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Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

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Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …

Navigating The Structural Coherence Of Sea Life, Aldo Chircop, Philip Steinberg, Greta Ferloni, Claudio Aporta, Gavin Bridge, Kate Coddington, Stuart Elden, Stephanie C. Kane, Timo Koivurova, Jessica Shadian, Anna Stammler-Gossmann

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Ice breaking by ships can cause irreparable harm to the ecologies and cultures of northern regions. This chapter revolves around a central question: what are the barriers preventing the development of a legal mechanism to limit this act of environmental violence? The chapter suggests that the central barrier is not so much legal as it is ontological: foundational conceptions of space that underpin Western legal institutions are unable to value the form of water, reducing it instead to an ed space that is used for movement or resource extraction. This chapter demonstrates how a consideration of the environmental violence of …

Doing Business Guidance, Legal Origins Theory, And The Politics Of Governance By Knowledge, Liam Mchugh-Russell

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This article uses the World Bank’s Doing Business project to illuminate the politics of “governance by knowledge.” It synthesizes scholarship critiquing the project’s legitimacy and contributes to research challenging the instrumental benefits of improved Doing Business performance. The article’s major contribution is an immanent critique of Legal Origins Theory, which was developed largely to provide ex post validation for the project’s core claims, but whose premises, when taken seriously, lead to conclusions that contradict its “one-size-fits-all” logic. The article demonstrates much can be learned about the politics of development by engaging rationalizations of power on their own terms.

Consultation On How To Implement Canada's Cusma Commitment To Extend The General Term Of Copyright Protection, Carys Craig, Ariel Katz, Lucie Guibault, Graham Reynolds, Bita Amani, Sara Bannerman, Pascale Chapdelaine, Myra Tawfik, Samuel Trosow

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As a group of Canadian Intellectual Property Law scholars, we write regarding the Ministers’ recently launched consultation on extending the term of copyright protection in order to meet Canada’s CUSMA commitments. With this letter, which we jointly submit in response to the call for comments, we wish to express our shared concerns about both the proposed term extension and, more immediately, the inappropriately curtailed nature of this consultation process.

Transforming Restorative Justice, Jennifer Llewellyn

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From the global pandemic to the Black Lives Matter, the Me Too/Times Up and Indigenous reconciliation and decolonisation movements, the systemic and structural failures of current social institutions around the world have all been brought to our collective consciousness in poignant, painful and urgent ways. The need for fundamental social and systemic transformation is clear. This challenge is central to the work of dealing with the past in countries undergoing transition and in established democracies confronting deep structural inequalities and injustices. Rooted in lessons from the application of restorative justice across these contexts, this article suggests that grounding restorative justice …

The Non-Lawyer Attorney General- Problems And Solutions, Andrew Flavelle Martin

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In this article, I provide a legal and policy analysis of the non-lawyer Attorney General and recommendations for legislative change. I begin in Part 1 by setting out and assessing Askin and its uptake in the case law and literature. I demonstrate that while the decision in Askin has two major weaknesses, the reasoning is presumably applicable across the country.7 In Part 2, I examine the legal consequences of Askin and its policy or practical consequences. I argue that it threatens the government’s solicitor-client privilege and that it leaves the non-lawyer Attorney General unconstrained by the law of lawyering more …

Judicialization Of Election Disputes In Africa's International Courts, James Thuo Gathii, Olabisi D. Akinkugbe

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This article assesses what benefit losers of high-stakes national elections think they will get from petitioning international courts in Africa. We seek to establish how judicial intervention differs before an election when there is a risk of an international law violation, versus after an election has occurred and the result is viewed as flawed. We address these questions by drawing on a set of disputes decided by international courts in Africa in the African Court, the Economic Community of West African States (“ECOWAS”) Community Court of Justice, and the East African Court of Justice. We supplement our analysis by discussing …

Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe

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The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of …

Judicial Nullification Of Presidential Elections In Africa: Peter Mutharika V Lazarus Chakera And Saulos Chilima In Context, Olabisi D. Akinkugbe, James Thuo Gathii

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In contemporary Africa, the judicialization of presidential elections between incumbents and challengers in courts is becoming increasingly visible. The latest example of this judicialization is the Malawi case of Peter Mutharika v Lazarus Chakera and Saulos Chilima, which successfully triggered a repeat election in which an opposition politician defeated an incumbent. This article examines the consequences and implications of this case and compares the Malawi decision to cases in Kenya and Nigeria. It further analyzes the backlash on the Malawi justices from the executive and the subsequent solidarity seen from both legal and civil society. The article concludes that the …

The Government Lawyer As Activist: A Legal Ethics Analysis, Andrew Martin

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Can a lawyer and government employee represent the government in her professional life while being an activist in her personal life? There is a striking and seemingly irreducible clash, at least at the intuitive level, between the two roles – between representing the government on the one hand while at the same time lobbying it or litigating against it on the other. Government lawyers are nonetheless some of the more successful activists in recent Canadian history. This article analyzes whether this duality is problematic from a legal ethics perspective. The analysis is grounded in three case studies: disability rights activist …

Judicial Nullification Of Presidential Elections In Africa: Peter Mutharika V Lazarus Chakera And Saulos Chilima In Context, James Thuo Gathii, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

In contemporary Africa, the judicialization of presidential elections between incumbents and challengers in courts is becoming increasingly visible. The latest example of this judicialization is the Malawi case of Peter Mutharika v Lazarus Chakera and Saulos Chilima, which successfully triggered a repeat election in which an opposition politician defeated an incumbent. This article examines the consequences and implications of this case and compares the Malawi decision to cases in Kenya and Nigeria. It further analyzes the backlash on the Malawi justices from the executive and the subsequent solidarity seen from both legal and civil society. The article concludes that the …

Transparency Too Little, Too Late? Why And How Health Canada Should Make Clinical Data And Regulatory Decision-Making Open To Scrutiny In The Face Of Covid-19, Sterling Edmonds, Andrea Macgregor, Agnieszka Doll, Ipek Eren Vural, Janice Graham, Katherine Fierlbeck, Joel Lexchin, Peter Doshi, Matthew Herder

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Hard-won gains in the transparency of therapeutic product data in recent years1 have occurred alongside growing reliance by regulators upon expedited review processes.2 The concurrence of these two trends raises fundamental questions for the future of pharmaceutical regulation about whether the institutionalization of transparency will foster improved oversight of drugs, biologics, vaccines, and other interventions, or else, provide cover for a relaxing of regulatory standards of safety, effectiveness, and quality.3 The urgency of the COVID-19 pandemic, however, has brought this tension into immediate and sharp relief. During the course of the global health crisis, regulatory bodies have markedly expanded the …

Editorial, Lucie Guibault

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1 This issue marks the tenth month into the COVID-19 pandemic. Since March 2020, we have learned to live with the more or less strict public health measures put in place to ‘flatten the curve’ of infection from the virus. Words like ‘social distancing’, ‘mask wearing’, and ‘lockdowns’ have taken an entirely new meaning. In spite of these measures, the human toll is huge, most clearly among frontline workers and vulnerable people. While the curve is far from flat in most countries, the pandemic has brought to light the long time unacknowledged persistence of systemic inequalities: figures show that poorer, …

Sustaining Canadian Marine Biodiversity: Policy And Statutory Progress, Jeffrey A. Hutchings, Julia K. Baum, Susanna D. Fuller, Josh Laughren, David Vanderzwaag

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A 2012 Expert Panel Report on marine biodiversity by the Royal Society of Canada (RSC) concluded that Canada faced significant challenges in achieving sustainable fisheries, regulating aquacul- ture, and accounting for climate change. Relative to many countries, progress by Canada in fulfilling international obligations to sustain biodiversity was deemed poor. To track progress by Canada since 2012, the RSC struck a committee to track policy and statutory developments on matters pertaining to marine biodiversity and to identify policy challenges, and leading options for implementation that lie ahead. The report by the Policy Briefing Committee is presented here. It concluded that …

Searching For “Superchief” And Other Fictional Indians: A Narrative And Case Comment On R V Bernard, Naiomi Metallic

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In R v Bernard, 2017 NBCA 48, the New Brunswick Court of Appeal upheld the lower courts’ reasoning that a Mìgmaw man living in the traditional Mìgmaq hunting territory of St. John, New Brunswick could not exercise his Aboriginal rights to hunt because he could not prove he descended from the particular subgroup of Mìgmaq who were at St. John at the time of contact with Europeans. In deciding so, the Court of Appeal rejected the argument that the Mìgmaq, as a nation, are the appropriate rights holders and ought to be the body deciding who can exercise the Mìgmaw …

The Attorney General's Forgotten Role As Legal Advisor To The Legislature: A Comment On Schmidt V Canada (Attorney General), Andrew Martin

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In Schmidt v Canada (Attorney General), the Federal Court of Appeal interpreted a series of provisions requiring the Minister of Justice to inform the House of Commons if government bills or proposed regulations are “inconsistent with” the Canadian Charter of Rights and Freedoms or the Canadian Bill of Rights. The Federal Court of Appeal, like the Federal Court below, held that these provisions are triggered only where there is no credible argument for consistency. In doing so, both Courts relied, in part, on a separation of powers argument. They stated that the Minister of Justice and Attorney General is not …

Proceedings Of Expert Forum On First Nations Social Assistance Reform, September 3, 2019, Naiomi Metallic, Fred Wien

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Social assistance, whether directed to the mainstream population or to First Nations, is not – according to Forum participants -- a sexy topic. Specifically, with respect to First Nation persons living on reserve in Canada, it has been largely a neglected field except for those directly responsible for administering it. Despite its substantive importance, it has not received a lot of attention from the academic research community, for example, nor is it usually near the top of the list of priorities for political leaders and governments.

Why is this the case? Perhaps it has to do with the history of …

The Spousal Support Advisory Guidelines, Soft Law, And The Procedural Rule Of Law, Jodi Lazare

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The Spousal Support Advisory Guidelines facilitate discretionary spousal support determinations under the Divorce Act. Non-binding in nature, they are expected to restore some transparency to an uncertain and unpredictable remedy and to benefit dependent spouses who might previously have been deterred from claiming support. They may thus be seen as an important tool for advancing economic justice at family breakdown and promoting substantive economic gender equality. Several Canadian appellate courts have enthusiastically endorsed them. Others object to their application, grounding their resistance in their unofficial and non-binding character. This paper responds to that objection, based on the constitutional separation of …

The Science, Law, And Politics Of Canada's Pathways To Paris: Introduction To Ubc Law Review's Special Section On Climate Change And Canada, Jason Maclean, Meinhard Doelle, Chris Tollefson

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This brief essay introduces two articles comprising a special section of the UBC Law Review on climate change law and policy in Canada.

Legal Ethics And Canada's Military Lawyers, Andrew Martin

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English Abstract: Military lawyers—lawyers who are legal officers in the Canadian Forces— are virtually ignored in the Canadian legal literature. This article assesses what appear to be the most striking potential legal ethics issues facing military lawyers. Several of these issues arise because military lawyers are both lawyers and military officers at the same time, and therefore face two sets of obligations that interact in complex ways. Some issues, however, arise because of the special practice contexts of military lawyers, for example, advising military commanders on the law of armed conflict. As context for this discussion, the article examines the …

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 …

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 …

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 …

Courts In Federal Countries: Federalists Or Unitarists?, Hannah Steeves

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This book is the product of a comparative research project completed by the Forum of Federations and supported by the Government of Quebec. The Forum of Federations has the goal of linking academic research to real world practices and is supported and funded by international partners. Courts in Federal Countries: Federalists or Unitarists? contributes directly to this goal by providing a well-rounded, highly informed, comparative approach to the topic of the structural issues of federalism. This text is the first of a larger, forthcoming, seven volume series on federalism to be developed by the Forum of Federations.

The Supreme Court Of Canada And Federalism: Does / Should Anyone Care Anymore?, A. Wayne Mackay

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Federalism is still a relevant and vital aspect of Canadian Constitutional Law. Although a lower profile aspect than the Charter of Rights and Aboriginal rights (and in common parlance less "sexy"), the division of powers continues to an important part of the work of the Supreme Court of Canada and part of what defines us as a nation. The author argues that the Supreme Court has pursued an increasingly contextualized approach to division of powers issues - one that abandons the arid legalism of earlier days, in favour of a broad social analysis of issues based on extensive use of …

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

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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 …

Consent To Psychiatric Treatment: From Insight (Into Illness) To Incite (A Riot), Sheila Wildeman

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The aim of this chapter is to go back to the basics on consent to treatment, starting with the right to refuse and building from there. Part II addresses the leading judicial statements on the value of medical self-determination, and in light of these statements, considers what is at stake in psychiatric treatment choice. Part III explores the three core elements of valid consent to treatment -- namely that consent be voluntary, informed and capable -- with attention to variation in the law amongst provinces and territories, and some lines of analysis and critique specifically applicable to mental health care …

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 …

Tsilhqot'in Nation V. Bc: Reconfiguring Aboriginal Title In The Name Of Reconciliation, Constance Macintosh

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In the text that follows, I start by explaining how Canada's behaviour in the Tsilhqot'in litigation undercuts, rather than fosters, the potential for a relationship of trust, which is foundational for reconciliation. In particular, I argue that Canada's behaviour suggests federal disregard for the state roles and responsibilities that the Supreme Court of Canada has found are mandated by the recognition and affirmation of Aboriginal and treaty rights in section 35 of the Constitution Act, 1982. I then focus on the judgment of the Court of Appeal. As discussed below, the Court of Appeal upheld the trial judge's decision, but …

Legal Ethics Versus Political Practices: The Application Of The Rules Of Professional Conduct To Lawyer-Politicians, Andrew Martin

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Canadian legal ethics has paid little attention to how the rules of professional conduct for lawyers apply to lawyer-politicians – that is, politicians who happen to be lawyers. This article addresses this issue with reference to what Canadian case law and commentary do exist, supplemented by more plentiful American materials. It proposes a distinction between conduct that is politically expedient and conduct in which lawyer-politicians’ duties as lawyers come into apparent conflict with their duties of office. Canadian case law reveals three conflicting approaches to this latter category: that the duties of a lawyer prevail, that the duties of a …