Canadian Law Research Articles

Discarding Old Prejudices: Judicial Precedent and Aboriginal Title

This talk on judicial precedent and Aboriginal title combines legal history and current law. The legal history is important because it informs the current law. It also reveals the racism in Canadian law that retarded the development of the concept of Aboriginal title until the 1970s. My discussion of the early case law focuses on St. Catherine’s Milling and Lumber Co. v. The Queen, decided by the Privy Council in 1888. It was the leading judicial precedent on the source and content of Aboriginal title right up to the Supreme Court of Canada’s 1973 decision in Calder v. Attorney General of British Columbia. The question in St. Catherine’s was this: Did the Crown in right of Ontario or the Crown in right of Canada benefit from the surrender by the Saulteaux people of the Anishinaabe Nation of their Aboriginal title by Treaty 3 in 1873?

Combating Violent Extremism: Voices of Former Right-Wing Extremists

While it has become increasingly common for researchers, practitioners and policymakers to draw from the insights of former extremists to combat violent extremism, overlooked in this evolving space has been an in-depth look at how formers perceive such efforts. To address this gap, interviews were conducted with 10 Canadian former right-wing extremists based on a series of questions provided by 30 Canadian law enforcement officials and 10 community activists. Overall, formers suggest that combating violent extremism requires a multidimensional response, largely consisting of support from parents and families, teachers and educators, law enforcement officials, and other credible formers.

Remedies for violations of Indigenous peoples’ human rights

Current Canadian law on remedies for violations of Indigenous peoples’ rights is quite limited. It is limited in part because, under Canadian law, the protection of Indigenous rights is limited. The ability of governments to justifiably limit these rights means that, even if a claimant successfully proves an interference with a right, it often seems as though the courts defer to the government’s arguments on the need to limit the right, undermining the goal of constitutionally entrenching these rights. In contrast to domestic jurisprudence, international human rights bodies have ordered fairly robust remedies that both vindicate rights and are meant to deter government from engaging in activities that further violate Indigenous peoples’ rights. As expressed here, the challenge of gaining effective remedies in Canada is intimately linked to the challenge of poor rights recognition in Canada. This article begins with a brief discussion of why Indigenous peoples have turned to international human rights law for recognition and protection of their rights to further highlight the need to bring these international standards into Canadian domestic law. Next, the article briefly considers some of the rights that are generally protected in international human rights law, including how the understanding of these rights has evolved over time to demonstrate the similarity with the issues that are raised domestically in Canada to support the argument that Canadian courts should be guided by international reparation orders for violations of Indigenous peoples’ rights. The article then overviews some of the remedies ordered from various international human rights bodies for violations of Indigenous peoples’ rights and the function these orders play in the protection of Indigenous peoples’ rights. The article concludes with some recommendations for Canadian courts on how remedies could be ordered to better protect Indigenous peoples’ rights and deter government action that violates these rights.

Interim remedies and constitutional rights

Interim remedies are granted before the court has been able to come to a final determination of the issues raised by the case. Canadian courts are reluctant to grant interim remedies that would restrain the application of a constitutionally challenged law. Ordinarily, the public interest in the orderly administration of duly enacted laws has been found to prevail over the claimant’s right to interim protection of a claimed constitutional right. This article examines the reasons used to justify this cautious approach and argues that it is not entirely consistent with the Charter’s promise of effective remedies. The rule limiting consideration of the merits of the claim on interim applications should be relaxed, especially where refusing an interim remedy will cause the immediate and irretrievable loss of a constitutional right. This would bring Canadian law into line with English, American and international law and would better protect fundamental rights and freedoms. Greater use should be made of interim remedies that exempt litigants from constitutionally challenged laws rather than suspend the operation of the law entirely.

The Interaction of Perceived Subjectivity and Pay Transparency on Professional Judgment in a Profit Pool Setting: The Case of Large Law Firms

ABSTRACTThis paper examines how the interaction of perceived subjectivity and pay transparency in profit allocation is associated with an important aspect of law partners' professional judgment, namely their tendency to accede to the wishes of their client and fellow partner (labeled hereafter as partner accedence). Based on interviews with 56 corporate law partners working in large Canadian law firms, we find higher partner accedence in a less subjective system than in a more subjective system, but only under no pay transparency. We find that pay transparency (versus no transparency) is associated with increased accedence in a more subjective system, but it is marginally associated with decreased accedence in a less subjective system. In an experiment where we randomly assign MTurk participants to conditions, we replicate the finding that pay transparency (versus no transparency) has a more positive effect on partner accedence as subjectivity level increases.Data Availability: Lawyers participated in the study upon which this paper is based only after signing agreements that strict confidentiality of all data would be maintained by the researchers. As such, we are bound by these confidentiality agreements with individual lawyers interviewed for the study. Experiment data from Amazon Mechanical Turk are available from the authors.JEL Classifications: M12; M40; M52.

Monitoring progress toward United Nations commitments: characteristics of Canadian legislation to promote tobacco control, physical activity and healthy eating. A descriptive study.

Legal interventions are important mechanisms for chronic disease prevention. Since Canadian laws to promote physical activity and healthy eating are growing, we compared the characteristics of legal interventions targeting physical activity and healthy eating with tobacco control laws, which have been extensively described. We reviewed 718 federal, provincial and territorial laws promoting tobacco control, physical activity and healthy eating captured in the Prevention Policies Directory between spring 2010 and September 2017. We characterized the legislation with regard to its purpose, tools to accomplish the purpose, responsible authorities, target location, level of coerciveness and provisions for enforcement. Two-thirds (67.9%) of tobacco control legislation had a primary chronic disease prevention purpose (explicit in 5.3% of documents and implicit in 62.6%), and 29.5% had a secondary chronic disease prevention purpose. One-quarter (27.0%) of physical activity legislation had a primary chronic disease prevention purpose (explicit in 8.8% of documents and implicit in 18.1%), and 53.0% had a secondary chronic disease prevention purpose. In contrast, 69.3% of healthy eating legislation had no chronic disease prevention purpose. Tobacco control legislation was most coercive (restrict or eliminate choice), and physical activity and healthy eating legislation was least coercive (provide information or enable choice). Most tobacco control legislation (85.8%) included provisions for enforcement, whereas 47.4% and 24.8% of physical activity and healthy eating laws, respectively, included such provisions. Patterns in responsible authorities, target populations, settings and tools to accomplish its purpose (e.g., taxation, subsidies, advertising limits, prohibitions) also differed between legislation targeting tobacco control versus physical activity and healthy eating. Legislative approaches to promote physical activity and healthy eating lag behind those for tobacco control. The results serve as a baseline for building consensus on the use of legislation to support approaches to chronic disease prevention to reduce the burden of chronic disease in Canadians.

Structural intersectionality and Indigenous Canadian youth who trade sex: understanding mobility beyond the trafficking model

Indigenous young people in Canada who trade sex frequently move locations as part of their survival tactics in negotiating the myriad vulnerabilities they face. Both Canadian law and social activists label all such mobility “trafficking”, which conceals the ways in which Indigenous youth are forced by structural factors beyond their control to be mobile to survive. Two politically opposed frameworks have been offered for understanding sex trading by Indigenous youth. While each explains some vulnerabilities faced by these young people, both overlook others. We posit mobility and sex trading as strategic responses to the material and ideological conditions faced by Indigenous young people, but strategic responses rooted in vulnerability and rife with exploitation. Ultimately, we argue that mobility is a response to vulnerability rather than its source.

Performance of Physically and Chemically Activated Biochars in Copper Removal from Contaminated Mine Effluents

The increasing global demand for metals and minerals justifies the intensive study of treatment options for contaminated mine effluents. The present study evaluated the conversion of wood residues into physically and chemically activated biochars and their subsequent use in the treatment of Cu in synthetic and actual contaminated mine drainage. First, wood residues were converted into biochar by fast pyrolysis. Then, physical (using steam or CO2) or chemical (using KOH) activation was carried out in a homemade pilot-scale furnace. After activation, highly microporous (KOH materials) and micro/mesoporous activated biochars (CO2 and steam materials) were obtained. Batch adsorption testing was first conducted with synthetic effluents. Results showed that CO2-activated biochar was the most Cu effective adsorbent (99% removal) at low concentrations (5–20 mg L−1). The mechanisms of Cu2+ adsorption involved physical and chemisorption for biochars and CO2-activated biochar, while chemisorption for KOH-activated biochars was probably due to the high proportion of functional groups connected to their surface. In multi-metal acid mine drainage, metal adsorption capacities deteriorated for most of the materials, probably due to the effects of ion competition. However, KOH-activated biochar decreased Cu2+ concentrations to below the authorized monthly mean allowed by Canadian law (0.3 mg L−1) and decreased Co, Pb, and Mn concentrations up to 95%. These findings indicate that high porosity and oxygenated functional groups connected to the surface of activated biochars are important properties for the enhancement of interactions between carbon materials and metals from mine effluents, as well as for their performance improvement in mine drainage treatment.

The Difficulties of Combating Inequality in Time

Scholars have argued that disadvantaged groups face an impossible choice in their efforts to win policies capable of diminishing inequality: whether to emphasize their sameness to or difference from the advantaged group. We analyze three cases from the 1980s and 1990s in which reformers sought to avoid that dilemma and assert groups’ sameness and difference in novel ways: in U.S. policy on biomedical research, in the European Union's initiatives on gender equality, and in Canadian law on Indigenous rights. In each case, however, the reforms adopted ultimately reproduced the sameness/difference dilemma rather than transcended it. To explain why, we show how profound disagreements about both the histories of the groups included in the policy and the place of the policy in a longer historical trajectory of reform either went unrecognized or were actively obscured. Targeted groups came to be attributed a biological or timeless essence, not because this was inevitable, we argue, but because of these failures to historicize inequality.

Direct Discrimination and Indirect Discrimination: A Distinction with a Difference

Since Meiorin, it can be tempting to think that in Canadian law, the distinction between direct discrimination and indirect discrimination is now a distinction without a difference. The same analytical framework applies to both kinds of discrimination, and both can yield liability, so one might think that focusing on the distinction pointlessly distracts from the substantive concerns of discrimination law. However, I take a different view. In the context of Canadian human rights codes, the distinction remains significant. Despite attempts to abandon the distinction, the distinction seems to hold intuitive appeal and carries practical benefits. I submit that it is a distinction with a difference: it encourages adjudicators to consider more carefully discrimination without discriminatory intent, thus identifying cases of genuine discrimination they might otherwise miss.

Overbreadth in Canadian Patent Law

Under the overbreadth doctrine, a claim that exceeds the scope of the invention disclosed in the specification is invalid. While the doctrine is well established, it is redundant in the great majority of cases in which it is invoked, as an overbroad claim typically encompasses subject-matter which is not new, lacks utility, or is obvious. When overbreadth is not redundant, a puzzle arises: what is the principled justification for striking down a claim to an invention which is in fact new, useful, non-obvious and sufficiently disclosed? In such a case, how can it be said that the claim is broader than the invention? This article argues that overbreadth properly arises as an independent ground of invalidity in the context of the “roads to Brighton” problem, in which the question is whether the first inventor to achieve a result known to be desirable may claim the result itself or only their particular method of achieving it, but current Canadian law on this point does not require or invoke an independent overbreadth doctrine. Overbreadth was also applied as a truly independent ground of invalidity by the Federal Court of Appeal in Amfac Foods Inc. v Irving Pulp & Paper, Ltd. This article argues that Amfac was wrongly decided, both on its facts, and in its approach to overbreadth. The article warns that the Amfac approach, if widely adopted, risks invalidating patents for inventions which are new, useful and non-obvious, on the basis of an arbitrary parsing of the disclosure, in a manner reminiscent of the promise doctrine.

Learning, Doing and Teaching Together: Reflecting on our Arts Based Approach to Research, Education and Activism with and for Women Living with HIV

Body Mapping has been used for thousands of years by people who want to achieve a better understanding of themselves, their bodies and the world they live in. Artist Jane Solomon and psychologist Jonathan Morgan transformed Body Mapping for the “Long Life Project”, during the Médecins Sans Frontières (MSF) roll-out of antiretrovirals in Khayelitsha township, South Africa in 2001. Body mapping enables participants to tell their stories in the face of intense HIV/AIDS stigma. We adapted Body Mapping for the Women, Art and Criminalizaton of HIV Non-Disclosure (WATCH) study, a community arts based research (CBR) approach to better understand the impact that Canadian laws criminalizing HIV non-disclosure have on women living with HIV. Our national team includes women living with HIV, service providers, and researchers. This reflection illustrates our collective and iterative process of learning, teaching and doing body mapping workshops with women living with HIV in Canada. We share our experiences of coming to Body Mapping as an arts-based approach to CBR, how our roles as researchers stretched to include community-based education, advocacy, and group facilitation, and how we embodied the artist-researcher identity as we disseminate our research in ways that actively engage the general public on laws criminalizing HIV nondisclosure laws vis-à-vis Body Mapping galleries.

The Right to be Forgotten: The Potential Effects on Canadian

Since the introduction of the right to be forgotten to European law in 2014, many Western countries have contemplated whether the right could be applied to their citizens. In October 2018, Canada’s Privacy Commissioner asked the Federal Court of Canada to decide if the right is a Canadian fundamental right. However, the right to be forgotten has caused a lot of issues in Europe due to its vagueness and if Canada’s Federal Court rules in favour of making the right a Canadian right, changes will need to be made to it to protect Canadian archives. This paper explores the right to be forgotten and discuss the potential effects the right may have on Canadian archives by exploring the origins of the right, how third-party search engines are currently handling the right, Canadian laws and policies surrounding privacy and the right to know and Canadian archival practices.

Lessons from Canadian Courts for All Expert Witnesses.

Expert witnesses have a special place in court, bringing their knowledge and skills in the form of opinion evidence to educate the court. This allows the fact-finder to make legal decisions more effectively. Although experts are often allowed a role in civil and criminal matters, this brings certain risks to the court process. Admissibility of expert witness testimony in Canada has generally paralleled American law, including the standards enunciated in Daubert v Merrell Dow Pharmaceutical, Inc. (1993). Recently, there has been a series of decisions in Canadian law that has focused on the role of the expert witness in the court. Although only having precedence in Canada, these cases highlight important legal principles that all expert witnesses must navigate, regardless of their jurisdiction. We review these significant cases to assist forensic psychiatrists in recognizing and professionally navigating potential pitfalls in giving expert opinions.

Contributory Infringement in Canadian Law

Contributory infringement arises when a party knowingly supplies a direct infringer with a product especially adapted for use in a patented invention. Canadian courts have regularly stated that there is no liability for contributory infringement in Canadian law, in the absence of inducement. This article shows that there are nonetheless few cases actually refusing to impose liability on a contributory infringer, and none at the appellate level. The article argues that the reasoning and results in almost all the leading cases support a rule that supply of a product especially adapted to infringe, and with no substantial non-infringing use, constitutes indirect infringement, even in the absence of active inducement. The current shape of the law is a result of a misreading of the early leading case of The Copeland-Chatterson Company Ltd v Hatton, in combination with the problematic decision in Slater Steel Industries Ltd v R. Payer Co, which is the only prominent case refusing to impose liability in such circumstances. Slater Steel has been confined to its facts in both subsequent Court of Appeal decisions to address it, and this article argues that Slater Steel was wrongly decided on its facts. The article concludes that it is open to the courts to recognize that liability for contributory infringement may be imposed in Canadian law.

Crossing Worlds: South–North Collaborations as Creative Encounters with Arts, Humanities and Sciences

ABSTRACT The humanities and the arts are increasingly in crisis, yet have never been more needed. To illustrate challenges and possibilities in this crisis, we give examples of collaboration between north and south; and amongst scientists, artists, humanities and legal scholars. As a Canadian law professor and a South African visual arts scholar who co-founded a Johannesburg community art centre, we describe our collaborative work and its lessons. Overall, our work strengthened our convictions that while the humanities are in crisis, they are also in a state of becoming, hope and possibility. We describe two examples: HIV/AIDS prevention work in the early 2000s when artists and humanities resources helped stem the tide of infections in the midst of scientific misinformation about how the disease was spread. Our second example is a seminar abroad for Canadian law students in South Africa. As the responsible faculty members, we integrated arts and humanities pedagogies into the students’ experiences. Students found many encounters unsettling, and arts methods both ameliorated and, in some cases, accented, their discomfort. Discomfort, when normalised and engaged, gave way to curiosity and growth. This work proved useful in addressing broader questions of the role of arts and humanities in future democracies.

The Role of Provinces, States, and Territories in Shaping Federal Policy for Indigenous Peoples’ Health

ABSTRACT Under both Canadian and United States law, the availability and quality of healthcare and health services to Indigenous peoples are primarily a federal responsibility. Nevertheless, sub-national authorities—most importantly provinces, states, and territories—play a crucial role by virtue of covering (often through federal mandate) services, and regulating health facilities and health personnel off-reserv(ation). While both federal governments have undertaken efforts to transfer, within their fiduciary obligations, their responsibilities for Indigenous peoples’ health to the management of Indigenous peoples themselves, that transfer has considered or included provincial, state, and territorial authorities and resources unevenly, and, in some cases, in tension with the objectives of respecting standards for quality and access. This article applies the methodology used by Canadian researchers of the sub-national health authority issue to the health transfer experience in the United States. The article summarizes findings that demonstrate similar deficiencies as those present in the Canadian transfer process. The article further outlines the experiences of Hawai`i and Ontario as offering models through which to address some of these deficiencies. The article finally suggests that there is a positive relationship between greater participatory models adopted by provinces, states, and territories and better health outcomes among Indigenous groups so included.

What Habeas Corpus Can (and Cannot) Do for Immigration Detainees: Scotland v Canada and the Injustices of Imprisoning Migrants

AbstractThis paper closely studies Scotland v Canada to reveal the normative and substantive justice challenges facing immigration detainees across Canada. The Scotland decision at the Ontario Superior Court certified a habeas corpus writ as an individual remedy to release Mr. Ricardo Scotland from a pointless, seventeen-month incarceration. The decision frames Mr. Scotland’s detention as anomalous or divergent from an otherwise-functioning system. Against this view, this paper argues that access to habeas corpus cannot remedy the detention system’s scale of injustices. The paper contextualizes Mr. Scotland’s incarceration and the Superior Court decision against two primary claims: first, that the Canadian immigration and refugee determination system is arbitrarily biased against certain minoritized individuals, therefore transforming some people into detainable bodies; and second, that the global criminalization of migration trend has nested an arc of penal practices into Canadian policymaking and law, and this arc has seemingly normalized indefinite detention for some migrants. The paper concludes that restoration of access to habeas corpus cannot be understood as a substantive remedy to address the miscarriages of justice in the Canadian detention system.

Denying Assisted Dying Where Death is Not ‘Reasonably Foreseeable’: Intolerable Overgeneralization in Canadian End-of-Life Law

The recent change in Canadian law to allow access to medical assistance in dying restricts eligibility, among its other criteria, to those for whom “natural death has become reasonably foreseeable.” A recent review of certain aspects of the law examined the evidence pertaining to extending access to assisted dying in three particular request situations currently denied: requests by mature minors, advance requests, and requests where mental illness is the sole underlying medical condition [1]. The requirement for this review was included in the legislation that introduced medical assistance in dying in Canada. Both the original change in the law and the review itself neglected to consider those with intolerable suffering for whom natural death is not reasonably foreseeable. This paper explores the possibility that access to assisted dying should be extended by removing this limiting criterion. It also considers the ethical challenges this might present for those who work in rehabilitation.

The Constitution of Canada as Supreme Law: A New Definition

Not only is there no clear answer in Canadian law as to what the 'supreme law' of Canada comprises, but no agreement on how to find that answer. In this short paper, we claim to solve the problem by proposing a new, workable, definition of the Canadian Constitution as supreme law that discards the document list approach of subsection 52(2), Constitution Act 1982, in favour of one that, through subsection 52(3), is based on the constitutional amendment procedure of Part V, which relates to provisions.