Law Commons^™

Consumption Tax, Double Taxation And The Taxes And Levies (Approved List For Collection) Act (Amendment) Order 2015: The Lingering Labyrinth, Okanga Ogbu Okanga

Articles, Book Chapters, & Popular Press

Nigeria has a long history of legal conflict on fiscal federalism. One dimension borders on who has the power to tax the consumption of goods and services. Although the Nigerian Constitution prescribes how taxing powers are to be exercised between the federal government and the federating units, controversy remains as to the extent of taxing powers exercisable by each tier of government. This is because, apart from the Constitution, a peculiar military-era statute, the “Taxes and Levies Act” prescribes what taxes each tier of government can collect and appears to circumscribe their constitutional taxing powers. The federal government and the …

The Single Contract Basis Of International Corporate Taxation: A Review Of Saipem V Firs, Okanga Ogbu Okanga

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Nigeria's principal corporate tax legislation, the Companies Income Tax Act 1961, stipulates as a basis for the taxation of a nonresident company deriving income in Nigeria, what it terms a “single contract.” This, according to the statute, entails a contract that embodies the activities of surveys, deliveries, installations or construction (common features of what is in common parlance termed a “turnkey project”). A major challenge with the application of the provision lies in the comprehension of the pivotal term, “single contract.” A diversity of views on the import of the term paints a telling picture of ambiguity and underlies the …

Submission: 2018 Legislative Review Of Export Development Canada, Sara Seck, Keith Macmaster, Penelope Simons

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This submission to the 2018 review of Export Development Canada is informed in part by a conference and policy meeting that we hosted in October 2017 on the subject of extractive industries and the human rights of women and girls, at the Human Rights Resource Education Centre in Ottawa. This submission will reflect on some of the insights that emerged from the conference and policy meeting, as well as our own prior and subsequent research. Our submission will focus primarily on Theme 5: Corporate Social Responsibility and Human Rights, which asks whether, in fulfilling its mandate, EDC reflects the expectations …

Employing Older Prisoner Empirical Data To Test A Novel S 7 Charter Claim, Adelina Iftene

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This article builds the case for expanding s 7 of the Charter of Canadian Rights and Freedoms to apply to prison regulations and decisions in the specific context of an aging prison population. As original empirical data shows, prisons are highly insensitive to age-related problems, and inappropriate or insufficient medical treatment receives official sanction from a wide range of correctional documents. The stark inadequacies of the current system endanger older prisoners’ security of the person, and sometimes their lives, in ways that violate their rights under s 7, since the deprivations they suffer result from legislative policies and state conduct …

Challenges And Opportunities Of A Forthcoming Strategic Assessment Of The Implications Of International Climate Change Mitigation Commitments For Individual Undertakings In Canada, Robert B. Gibson, Karine Péloffy, Meinhard Doelle

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Canada is preparing to initiate a challenging, but potentially ground-breaking, strategic assessment on the implications of its climate change mitigation commitments for project assessments. The strategic assessment is immediately needed to provide project-level guidance for decision makers who will be required under new federal legislation to consider the extent to which each assessed project “contributes to sustainability” and “hinders or contributes to” meeting Canada’s climate commitments. However, Canada, like many other countries, has not yet translated its Paris Agreementclimate commitments into an adequate suite of specific policies, pathways, budgets, and other directives for compliance. Consequently, the climate commitments’ strategic assessment …

Strategies For More Inclusive Municipal Participatory Governance And Implimenting Un-Habitat's New Urban Agenda: Improving Consultation And Participation In Urban Planning Decision-Making Processes Through Rapid Ethnographic Assessment Procedures, Sara Gwendolyn Ross

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Based on the findings of an urban legal anthropology project in Toronto, Canada that tracked municipal decision-making practices in relation to development, redevelopment, and heritage preservation in the city and the often unforeseen and unacknowledged effects these can have on marginal, transgressive, and subaltern (subcultural) communities and their community cultural spaces and practices, this article will first turn to a few neighbourhood examples of public consultation processes underway in Toronto and observations of visual (vocal) resistance to faulty consultation practices. These examples reveal some of the realities of public consultation design in Toronto and how it is experienced on the …

Illness, Injury And Medical Deportations At The Frontier: The Canadian Legal Regime For Health Care Protections For Agricultural Migrant Workers, Constance Macintosh

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This paper explores how health interests and rights play out in the temporary agricultural worker regime. In particular, it illustrates how a system that–as discussed below–is formally positioned as granting such workers the same rights as nationals, may not in practice provide equivalent or meaningful protections. The assessment is not just about the social exclusion challenges that often undermine the ability or possibility of migrant workers to activate their legal rights (which is the usual critique of why post-national citizenship writing is overly optimistic), but about how the legal and regulatory system itself misses the mark.

Legal Ethics And The Political Activity Of Government Lawyers, Andrew Martin

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The ability to engage in political activity is an essential feature of a democratic society. However, the ability of government lawyers to do so is unclear. While most governments have passed legislation identifying permissible political activity of their employees, it is unclear how the professional obligations of lawyers apply in this context and how these professional obligations interact with this legislation. This article answers these questions. The duty of loyalty to the client requires most government lawyers to refrain from all political activity at the same level of government. The special professional obligations of Crown prosecutors require these lawyers to …

Why De Minimis Should Not Be A Defence, Stephen Coughlan

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De minimis non curat lex—the idea that the law does not concern itself with trifles—is originally a private law maxim whose applicability in criminal law is uncertain. The author argues that de minimis should not exist as a criminal defence. This article distinguishes the use of de minimis as an (accepted) interpretative principle in criminal law from its application as a defence. In doing so, the author critiques the potential rationales for de minimis offered by Arbour J in Canadian Foundation for Children, Youth and the Law v Canada (Attorney General). Instead, the author draws a parallel between de minimis …

Informal Networks Of Corruption: Assessing The Challenges For Public Sector Whistleblowing In Nigeria, Olabisi D. Akinkugbe

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Recently, the Nigerian government adopted its first National Anti-Corruption Strategy—the first since its independence in 1960. While the strategy captures varying forms of corruption, whistleblowing is seen as one of the key strategies identified to confront anti-corruption in the public sector. The adoption of the whistleblowing policy and its on-going implementation however occurs without a legislative framework to protect whistleblowers. This article situates the whistleblower program in the wider socio-political context of anti-corruption in Nigeria, and public governance. The paper critically examines the implications of the legislative gaps for the long-term sustenance of the whistleblower protection program. This paper argues …

Copla: A Transnational Criminal Court For Latin America & The Caribbean, Robert Currie, Jacob Leon

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States in the Latin American and Caribbean regions have long called for the creation of an independent, international court to prosecute members of transnational organized crime gangs. These organizations not only profit from the illicit traffic in drugs, people and cultural property, but are able to corrupt and undermine the domestic legal systems and judiciaries of the affected states. This paper examines the current proposal for the creation of the "Latin American and Caribbean Criminal Court Against Transnational Organized Crime" (COPLA). It reviews the rationale for creating such a court, examines the main pillars of the current proposal, and suggests …

Understandings Of Self-Managed Abortion As Health Inequity, Harm Reduction And Social Change, Joanna Erdman, Kinga Jelinska, Susan Yanow

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This commentary explores how self-managed abortion (SMA) has transformed understandings of and discourses on safe abortion and associated health inequities through an intersection of harm reduction, human rights and collective activism. The article examines three primary understandings of the relationship between SMA and safe abortion: first SMA as health inequity, second SMA as harm reduction, and third SMA as social change, including health system innovation and reform. A more dynamic understanding of the relationship between SMA, safe abortion and health inequities can both improve the design of interventions in the field, and more radically reset reform goals for health systems …

The Year In Spousal Support: Appeals, Material Changes And More, Rollie Thompson

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At last year’s Family Law Summit, after reviewing the 2016 appeal cases, I focussed my presentation on two SSAG issues: location in the ranges for amount and duration; and the SSAG exceptions. 2016 was a big year for SSAG cases in the Ontario Court of Appeal, notably the decision in Mason v. Mason, 2016 ONCA 725. Mason joins the three other “must-read” SSAG appeal decisions: Fisher v. Fisher, 2008 ONCA 11; Cassidy v. MacNeil, 2010 ONCA 218; and Gray v. Gray, 2014 ONCA 659.

2016 was also the year of the release of the Revised User’s Guide, an updated user’s …

Compliance In Transition: Is Facilitative Compliance Finding Its Place In The Paris Climate Regime, Meinhard Doelle

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The paper explores the current compliance negotiations under Article 15 of the 2015 Paris Climate Agreement. The paper provides an overview of the current state of the negotiations, and considers ways to conclude the negotiations toward an effective compliance system under the Paris Agreement. In the process, the paper explores key differences and similarities between Paris and Kyoto, and identifies possible lessons from the Kyoto compliance experience.

La Saisie De Données Informatiques En Droit Criminel Canadien, Laura Ellyson

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Les implications de l’intelligence artificielle sont complexes lorsqu’il est question de responsabilité criminelle. En effet, même avec un exemple simple tel que les voitures autonomes, il n’est pas évident de déterminer comment le droit criminel pourrait répondre aux problèmes soulevés par ces nouvelles technologies. Dans ce cas précis, serait-ce l’entreprise fabriquant la voiture qui serait respon- sable en cas de conduite dangereuse ou de délit de fuite, l’individu se trouvant derrière le volant au moment des faits ou plutôt le véhicule lui-même ? Bien que pouvant sembler futuristes ou farfelues, ces questions se retrouveront devant les tribunaux probablement bien plus …

Orphans No More: A Review Of Elizabeth Sanderson, Government Lawyering: Duties And Ethical Challenges Of Government Lawyers, Andrew Martin

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Elizabeth Sanderson’s Government Lawyering: Duties and Ethical Challenges of Government Lawyers is the first comprehensive and long-form assessment of why government lawyers are different than lawyers in private practice and why that difference matters. This book review essay begins by setting out Sanderson’s position on a few concepts key to legal ethics for government lawyers: a definition of government lawyers, an account of the duties that apply to them, and the identity of the client. It then goes on to highlight the book’s four major contributions: an emphasis on the role of the Deputy Attorney General as an interface between …

Access To Knowledge And The Global Abortion Policies Database, Joanna Erdman, Brooke Johnson

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Research shows that women, healthcare providers, and even policy makers worldwide have limited or inaccurate knowledge of the abortion law and policies in their country. These knowledge gaps sometimes stem from the vague and broad terms of the law, which breed uncertainty and even conflict when unaccompanied by accessible regulation or guidelines. Inconsistency across national law and policy further impedes safe and evidence‐based practice. This lack of transparency creates a crisis of accountability. Those seeking care cannot know their legal entitlements, service providers cannot practice with legal protection, and governments can escape legal responsibility for the adverse effects of their …

Template Policy Re: Access To Medical Assistance In Dying In Publicly-Funded Institutions, Jocelyn Downie

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Patients are being denied access to assessments for, and provision of, medical assistance in dying (MAiD) in publicly-funded institutions in Canada. Health authorities should implement policies that prohibit forced transfer for MAiD (assessments and provision) unless it can be achieved without undue delay or harm to the patient (as determined by the MAiD Program, not the institution). This is a template policy that health authorities could adopt to ensure access to a legal health service in all publicly-funded institutions (including faith-based institutions) under their authority.

Spousal Support In Quebec: Resisting The Spousal Support Advisory Guidelines, Jodi Lazare

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Since 2005, the Spousal Support Advisory Guidelines have become an essential part of the practice of family law throughout Canada. Aimed at structuring discretionary spousal support determinations under the Divorce Act and increasing the fairness of awards, the Advisory Guidelines have been embraced by appellate courts across jurisdictions. Quebec is the exception to that trend. Despite that marriage and divorce fall under federal jurisdiction, Quebec courts resist the application of these non-binding rules, written by two family law scholars. This article responds to Quebec's resistance to the Advisory Guidelines and suggests that concerns about them may be misplaced. By reviewing …

Can Cyber Harassment Laws Encourage Online Speech?, Jonathon Penney

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Do laws criminalizing online harassment and cyberbullying "chill" online speech? Critics often argue that they do. However, this article discusses findings from a new empirical legal study that suggests, counter-intuitively, that while such legal interventions likely have some dampening effect, they may also facilitate and encourage more speech, expression, and sharing by those who are most often the targets of online harassment: women. Relevant findings on this point from this first-of-its-kind study are set out and discussed along with their implications.

Intellectual Property And Culture, Lucie Guibault

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This paper takes a critical look at the interaction between intellectual property law and culture using three examples, namely: 1) the need to preserve and disseminate culture, through the recognition of cultural heritage institutions' vital role in society; 2) the need to maintain culture from depreciation, through the safeguard of a strong public domain; and 3) the need to let culture evolve, through the protection of Traditional Cultural Expressions (TCE's). This brief study shows that, although IP rights can be said to afford useful protection to objects of culture – taken in the narrow sense of ‘culture’, they can also …

Owning The Right To Open Up Access To Scientific Publications, Lucie Guibault

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Whether the researchers themselves, rather than the institution they work for, are at all in a position to implement OA principles actually depends on the initial allocation of rights on their works. Whereas most European Union Member States have legislation that provides that the copyright owner is the natural person who created the work, the copyright laws of a number European countries, including those of the Netherlands and the United Kingdom, establish a presumption, according to which the copyright of works made in the course of employment belongs initially to the employer, which in this case would be the university. …

Towards Ocean Peace: Resolving Disputes Cooperatively And Empathetically Through Negotiation, Nayha Acharya

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Oceans have immeasurable value. They are replete with natural resources and food sources; they enable transportation and recreation; they regulate earth’s climate. In sum, they make invaluable contributions to our physical, economic, and political well-being. And wherever there is something valuable, there are disputes over how that value should be maintained, grown, owned, and distributed. Internationally, disputes over maritime boundaries, access routes, drilling rights, and resource exploration are prolific. A sizeable bulk of international litigation is generated by ocean disputes. In the domestic context, disagreement among stakeholders as to environmental quality and pollution, natural resource management and conservation, geo-engineering, and …

The Quest For Justice For Victims Of Terrorism: International Law And The Immunity Of States In Canada And The United States, Karinne Lantz

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The paper begins with an overview of international law and the principle of state immunity, which is included to provide a necessary introduction for readers who are unfamiliar with these topics. Part two assesses the practice of Canada and the United States by examining the legislated exceptions to state immunity that allows claims against foreign states that sponsor terrorism, as well as the decision in Tracy (Appeal). Part three returns to international law and explores the decision of the ICJ in Jurisdictional Immunities. This examination calls into question whether, through Tracy (Appeal), Canada has violated Iran’s right to …

Conclusions: The Value Of An Innovation Framework For International Law, Sara L. Seck, Alastair Neil Craik

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The concluding chapter to Global Environmental Change and Innovation in International Law provides an assessment of the value of an innovation framework for further scholarship in the field of international environmental law. The authors note that thinking more systematically about how international law structures innovation and how innovation within law arises has potential to generate new insights into the role of law in the development of sustainable transitions and may provoke greater attention to the sources and processes of legal transformations themselves. Identifying the constraints to legal innovation, particularly in the context of increasingly complex system demands, was identified as …

Deepening The Relational Ecology Of Restorative Justice, Jennifer Llewellyn, Brenda Morrison

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It is our pleasure to introduce and frame this Special Issue of The International Journal of Restorative Justice. This Special Issue seeks to advance and expand thinking, research and practice of a restorative approach at the level of institutions and social systems, from families to workplaces. The articles and notes from the field included here were developed out of the 2016 International Conference in Halifax, Nova Scotia, that shared the title and focus of this issue. The conference was held to fulfil a commitment made by the parties involved in a restorative justice process at the Faculty of Dentistry, Dalhousie …

Edging Towards Principled Ocean Governance: Law Of The Sea And Beyond, David Vanderzwaag

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Elisabeth Mann Borgese is well known for her commitment to advancing the legal order for the improved regulation of the world’s oceans. Her advocacy with respect to the United Nations Convention on the Law of the Sea (UNCLOS) is the subject of other essays in this volume. However, in the decades since 1982, legal principles, sometimes linked to provisions in treaties, have become critical in the global quest for sustainable seas and healthy coastal communities. Principles, such as precautionary and ecosystem approaches, have influenced the negotiation, implementation, and interpretation of international agreements. They may also guide national ocean law and …

Women And Guns, Elaine Craig

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In Gun Control and Women’s Rights in Context: Reflections of the Applicant on Barbra Schlifer Commemorative Clinic v Canada, Amanda Dale not only provides the reader with an embodied account of law that exemplifies the limits of legal discourse, she also offers a compelling (and disheartening) explication of how and why the Stephen Harper government’s repeal of the long-gun registry threatens the lives of women.

As Dale points out, gun control in Canada is different from that in the United States. Canadian gun control laws are, of course, much more robust. For example, restricted weapons, such as handguns, have been …

The Broad Implications Of The First Nation Caring Society Decision: Dealing A Death-Blow To The Current System Of Program Delivery On-Reserve & Clearing The Path To Self-Government, Naiomi Metallic

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On January 26, 2016, the Canadian Human Rights Tribunal (the “Tribunal”) released a watershed decision in a complaint spearheaded by the First Nations Child and Family Caring Society of Canada, its Executive Director, Dr. Cindy Blackstock, and the Assembly of First Nations (the “Caring Society” decision). The complaint alleged that Canada, through its Department of Indigenous and Northern Affairs (“INAC” or the “Department”), discriminates against First Nations children and families in the provision of child welfare services on reserve. In its decision, the Tribunal found that INAC’s design, management and control of child welfare services on reserve, along with its …

Conclusions: The Value Of An Innovation Framework For International Law, Alastair Neil Craik, Sara Seck

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The concluding chapter to Global Environmental Change and Innovation in International Law provides an assessment of the value of an innovation framework for further scholarship in the field of international environmental law. The authors note that thinking more systematically about how international law structures innovation and how innovation within law arises has potential to generate new insights into the role of law in the development of sustainable transitions and may provoke greater attention to the sources and processes of legal transformations themselves. Identifying the constraints to legal innovation, particularly in the context of increasingly complex system demands, was identified as …