Law Commons^™

The International Maritime Law Response To Climate Change: The Quest For The Shipping Industry's 'Fair Share' Of Ghg Emissions Reduction, Aldo Chircop

Articles, Book Chapters, & Popular Press

This paper discusses the role of international shipping in climate change mitigation, i.e., its emerging contribution to reduce carbon emissions in the wake of the Paris Agreement, 2015 and the expectation that the International Maritime Organization (IMO) will orchestrate the industry's contribution. The adoption of appropriate targets and standards is expected to be a particularly difficult task because of the global and transnational nature of the shipping industry and the difficulty in establishing the basis for a fair contribution for this industry. While considerable progress has been achieved in enhancing technical and operational regulations to improve efficiencies and reduce harmful …

Legislating Tolerance: Article 976 Of The Civil Code Of Quebec And Its Application To Mixed-Income And Mixed-Use City Redevelopment Projects, Sara Gwendolyn Ross

Articles, Book Chapters, & Popular Press

I first examine the increasing need for tolerance required for the cultural sustainability of city redevelopment projects that seek to establish communities of a mixed-use or mixed-income variety. Next, some difficulties that arise in terms of inequality, clashing differences, and a lack of inclusion felt by those within these redeveloped spaces in the urban cores of our cities are discussed with reference to Boaventura de Sousa Santos’s notion of cosmopolitan legal struggles and the subaltern cosmopolitan contact zones generated within the small social spaces of mixed-use and mixed-income developments in the urban core. I then undertake a discussion of article …

Preserving Canadian Music Culture: The Case Of The Silver Dollar Room And The Intangible Cultural Heritage Management Of Urban Spaces Of Culture, Sara Gwendolyn Ross

Articles, Book Chapters, & Popular Press

On January 13, 2015, one of Toronto, Canada’s, iconic live music venues, the Silver Dollar Room, officially received cultural heritage designation pursuant to the City of Toronto By-law 57-2015 under Part IV, Section 29 of the Ontario Heritage Act (“OHA”). What is significant about this designation, is that it was awarded, not on the basis of its physical or tangible heritage attributes but, instead, on the intangible cultural heritage value embodied within the space. Receiving cultural heritage designation is important for the future of the Silver Dollar Room as it has effectively led to the end of plans for its …

The ‘Hart’ Of The (Mr.) Big Problem, Adelina Iftene

Articles, Book Chapters, & Popular Press

In 2014, the Supreme Court of Canada in R v Hart reviewed the application and evidentiary consequences of Mr. Big operation. For the majority, Moldaver J. changed the common law confessions rule so that it applies in Mr. Big scenarios based on a two-pronged test. Immediately after Hart, the SCC rendered a new decision in R v Mack where the two pronged test was leniently applied in favour of the Crown. In this article I argue that the SCC approach in Hart and its application in Mack failed to address to the core problems that Mr. Big operations pose. It …

The Immunity Of The Attorney General To Law Society Discipline, Andrew Martin

Articles, Book Chapters, & Popular Press

English Abstract: The Attorney General is both the minister responsible to the legislature for oversight of the law society and a practicing member of the law society. This dual status raises important questions: Is the Attorney General subject to discipline by the law society? Should she be? This article argues that the Attorney General is immune, absent bad faith, both for prosecutorial discretion and core policy advice and decisions, as well as absolutely immune under parliamentary privilege for anything said in the legislature. The Attorney General enjoys no special immunity otherwise, i.e. for the practice of law outside prosecutorial discretion …

Remuneration Of Authors Of Books And Scientific Journals, Translators, Journalists And Visual Artists For The Use Of Their Works, Europe Economics, Lucie Guibault, Olivia Salamanca, Directorate-General For Communications Networks, Content And Technology (European Commission)

Reports & Public Policy Documents

Europe Economics and the Institute for Information Law at the University of Amsterdam were commissioned by DG Connect to undertake a study on the remuneration of authors of books and scientific journals, translators, journalists and visual artists (all groups are hereafter referred to as “authors”) for the use of their freelance works. The overarching objectives of this study are to analyse the current situation regarding the level of remuneration paid to authors in order to compare the existing national systems of remuneration for authors and identify the relative advantages and disadvantages of those systems for them. We also aim to …

Memorandum Re: Health Canada's 'Draft Guidance' On Section 21.1(3)(C) Of The Food And Drugs Act, Matthew Herder, Trudo Lemmens

Reports & Public Policy Documents

In 2014 Parliament enacted a number of amendments to the Food and Drugs Act, R.S.C. 1985, c. F-27 [hereinafter the “F&D Act”]. Known as “Vanessa’s Law,” these amendments were intended to enhance the regulation of pharmaceutical drugs and thereby protect Canadians from harm by giving the regulator, Health Canada, new powers to, inter alia, recall drugs, require active post-market surveillance, and improve the transparency of information around pharmaceutical drugs. Vanessa’s Law explicitly recognized that “new measures are required to further protect Canadians from the risks related to drugs and medical devices.” (emphasis added) (Bill C-17, An Act to Amend the …

House Of Commons’ Standing Committee On Health: Development Of A National Pharmacare Program, Matthew Herder

Reports & Public Policy Documents

Canada should implement national pharmacare consistent with the principles outlined in the Pharmacare 2020 report. (Morgan et al. 2015a) The best evidence we have shows that national pharmacare will save approximately $7 billion and — more importantly — hundreds of lives each year. (Morgan et al. 2015b)

The issue, then, is not whether to institute national pharmacare, but how. For, even though the need for national pharmacare has been plain since the 1964 Hall Commission, the landscape of medicine and pharmaceuticals has changed dramatically since then.

Of particular note is the pharmaceutical industry’s growing interest in drugs that target relatively …

Spousal Support Advisory Guidelines: The Revised User’S Guide, Rollie Thompson, Carol Rogerson

Reports & Public Policy Documents

This Revised User’s Guide (which we sometimes call the “RUG”) updates and replaces the two previous versions: the original User’s Guide released in July 2008 with the Final Version of the Spousal Support Advisory Guidelines (SSAG); and the New and Improved User’s Guide which we produced in March 2010. The previous versions of the User’s Guide have frequently been cited by the courts in their decisions, and by lawyers in their arguments about the Advisory Guidelines. This version provides us with an opportunity to update the past five years of SSAG case law, as well as to address some practical …

Maximizing The Potential Of The Paris Agreement: Effective Review Of Action And Support In A Bottom-Up Regime, Harro Van Asselt, Thomas Hale, Meinhard Doelle, Achala Abeysinghe, Manjana Milkoreit, Caroline Prolo, Bryce Rudyk

Research Papers, Working Papers, Conference Papers

To succeed, the hybrid model of international climate policy embodied in the Paris Agreement requires countries to deliver their nationally determined contributions (NDCs) and to progressively increase collective and individual efforts over time. The effectiveness of this type of regime will require international review processes that provide robust information about countries’ efforts and trajectories and give substantial opportunities for state and non-state actor engagement with this information. The Paris Agreement creates three different review processes, but leaves critical details regarding each to future decisions: It provides for a review of implementation of individual NDCs under an “enhanced transparency framework”, comprising …

Bend Or Break: Enhancing The Responsibilities Of Law Societies To Promote Access To Justice, Richard Devlin Frsc

Articles, Book Chapters, & Popular Press

There now appears to be a consensus in Canada that we have a serious access to justice problem. Chief Justices have been vocal. The Governor-General has made an intervention. Legal newspapers and websites have weekly, if not daily, stories on access to justice concerns. There have been several thorough reports which both detail the problems and propose possible paths forward. And one CEO of a national law firm has lamented that “access to justice is the legal profession’s equivalent of global warming.”

However, in my opinion, despite all this alarm, attention, and progress, two key components tend to be missing …

Res Extra Commercium And The Barriers Faced When Seeking The Repatriation And Return Of Potent Cultural Objects: A Transsystemic Critical Post-Colonial Approach, Sara Gwendolyn Ross

Articles, Book Chapters, & Popular Press

The repatriation and return of objects of cultural value are often linked to decolonization projects and efforts to repair past wrongs suffered as a result of colonialism. Yet significant barriers hinder these efforts. These barriers primarily take the shape of time limitations, diverging conceptions of property and ownership, the high costs involved, and the domestic export and cultural heritage laws of both the source country and the destination country. I argue that these barriers are relics of colonialism that replicate and perpetuate the continued imposition of Eurocentric and Western legal notions and values on subaltern source countries and source indigenous …

Indian Act By-Laws: A Viable Means For First Nations To (Re)Assert Control Over Local Matters Now And Not Later, Naiomi Metallic

Articles, Book Chapters, & Popular Press

Section 81 in the Indian Act, RSC 1985, c I-5, contains a broad range of subject matters over which Band Councils may pass by-laws. To date, this provision has been underutilized by most First Nation governments. One of the main reasons for this relates to the fact that, for over a hundred years, the Indian Act gave the federal government the power to disallow any such by-laws and Canada historically took a narrow view of the expanse of the Section 81 by-law powers and exercised its disallowance power broadly. Recent amendments to the Indian Act, however, have repealed this disallowance …

Business, Human Rights And The Iba Climate Justice Report, Sara Seck, Michael Slattery

Articles, Book Chapters, & Popular Press

The 2014 Climate Justice Report by the International Bar Association (IBA) makes many recommendations designed to contribute to the fight against climate change. One important step forward is its explicit recognition of the responsibility of business to respect human rights affected by climate change. This commentary explores the extent to which the IBA’s approach to this issue aligns with the business responsibility to respect human rights as described in the 2011 United Nations Guiding Principles on Business and Human Rights. The commentary also considers other international standards that incorporate business responsibilities for human rights in order to determine whether sufficient …

Human Rights And Extractive Industries: Environmental Law And Standards, Sara Seck

Articles, Book Chapters, & Popular Press

The importance of environmental laws and standards for sustainable development of extractive industries has been well recognized by the international community for decades. More recently, the relationship between human rights and environmental protection has received greater attention in light of increased global and local recognition of both substantive and procedural environmental rights. Extractive industries search for, discover and develop natural resources in countries in which the governmental and civil society institutions necessary to protect human rights may not exist or where governments lack the capacity or will to effectively ensure the protection of human rights. Allegations of human rights violations …

El Aborto En El Derecho Transnacional: Casos Y Controversias: Introducción, Rebecca Cook, Joanna Erdman, Bernard Dickens

Articles, Book Chapters, & Popular Press

El debate jurídico y judicial sobre el aborto ha tenido, a lo largo del siglo XX y principios del XXI, importantes revoluciones en su abordaje teórico y práctico, que son expresión de estrategias de sectores sociales, religiosos y políticos que en ocasiones resultan contrapuestas. Éste es un completo balance dinámico sobre las nuevas transiciones actuales y posibles y los desarrollos jurídicos más significativos a nivel transnacional en el tema del aborto, y da cuenta del nuevo desarrollo conceptual que concibe la idea de que no sólo la sanción penal, sino también la amenaza de la sanción penal, ponen en riesgo …

Chilling Effects: Online Surveillance And Wikipedia Use, Jonathon Penney

Articles, Book Chapters, & Popular Press

This article discusses the results of the first empirical study providing evidence of regulatory “chilling effects” of Wikipedia users associated with online government surveillance. The study explores how traffic to Wikipedia articles on topics that raise privacy concerns for Wikipedia users decreased after the widespread publicity about NSA/PRISM surveillance revelations in June 2013. Using an interdisciplinary research design, the study tests the hypothesis, based on chilling effects theory, that traffic to privacy-sensitive Wikipedia articles reduced after the mass surveillance revelations. The Article finds not only a statistically significant immediate decline in traffic for these Wikipedia articles after June 2013, but …

‘And Miles To Go Before I Sleep’: The Future Of End Of Life Law And Policy In Canada, Jocelyn Downie

Articles, Book Chapters, & Popular Press

This paper reviews the legal status of a number of end-of-life law and policy issues that have, to date, been overshadowed by debates about medical assistance in dying. It suggests that law reform is needed in relation to palliative sedation without artificial hydration and nutrition, advance directives for the withholding and withdrawal of oral hydration and nutrition, unilateral withholding and withdrawal of potentially life-sustaining treatment, and the determination of death. To leave the law in its current uncertain state is to leave patients vulnerable to having no access to interventions that they want or, at the other extreme, being forced …

Unlocking The Doors To Canadian Older Inmate Mental Health Data: Rates And Potential Legal Responses, Adelina Iftene

Articles, Book Chapters, & Popular Press

This article is based on a quantitative study investigating the quality of life of older Canadian prisoners. For this study, social science methodology was used to answer certain legal questions, such as: what are the mental health issues of older male offenders and how are these needs influencing the exercise of their legal rights? Are institutions prepared to deal with the increased needs of older offenders? If no, is this an infringement of this group's rights? In this article, the mental health problems of older offenders are first outlined. Second, the legal, policy, and institutional limitations in responding to these …

Section 276 Misconstrued: The Failure To Properly Interpret And Apply Canada's Rape Shield Provisions, Elaine Craig

Articles, Book Chapters, & Popular Press

Despite the vintage of Canada’s rape shield provisions (which in their current manifestation have been in force since 1992), some trial judges continue to misinterpret and/or misapply the Criminal Code provisions limiting the use of evidence of a sexual assault complainant’s other sexual activity. These errors seem to flow from a combination of factors including a general misunderstanding on the part of some trial judges as to what section 276 requires and a failure on the part of some trial judges to properly identify, and fully remove, problematic assumptions about sex and gender from their analytical approach to the use …

The Ethical Identity Of Sexual Assault Lawyers, Elaine Craig

Articles, Book Chapters, & Popular Press

Despite progressive law reforms, sexual assault complainants continue to experience the criminal justice response to the violations that they have suffered as unsatisfactory, if not traumatic. One emerging response to this dilemma involves greater consideration of the ethical boundaries imposed on lawyers that practice sexual assault law. What is the relationship between a criminal lawyer’s ethical duties and the reforms to the law of sexual assault in Canada? How do lawyers themselves understand the ethical limits imposed on their conduct of a sexual assault case? How do lawyers that practice in this area of law comprehend their role in the …

The Inhospitable Court, Elaine Craig

Articles, Book Chapters, & Popular Press

Who speaks and with what authority, who is believed, what evidence is introduced, and how it is presented, is informed not only by the substantive law and the rules of evidence but also by the rituals of the trial. It is from this legal process as a whole that a judge or jury determines the (legal) ‘truth’ about a woman’s allegation of rape. A sexual assault complainant’s capacity to be believed in court, to share in the production of meaning about an incidence of what she alleges was unwanted sexual contact, requires her to play a part in certain rituals …

La Publication En Libre Accès Au Cœur De La Demande Européenne. État Des Lieux Et Enjeux Juridiques En Matière De Diffusion De La Recherche, Lucie Guibault

Articles, Book Chapters, & Popular Press

No abstract provided.

The Adoption Of Mandatory Gunshot Wound Reporting Legislation In Canada: A Decade Of Tension In Lawmaking At The Intersection Of Law Enforcement And Public Health, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

In 2005, Ontario adopted the Mandatory Gunshot Wounds Reporting Act. Over the following decade, seven other provinces and one territory adopted largely identical legislation. While these statutes require health facilities to report gunshot wounds to the police, they are mostly silent on what purpose this reporting is intended to achieve and how police are to use the reports to achieve it. This paper analyzes the legislative history across these nine jurisdictions to identify these features. It demonstrates that the statutes embody an unresolved tension between the purposes of public health and safety, on the one hand, and law enforcement on …

Introduction To "Regulating Creation: The Law, Ethics, And Policy Of Assisted Human Reproduction", Trudo Lemmens, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

In 2004, Canada's Parliament passed the Assisted Human Reproduction Act. Fully in force by 2007, the act was intended to safeguard and promote the health, safety, dignity, and rights of Canadians. However, a 2010 Supreme Court of Canada decision ruled that key parts of the act were invalid. Regulating Creation is a collection of essays built around various components of the 2010 ruling. Featuring contributions by Canadian and international scholars, it offers a variety of perspectives on the role of law in dealing with the legal, ethical, and policy issues surrounding changing reproductive technologies. The book is divided in three …

International Human Rights And The Mistreatment Of Women During Childbirth, Rajat Khosla, Christina Zampas, Joshua P. Vogel, Meghan A. Bohren, Mindy Roseman, Joanna Erdman

Articles, Book Chapters, & Popular Press

International human rights bodies have played a critical role in codifying, setting standards, and monitoring human rights violations in the context of sexual and reproductive health and rights. In recent years, these institutions have developed and applied human rights standards in the more particular context of maternal mortality and morbidity, and have increasingly recognized a critical human rights issue in the provision and experience of care during and after pregnancy, including during childbirth. However, the international human rights standards on mistreatment during facility-based childbirth remain, in an early stage of development, focused largely on a discrete subset of experiences, such …

Land Claim Settlement In Canadian Arctic: Pragmatism And Instrumentalism At Work, Diana Ginn

Articles, Book Chapters, & Popular Press

In Canada, comprehensive land claims based on Aboriginal title can be pursued through either litigation or negotiation. Generally, the relationship between litigation and negotiation of these claims is understood as one where the Supreme Court of Canada initially prodded the Canadian state to action, and then in a series of decisions developed the legal parameters within which the political realities of negotiation occur. Thus, settlement tends to follow and be shaped by the contours of the legal doctrine. However, settlement of land claims in Canada’s Arctic moved ahead of the case law in two key areas, as manifested in: (a) …

Carter, Medical Aid In Dying, And Mature Minors, Constance Macintosh

Articles, Book Chapters, & Popular Press

The Supreme Court of Canada’s decision in Carter v Canada (AG) decriminalized medical aid in dying in certain defined circumstances. One of those circumstances is that the person seeking assistance be an “adult.” This article argues that the regulatory response to this decision must approach the idea of “adult” in terms of the actual medical-decisional capacity of any given individual, and not rely upon age as a substitute for capacity. This article surveys jurisdictions where minors are included in physician-assisted dying regimes, and identifies what little empirical evidence exists regarding requests from minors. The heart of the article considers the …

Polyjural And Polycentric Sustainability Assessment: A Once-In-A-Generation Law Reform Opportunity, Jason Maclean, Meinhard Doelle, Chris Tollefson

Articles, Book Chapters, & Popular Press

The Canadian environmental assessment (EA) regime is broken. At a time when the Canadian economy is both increasingly sluggish and unsustainable, we have an obligation – and perhaps a once-in-a-generation opportunity – to fundamentally reform EA to enable it to finally live up to its promise of promoting sound and sustainability-based decisions. This task is even more pressing in light of the global commitment under the Paris Climate Change Agreement to rapidly transition to greenhouse gas emissions neutrality. Among the many priorities of meaningful EA reform – moving beyond project-level assessments, focusing on net positive contributions to sustainability, avoiding costly …

Fulfilling The Promise: Basic Components Of Next Generation Environmental Assessment, Robert B. Gibson, Meinhard Doelle, A. John Sinclair

Articles, Book Chapters, & Popular Press

This paper outlines the key elements of the next generation EA in Canada. It draws on decades of EA practice and academic literature. It summarizes the working conclusions of a lengthy monograph, which also sets out the broad context and the background of experience with environmental assessment law and practice in Canada. Readers who would like to explore the issues raised in this paper in more detail may wish to consult the monograph online.