Law Commons^™

End-Of-Life Decision-Making In Canada: The Report By The Royalsociety Of Canada Expert Panel On End-Of-Life Decision-Making, Udo Schüklenk, Johannes J. M. Van Delden, Jocelyn Downie, Sheila A. M. Mclean, Ross Upshur, Daniel Weinstock

Reports & Public Policy Documents

This report on end-of-life decision-making in Canada was produced by an international expert panel and commissioned by the Royal Society of Canada. It consists of five chapters.

Chapter 1 reviews what is known about end-of-life care and opinions about assisted dying in Canada.

Chapter 2 reviews the legal status quo in Canada with regard to various forms of assisted death.

Chapter 3 reviews ethical issues pertaining to assisted death. The analysis is grounded in core values central to Canada's constitutional order.

Chapter 4 reviews the experiences had in a number of jurisdictions that have decriminalized or recently reviewed assisted dying …

Bad News About Bad News: The Disclosure Of Risks To Insurability In Research Consent Processes, Victoria Smith Apold, Jocelyn Downie

Articles, Book Chapters, & Popular Press

One of the phenomena associated with research is “incidental findings,” that is, unexpected findings made during the research, and outside the scope of the research, which have potential health importance. One underappreciated risk of incidental findings is the potential loss of the research subject's insurability; or if a research subject fails to disclose incidental findings when applying for insurance, the insurance contract may be voidable by the insurer. In this article, we seek to explain the insurability risks associated with incidental findings and to make recommendations for how researchers and research ethics committees should address the issue of disclosure of …

Wrongful Termination Claims In The Supreme Court Of Canada: Coming Up Short, Dianne Pothier

Dianne Pothier Collection

The author concludes that the Supreme Court of Canada's narrow interpretations in Wal-Mart and Honda undermine the purposes of collective bargaining and human rights legislation, respectively Wal-Mart involves an unfair labour practice complaint following the closing of a store in Jonquibre, Quebec. The author contests the analysis of the Supreme Court of Canada, as being far removed from the context of the real difficulties in dealing with determined anti-union employers, instead facilitating statutory evasion. Honda involves a claim for wrongful dismissal, where the issue at the Supreme Court of Canada level is one of remedy, premised on the dismissal amounting …

Indonesia’S Refusal To Share Influenza Virus Specimens With The World: Reviving The Arguments For Justice In Influenza Pandemic Preparedness, Meena Krishnamurthy, Matthew Herder

Articles, Book Chapters, & Popular Press

Indonesia’s December 2006 decision to stop sending influenza virus specimens to the World Health Organization’s Global Influenza Surveillance Network (GISN) captured international attention. At the time, the H5N1 subtype of influenza A virus was predicted to be the basis for the next pandemic. While many accused Indonesia - the country most afflicted by the virus - of putting the rest of the world in peril by withholding virus samples, Indonesia maintained that GISN was unjust for failing to ensure equitable access to vaccines developed using those samples. The H5N1 pandemic threat eventually waned, yet international negotiations to create a just …

New First Principles? Assessing The Internet's Challenges To Jurisdiction, Teresa Scassa, Robert J. Currie

Articles, Book Chapters, & Popular Press

The globalized and decentralized Internet has become the new locus for a wide range of human activity, including commerce, crime, communications and cultural production. Activities which were once at the core of domestic jurisdiction have moved onto the Internet, and in doing so, have presented numerous challenges to the ability of states to exercise jurisdiction. In writing about these challenges, some scholars have characterized the Internet as a separate “space” and many refer to state jurisdiction over Internet activities as “extraterritorial.” This article examines these challenges in the context of the overall international law of jurisdiction, rather than focusing on …

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

Articles, Book Chapters, & Popular Press

The state duty to protect human rights from abuses by non-state actors including business is one of the three differentiated but complementary pillars that make up the UN Protect, Respect, Remedy Framework for Business and Human Rights. Yet the jurisdictional scope of the duty to protect is disputed. This chapter explores both the permissibility of home state regulation under jurisdictional principles of public international law and the existence of home state obligations to regulate and adjudicate transnational corporations to prevent and remedy human rights violations. Properly understood, the state duty to protect applies to all executive, legislative and judicial organs …

Access To Information On Safe Abortion: A Harm Reduction And Human Rights Approach, Joanna Erdman

Articles, Book Chapters, & Popular Press

With convergence-divergence as an organizing theme, this Article explores harm reduction and human rights as conceptual approaches to and discourses about unsafe abortion. The vehicle for this exploration is access to safer-use information on medication abortion, namely women’s self-administration of the drug misoprostol. More specifically, this Article focuses on the Sanitary Initiative Against Unsafe Abortion (“the Uruguay Model”) as an actualized model or prototype of access to information through physician-patient consultation in restrictive legal environments. On convergence, this Article seeks to test the claim that international human rights law imposes government obligations to provide, and to refrain from interfering with …

Open Content Licensing: From Theory To Practice, Lucie Guibault, Christina Angelopoulos

Articles, Book Chapters, & Popular Press

Although open content licences only account for a fraction of all copyright licences currently in force in the copyright world, the mentality change initiated by the open content movement is here to stay. To promote the use of open content licences, it is important to better understand the theoretical underpinnings of these licences, as well as to gain insight on the practical advantages and inconveniences of their use. This book assembles chapters written by renowned European scholars on a number of selected issues relating to open content licensing. It offers a comprehensive and objective study of the principles of open …

Defining Civil Disputes: Lessons From Two Jurisdictions, Camille Cameron, Elizabeth Thornburg

Articles, Book Chapters, & Popular Press

Court systems have adopted a variety of mechanisms to narrow the issues in dispute and expedite litigation. This article analyses the largely unsuccessful attempts in two jurisdictions - the United States and Australia - to achieve early and efficient issue identification in civil disputes. Procedures that rely on pleadings to provide focus have failed for centuries, from the common (English) origins of these two systems to their divergent modern paths. Case management practices that are developing in the United States and Australia offer greater promise in the continuing quest for early, efficient dispute definition. Based on a historical and contemporary …

Criminal Reports: United States Of America V. Khadr, Steve Coughlan, Robert Currie

Articles, Book Chapters, & Popular Press

The United States of America sought the extradition of the applicant to face terrorism-related charges. The applicant had been taken into custody by the Pakistani Intelligence Agency, the ISI, and held in a secret detention centre for approximately fourteen months before he was released and repatriated to Canada. He had been interrogated by American FBI agents while in Pakistan and had given them a statement. He also gave a statement to CSIS following his return to Canada, and shortly after that gave a second statement to FBI officials. The applicant sought a stay of proceedings of the extradition hearing on …

New First Principles? Assessing The Internet’S Challenges To Jurisdiction, Teresa Scassa, Robert Currie

Articles, Book Chapters, & Popular Press

The globalized and decentralized Internet has become the new locus for a wide range of human activity, including commerce, crime, communications and cultural production. Activities which were once at the core of domestic jurisdiction have moved onto the Internet, and in doing so, have presented numerous challenges to the ability of states to exercise jurisdiction. In writing about these challenges, some scholars have characterized the Internet as a separate “space” and many refer to state jurisdiction over Internet activities as “extraterritorial.” This article examines these challenges in the context of the overall international law of jurisdiction, rather than focusing on …

Defining Civil Disputes: Lessons From Two Jurisdictions, Elizabeth Thornburg, Camille Cameron

Articles, Book Chapters, & Popular Press

Court systems have adopted a variety of mechanisms to narrow the issues in dispute and expedite litigation. This article analyses the largely unsuccessful attempts in two jurisdictions - the United States and Australia - to achieve early and efficient issue identification in civil disputes. Procedures that rely on pleadings to provide focus have failed for centuries, from the common (English) origins of these two systems to their divergent modern paths. Case management practices that are developing in the United States and Australia offer greater promise in the continuing quest for early, efficient dispute definition. Based on a historical and contemporary …

Good Faith, Bad Faith And The Gulf Between: A Proposal For Consistent Terminology, Steve Coughlan

Articles, Book Chapters, & Popular Press

Since the earliest days of section 24(2) jurisprudence, the phrase “good faith” has been used. For nearly as long, it has been used inconsistently. The same is true, to a lesser extent, of the phrase “bad faith.” This article traces the confusion which arises in understanding and in reasoning from the failure to restrict these phrases to single meanings. The article then proposes particular meanings for each, which would limit their applicability to extreme situations at either end of the spectrum. It is proposed that the term “good faith” should only be used in circumstances where it settles that the …

The Precautionary Approach And The International Control Of Toxic Chemicals: Beacon Of Hope, Sea Of Confusion And Dilution, David Vanderzwaag

Articles, Book Chapters, & Popular Press

Toxic chemicals in the environment are a continuing concern. Nearly 80,000 chemicals are on the market in the United States; of those, 200 synthetic chemicals are found in measurable quantities in the bodies of Americans. More than 5 billion kilograms of toxic pollutants are released or transferred each year in North America. Even more alarming, basic toxicological information is lacking for most these chemicals.

Long-range transport of persistent organic pollutants (POPs), chemicals that are persistent and bioaccumulate, is a special concern particularly in the Arctic, which acts as a "sink." Examples of POPs include various pesticides, such as DDT, chlordane, …

Confusion Worse Confounded: A Comment On 'Withdrawl Of Clinical Trials Policy By Canadian Research Institute Is A 'Lost Opportunity For Increased Transparency', Jocelyn Downie, Francoise Baylis

Articles, Book Chapters, & Popular Press

According to a recent BMJ article on CIHR's decision to "disappear" its policy on clinical trial registration, "Ian Graham, CIHR's vice president Knowledge Translation and Public Outreach, stated the CIHR policy was removed 'as the overlap [with Tri-Council Policy Statement: Ethical Conduct for Research Involving Humans (TCPS 2)] will cause confusion and inconsistent application of the requirements.'"

Ironically, this explanation is itself confusing and inconsistent with previous decisions made by CIHR. There are at least three areas in which CIHR policy/guidelines overlapped with TCPS 2 (registration and results disclosure of trials, research involving Aboriginal People, and research involving human pluripotent …

A Reasonable Balance: Revenue Authority Discretions And The Rule Of Law In Canada, Kim Brooks

Articles, Book Chapters, & Popular Press

This chapter reviews the separation of powers and the exercise of law-making discretion in Canada as it relates to tax law, in particular the income tax law. The chapter concludes that Canada’s somewhat weak separation of powers has worked reasonably well in achieving the goals of the tax system and the values inherent in the rule of law.

The Meaning Of 'Enterprise,' 'Business' And 'Business Profits' Under Tax Treaties And Eu Tax Law (Canada), Kim Brooks

Articles, Book Chapters, & Popular Press

This chapter explores the meaning of business as it is used in Canadian income tax law given the four purposes that concept serves.

The Reconciliation Doctrine In The Mclachlin Court: From A “Final Legal Remedy” To A “Just And Lasting” Process, Constance Macintosh

Articles, Book Chapters, & Popular Press

The issue upon which this paper focuses is one that runs through much of the Aboriginal rights jurisprudence over the last ten years: the idea of “reconciliation." However, the way in which the term is deployed, the values that inform it, the logic that drives it, and the conclusions that it supports have shifted and are continuing to shift. There are considerable differences between how this term was used at the time of Lamer C.J., its meaning for the bench under McLachlin C.J., and the new role it has evolved to take on most recently. In particular, reconciliation has come …

Thematic Analysis: Human Rights And The 2010/11 U.K. Supreme Court, Karinne Lantz, Fiona Roughley

Articles, Book Chapters, & Popular Press

The efforts of the UK Supreme Court in the field of human rights during its first year reflected and informed a broader debate in society generally as to whether decisions of the European Court of Human Rights (hereafter "EurCtHR") in Strasbourg are appropriate for the domestic context. As the government mooted in Whitehall the merits of substituting the Human Rights Act 1998 (hereafter "HRA") with an autochthonous "British Bill of Rights", the newly-formed Supreme Court in the old Middlesex Guildhall struggled to articulate a framework for why, when and how the rights guaranteed by the European Convention on Human Rights …

End-Of-Life Decision-Making In Canada: The Report By The Royal Society Of Canada Expert Panel On End-Of-Life Decision-Making, Udo Schuklenk, Johannes J. M. Van Delden, Jocelyn Downie, Sheila Mclean, Ross Upshur, Daniel Marc Weinstock

Reports & Public Policy Documents

This report on end-of-life decision-making in Canada was produced by an international expert panel and commissioned by the Royal Society of Canada. It consists of five chapters: Chapter 1 reviews what is known about end-of-life care and opinions about assisted dying in Canada, Chapter 2 reviews the legal status quo in Canada with regard to various forms of assisted death, Chapter 3 reviews ethical issues pertaining to assisted death. The analysis is grounded in core values central to Canada’s constitutional order, Chapter 4 reviews the experiences had in a number of jurisdictions that have decriminalized or recently reviewed assisted dying …

Report To Parliament - On The Readiness Of First Nations Communities And Organizations To Comply With The Canadian Human Rights Act, Naiomi Metallic

Reports & Public Policy Documents

Enacted in 1977, the Canadian Human Rights Act (CHRA) aims to ensure equality of opportunity and freedom from discrimination in federal jurisdiction. At the time that the CHRA was passed, however, it was understood that adjustments would have to be made before the federal government and First Nations operating under the Indian Act could be fully compliant with the new law. As a result, section 67 of the CHRA explicitly shielded the federal government and First Nations community governments from complaints of discrimination relating to actions arising from or pursuant to the Indian Act. This was intended to be a …

Sex Work By Law: Bedford's Impact On The Municipal Regulation Of Sex Work, Elaine Craig

Articles, Book Chapters, & Popular Press

The recent Ontario trial decision in Bedford suggests three interrelated principles that municipal law makers should consider when formulating bylaws aimed at regulating sex work. These principles, if upheld on appeal, will inform the constitutionality of both current and prospective bylaws regulating sex work in Canadian cities.

In Bedford, Justice Himel concluded that the constitutionality of laws regulating the sex trade must be determined in a legal context which recognizes the violence faced by sex workers. She confirmed that laws that indirectly make sex work more dangerous and harmful must be consistent with those principles that our legal system, through …

Internet Access Rights: A Brief History And Intellectual Origins, Jonathon Penney

Articles, Book Chapters, & Popular Press

If there is anything we have learned from recent protest movements around the world, and the heavy-handed government efforts to block, censor, suspend, and manipulate Internet connectivity, it is that access to the Internet, and its content, is anything but certain, especially when governments feel threatened. Despite these hard truths, the notion that people have a "right" to Internet access gained high-profile international recognition last year. In a report to the United Nations General Assembly in early 2011, Frank La Rue, the UN Special Rapporteur on Freedom of Expression, held that Internet access should be recognized as a "human right". …

Canadian Mining Internationally And The Un Guiding Principles For Business And Human Rights, Sara Seck

Articles, Book Chapters, & Popular Press

Between 2005 and 2011, there was much debate within Canada and at the United Nations over what role home states should play in the regulation and adjudications of human rights harms associated with transnational corporate conduct. In Canada, this debate focused upon concerns associated with global mining, and led to a series of government, opposition and multi-stakeholder reports and proposals. These culminated in 2010 with the appointment of a Corporate Social Responsibility Counsellor for the Extractive Sector and the defeat of Bill C-300, an act respecting Corporate Accountability for the Activities of Mining, Oil or Gas in Developing Countries. Meanwhile, …

Transnational Business And Environmental Harm: A Twail Analysis Of Home State Obligations, Sara Seck

Articles, Book Chapters, & Popular Press

Transnational corporate conduct that negatively impacts the environmental human rights of local communities is widespread in the operations of extractive sector companies. Yet, under principles of international environmental law, home states of transnational mining companies are neither obligated nor arguably even permitted to regulate and adjudicate environmental problems in host states. Proposals put forward in developed country home states to address these problems are often met with the claim that such regulations would be an imperialistic violation of host state sovereignty, and would create a competitive disadvantage for home state companies. This article will examine this problem by drawing upon …

Internet Access Rights: A Brief History And Intellectual Origins, Jonathon Penney

Articles, Book Chapters, & Popular Press

If there is anything we have learned from recent protest movements around the world, and the heavy-handed government efforts to block, censor, suspend, and manipulate Internet connectivity, it is that access to the Internet, and its content, is anything but certain, especially when governments feel threatened. Despite these hard truths, the notion that people have a "right" to Internet access gained high-profile international recognition last year. In a report to the United Nations General Assembly in early 2011, Frank La Rue, the UN Special Rapporteur on Freedom of Expression, held that Internet access should be recognized as a "human right". …

Are Canadians Providing Advance Directives About Health Care And Research Participation In The Event Of Decisional Incapacity?, Gina Bravo, Marie-France Dubois, Carole Cohen, Sheila Wildeman, Janice Graham, Karen Painter, Suzanne Bellemare

Articles, Book Chapters, & Popular Press

Objective: Advance planning for health care and research participation has been promoted as a mechanism to retain some control over one’s life, and ease substitute decision making, in the event of decisional incapacity. Limited data are available on Canadians’ current advance planning activities. We conducted a postal survey to estimate the frequency with which Canadians communicate their preferences about health care and research should they become incapacitated. Method: We surveyed 5 populations (older adults, informal caregivers, physicians, researchers in aging, and research ethics board members) from Nova Scotia, Ontario, Alberta, and British Columbia. We asked respondents whether they had expressed …

The Evolution Of The Law Of Evidence: Plus Ça Change…?, Robert Currie

Articles, Book Chapters, & Popular Press

Originally prepared as a CLE backgrounder for criminal lawyers, this article provides a brief and occasionally critical account of developments in the law of evidence over the last three or so decades. Particular attention is paid to the Supreme Court of Canada’s introduction and development of the “principled approach.” It is argued that this framework has been most successful where it has coalesced into a more traditional-looking “rules-based” stance, albeit one based in principle, and less so where looser tests of principle have been given freer rein.

Keeping 'Reasonable Grounds' Meaningful, Steve Coughlan

Articles, Book Chapters, & Popular Press

Two recent Court of Appeal cases (R. v. Jir and R. v. Bush, both reported ante, pp. 53 and 29) are examples of tendencies in some recent decisions to weaken the "reasonable grounds" standard for arrest. That the reasonable grounds standard for arrest is important is beyond question. As the Supreme Court of Canada has said, Without such an important standard, even the most democratic society could all too easily fall prey to the abuses and excesses of a police state. In subtle and sometimes unintentional ways, however, the reasonable ground standard is being undermined. This short article will examine …

R. V. Ryan - Duress Is Not Necessary Where Necessity Is Sufficient, Steve Coughlan

Articles, Book Chapters, & Popular Press

The accused's claim in R. v. Ryan that she committed an offence in response to a history of abuse is, at a factual level, stronger than that in the landmark case of R. v. Lavallee, which first established the relevance of such a claim to criminal defences. In each case there was expert evidence about the accused's psychological condition. In Ryan, however, the accused herself testified at length about events over a period of many years and her evidence was accepted by the trial judge, unlike Lavallee where the accused did not testify at all. Further, the threats of death …