve Coughlan

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The law need not stay the same. The Court has indicated its clear willingness to change the law to accommodate changing social conditions, or in other circumstances. However, when the law does change, it is better for all if that happens clearly: when it is apparent that the old approach no longer governs and it is clear what the new approach will be. In this regard, more could have been hoped for from Nolet. The case raises questions about the proper approach to search issues and to detentions involving vehicle stops and seems inconsistent with previous case law in both …

Tribunal Jurisdiction Over Charter Remedies: Now You See It, Now You Don't, Steve Coughlan

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The Supreme Court's decision in R. v. Conway (reported ante p. 201) simplifies the test for deciding whether an administrative tribunal has jurisdiction to grant Charter remedies. At least in principle, it heralds a broader approach to allowing litigants to seek such remedies at the earlier stage of a proceeding, rather than waiting for a review before a court or pursuing a parallel action. The attitude behind Conway signals a greater willingness to allow administrative tribunals to grant Charter remedies. The test on the key question of whether a tribunal has jurisdiction over a particular remedy is still essentially the …

Ocean Policy: A Canadian Case Study, Camille Mageau, David Vanderzwaag, Susan Farlinger

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Over the years, Canada, like most other coastal nations, has developed an intricate set of policies and regulatory instruments focused on the management of traditional sectoral uses of the oceans. A decade ago, the necessary steps were taken to modernise the way in which Canadian authorities manage ocean-based activities.

Canada did not set out to design “one” comprehensive, all inclusive oceans policy. The primary approach taken was to identify, through Canada’s Oceans Act, one federal lead authority responsible for the coordination and harmonisation of existing policy and statutory instruments and to formulate a national vision and guiding principles for oceans …

Introduction To 'Queer Theory: Law, Culture, Empire', Robert Leckey, Kim Brooks

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This is the introduction to an edited collection. The book uses queer theory to examine the complex interactions of law, culture, and empire in relation to sexual minorities. Building on recent work on empire, it studies how law-reform efforts by sexual minorities can unwittingly advance imperial projects and how queer theory can itself show imperial ambitions. The book takes a contextual, socio-legal, comparative, and interdisciplinary approach. The authors - from five continents - study examples from Bollywood cinema to California’s 2008 marriage referendum. The chapters view a wide range of texts - from cultural productions to laws and judgments - …

A Comment On Watersheds: Runoff From The Tax Code, Kim Brooks

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The role of tax as an instrument of social and economic policy has recently come to the fore in debates about the environment. This paper provides a short comment on a paper authored by Janet Milne that explores the incentive effects of the tax code on watershed protection.

Residence Of Individuals (Canada), Kim Brooks

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This short paper reviews the residence of individuals under domestic Canadian tax law and under Canada's tax treaties.

The Potential Of Multilateral Tax Treaties, Kim Brooks

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This short chapter canvasses alternative possible approaches governments could adopt if they were serious about better coordinating and possibly harmonizing international tax regimes; explores the potential advantages of using multilateral tax treaties; evaluates the CARICOM multilateral double tax treaty; and concludes by urging the pursuit of multilateral and collective solutions to international tax law design.

A Gulf United: Canada-Us Transboundary Marine Ecosystem-Based Governance In The Gulf Of Maine, Lawrence Hildebrand, Aldo Chircop

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In 1989, the Northeastern states of Maine, Massachusetts, and New Hampshire in the United States and the neighboring Canadian Provinces of New Brunswick and Nova Scotia embarked upon a new form of regional marine environmental cooperation when their governors and premiers adopted the Agreement on Conservation of the Marine Environment of the Gulf of Maine Between the Governments of the Bordering States and Provinces.