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Masthead & Table Of Contents

Dalhousie Law Journal

No abstract provided.

Masthead & Table Of Contents

Dalhousie Law Journal

No abstract provided.

“No Skateboarding Allowed”: Municipal Bylaws, Urban Common And Public Property, And The Regulation Of “Undesirable” Or “Disruptive Use", Sara Gwendolyn Ross

Articles, Book Chapters, & Popular Press

The mechanics of daily local inequality and marginalization can be readily observed within the language of local bylaws that govern urban spaces and places and their use — whether these govern the hours and types of use that can be made of local “public” parks, spaces where loitering is identified as unwelcome, or how and where certain activities can take place. While affinity spaces can be, on the one hand, welcomed and celebrated for the mentorship of youth, extracurricular activity, environmentally friendly transportation, or as a skill-building goal-oriented endeavour, the language of bylaws creates an ecosystem equally predisposed to prohibiting …

Understanding Chilling Effects, Jonathon Penney

Articles, Book Chapters, & Popular Press

With digital surveillance and censorship on the rise, the amount of data available online unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence (AI), machine learning, and facial recognition technology (FRT) for surveillance and data analytics, concerns about “chilling effects”, that is, the capacity for these activities “chill” or deter people from exercising their rights and freedoms have taken on greater urgency and importance. Yet, there remains a clear dearth in systematic theoretical and empirical work point. This has left significant gaps in understanding. This article has attempted to fill that void, synthesizing theoretical and empirical …

Introduction To Julie Bilotta’S Story, Sheila Wildeman

Articles, Book Chapters, & Popular Press

Julie Bilotta’s contribution to this special volume is a straightforward denunciation of prison-based inhumanity and institutionalized misogyny. I write to show solidarity with her and to alert the reader to some of the ways her story exposes intersectional injustice while enlivening feminist abolitionist prison resistance. I write, too, to challenge my own and others’ thinking about whether or how law (litigation, law reform) might contribute to that resistance.

In her essay, Julie offers an intimate glimpse of prisons as sites of reproductive injustice. As this special volume attests, incarceration in Canada and elsewhere produces systematic gendered harms, including lack of …

Animals As Legal Beings: Contesting Anthropocentric Legal Orders, By Maneesha Deckha, Jodi Lazare

Articles, Book Chapters, & Popular Press

Scholarship on animal rights has long been dominated by the widely held idea that justice for nonhuman animals will not be achieved until they are granted legal personhood. In Animals as Legal Beings: Contesting Anthropocentric Legal Orders, Maneesha Deckha provides an alternative legal classification for nonhuman animals. “Beingness,” rooted in relational feminism, post-colonial theory, and critical animal studies, recognizes nonhuman animals’ inherent value, while avoiding some of the downsides to legal personhood, namely, its embeddedness in the imperialist liberal individualism that characterizes western legal systems. Given its anthropocentric nature, personhood must be displaced as the aspirational classification for animals. …

Judicial Workbook On Bill C-92 — An Act Respecting First Nations, Inuit And Métis Children, Youth And Families, Hadley Friedland, Naiomi Metallic, Koren Lightning-Earle

Articles, Book Chapters, & Popular Press

Objective: Based on the purpose, history, textual wording and relevant interpretative principles, these are the approaches to the provisions of the Act that we believe will best achieve its purpose, which Canada has identified as “to protect and ensure the well-being of Indigenous children, families and communities by promoting culturally sensitive child welfare services, with the goal of putting an end to the overrepresentation of Indigenous children in child and family services systems."

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

Articles, Book Chapters, & Popular Press

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.

A Gender-Based Approach To Historical Child Support: Comment On Colucci V Colucci, Jodi Lazare, Kelsey Warr

Articles, Book Chapters, & Popular Press

In June 2021 the Supreme Court of Canada (the “Court”) released Colucci v Colucci, its second decision in twelve months dealing with the complex subject of historical (commonly referred to as retroactive) child support. The case worked a significant shift in the law, arguably the first major revision to the law since the Court’s initial consideration of historical child support in DBS, in 2006. This comment suggests that Colucci represents a new understanding of the way that claims for historical child support should be considered in Canadian family law. The comment argues that in changing the applicable framework, …

Legal Ethics For Government Lawyers: Confronting Doctrinal Gaps, Andrew Martin

Articles, Book Chapters, & Popular Press

Despite the recent growth in the Canadian literature on legal ethics for government lawyers, the leading conceptual models have yet to be applied to resolve many of the most important legal questions facing government lawyers. In this article, I identify four key situations where the obligations of government lawyers as lawyers appear to clash with their obligations as public servants. I provide both a doctrinal analysis of how the current law applies in those situations and proposals for how the law can be clarified and improved. This analysis both provides much needed guidance to government lawyers and promotes a greater …

Masthead & Table Of Contents

Dalhousie Law Journal

No abstract provided.

Non-Consensual Condom Removal In Canadian Law Before And After R. V. Hutchinson, Lise Gotell, Isabel Grant

Dalhousie Law Journal

This paper examines the phenomenon of non-consensual condom removal (NCCR) and its relationship to sexual assault in Canada. Using empirical studies and the insights of feminist theory, we explore the nature of the harms caused by NCCR and contend that this pervasive practice constitutes sexual assault. We then critique the decision of R v Hutchinson, which held that condom sabotage does not negate subjective consent, ignoring the dignitary harms of NCCR. While lower court decisions before Hutchinson recognized that consent to sex with a condom does not include consent to sex without, courts after Hutchinson have struggled to distinguish the …

But Why Him? A Review Of The Tenth Justice: Judicial Appointments, Marc Nadon, And The Supreme Court Act Reference, By Carissima Mathen And Michael Plaxton, Andrew Flavelle Martin

Dalhousie Law Journal

To the great benefit of the Canadian legal community and the Canadian public, the authors have created an extensive, concise, and highly readable account of the Nadon saga. Anyone unfamiliar with the purported appointment of Justice Nadon to the Supreme Court of Canada, the Reference re Supreme Court Act, ss 5 and 6 (also known as the Nadon Reference), and the aftermath will find this book invaluable. I expect this work will become the definitive and authoritative account of this saga and that it will be indispensable to future scholars.

I begin this review with a brief overview of the …

Masthead & Table Of Contents

Dalhousie Law Journal

No abstract provided.

The Incorporation Of Government Lawyering In The Teaching Of Legal Ethics In Canadian Law Schools, Andrew Martin, Leslie Walden

Articles, Book Chapters, & Popular Press

Government lawyers, and the specific legal ethics issues that arise in their practices, remain largely overlooked in Canadian legal education. The authors argue that government lawyering should be better incorporated into legal ethics curricula in law schools, for both practical and conceptual reasons. Most importantly, understanding issues unique to government lawyering helps students better understand core concepts in legal ethics, and thus better prepare for the practice of law both in the public and private sectors. While law teachers face serious challenges in incorporating government lawyering into legal ethics education, many of those challenges can be confronted and ameliorated. The …

Amicus Brief By Amnesty International And Others, Mark Gibney, Gamze Erdem Türkelli, Ashfaq Khalfan, Paula Litvachky, Ana María Suárez Franco, Sara L. Seck, Sigrun Skogly, Nicolás Carrillo-Santarelli, Jernej Letnar Černič, Tom Mulisa, Nicholas Orago, Wouter Vandenhole, Jingjing Zhang

Reports & Public Policy Documents

On September 2, 2020, six Portuguese youth filed a complaint with the European Court of Human Rights against 33 countries. The complaint alleges that the respondents have violated human rights by failing to take sufficient action on climate change, and seeks an order requiring them to take more ambitious action.

The complaint relies on Articles 2, 8, and 14 of the European Convention on Human Rights, which protect the right to life, right to privacy, and right to not experience discrimination. The complainants claim that their right to life is threatened by the effects of climate change in Portugal such …

“Labour Law Is A Subset Of Employment Law” Revisited, Alan Bogg

Dalhousie Law Journal

This article revisits the arguments in Brian Langille’s seminal law review article, “Labour Law is a Subset of Employment Law.” Langille’s article was based upon two main claims: (a) that (individual) employment law should be understood as the “set” and (collective) labour law the “subset” of employment law (the primacy of employment law); (b) that “public values” have priority over “private values” in the regulation of work (the primacy of public values). These two claims were presented as mutually reinforcing in “Subset.” Drawing on specific examples from UK and Canadian law, this article endorses the first claim but rejects the …

Pogg And Treaties: The Role Of International Agreements In National Concern Analysis, Gib Van Ert

Dalhousie Law Journal

Canada’s international treaty obligations have featured prominently in Privy Council and Supreme Court of Canada jurisprudence on Parliament’s power to make laws for the peace, order and good government of Canada (POGG). How treaties ought properly to be used in determining Parliament’s POGG jurisdiction is a constitutionally fraught question. The federal executive cannot be permitted to extend Parliament’s legislative jurisdiction by making promises to foreign states. Yet the existence of treaty obligations is undoubtedly relevant to the question of whether a given subject has become a matter of national concern. In the upcoming Greenhouse Gas Pollution Pricing Act references, the …

The Deliberative Dimensions Of Modern Environmental Assessment Law, Jocelyn Stacey

Dalhousie Law Journal

Environmental assessment (EA) is a cornerstone of environmental law. It provides a legal framework for public decision-making about major development projects with implications for environmental protection and the rights and title of Indigenous Peoples. Despite significant literature supporting deliberation as the preferred mode of engagement with those affected by EA decisions, the specific legal demands of EA legislation remain undeveloped. This article suggests a legal foundation for deliberative environmental assessment. It argues that modern EA can be understood through three public law frames: procedural fairness, public inquiry, and the framework for the duty to consult and accommodate. It further argues …

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

Articles, Book Chapters, & Popular Press

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 …

Mediation, The Rule Of Law, And Dialogue, Nayha Acharya

Articles, Book Chapters, & Popular Press

In this paper the author urges discussion on the legitimacy of mediation processes, a discussion that is not prevalent in legal scholarship. The author argues that mediation outcomes can be inconsistent with the rule of law given that the same case can have a different outcome depending on whether it is litigated or mediated. On the other hand, crucial and valuable aspects of mediation can result in a presumption of legitimacy. With the rule of law critique in mind, the author discusses how dialogue theory can be used to improve upon the mediation process.

The author begins by exploring the …

End-Of-Life Decision Making: Policy And Statutory Progress (2011-2020), Jocelyn Downie, Mona Gupta, L. Wayne Sumner, Joshua Wales

Reports & Public Policy Documents

In 2009, the Royal Society of Canada (RSC) identified a series of urgent scientific and public policy questions. It established a series of five Expert Panels to study the issues and provide recommendations for next steps. It is now timely to revisit the findings of these Expert Panel Reports. What impact have they had? Have their recommendations been implemented? What are the next steps in terms of policy options?

To answer these questions, the RSC is establishing Policy Briefing Committees (PBC) to:

• describe the context, findings, and recommendations of the report;
• track policy developments in relation to the panel’s findings …

Does The Attorney General Have A Duty To Defend Her Legislature’S Statutes? A Comment On The Reference Re Genetic Non-Discrimination Act, Andrew Martin

Articles, Book Chapters, & Popular Press

The Reference Re Genetic Non-Discrimination Act was unusual because the Attorney General for Canada argued that federal legislation was unconstitutional. In this comment, I explore the implications of this choice for the role of the Attorney General and her relationship with Parliament. I argue that the Attorney General has a duty not to defend legislation, including legislation that began as a private member’s bill, that she reasonably believes to be unconstitutional – and that if Parliament wants to defend such legislation, it should do so itself instead of relying on the Attorney General. If Parliament does not do so, the …

A Relational Analysis Of Enterprise Obligations And Carbon Majors For Climate Justice, Sara L. Seck

Articles, Book Chapters, & Popular Press

A coherent theory of climate justice must answer the question of “who owes what to whom, and why?” In this paper I consider this question with a focus on the contribution of business enterprises, in particular the ‘carbon majors’, to climate injustice. I will first introduce a relational approach to legal analysis, drawing upon the work of feminist and vulnerability theorists, Indigenous feminist theorists, and feminist corporate and international law theorists. This relational approach confronts the dominant yet unacknowledged prevalence of the bounded autonomous individual of liberal thought in diverse areas of law and policy, and offers a method not …

Creative And Responsive Advocacy For Reconciliation: The Application Of Gladue Principles In Administrative Law, Andrew Martin

Articles, Book Chapters, & Popular Press

A s a response to the estrangement and alienation of Indigenous peoples from the Canadian justice system, Gladue principles are central to reconciliation in sentencing and other criminal law contexts. However, the role of Gladue principles in administrative law more broadly remains uncertain. In this paper, I argue that the factors underlying Indigenous peoples’ estrangement and alienation from the justice system indicate estrangement and alienation from the administrative state itself, and thus Gladue principles appropriately apply in administrative law contexts. Using the results of a comprehensive search of reported decisions by tribunals and by courts on judicial review, I analyze …

From Attorney General To Backbencher Or Opposition Legislator: The Lawyer’S Continuing Duty Of Confidentiality To The Former Client, Andrew Martin

Articles, Book Chapters, & Popular Press

This note uses a recent incident from Manitoba to reflect on the professional duty of confidentiality owed to the Crown by a former Attorney General as lawyer. The duty of confidentiality survives the lawyer-client relationship. As a fiduciary, the lawyer cannot disclose or use the client’s confidential information for her own benefit or the benefit of a third party, or against the client. These obligations constrain the former Attorney General in her conduct as an opposition legislator and suggest that she should not accept an appointment as Justice critic for her caucus. While parliamentary privilege protects the former Attorney General …

The Opioid Crisis As Health Crisis, Not Criminal Crisis: Implications For The Criminal Justice System, Haley Hrymak

Dalhousie Law Journal

The criminal justice system’s response to the opioid crisis exacerbates risks faced by people using drugs and is harmful to public health. Interviews with 11 interviewees including defence counsel, probation officers, and public interest lawyers and advocates revealed three key challenges of working in the criminal justice system during the opioid crisis. First, there is a lack of understanding of addiction within the criminal justice system. Second, as a result of the opioid crisis, fentanyl trafficking sentencing decisions in British Columbia emphasize the need for lengthier prison sentences, which disproportionately affects people who use substances. Third, the conditions on bail …

The Implications Of Federalism For The Regulation Of Federal Government Lawyers, Andrew Flavelle Martin

Dalhousie Law Journal

The implications of Canadian federalism for the regulation of lawyers for the federal government are largely overlooked in the literature and case law. This article argues that employees of the federal government can practice law without being licensed by the corresponding provincial law society (or any law society). However, if they happen to be licensed by a law society, they can be disciplined by that law society—unless and until Parliament adopts legislation immunizing them from law society discipline. The article also considers the possibility that Parliament could create a separate bar for federal government lawyers. It concludes that some form …

View Corridors, Access, And Belonging In The Contested City: Vancouver’S Protected View Cones, The Urban Commons, Protest, And Decisionmaking For Sustainable Urban Development And The Management Of A City’S Public Assets, Sara Gwendolyn Ross

Articles, Book Chapters, & Popular Press

Majestic views of mountains, sky, and sea are essential components of the visual and experiential identity of Vancouver, Canada. The experience of these vistas supplements other urban realities, such as suffocating living expenses and inequality. This Article explores a recent example of urban contestation over Vancouver’s view corridors as a shared public resource and public asset. As this Article explores, exclusion from access to public assets that provide meaning to daily life — such as the mountain views in question — damage an urban citizen’s sense of identity and belonging in a city through a hierarchical experience of access and …

Lest Law Forget: Locke's Toleration And Religious Freedom, Stephen Holt

LLM Theses

The Canadian Charter of Rights and Freedoms guarantees every person in Canada freedom of conscience and religion. I contend that the concept of religious freedom was born out of a history of religious suffering and originally took the form of John Locke’s toleration of religious differences. In Big M, the first Supreme Court of Canada case that interpreted s. 2(a), Chief Justice Dickson recognized the historical context of religious freedom but also tied it to human autonomy, equality, and dignity. An examination of the cases since Big M suggests that when courts think in terms of tolerance, they accord greater …