Law Commons^™

Tax Treaty Treatment Of Royalty Payments From Low-Income Countries: A Comparison Of Canada And Australia’S Policies, Kim Brooks

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The proposal made in this paper is a modest one: that high-income countries should further the cause of reducing global inequality by ensuring that in their tax treaties with low-income countries they do not usurp needed revenues by reducing low-income countries' ability to collect tax on income with a source in the low-income country. This argument is made in the specific context of the taxation of royalty payments, which present one of the most extreme examples of high-income countries unfairly confiscating revenues that appropriately belong to their low-income treaty partners. The Organisation for Economic Co-operation and Development (OECD) model tax …

Inadmissible, Eh?, Jocelyn Downie, Ronalda Murphy

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In this commentary, we respond to Stacey Tovino's invitation to reflect further on specific legal issues she raises in relation to functional magnetic resonance imaging (fMRI) and the law (Tovino 2007). Specifically, we take up the issue of evidence law. We do this from a Canadian perspective because, unlike in the United States, this topic has not "been debated for almost 10 years" here (Tovino 2007, 44).

Pediatric Neuroimaging Ethics, Jocelyn Downie, Jennifer Marshall

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Neuroimaging has provided insight into numerous neurological disorders in children, such as epilepsy and cerebral palsy. Many clinicians and investigators believe that neuroimaging holds great promise, especially in the areas of behavioral and cognitive disorders. However, concerns about the risks of various neuroimaging modalities and the potential for misinterpretation of imaging results are mounting. Imaging evaluations also raise questions about stigmatization, allocation of resources, and confidentiality. Children are particularly vulnerable in this milieu and require special attention with regards to safety guidelines and modality adaptations. This article examines pediatric neuroimaging practice through an ethics lens. Most authors in the field …

Promotion Of The Concept Of The Rule Of Law Through The Implementation Of The Central America Free Trade Agreement, Phillip A. Buhler

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Quoting the Eighteenth Century philosopher Charles de Secondat Montesquieu, “We are free because we live under civil laws.” In the summer of 2006 lawyers and businessmen in the Dominican Republic, the United States and most of Central America experienced full implementation of the Dominican Republic – Central America Free Trade Agreement (hereinafter CAFTA). This regional trade agreement, following on the general model of the North American Free Trade Agreement (NAFTA) and the parameters of the General Agreement on Tariffs and Trade (GATT), is intended to establish a comprehensive legal regime to reduce and eventually eliminate most national barriers to the …

Guiding Patrons To Online Health Information: Can Librarians Be Found Liable?, Elaine Gibson

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The amount of health information available on the Internet is growing rapidly and information intermediaries are increasingly being asked to help information seekers find and make sense of this information. This activity is for the most part benign from a legal perspective. However, there is a small possibility that, should the intermediary steer an information seeker to information that proves harmful to the seeker, the intermediary may be found liable for injuries incurred. In this paper, we examine the theoretical underpinnings of the relevant laws, clarify the risks, and recommend ways to minimize risk.

Respecting Adolescents' Confidentiality And Reproductive And Sexual Choices, Rebecca Cook, Joanna Erdman, Bernard Dickens

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Adolescents, defined as between 10 and 19 years old, present a growing challenge to reproductive health. Adolescent sexual intercourse contributes to worldwide burdens of unplanned pregnancy, abortion, spread of sexually transmitted infections (STIs), including HIV, and maternal mortality and morbidity. A barrier to contraceptive care and termination of adolescent pregnancy is the belief that in law minors intellectually mature enough to give consent also require consent of, or at least prior information to, their parental guardians. Adolescents may avoid parental disclosure by forgoing desirable reproductive health care. Recent judicial decisions, however, give effect to internationally established human rights to confidentiality, …

Family As Status In Doe V Canada: Constituting Family Under Section 15 Of The Charter, Elaine Craig

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The Ontario Court of Appeal recently released a decision rejecting a constitutional challenge to the Processing and Distribution of Semen for Assisted Conception Regulations. In this paper I argue that the Court's reasoning in Doe v. Canada is flawed and that certain provisions of the Semen Regulations constitute an unjustified infringement of section 15 of the Canadian Charter of Rights and Freedoms. I also argue that the claimants in this case would have been better served by the jurisprudence of section 15 of the Charter had they premised their argument on the assertion that they were discriminated against on the …

Transphobia And The Relational Production Of Gender, Elaine Craig

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Knowing one's place in the social order, whether that place is one of relative privilege or not, serves two psychologically ameliorative functions. It relieves one from the “anxiety of [gender] identity interrogation” and it helps to inform one as to the socially agreed upon, acceptable conduct for interpersonal exchanges--the episteme of social interaction. This Paper will demonstrate that gender identity is produced through relational, contextually influenced, interpretative processes. Because gender is constructed in societies which strongly embrace static, binary conceptions of gender, and in which social, familial, occupational, and sexual *139 interactions are heavily influenced by gendered social scripts, gender …

Turning The Health Professional Carousel: Is Canada Undermining Human Rights In Developing Countries?, Karinne Lantz

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This article will address the issue of health professional migration, with a specific focus on how this migration affects health systems in developing countries. The central question being examined is whether or not states have an obligation to ensure that their policies – or actions by private actors based in their states – do not undermine the delivery of healthcare in other states. After exploring this obligation, this article will analyze how the issue may be effectively addressed by drawing upon the experience of the United Kingdom; how successful has the U.K. been in meeting its obligation? What are the …

When Is It Permissable To Dismiss A Family Who Refuses Vaccinces? Legal, Ethical And Public Health Perspectives, Beth Halperin, Ryan Melnychuk, Jocelyn Downie, Noni Macdonald

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Although immunization is one of the most important health inter- ventions of the 20th century, cases of infectious disease continue to occur. There are parents who refuse immunization for their children, creating a dilemma for the primary care physician who must consider the best interest of the individual child as well as that of the commu- nity. Some physicians, when faced with parents who refuse immuniza- tion on behalf of their children, choose to dismiss these families from their practice. Given the existing shortage of primary care physicians across Canada, this decision to dismiss families based on vaccine refusal has …

Global Reach, Local Grasp: Constructing Extraterritorial Jurisdiction In The Age Of Globalization, Steve Coughlan, Robert Currie, Hugh Kindred, Teresa Scassa

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The reach of national law is often greater than its grasp. Canada, like other countries, has effective legal power over its territory and all within it. However, one consequence of the current process of globalization, for good or ill, is that Canadian interests are no longer contained exclusively within Canadian borders. Canada thus finds it increasingly necessary to consider asserting its legal jurisdiction beyond its frontiers. Such extraterritorial assertion of Canadian authority may well run into strong opposition from other countries, who might view Canada as attempting to intervene in their own national territory and domestic affairs. Likewise, other states, …

Extraterritorial Criminal Jurisdiction: Bigger Picture Or Smaller Frame?, Robert Currie, Steve Coughlan

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The authors review extensively Canadian law and practice on the exercise of extraterritorial criminal jurisdiction, and the extent to which that may have changed in recent years. They conclude that, while there are now many more instances of Canada asserting extraterritorial jurisdiction, any change in policy is more apparent than real. What has changed is how often the situations that prompt extraterritorial jurisdiction arise, particularly in that there are now many international treaties requiring Canada to exercise jurisdiction in this way. The authors also argue that this policy of cautious expansion and constructive engagement with international practice is desirable and …

The Principled Exception And The Forgotten Criterion, Steve Coughlan

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The principled exception to the hearsay rule is routinely described as being settled by the "twin criteria" of necessity and reliability. In fact a third criterion is also — or at least ought to be — at play: that admitting the evidence through hearsay would not undermine any other rule of evidence. The Court has made reference to this third criterion in the past, but it has largely been ignored in both Supreme Court and lower court decisions. The recent judgement in Couture depends in a limited way on that question, and so it marks an opportunity to articulate the …

A Global Treaty To Address Land-Based Sources Of Marine Pollution, David Vanderzwaag

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Land-based sources of pollution are estimated to be the source of approximately eighty percent of all marine pollution. In Protecting the Marine Environment from Land-Based Sources of Pollution: Towards Effective International Cooperation, Daud Hassan outlines the major sources of Land-Based Sources of Marine Pollution (LBSMP), examines the current legal framework for control of LBSMP, and highlights the obstacles to creating more effective control measures. Additionally, Hassan presents a case study focusing on LBSMP control in the Bay of Bengal region and then concludes with a recommendation for the creation of a global treaty to more effectively address the impacts of …

Canada-Usa Bilateral Fisheries Management In The Gulf Of Maine: Under The Radar Screen, David Vanderzwaag, Emily J. Pudden

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Canada and the USA have developed a series of cooperative initiatives that address transboundary fisheries issues in the Gulf of Maine. The Canada – USA Steering Committee serves as an umbrella forum for discussing and coordinating transboundary management measures. Through the work of the Transboundary Resource Assessment Committee and the Transboundary Management Guidance Committee, the Steering Committee has overseen the development of joint scientific stock assessments and a sharing agreement for groundfish resources in the vicinity of the eastern Georges Bank. The bilateral Fisheries Enforcement Agreement helps ensure the success of such cooperative management initiatives by combating illegal fishing in …

Preventing Salmon Escapes From Aquaculture In Canada And The Usa: Limited International Coordinates, Divergent Regulatory Currents And Possible Future Courses, David Vanderzwaag, Tricia Barry

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Following an introductory review of the continuing problem of salmon escaping from aquaculture operations along the Atlantic and Pacific coasts of North America, and the considerable uncertainties over ecological impacts, this article examines the law and policy context for preventing escapes from three perspectives. First, the limited guidance for addressing aquaculture escapes under existing global and regional agreements/arrangements is highlighted. Second, how Canada and the USA have sought to control escape events at national and provincial/State levels is summarized. Third, possible future courses are identified, which improve the way salmon escapes are addressed, with stronger regional responses suggested as most …

High Seas Fisheries: Troubled Waters, Tangled Governance And Recovery Prospects, David Vanderzwaag, Boris Worm

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Global fisheries are in a perceived state of crisis. Despite growing technological effort and an unprecedented global expansion of fisheries, total landings (85-100 million MT per year) have stagnated and probably entered a period of slow decline. This trend may destabilize ocean ecosystems and undermine world seafood supplies, which provide the major source of protein for 2.3bn people, and international cooperation to address this issue has been slow. This is particularly true for highseas fisheries that occur in international waters encompassing some 61% of the world's ocean. These have been plagued by a fragmented and weak legal framework, poor enforcement …

Promotion Of The Concept Of The Rule Of Law Through The Implementation Of The Central America Free Trade Agreement, Phillip A. Buhler

Articles, Book Chapters, & Popular Press

Quoting the Eighteenth Century philosopher Charles de Secondat Montesquieu, “We are free because we live under civil laws.”

In the summer of 2006 lawyers and businessmen in the Dominican Republic, the United States and most of Central America experienced full implementation of the Dominican Republic – Central America Free Trade Agreement (hereinafter CAFTA). This regional trade agreement, following on the general model of the North American Free Trade Agreement (NAFTA) and the parameters of the General Agreement on Tariffs and Trade (GATT), is intended to establish a comprehensive legal regime to reduce and eventually eliminate most national barriers to the …

Transphobia And The Relational Production Of Gender, Elaine Craig

Articles, Book Chapters, & Popular Press

Knowing one's place in the social order, whether that place is one of relative privilege or not, serves two psychologically ameliorative functions. It relieves one from the “anxiety of [gender] identity interrogation” and it helps to inform one as to the socially agreed upon, acceptable conduct for interpersonal exchanges--the episteme of social interaction. This Paper will demonstrate that gender identity is produced through relational, contextually influenced, interpretative processes. Because gender is constructed in societies which strongly embrace static, binary conceptions of gender, and in which social, familial, occupational, and sexual *139 interactions are heavily influenced by gendered social scripts, gender …

Respecting Adolescents' Confidentiality And Reproductive And Sexual Choices, Rebecca J. Cook, Joanna Erdman, Bernard M. Dickens

Articles, Book Chapters, & Popular Press

Adolescents, defined as between 10 and 19 years old, present a growing challenge to reproductive health. Adolescent sexual intercourse contributes to worldwide burdens of unplanned pregnancy, abortion, spread of sexually transmitted infections (STIs), including HIV, and maternal mortality and morbidity. A barrier to contraceptive care and termination of adolescent pregnancy is the belief that in law minors intellectually mature enough to give consent also require consent of, or at least prior information to, their parental guardians. Adolescents may avoid parental disclosure by forgoing desirable reproductive health care. Recent judicial decisions, however, give effect to internationally established human rights to confidentiality, …

In The Back Alleys Of Health Care: Abortion, Equality And Community In Canada, Joanna Erdman

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The decriminalization of abortion in Canada ensured neither its availability nor accessibility as an integrated and publicly funded health service. While Canadian women are increasingly referred to or seek abortion services from single-purpose clinics, their exclusion from public health insurance often render these services inaccessible. This article considers denied funding for clinic abortion services from the perspective of the Canadian constitutional guarantee of sex equality. The article focuses on the 2004 Court of Queen's Bench's judgment in Jane Doe I v. Manitoba, which framed denied public funding for clinic abortion services as a violation of women's equality rights under the …

Invasive Seaweed: Global And Regional Law And Policy Responses, Meinhard Doelle, Moira Mcconnell, David Vanderzwaag

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We consider law and policy responses to invasive seaweeds at global and regional levels. Key global regimes considered include the 1982 United Nations Convention on the Law of the Sea, the Convention on Biological Diversity, the Ramsar Convention and the Bonn Convention on Migratory Species. Contributions from the Food and Agriculture Organization and the International Maritime Organization are also considered in the global context. At a regional level, examples of efforts in North America and Europe are offered to illustrate challenges and opportunities for regional responses to invasive seaweeds. We conclude with law and policy recommendations, most notably the need …

Counting Outsiders: A Critical Exploration Of Outsider Course Enrollment In Canadian Legal Education, Natasha Bakht, Kim Brooks, Gillian Calder, Jennifer Koshan, Sonia Lawrence, Carissima Mathen, Debra Parkes

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In response to anecdotal concerns that student enrollment in outsider courses, and in particular feminist courses, is on the decline in Canadian law schools, the authors explore patterns of course enrollment at seven Canadian law schools. Articulating a definition of outsider that describes those who are members of groups historically lacking power in society, or traditionally outside the realms of fashioning, teaching, and adjudicating the law, the authors document the results of quantitative and qualitative surveys conducted at their respective schools to argue that outsider pedagogy remains a critical component of legal education. The article situates the numerical survey results …

Reflections On The Commercialization Of Research Conducted In Public Institutions In Canada, Jocelyn Downie, Matthew Herder

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We are presently witnessing a remarkable emphasis upon the commercialization of research in public institutions around the world. The issue is polarizing within the academic community, but the commercialization of research in public institutions has, in itself, largely failed to capture the public imagination. Nothing suggests that a large-scale debate on this issue is forthcoming in Canada or elsewhere. The purpose of this paper is therefore to build the case for why large-scale debate is necessary and to set the stage for that debate by providing an account of all of the alleged benefits and harms of commercialization. Our review …

Counting Outsiders: A Critical Exploration Of Outsider Course Enrollment In Canadian Legal Education, Kim Brooks, Natasha Bahkt, Gillian Calder, Jennifer Koshan, Sonia Lawrence, Carissima Mathen, Debra L. Parkes

Articles, Book Chapters, & Popular Press

In response to anecdotal concerns that student enrollment in "outsider" courses, and in particular feminist courses, is on the decline in Canadian law schools, the authors explore patterns of course enrollment at seven Canadian law schools. Articulating a definition of "outsider" that describes those who are members of groups historically lacking power in society, or traditionally outside the realms of fashioning, teaching, and adjudicating the law, the authors document the results of quantitative and qualitative surveys conducted at their respective schools to argue that outsider pedagogy remains a critical component of legal education. The article situates the numerical survey results …

Achieving Transparency In Implementing Abortion Laws, Rebecca Cook, Joanna Erdman, Bernard Dickens

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National and international courts and tribunals are increasingly ruling that although states may aim to deter unlawful abortion by criminal penalties, they bear a parallel duty to inform physicians and patients of when abortion is lawful. The fear is that women are unjustly denied safe medical procedures to which they are legally entitled, because without such information physicians are deterred from involvement. With particular attention to the European Court of Human Rights, the UN Human Rights Committee, the Constitutional Court of Colombia, the Northern Ireland Court of Appeal, and the US Supreme Court, decisions are explained that show the responsibility …

Abducted Fugitives Before The International Criminal Court: Problems And Prospects, Robert Currie

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In the law and literature relating to the exertion of criminal jurisdiction over the person, there exists a nagging problem that has plagued practitioners, courts and academics alike. The phrase of art is usually something along the lines of "irregular rendition," but the issues are as notorious as they are controversial: what should a court do with an accused criminal brought before it as a result of abduction (or otherwise illegal detention) from a foreign state? And, in particular, should the fact of the illegal or irregular rendition of the fugitive affect either the court's ability or its willingness to …

Common Law Police Powers And The Rule Of Law, Steve Coughlan

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Common law police powers have long been a source of some dispute in the Canadian criminal justice system. On the one hand, their existence is difficult to reconcile with predictability in the law, since in any individual case where a new power is created (generally referred to as use of the "ancillary powers doctrine"), it would not have been possible to know in advance that the police were actually acting legally. On the other hand the benefit for society purchased with that ambiguity is a more tailored response to the particular problem, which might also lead to better results in …

A Comprehensive Analysis Of Mri Research Risks: In Support Of Full Disclosure, Jennifer Marshall, Toby Martin, Jocelyn Downie, Krisztina Malisza

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Magnetic resonance imaging (MRI) procedures have been used for over 20 years. This modality is considered relatively safe and holds great promise. Yet, MRI has a number of risks. In order for MRI research to meet the Canadian standard of disclosure, the investigator must communicate and make note of all risks in their research protocols and consent forms. Those creating and reviewing research protocols and consent forms must take notice of the different circumstances under which MRI poses a risk. First, this paper will describe the current standard of disclosure in Canada for research participants. Second, the paper will provide …

Testing The Waters: Jurisdictional And Policy Aspects Of The Continuing Failure To Remedy Drinking Water Quality On First Nations Reserves, Constance Macintosh

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This paper considers why, from a policy and legal perspective, there is such a disparity between the water quality on First Nations reserves, and that experienced in the majority of other Canadian communities. This involves engaging with how jurisdictional allocations, governmental policies, statutory or policy-del-egated mandates, and operational practices con-verge. In this discussion, two inter-related tensions emerge. The first is between Aboriginal aspirations to self-govern and community capacity to effectively engage in governance activities. The second is Canada's proper role and responsibilities in resolving the governance/capacity tension, and in resolving the water quality problems.

This paper ultimately concludes that the …