Canadian Law Research Articles

Industry-Indigenous IBAs, Confidentiality, and Sustainability

The primary purpose of this chapter is to explore within this context of the systemic failures of Canadian law the implications of industry-Indigenous impact and benefit agreements' (IBAs) public nature for the promotion of environmental protection and sustainability in the broadest possible terms, including but not limited to the environmental rights and interests of the Indigenous parties to IBAs. This chapter questions whether the bilateral and confidential nature of IBAs undermines their ability to promote environmental protection and sustainability. Answering that question affirmatively, the chapter proceeds to argue for carefully-tailored public disclosure of IBAs to ensure that they conduce to the greatest environmental benefit possible. Before undertaking that analysis, however, the chapter proceeds by first providing a brief overview of the concept of sustainability operationalized as experimental “learning by doing.”

Rethinking the Ramifications of Reasonableness Review: Stare Decisis and Reasonableness Review on Questions of Law

The recent fashion in the Canadian law of judicial review is to apply the reasonableness standard of review to virtually any decision rendered by an administrative decision-maker. Reasonableness review is a deferential standard of review that requires a court to ensure that the administrative decision falls within a range of reasonable outcomes that are defensible in light of the facts and law. When reasonableness review is applied to questions of law, the Supreme Court has occasionally ruled that the question admits of only one reasonable interpretation and has affirmed or quashed an administrative decision on that basis.This article addresses the difficult question of whether a judicial decision affirming that a provision admits of only one reasonable interpretation is strictly binding on an administrative decision-maker interpreting that provision in the future. If reasonableness review is premised on deference, then deference ought to apply to an administrative decision-maker’s interpretation of that question in the future, even if it differs from the court’s interpretation. After situating this issue within the principled foundation of the Canadian law of judicial review, this article explores possible solutions to this problem, attempting to balance the need to protect the rule of law against the rationale for deference to administrative interpretations of law in the first place. It ultimately concludes by suggesting that, should Canadian courts continue to apply reasonableness review to virtually all questions of law, a uniquely administrative law approach to stare decisis will need to be developed in order to maintain a coherent and principled system of judicial review.

Emergency response driver training: Dual-task decrements of dispatch communication

The present study examined the performance of law enforcement students during simulated emergency vehicle driver training in order to evaluate to potential of the training program to reduce the negative effects of dual-task driving and to identify aspects of driving performance that are impaired in dual-task conditions among first responders. It has been repeatedly shown that combining driving and cell-phone use significantly impairs driving performance. Although civilians may choose not to communicate while driving, this is not possible for emergency response drivers, especially when responding to a life or death call. This is particularly true for police officers who must be in constant communication with their dispatch operators, as their calls often involve suspect movements or escalated violence. One hundred and fifty six Canadian law enforcement students completed a series of simulated emergency response driving scenarios as part of their regular training. Students’ drives were scored in accordance to the organization’s standards and scores were analyzed to identify areas of impairment that occurred during dual-task requirements. These results indicate that the training alleviated the negative effects of concurrent communication, but speed and lane position maintenance were negatively impacted during the most complex dual-task conditions. Identifying ways to improve driving performance under such conditions is imperative and these results suggest that emphasis on speed and lane position maintenance while communicating within various contexts may be useful to increase the safety of first responders. These results contribute to developing evidence-based training and procedures for first response drivers.

Time for Reform? a comparison of Canadian and English Preference Laws

Sia Vatanchi compares and contrasts the national English and Canadian preference provisions in relation to bankruptcy and insolvency process – suggesting that although both nations are common law countries and share a similar history, the currently state of preference law in London is less effective and sensible than Ottawa’s. The author explains that an emphasis on the subjective motivation of the debtor has proven to be a challenging task for the office-holder to demonstrate, particularly when combined with the defence of commercial pressure. These features have helped to manufacture a regime whereby the pari passu principle underlying preference law is not realised as best possible. Until Parliament institutes reforms aimed at developing a more objective and effects focused system, which requires a greater embracement of the equal-sharing model, English preference law will remain outdated and ineffective.

Political liberalism and the false neutrality objection

ABSTRACT One central objection to philosophical defences of liberal neutrality is that many neutrally justified laws and policies are nonetheless discriminatory as they unilaterally impose costs or confer unearned privileges on the bearers of a particular conception of the good. Call this the false neutrality objection. While liberal neutralists seldom consider this objection to be a serious allegation, and often claim that it rests on a misunderstanding, I argue that it is a serious challenge for proponents of justificatory neutrality. Indeed, a careful examination of recent French and Canadian laws which impede the members of cultural minorities from freely practising their religion reveals that the state can hide its discriminatory aims by cloaking the policies it enacts in neutral language. In order to avoid the problem of false neutrality, I contend, liberal neutralists should defend a combination of neutrality of justification and neutrality of aim and operationalize neutrality of aim through a practical test that has been a defining feature of American jurisprudence on religious freedom in the last thirty years: the general applicability requirement.

Imperious Temptations: Democratic Legitimacy and Indigenous Consent in Canada

AbstractCanadian courts and governments increasingly invoke principles of mutual consent and nation-to-nation negotiation as central to the goal of addressing colonial injustices in a democratic society. However, Canada continues to interpret its obligations according to the Crown's fiduciary obligation to merely consult and accommodate Aboriginal peoples on infringement of their rights. In this article, I argue that there are conceptual resources available within existing Canadian law and politics for reconstructing a democratic consensual resolution to the problem of Indigenous exclusion and dispossession. I demonstrate that meeting the basic threshold of mutual consent would first require Canadian institutions to abjure the imperious temptation to impose parochial standards of free, prior and informed consent. Second, the Crown would refuse to ensnare Indigenous communities in unconscionable bargains, agreements that they would not otherwise view as reasonable, fair or equitable. And finally, Canada would accept rights of jurisdiction over land rooted in vital relations of health and well-being, as well as a corollary right of refusal or veto over decisions deemed by affected parties to be unwanted.

Colonial Copyright Redux: 1709 vs. 1832

The study of colonialism shows us that the law often serves the needs and interests of both the Imperial power and the subjugated country. Concessions are necessary to rule a conquered population. In order to understand Canadian law and the measure of Imperial influence, one must understand the dialogue between the various legal traditions. This essay will examine legal transplants in a historical and colonial context. It will begin with a brief review of Canadian history in order to understand the evolution of Canadian copyright law. It will focus on the creation and significance of Canada’s first copyright legislation. Using the Statute of Anne as a reference point, this essay will describe the evolution of Canadian copyright law on its journey to self-determination during the 18th and 19th centuries. More specifically, this essay will explore the influence of the 1709 Statute of Anne on the 1832 colonial Acte pour proteger la propriete intellectuelle. It will argue that the influence of the Statute of Anne as an expression of the Canadianess of Canadian copyright policy is not to be found in the text of 1832. It can be found in the small prints of the numerous bills and amendments proposed to the English Parliament, in those provisions buried in the text which triggered an open war between Canadian, American and English publishers and stigmatized by the 1847 Foreign Reprints Act. It is in the context of the 1847 piece that the influence of the Statue of Anne and its monopolistic or imperialistic effects can be fully grasped.

Vulnerability, Canadian Disaster Law, and The Beast

This article argues that Canadian law plays a central role in creating and ameliorating conditions of disaster vulnerability. Using the circumstances surrounding the 2016 Fort McMurray wildfire for context, the article identifies and assesses the shared, structural features of Canada’s emergency management laws and their application to “natural” disasters. This article argues that these laws lag behind foundational social science research on disasters. It argues that Canadian emergency management laws fail to incorporate a multi-faceted vulnerability perspective, which leaves communities unnecessarily susceptible to disaster harm. This article offers some preliminary suggestions on how Canadian disaster law can begin to integrate a vulnerability perspective to rectify existing gaps and flaws at all stages of the disaster cycle.

Royal Succession and the Constitutional Politics of the Canadian Crown, 1936–2013

ABSTRACTCanadian governments held opposite views on how to alter the laws of royal succession for Canada in 1936 and 2013. This contrast was not the result of refined thinking about how the law of succession operates in Canada. Rather, the difference is explained by these governments’ political aims and institutional constraints. In 1936, the government of William Lyon Mackenzie King denied that Canada necessarily followed the British line of succession, and he ensured that alterations to the rules of succession that followed the abdication of King Edward VIII were extended into Canadian law. This was done gradually to advance the cause of Canadian autonomy while maintaining the unity of the Crown in the Commonwealth. In 2013, the government of Stephen Harper argued that rules of royal succession were not a matter of Canadian law or a constitutional issue in Canada. Instead, the Harper government maintained that Canada automatically accepts the British monarch as the sovereign of Canada. This approach served to avoid the complex constitutional amending formula Canada adopted in 1982. Constitutional politics, not the law of the constitution, explains how these two Canadian governments fundamentally disagreed with each other over royal succession.

Governance gone wrong: examining self-regulation of the legal profession

ABSTRACTEngland and Australia have abandoned self-regulation of the legal profession, yet Canadian law societies continue to function on this basis. This article argues that the self-regulatory model on which the Law Society of Ontario (the ‘LSO’) operates represents an inadequate form of governance in terms of the accountability it yields. When compared to other organisations, including law societies in other common law jurisdictions as well as corporations, the weaknesses in the LSO's governance model are conspicuous. This article advocates replacing self-regulation in Ontario's legal profession with a co-regulatory regime. In the absence of such an extensive reform, this article puts forward recommendations for changes to the current bencher model of governance on which the LSO is based including the implementation of bencher expertise requirements and a duty of loyalty and a statutory duty of care to the public.

When is Personal Data 'About' or 'Relating To' an Individual? A Comparison of Australian, Canadian and EU Data Protection and Privacy Laws

The definition of “personal information” or “personal data” is foundational to the application of data protection laws. One aspect of these definitions is that the information must be linked to an identifiable individual, which is incorporated in the requirement that the information must be “about” or “relating to” an individual. This article examines this requirement in light of recent judicial and legislative developments in Australia, Canada and the European Union. In particular, it contrasts the decisions rendered by the Federal Court of Australia in Privacy Commissioner v Telstra Corporation Ltd and by the European Court of Justice decisions in Scarlet Extended and Patrick Breyer v Bundesrepublik Deutschland as well as the new General Data Protection Regulation with Canadian law. This article also compares how the three jurisdictions deal with the vexed issue of IP addresses as personal information where the connection between the IP address and a particular individual often raises particular problems.

Constitutional Treatment of Hate Speech and Freedom of Expression: a Canada – U.S. perspective

The present article explores the constitutional treatment of hate speech in Canadian and American law vis-à-vis the paramount place freedom of expression occupies in both legal systems1. The author first pronounces on the conceptional divergence of the freedom, opining that American free speech has retained much of its status as a preferred freedom given its unique historical fomenting process and predilection toward a quasi-absolutist interpretation of the First Amendment. Canada, however, has explicitly declined to institute a hierarchical approach of rights, thus effectively creating a level-playing field through an egalitarian-driven perception of rights when they are in collision. The argument continues by looking into major jurisprudential developments of hate speech in the two respective constitutional orders. Identifying one of the principal legal basis for Canadian courts to strike down constitutional challenges raised in hate speech cases to be strongly grounded in the communitarian understanding of the harm inflicted by hate speech, the observation hints at the distinctively Canadian legal attitude’s overture toward special group rights, multiculturalism, or grosso modo – the promotion of pluralism. The American courts, however, have been reluctant in suppressing speech activity by confiding in a set of extremely narrowly tailored tests to justify constitutional infringements of free speech.

A review of patient-level factors related to the assessment of fitness to stand trial

Under Canadian law, when the issue of fitness to stand trial is raised, a medical professional completes an assessment and provides an opinion of fitness.The Criminal Codedoes not mandate a specific form of fitness assessment, and in the last fifty years, a number of unstructured and structured measures have been created for clinicians’ use. In the last three decades, a multitude of studies have been conducted in the assessment of fitness to stand trial in an attempt to provide a clearer picture of which patient-level factors influence a clinician’s finding of fitness. Previous conclusions on the influence of demographic, psychiatric, criminal, and psycholegal factors have ranged heavily, and research on fitness determinations in Canada is minimal. The purpose of this review is to consolidate the numerous studies to provide an understanding of where future research should be focused so that reliable and valid fitness determinations can be made. Future research should focus on mirroring the unstructured assessments used by clinicians in their studies and then measuring the influence of patient-level factors. Most notably, research should focus on psycholegal factors and their influence on the determination of fitness under the applicable legal standards for fitness across the world.

Linking on the Internet and Copyright Liability: A Clarion Call for Doctrinal Clarity and Legal Certainty

Prompted by the decisions of the CJEU in Svensson and GS Media, this paper attempts to unmask the potential copyright liability of an internet user who engages in hyperlinking, framing and/or inline linking from a principled and conceptually coherent perspective. The overall discourse in this paper will be guided by the following two questions: It is hoped that this paper will offer a rational view of the ongoing debate (and provide sensible answers to these questions) by drawing on the established jurisprudence of the courts in Europe, the UK and elsewhere, as well as by having regard to the various interpretations of the concept of “publication” in the law of defamation (in particular, Canadian law).

Social constructions of fatness: legal proceedings in Canada as a case in point

This article uses reports of cases of Canadian legal processes to explore social constructions of fatness as disability, as well as illness, cultural aesthetic, and blame. The review of cases in Canadian human rights, civil, administrative, and employment law suggests that fatness has been constructed as a disability in Canadian law. This has led to favourable outcomes for fat persons seeking redress for discrimination. Illness, cultural aesthetic, and blame also surface as recurrent themes. To consider all four themes, a concept of mythopoeia – myth-making process – is introduced. This adds to models of social construction by focusing on where ‘un-reality’ is constructed in a non-hierarchical view of marginal identities. Fatness constructions/mythopoeia of disability, illness, cultural aesthetic, and blame overlap as well as diverge. This suggests that fatness may be an incomplete fit with current classifications in human rights law.

Covering in Canada: Potential to Animate Human Rights

This paper seeks to situate Kenji Yoshino’s thesis from Covering: the hidden assault on our civil rights within the Canadian human rights context. The main research question is whether his thesis is of any practical utility within the Canadian human rights statutory framework – that is if there is room for improvement in the current legislation. After examining the case law, one course of action in the Canadian law context is to protect gender expression to gender identity in jurisdictions that have not already chosen to do so. Instead of only protecting the most blatant covering demands related to gender expression, it would be beneficial to apply the protection of gender expression in a very broad manner. “Covering” as defined by Yoshino is an issue applicable to the Canadian legal context under many different protected grounds of discrimination, such as place of origin and sex.

What's in a Name? Shifting Identities of Traditional Organized Crime in Canada in the Transnational Fight against the Calabrian ‘Ndrangheta

The Italian antimafia authorities have warned Canadian law enforcement about the risks and the growing concerns for the infiltration of clans of the Calabrian mafia, known as ‘ndrangheta, in Eastern Canada. 3 The alarm linked to the rise of the ‘ndrangheta challenges the paradigms of traditional organized crime in Canada, because the ‘ndrangheta is presented as traditional but also innovative and more pervasive than other mafia-type groups. Through access to confidential investigations and interviews of key specialist law enforcement teams in Toronto and Montreal, this article investigates today's institutional perception of mafia – the ‘ndrangheta in particular – in Canada when compared to Italian conceptualizations. I will argue that the changes in narratives in Canada can be read in relation to changes in the Italian identity in the country, moving towards regionalization and specialist knowledge of ethnic differences.

Cultural Genocide in Canada? It Did Happen Here.

This article explores the significance of the TRC’s assertion that the establishment and operation of residential schools were a central element of Canada’s Aboriginal policy that can be described as cultural genocide, against the backdrop of Canada’s historical position on cultural genocide and in view of residential schools litigation. It analyzes the deliberations over the United Nations Convention on the Prevention and Punishment of Genocide (The Genocide Convention) in various United Nations (UN) organs, Canada’s historical position, and the selective adoption of the Genocide Convention in Canadian law. My argument is threefold; first, I argue that the TRC assertion is indeed timely. Cultural genocide is not an inferior second-rate type of genocide, although it is not included in the Genocide Convention. Conceptually, cultural genocide is a full-blown genocide, even if it is not legally actionable. Second, Canada shielded itself legally above and beyond claims of genocide as it transplanted the Genocide Convention into Canadian law. Finally, while the cultural genocide phraseology may facilitate a wider scope of tort claims, the absence of appropriate legislation changes means Aboriginal people are likely to continue to view Canadian law as an oppressive settler-state mechanism.The first section of this article explores the notion of genocide as the destruction of cultures and the contextualization of the colonial experience within this notion. The second outlines briefly the drafters’ justification for the exclusion of cultural genocide in the Genocide Convention, the Canadian position with regard to cultural genocide, and the selective manner in which the Genocide Convention was incorporated in Canada’s criminal code. Section three analyzes residential schools litigation within Canada’s narrow, individual-based tort law. Finally, the significance and implications of the TRC conclusion will be discussed.

JUDGING RELIGION AND JUDGES' RELIGIONS

AbstractIn liberal democracies with religiously diverse populations, it would be surprising and troubling if a judge relied on a religious text or precept to resolve a legal dispute. It would deeply offend principles of religious freedom if individuals were bound by judicial pronouncement to obey the dictates of a faith they do not share. However, some commentators have long claimed that a person's cultural worldview has an impact on the way they interpret laws and facts, and there is some empirical support for this claim. There is thus reason to expect that judges’ worldviews have some effect on their decision-making. I argue that when judges deliberately avoid engaging with their own moral perspectives, they may mask to themselves the impact that such perspectives have on their decisions. The alternative of explicit reference to religious sources in judicial decisions, however, is too problematic for the religious freedom of legal subjects. I argue that judges should instead endeavor to be conscious of the influence their backgrounds have on their decision-making, but suggest that judicial institutions may be resistant to adopting practices that would support such an approach. The article draws on Canadian and American case law to demonstrate its argument but has wider applicability to liberal states.

Responsible Communication and Protection of Public Participation: Assessing Canada's Newest Public Interest Speech Protections

This article assesses two new Canadian laws for protecting speech on matters of public interest: defamation's responsible communication defence and the anti-SLAPP provisions in Ontario's Protection of Public Participation Act. The former was adopted by the Supreme Court of Canada in 2009 and seeks to protect speech on matters of public interest – especially journalism. The latter is a procedural mechanism for having actions dismissed at an early stage if they are grounded in expression on a matter of public interest. The article considers the cases and commentary to date in assessing whether the laws’ stated goals are being met. Given the symposium’s focus on “weaponized defamation” (defined as the “use of defamation and privacy torts by people in power to threaten press investigations”), the article pays particular attention to how these laws protect, or fail to protect, journalism. Its focus is, however, broader than weaponized defamation, in that responsible communication and the PPPA provisions are not limited to “those in power” or to “press investigations”. But it is also narrower in that it considers only defamation, not privacy. Both mechanisms are useful tools for protecting speech on matters of public interest, but each has flaws, either inherently or that have developed through their application, that prevent them from better achieving their aims. Responsible communication, although flexible and broad in principle, has been narrowly applied. As a result, communication is found not to be responsible when it arguably is. In addition, the defence is being treated as applicable only to journalists, which is, in my view, a misreading of the Supreme Court of Canada’s Grant decision. As a result, the potential of the responsible communication defence to protect speech on matters of public interest is not being met. Ontario’s PPPA has been successful in getting some SLAPP suits dismissed. However, the serious consequences of a successful PPPA motion mean that courts are sometimes interpreting its provisions unduly narrowly. In addition, it seems that proceedings are rarely dealt with expeditiously, diluting the advantage of the PPPA over a summary judgment motion, for example.