Law Commons^™

Current Complications In The Law On Myths And Stereotypes, Lisa Dufraimont

Articles & Book Chapters

Myths and stereotypes represent an ongoing problem in Canadian sexual assault trials. Often, and paradigmatically, defence lawyers and trial judges rely on discredited sexist assumptions to the prejudice of female sexual assault complainants. However, a review of the recent appellate case law reveals many cases that do not fit this paradigm. Complications that have arisen include stereotypes about men or accused persons, legitimate defence arguments misidentified as stereotypes, close cases where reasonable people disagree about whether stereotypes have been invoked, and prejudicial forms of reasoning based other axes of discrimination. This paper surveys these developments and assesses an attempt by …

Rearguard Or Vanguard? A New Look At Canada’S Constitutional Act Of 1791, Philip Girard

Articles & Book Chapters

The Constitutional Act 1791, which provided representative governments to Upper and Lower Canada, has often been regarded as a reactionary document. Here, a comparison with the constitutions of the eastern colonies of British North America as well as the pre-revolutionary constitutions of the Thirteen Colonies reveals a variety of ways in which the 1791 Act was more liberal and more committed to the popular element of the constitution than its comparators. The significance of the statutory form of the 1791 Act is emphasised and contrasted with the much less secure position of the popular element under prerogative constitutions. Significant concessions …

Law And Empire, 1500–1812, Philip Girard, Catherine Evans

Articles & Book Chapters

When we think about law and empire, it is most accurate, if inelegant, to pluralize everything: empires, colonies, peoples, cultures, sources of law. The transnational turn has dramatic implications for the history of law in the Americas. Most obviously, especially for the period from 1500 to 1812, scholars have become increasingly sensitive to the role of European empires – including the British, French, and Spanish – in shaping America’s legal cultures. Groups of colonists from across Europe brought a multiplicity of understandings of law and social order with them, encountering Indigenous nations with their own rich legal traditions. Colonists used …

The Multimodal Electronic Transferable Transport Record (Ettr) : A Survey Of Laws And Basic Concepts, Benjamin Geva

Articles & Book Chapters

A transport document is a receipt issued by the carrier of goods upon taking possession of them under a contract for their carriage. It is a document of title when its transfer may facilitate not only the transfer of the right to claim the goods from the carrier but also the transfer of title to the goods. Particularly in relation to the carriage of goods other than by sea, and by reference to banking and commercial practices, this study surveys the current legal position of both digitization and negotiability of transport documents. This is done with a view to preparing …

Freedom From Things: A Defense Of The Disjunctive Obligation In Contract Law, Jennifer Nadler

Articles & Book Chapters

This article argues that the disjunctive obligation in contract law can be justified on moral grounds. It argues that from a perspective that regards human beings as free agents capable of choice and therefore independent of material objects, the contracting parties must be understood as agreeing to mutually guarantee one another's ownership of a certain value. This guarantee can be fulfilled either by handing over what was promised or by making up the difference between the market value and the contract value of what was promised. The plaintiff's contractual right is therefore a right that the defendant perform or pay. …

Digital Euro And Ecb Powers, Seraina Neva Grünewald, Corinne Zellweger-Gutknecht, Benjamin Geva

Articles & Book Chapters

The use of cash in the euro area is declining. Accordingly, the EuropeanCentral Bank is exploring options for the design of a digital euro as a form of central bank money available to the public. This article addresses the key question of whether the Eurosystem is empowered to issue a digital euro and, if so, in what form. Based on a historical, teleological, and systematic interpretation, it argues that Article 128(1) TFEU serves as both a source of competence for the Eurosystem to issue a digital euro and a limitation to that competence. The Eurosystem’s powers are necessarily exclusive and …

Climate Change As Systemic Risk, Barnali Choudhury

Articles & Book Chapters

Hindsight tells us that COVID-19, thought by former President Trump and others to have come out of nowhere, is more aptly labelled a “gray rhino” event, one that was highly probable and preventable. Indeed, despite considerable evidence of the impending threats of pandemics, for the most part, governments failed to prepare for the pandemic, resulting in wide-scale social and economic losses.

The lessons from COVID-19, however, should remind us of the perils of ignoring gray rhino risks. Nowhere is this more apparent than with climate change, a highly probable, high impact threat that has largely been ignored to date. Despite …

American Influences, Canadian Realities : How "American" Is Canadian Legal Education?, Philip Girard

Articles & Book Chapters

No abstract provided.

Indigenous Knowledge Systems In Environmental Governance In Canada, Deborah Mcgregor

Articles & Book Chapters

This contribution addresses key issues around the application of Indigenous knowledge in contexts where such knowledge is neither generated nor held (academy, industry, governments, etc.). Effective models for the ethical incorporation of Indigenous knowledge into environmental governance in Canada have remained elusive despite decades of attempts. The predominant research paradigm of “incorporating” Indigenous knowledge into environmental governance is one of extraction by the external interests who seek to include specific aspects of such knowledge in their undertakings. This approach continues to fail because Indigenous knowledge exists as an integral component of Indigenous Knowledge Systems (IKS). It is often hollow and …

Essential Jobs, Remote Work And Digital Surveillance: Addressing The Covid-19 Pandemic Panopticon, Antonio Aloisi, Valerio De Stefano

Articles & Book Chapters

COVID-19-induced digital surveillance has ballooned in an unprecedented fashion, causing a reconfiguration of power relationships in professional settings. This article critically concentrates on the interplay between technology-enabled intrusive monitoring and the managerial prerogatives augmentation in physical and digital workplaces. It portrays excessive control as the common denominator for “essential” and “remotable” activities, besides discussing the various drawbacks of the two categories of workers during the pandemic. It also assesses the adequacy of the current EU legal framework in addressing the expansion of data-driven management. Social dialogue, empowerment and digital literacy are identified as effective solutions to promote organisational flexibility, well-being …

Transforming “Total Concept And Feel”: Dialogic Creativity And Copyright’S Substantial Similarity Doctrine, Carys Craig

Articles & Book Chapters

Copyright infringement doctrine currently overprotects copyright owners against the perceived wrong of copying, failing to adequately countenance copying as an essential part of the authorial creative process. Drawing on existing infringement doctrine in the United States and Canada, this Article will offer an interpretation of “substantial similarity” that opens up (or at least better safeguards) space for creative copying—that is to say, copying that substantially transforms the original copied work and, in doing so, advances the public interest goals of the copyright system. Part I lays the groundwork by briefly presenting a dialogic vision of authorship that complicates conventional assumptions …

Repurposing Pillar One Into An Incremental Global Tax For Sustainability: A Collective Response To A Global Crisis, Jinyan Li, Sophie Chatel

Articles & Book Chapters

This article proposes to repurpose the OECD/IF Pillar One Blueprint from a taxing rights reallocation mechanism into an incremental global tax for sustainability. With a common goal and DST-like feature for simplification, the proposal aims to ease the negotiation of essential and drastic simplifications required to deliver a workable solution.

The Resilience Of Métis Title: Rejecting Assumptions Of Extinguishment, Karen Drake, Adam James Patrick Gaudry

Articles & Book Chapters

For many years, the Crown disputed Métis title claims by contending that any previously existing Métis rights, including title, had been extinguished. We argue, however, that this is not the case in at least some areas of the Métis homeland. In this chapter, we review the three means by which Aboriginal rights can be extinguished in Canadian law: by surrender, by legislation prior to 17 April 1982, and by constitutional amendment. This chapter builds on our previous work, in which we argue that historical Métis land use patterns can satisfy the test for Aboriginal title. The relevant case law here …

Repurposing Pillar One Into An Incremental Global Tax For Sustainability: Some Blue Sky Thinking In The Midst Of Global Crisis, Jinyan Li, Sophie Chatel

Articles & Book Chapters

In this article, the authors make a case for repurposing the OECD Pillar One from a mechanism for reallocating taxing rights to a global tax on the largest and most profitable MNEs’ market-based profits. Such global tax would have the hybrid features of a net-basis corporate income tax and a turnover-basis digital services tax through a conversion formula that ensures a low-rate DST on sales can replicate a higher rate CIT on a country’s share of the profit determined using under the formulary allocation method. More importantly, the authors instill a common purpose of the international tax consensus – to …

“Reconciliation” In Undergraduate Education In Canada: The Application Of Indigenous Knowledge In Conservation, Danika Billie Littlechild, Chance Finegan, Deborah Mcgregor

Articles & Book Chapters

Both the Truth and Reconciliation Commission (TRC) and the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) explicitly emphasized the role of educators in “reconciliation.” Alongside this, conservation practitioners are increasingly interacting with Indigenous Peoples in various ways, such as in the creation and support of Indigenous protected areas and (or) guardian programs. This paper considers how faculty teaching aspiring conservation practitioners can respond appropriately to the TRC and MMIWG Inquiry while preparing students to engage with Indigenous Peoples in a way that affirms, rather than questions Indigenous knowledge and aspirations. Our argument is threefold: first, teaching …

The E-Banknote As A ‘Banknote’: A Monetary Law Interpreted, Benjamin Geva, Seraina Neva Grünewald, Corinne Zellweger-Gutknecht

Articles & Book Chapters

This article discusses whether electronic banknotes can properly be characterised as ‘banknotes’, their design as such and what architectural models are available for their issuance by central banks. Issues are addressed under general principles governing the interpretation of monetary laws in the context of evolving technologies and institutional arrangements. The article proposes a clear terminology to address the concepts underlying digital currencies and access to central bank money, and argues that a banknote may be ‘written’ electronically. The stance adopted in the article is critical of both account-based retail central bank digital currency and cryptocurrencies, and highlights the salient features …

Who Are The Métis? The Role Of Free, Prior And Informed Consent In Identifying A Métis Rights-Holder, Karen Drake

Articles & Book Chapters

The rise of the duty to consult and accommodate has generated an increase in Indigenous-industry agreements. For proponents tasked with carrying out the procedural aspects of the duty, Indigenous-industry agreements offer relative certainty compared to the ambiguity involved in determining whether the duty has been legally satisfied. For Indigenous peoples, although the drawbacks of Indigenous-industry agreements are well documented, these agreements can potentially instantiate the principle of free, prior and informed consent. Compared to First Nation and Inuit peoples, though, Métis rights-holders are entering into comparatively fewer Indigenous-industry agreements.One cause of this phenomenon is the supposed uncertainty surrounding the question …

Weaving Indigenous Knowledge Systems And Western Sciences In Terrestrial Research, Monitoring And Management In Canada: A Protocol For A Systematic Map, Dominique A. Henri, Jennifer F. Provencher, Ella Bowles, Jessica J. Taylor, Jade Steel, Carmen Chelick, Jesse N. Popp, Steven J. Cooke, Trina Rytwinski, Deborah Mcgregor, Adam T. Ford, Steven M. Alexander

Articles & Book Chapters

Human activities and development have contributed to declines in biodiversity across the globe.Understanding and addressing biodiversity loss will require the mobilization of diverse knowledge systems. While calls for interdisciplinary practices in environmental research date back decades, there has been a more recent push for weaving multiple knowledge systems in environmental research and management, specifically Indigenous knowledge systems (IKS) and Western sciences. The use of multiple knowledge systems in environmental research can improve understanding of socio-ecological connections, build trust in research findings and help implement evidence-based action towards biodiversity conservation. Mobilizing multiple types of knowledge in environmental research and management can …

Intergenerational Environmental Justice And The Climate Crisis: Thinking With And Beyond The Charter, Dayna Scott, Garance Malivel

Articles & Book Chapters

Inspired by the analysis developed in the article “Coming of Age in a Warming World: The Charter’s Section 15 Equality Guarantee and Youth-Led Climate Litigation,” by Nathalie Chalifour, Jessica Earle, and Laura Macintyre, this commentary explores the concept of intergenerational environmental justice in the climate crisis. Our central contribution is to advance a relational conception of intergenerational environmental justice, which we argue can overcome some common objections to thinking about justice and rights in “generational” terms. This analysis supports climate litigation efforts on Charter grounds, best conceived in our view as discrimination against young and future generations. Yet it also …

The Factual Basis For Indigenous Land Rights, Kent Mcneil

Articles & Book Chapters

Groundbreaking judgments in Australia and Canada in the 1990s reveal that Indigenous land rights depend on evidence of Indigenous occupation and law when the British Crown asserted sovereignty. Looking back at earlier Indigenous rights decisions, it is apparent that they were not based on facts, but on prejudicial and erroneous assumptions about Indigenous peoples. In St. Catherine’s Milling (1888), Lord Watson said the rights of the Ojibwe Indians were based solely on the goodwill of the Crown, a conclusion that evidently stemmed from the trial judge’s racist assessment of Ojibwe society. In Cooper v Stuart (1889), Lord Watson wrongly described …

Ai And Legal Scholarship : Reflections On Evolution And Influences, Jonathon W. Penney

Articles & Book Chapters

Leading Legal Disruption: Artificial Intelligence and a Toolkit for Lawyers and the Law is designed to challenge lawyers with the practical implications that emerging technologies will have on delivering legal services and thinking about legal issues to navigate their digital transformation. By inviting thought leaders across the world and in different disciplines, ranging from privacy, contract law, and torts to governance and policy, this book goes beyond abstract and general philosophical observations on matters that concern practitioners. This practical approach has generated a wide range of global perspectives, which are refreshingly novel and timely for what are increasingly global issues. …

L’Émergence D’Une Monarchie Française Indépendante, 1100-1314 : Le Rejet De La Suprématie Papale, Kent Mcneil

Articles & Book Chapters

The struggle between the Pope and secular rulers of Western Europe for political supremacy was a dominant theme in the medieval world. The kings of France and England in particular asserted their authority and independence, leading to the development of nation states. This form of political organization was standardized in Europe in 1648 by the Peace of Westphalia and exported to the rest of the world through colonialism. This article tells the story of the power struggle between the Pope and the kings of France, from which the kings emerged victorious, contributing to the creation of the modern world.

Toronto’S 2018 Municipal Election, Rights Of Democratic Participation, And Section 2(B) Of The Charter, Jamie Cameron, Bailey Fox

Articles & Book Chapters

In 2018, the City of Toronto’s municipal election overlapped with a provincial election that brought a new government to office. While the municipal election ran for a protracted period from May 1 to October 22, the provincial election began on May 9 and ended about four weeks later, on June 7.On July 27, after only a few weeks in office, the provincial government tabled the Better Local Government Act (BLGA) and proclaimed the Bill into law on August 14.The BLGA reduced Toronto City Council from 47 to 25 wards and reset the electoral process, mandating that the election proceed under …

Indigenous Law And The Common Law, Kent Mcneil

Articles & Book Chapters

Indigenous law does not need to be incorporated into Canadian law by treaty, statute, or judicial pronouncement to be part of the domestic law of Canada. Indigenous law exists and is followed in Indigenous communities. It is living law that predated European colonization and has continued up to the present. However, Canadian judges generally are not familiar with it in the way they are with the common law and civil law. Consequently, when relied upon in court evidence of it has to be presented by the testimony of experts, such as Elders and Indigenous knowledge keepers. This is simply a …

Indigenous Environmental Justice And Sustainability, Deborah Mcgregor

Articles & Book Chapters

This chapter offers an alternative vision for sustainable futures involving self-determined Indigenous environmental justice (EJ). It builds upon a distinct understanding of Indigenous EJ which asserts that the components necessary for Indigenous EJ are Indigenous knowledge systems, legal orders, and conceptions of justice that have existed for thousands of years.1 This contribution will also offer preliminary thoughts on the need to decolonize internationally adopted conceptions of sustainable development expressed more recently through the post-2015 United Nations sustainable development agenda. Indigenous environmental injustice is very much an outcome of “unsustainable” and detrimental “development,” as well as gross violations of human and …

Introduction – 2019 Constitutional Cases At The Supreme Court: Up Close And In Person, Sonia Lawrence

Articles & Book Chapters

From the vantage point of Summer 2020, 2019 seems almost a mirage. The conditions created across Canada by government and individual responses to COVID-19 were all but unimaginable when 2019 drew to a close, and the legal issues that preoccupy those interested in constitutional and public law now revolve around rapidly evolving rules and policies designed to protect public goods like health and health care. Questions of profound significance to constitutional lawyers, such as the location of limits on state powers, the appropriate roles and relative competencies of courts and governments, the place of state law in creating the good …

Supreme Court Clarifies Risk Of Loss Due To Fraudulent Efts, Christopher Richter, Benjamin Geva, Matthew Angelus, Eli Monas

Articles & Book Chapters

The Supreme Court of Canada released a short

decision on December 10 confirming unanimously that

it is the bank’s customer who bears the risk of loss of an

amount that the bank transferred by electronic payment

order from the customer’s account to a third party as

a result of a phishing scam. The decision adopts the

reasoning of the Québec Court of Appeal and specifies

that it would not have been different if the customer’s

account had been in positive balance. In this case, the

customer’s account was in a debit position.

The Ecological Constitution: Reframing Environmental Law By Lynda Collins, Dayna Scott

Articles & Book Chapters

No abstract provided.

The Perplexities Of Patent Prosecution History: Procedure Over Principle?, David Vaver

Articles & Book Chapters

What is it about patent legislation? Speaking for the Supreme Court in 1981, Justice Dickson, later Chief Justice, said of the disclosure provision in the Patent Act (now subsection 27(3)) that:

"[i]t gives the impression of a mélange of ideas gathered at random rather than an attempt to enunciate, clearly and concisely, a governing principle or principles. This is perhaps understandable in that the section is the product of amendment over a period of many years. The language simply does not lend itself to a tight, literal interpretation. It is, and should be treated as, a parliamentary pronouncement, in general …

Title Iv: Rights And Obligations In Relation To The Provision And Use Of Payment Services (Chapter 3, Arts 78-93): Execution Of Payment Transactions, Benjamin Geva

Articles & Book Chapters

PSD2 Title IV Chapter 3, consisting of arts 78 – 93, addresses rights and obligations between the payment service user and the payment service provider in connection with the execution of payment transactions. It innovates in providing for the liability of a payment initiation service, a newly defined payment service provider.

Section 1 deals with receipt, refusal and irrevocability payment orders as well as with amounts transferred. By references to all currencies, Section 2 covers execution time and value date. Addressing liability, Section 3, contains rules allocating responsibility in cases of non-execution or defective execution.

Discussion in this book chapter …