Law Commons^™

Making Private Copies In The Cloud: Yes, No, Maybe?, Lucie Guibault

Articles, Book Chapters, & Popular Press

No abstract provided.

Carter V. Canada: What’S Next For Physicians?, Jocelyn Downie

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On Feb. 6, 2015, the Supreme Court of Canada unanimously declared that the Criminal Code prohibitions on physician-assisted dying (both assisted suicide and voluntary euthanasia) violate the Canadian Charter of Rights and Freedoms.1 The Court immediately suspended the declaration, which means that its decision does not come into effect for 12 months. Canadians therefore have a year to prepare for the reality of legal physician-assisted dying, assuming that the federal government does not invoke the notwithstanding clause. In the immediate aftermath of this decision, a key question for physicians is “what can and should physicians do over the coming months …

After Carter V. Canada, Jocelyn Downie

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When it recently struck down the Criminal Code prohibitions on physician-assisted dying, the Supreme Court of Canada gave federal and provincial legislatures 12 months to craft new legislation to meet the conditions set out in its landmark ruling.

The Sydney Tar Ponds Case: Shutting The Door On Environmental Class Action Suits In Nova Scotia?, Meinhard Doelle

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The case comment provides an assessment of the recent class action case in Nova Scotia regarding the notorious Sydney Tar Ponds contaminated site. The comment considers the implications for class actions and for environmental tort law.

From The Octagon To The Courtroom: The Right To Fight, Subaltern Cosmopolitanism, And Public Interest Litigation As Tool For Mixed Martial Arts As A Community/Cultural Normative System, Sara Gwendolyn Ross

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As a new sport, mixed martial arts (“MMA”) has grown wildly in popularity. Yet MMA faces hurdles in legitimization and acceptance through legal, regulatory, and political means. While the MMA community has gone to great lengths to change its image, its internal rules, and regulatory framework—and while most American states and Canadian provinces now legally regulate MMA—certain states, such as New York, continue to ban live professional MMA events.

MMA suffers from a lack of scholarship across many disciplines, including legal scholarship. While the available literature on MMA gradually develops, the minimal legal scholarship related to the matter has concentrated …

The Cycles Of Global Telecommunication Censorship And Surveillance, Jonathon Penney

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Internet censorship and surveillance is on the rise globally and cyber-warfare increasing in scope and intensity. To help understand these new threats commentators have grasped at historical analogies often with little regard for historical complexity or international perspective. Unfortunately, helpful new works on telecommunications history have focused primarily on U.S. history with little focus on international developments. There is thus a need for further internationally oriented investigation of telecommunications technologies, and their history. This essay attempts to help fill that void, drawing on case studies wherein global telecommunications technologies have been disrupted or censored — telegram censorship and surveillance, high …

Effective Aggressiveness And Inconsistencies In The Bijuridical Treatment Of Aggressive Behaviour: Mixed Martial Arts, Bullying, And Sociolegal Quandaries, Sara Gwendolyn Ross

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This paper seeks to address effective aggressiveness and the treatment of aggressive behaviour in the context of MMA in comparison to the balance of the formal Canadian legal landscape. I choose anti-bullying legislation, and its treatment of aggressive behaviour, as a counterexample to the treatment of aggressive behaviour within the MMA regulatory framework. By intertextually linking and superimposing these two categories of legislation, a critical lens drawing on institutional ethnography is applied. This is done to question and deconstruct the differential treatment of aggressive behaviour and the rationale behind the legislative mixed message sent. This lens also allows me to …

Buen Vivir And Subaltern Cosmopolitan Legality In Urban Cultural Governance And Redevelopment Frameworks: The Equitable Right To Diverse Iterations Of Culture In The City And A New Urban Legal Anthropological Approach, Sara Gwendolyn Ross

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Alternative proposed approaches and reactions to development, such as buen vivir subaltern cosmopolitanism,and a counterhegemonic use of hegemonic legal tools, can be used in the urban municipal redevelopment context where dominant urban redevelopment strategies fail to equitably valuate diverse iterations of culture and subculture. This work uses the city of Toronto, Canada as its central case study, specifically its current focus on "culture" as a redevelopment strategy. It also applies critiques of dominant international development strategies to the local municipal context, and advocates the use of urban legal anthropology and transsystemic approaches in assessing the unequal treatment of different cultural …

Hryniak: Two Years Later: The Multiple Applications Of ‘That Summary Judgment Case’ From The Supreme Court Of Canada, Jessica Fullerton, Suzie Dunn

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In January 2014, the Supreme Court of Canada released its decision in Hryniak v Mauldin2 and called for a “culture shift” in the approach to summary judgment and the civil justice system more generally. With the ambitious goal of reducing protracted, costly litigation that undermines access to justice – all the while ensuring the fair and just adjudication of disputes – it is surprising that Hryniak has not garnered more attention.

Or has it? It has been nearly two years since the Supreme Court’s call for change was levied. Since that time, Hryniak has been cited more than 800 times …

The Protection Of Human Rights In The Suppression Of Transnational Crime, Robert Currie

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This chapter examines the troubled relationship between the various legal regimes under which states cooperate to suppress crime and the protection of human rights, specifically the procedural human rights of individuals targeted for investigation in transnational cases. It provides an analysis of what rights protections exist in the context of the suppression treaties themselves, and also whether and to what extent international human rights law imposes obligations on states when they engage in inter-state cooperation in criminal matters (eg extradition, mutual legal assistance). It concludes that despite the topic being an active one for some decades, relatively few hard human …

Examining The Websites Of Canada’S ‘Top Sex Crime Lawyers’: The Ethical Parameters Of Online Commercial Expression By The Criminal Defence Bar, Elaine Craig

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Online advertising has become a primary source of information about legal services. This trend towards web-based marketing of legal services poses new challenges to the regulation of the legal profession. Challenges which, to date, have not been fully met. It also creates a new source of data for researchers studying aspects of the legal profession such as legal ethics, lawyers’ perspectives and strategies, and legal discourse. The objective of this study is to examine the most prominent websites in Canada that advertise legal representation for individuals accused of sexual offences. The study of these websites yielded two types of observations …

From Integrity Agency To Accountability Network: The Political Economy Of Public Sector Oversight In Canada, Jamie Baxter

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The federal integrity agencies that are delegated collective responsibility for public sector oversight in Canada face a common challenge to stabilize their ongoing independence from political control. While Parliament has delegated to these agencies key oversight functions that demand some degree of structural independence, they remain vulnerable to shifting political preferences and to an increasingly partisan national politics. This Article uses a political economy framework to theorize the objectives that shape political preferences for agency independence in Canada, and to suggest that structural innovations in the form of 'accountability networks' may provide one strategy to help stabilize those preferences over …

When Disciplines Collide: Polygamy And The Social Sciences On Trial, Jodi Lazare

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This article draws on the Supreme Court of British Columbia's Reference re: Section 293 of the Criminal Code of Canada [the Polygamy Reference] as a concrete example of the benefits and limitations of intense judicial reliance on social science evidence in the adjudication of constitutional rights and freedoms at the trial level. By examining the evidence tendered, I suggest that the current adversarial model of adjudication is illsuited to combining the legal and the social scientific endeavours. The divergent values, methodologies and objectives of the legal and scientific enterprises severely limit the benefits that the former can yield, thus compromising …

The Cycles Of Global Telecommunication Censorship And Surveillance, Jonathon Penney

Articles, Book Chapters, & Popular Press

Internet censorship and surveillance is on the rise globally and cyber-warfare increasing in scope and intensity. To help understand these new threats commentators have grasped at historical analogies often with little regard for historical complexity or international perspective. Unfortunately, helpful new works on telecommunications history have focused primarily on U.S. history with little focus on international developments. There is thus a need for further internationally oriented investigation of telecommunications technologies, and their history. This essay attempts to help fill that void, drawing on case studies wherein global telecommunications technologies have been disrupted or censored — telegram censorship and surveillance, high …

Cultural Heritage Online? Settle It In The Country Of Origin Of The Work, Lucie Guibault

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This article examines the conditions under which a system of extended collective licensing (ECL) for the use of works contained in the collections of cultural heritage institutions (CHIs) participating in Europeana could function within a cross-border basis. ECL is understood as a form of collective rights management whereby the application of freely negotiated copyright licensing agreements between a user and a collective management organisation (“CMO”), is extended by law to non-members of the organisation. ECL regimes have already been put in place in a few Member States and so far, all have the ability to apply only on a national …

Making Private Copies In The Cloud: Yes, No, Maybe?, Lucie Guibault

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Presentation at the Private Use in EU Copyright Law Seminar, Adam Mickiewicz University in Poznań, Poland.

Is Europe Falling Behind In Data Mining? Copyright's Impact On Data Mining In Academic Research, Christian Handke, Lucie Guibault, Joan-Josep Vallbé

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This empirical paper discusses how copyright affects data mining (DM) by academic researchers. Based on bibliometric data, we show that where DM for academic research requires the express consent of rights holders: (1) DM makes up a significantly lower share of total research output; and (2) stronger rule-of-law is associated with less DM research. To our knowledge, this is the first time that an empirical study bears out a significant negative association between copyright protection and innovation.

The Past, Present, And Future Of Canadian Environmental Law: A Critical Dialogue, Jason Maclean, Meinhard Doelle, Chris Tollefson

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In the critical dialogue that follows, Jason MacLean, an assistant professor at the Bora Laskin Faculty of Law at Lakehead University whose research focuses on environmental law, explores some of the most salient aspects of the past, present, and future of Canadian environmental law with two of Canada’s leading environmental scholars and practitioners: Meinhard Doelle, professor of law and associate dean of research at the Schulich School of Law and director of the Marine & Environmental Law Institute at Dalhousie University; and Chris Tollefson, professor and Hakai Chair in Environmental Law and Sustainability and executive director of the Environmental Law …

The Troubling Role Of Tax Treaties, Kim Brooks, Richard Krever

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The notional purpose of tax treaties is to prevent double taxation and tax evasion. The actual purpose is to reallocate taxing rights between an investor’s home jurisdiction (the residence state) and the host jurisdiction (the source state). The effect is to reduce or remove the taxing rights of a source state (a capital importing state) to leave more room for tax in the residence state (a capital exporting state). The revenue costs of agreeing to reduce taxing rights in a treaty are thought to be offset by other benefits. The benefits may be exaggerated. To the extent they may actually …

Why Feminism Matters To The Study Of Law, Kim Brooks

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Queen’s Law Faculty is home to Feminist Legal Studies Queen’s, a research group that expands awareness and development of scholarship in feminist legal studies, enables the development of feminist legal scholars at Queen's, and fosters connections among feminists with an interest in law. In Fall 2014, I had the privilege of returning to Queen’s Law to give the first seminar in FLSQ’s 2014-2015 lecture series. I was tasked with providing some reflections on why feminist legal theory matters. What follows is the text from the talk.

Review Of The Governance Gap: Extractive Industries, Human Rights, And The Home State Advantage By Penelope Simons And Audrey Macklin, Sara Seck

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The Governance Gap is a long-awaited contribution to the literature, advocating a stronger role for home state governments in the regulation of extractive companies operating abroad. Tis book arises from the experience of the authors as members of the Harker Commission on human security in the Sudan in the late 1990s.3 Written by Penelope Simons4 and Audrey Macklin,5 Te Governance Gap provides a detailed case study of Canadian company Talisman Energy Inc. and its operations in the Sudan between 1998 and 2003—a period during which the Sudan was “in the midst of a violent civil war” and Talisman was operating …

Report From The Restorative Justice Process At The Dalhousie University Faculty Of Dentistry, Jennifer Llewellyn, Jacob Macisaac, Melissa Mackay

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In December 2014, female students in Dalhousie University’s Faculty of Dentistry filed complaints under the University’s Sexual Harassment Policy after they became aware some of their male colleagues had posted offensive material about them in a private Facebook group. The select materials revealed from the Facebook group reflected misogynistic, sexist and homophobic attitudes. At the complainants’ request, the University began a restorative justice process to investigate the matter, address the harms it caused and examine the climate and culture within the Faculty that may have influenced the offensive nature of the Facebook group’s content. Twenty-nine students from the class of …

A Retrospective On The Contributions Of Neil Brooks: So Far, Kim Brooks

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This introduction to a symposium in honour of Neil Brooks originated in opening remarks at a workshop held on 10-11 May 213.

International Tax Policy: The Counter-Story Presented By The Brics, Kim Brooks

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This chapter focuses on the international tax policy directions of Brazil, Russia, India, China, and South Africa (BRICS). The BRICS countries present something of a counter-story to the narrative that international tax law has harmonized. These five countries, major economic and trade players in the world but not members of the Organisation for Economic Co-operation and Development (OECD), have developed their international tax policy with an eye to the approach suggested by the OECD, but not necessarily in conformity with its strictures. This chapter explores the international tax policy directions of the BRICS jurisdictions under the familiar, broad heads of …

The Supreme Court's 2013 Tax Cases: Side-Stepping The Interesting, Important And Difficult Issues, William Neil Brooks, Kim Brooks

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In 2013, the Supreme Court of Canada heard three tax cases. Our review of the year argues that the Court resolved those cases by relying on narrow formalistic points that did little to advance our understanding of tax principles of tax law. In particular, the Court was invited to consider the tax treatment of contingent liabilities assumed by the buyer in a sale of business assets; the taxation of amalgamations that do not meet the qualifying conditions for the applicable rollover provision; and the conditions under which rectification should be available in tax planning.

Rights At Work: Fairness In Personal Work Relations And Restorative Labour Market Regulation, Bruce P. Archibald

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By desire or necessity, virtually all of us work for a considerable portion of our lives. Work defines our social status, determines our degrees of health and happiness and underpins our sense of self. The productivity, efficiency and economic significance of the work we do, in aggregate terms, are critical to the prosperity of the societies in which we live. Moreover, fair treatment in our workplaces is an important aspect of our individual well-being and a mark of the civility and decency of our communities. Many of us expect the law to ensure fairness in our work relations; but increasingly, …

Personal Stare Decisis, Hiv Non-Disclosure, And The Decision In Mabior, Elaine Craig

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This article discusses the concept of personal stare decisis and the issue of horizontal precedent through examination of Canada's jurisprudence on the (over) criminalization of HIV non-disclosure. The Court's reasoning in R v Cuerrier and R v Mabior, as well as the trial decisions decided since Mabior are examined. The point is not to suggest that Justice McLachlin’s approach in Cuerrier offered the perfect solution to this issue. Indeed, as Isabel Grant argues, a better approach would remove non-disclosure of HIV status from the sexual assault criminal law regime and in its stead reintroduce the use of offences such …

No Lawyer For A Hundred Miles? Mapping The New Geography Of Access Of Justice In Canada, Jamie Baxter, Albert Yoon

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Abstract

Recent concerns about the geography of access to justice in Canada have focused on the dwindling number of lawyers in rural and remote areas, raising anxieties about the profession’s inability to meet current and future demands for localized legal services. These concerns have motivated a range of policy responses that aim to improve the education, training, recruitment and retention of practitioners in underserved areas. We surveyed lawyers across Ontario to better understand their physical proximity to clients and how, if at all, that proximity promotes access to justice. We find that lawyers’ scope of practice varies based on a …

Why The Government Of Canada Won't Regulate Assisted Human Reproduction: A Modern Mystery, Jocelyn Downie, Dave Snow, Francoise Baylis

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The Canadian Assisted Human Reproduction Act (AHR Act), passed in 2004, prohibits both paying consideration to a surrogate mother and purchasing sperm and ova from a donor (sections 6-7). Both prohibitions are subject to section 12, which was intended to permit reimbursement of expenditures incurred by surrogate mothers and gamete donors and reimbursement for loss of work-related income for surrogate mothers. Remarkably, more than ten years after the AHR Act received Royal Assent, and in spite of repeated calls for greater legal clarity, Health Canada has not drafted regulations pursuant to section 12 of the AHR Act, which is not …

A Retrospective On The Contributions Of Neil Brooks: So Far, Kim Brooks

Articles, Book Chapters, & Popular Press

This introduction to a symposium in honour of Neil Brooks originated in opening remarks at a workshop held on 10-11 May 2013.