Moore on The Past, Present, and Future of Law Reform in Canada

Marcus Moore, University of Oxford, Faculty of Law, has published The Past, Present, and Future of Law Reform in Canada at 6 Theory and Practice of Legislation 225 (2018). Here is the abstract.

The story of institutional law reform in Canada has been described by one veteran as ‘somewhat troubling.’ It is a story not without significant successes: In Québec civil law, the codifications were remarkable achievements which realised sweeping and highly-esteemed reforms. Among Canadian common law provinces, Ontario founded the Commonwealth’s first law reform commission in 1964, and as early as 1967 Alberta innovated the now internationally-influential joint venture design of its commission. Further, Canada’s original national commission was notable for its ambitious pursuit of social issues, and the second national commission challenged conventional legal paradigms at unparalleled depth. Across the country, many law commissions were established. Yet, what is ‘troubling’ is how many, including long-established and prominent commissions, were since closed or constrained, impeded from accomplishing what they might have. Meanwhile, in Québec civil law, the codifiers’ repeated calls for a permanent commission have gone unheeded. What does the future hold for institutional law reform in Canada? In Québec civil law, there are some signs of movement towards reform continuity. An important question will be whether processes of continuous incremental reform can be developed and managed to alleviate reliance on overwhelming legal overhauls. Elsewhere in Canada, a few Canadian provinces that shuttered commissions have since re-established them in altered forms. The common themes of austerity, ideology, and alleged redundancy in the downfall of past Canadian commissions remain an ever present concern to the survivors, as they simultaneously confront newly emerging challenges. Time will tell whether, because of their experience in reforming themselves in response to their troubling story to date, Canada’s law commissions may be best-positioned to meet institutional law reform’s challenges of the future.

Download the article from SSRN at the link.

McCormack on How and When Canadian Courts Cite the Major Philosophers @QueensULibrary

Nancy McCormack, Queen's University Faculty of Law, has published When Canadian Courts Cite the Major Philosophers: Who Cites Whom in Canadian Caselaw. Here is the abstract.

This paper discusses the results of a search of Canadian case law from 1860 to 2016 to determine which major philosophers (born before 1900) were cited most and least often (or never), as well as which judges and courts cited them. The survey indicates that judges from every level of the Canadian courts have, over the years, made explicit references to major philosophic figures in their decisions. Many of the citations deal with eminently practical matters, but the courts have also thought it beneficial to call upon the philosophers for a variety of more strictly “philosophic” notions, for example, Thomas Aquinas on the doctrine of free will, and Bertrand Russell on logical constructions. Who cites whom and in what context and jurisdiction is set out in detail.

Download the article from SSRN at the link.

Beaulac on Post-World War I/Quiet Revolution (1920-1970) Through the Lenses of Legal Interpretations and International Law @DroitUDM

Stephanie Beaulac, University of Montreal, Faculty of Law, is publishing Post-World War I/Quiet Revolution (1920-1970) – Through the Lenses of Legal Interpretations and International Law in Celebrating 150 Years of Caselaw in Canada (E. Mendes, ed. Toronto: LexisNexis, forthcoming). Here is the abstract.

The first theme is legal interpretation. What appears to be a mere matter of methodology in the discipline has ramifications in all areas of substantive law, through the impact of the Constitution, and by means of a generous approach to the whole corpus of law in this country. A significant case in the 1930s changed the paradigm according to which courts give meaning to the written law found in constitutional documents, and this change eventually extended to all legislative texts. The decision by the Judicial Committee of the Privy Council in Edward v. Canada (Attorney General), with what later became known as the metaphor of the “living tree”, marked the end of an era of strict legal construction and the beginning of a new model to ascertain the intention of the constituting authority in the Constitution Act, 1867, and also later in the Constitution Act, 1982 and the Canadian Charter. The second theme is interlegality, or the rules concerning the interaction between international law and domestic law, including the conclusion of treaties and the use by courts of non-national normativity. Again, it was in the 1930s when the courts of highest instance for Canada laid down the foundations for understanding the dynamic at play in this regard in the so-called Labour Conventions case. Indeed, given the principle of the separation of powers, as well as the federal structure of our country, the Privy Council had to find an equilibrium not only among the branches of governments, but also between the two levels (or orders) of constitutional authorities. In the end, this case recognized the plenitude of power of the federal government for the conclusion of international treaties, while holding that dualism meant that the (federal) Crown could make treaties, but that Parliament and the provincial legislatures needed to give legal effect to such conventions by means of statutes. The domestic implementation of treaty obligations had to be in line, rigorously, with the division of legislative powers under the Constitution. This articulation of interlegality has remained the applicable scheme to this day, although one feature has been challenged at the political level. Indeed, during the Quiet Revolution in the 1960s, the province of Quebec started to claim its own jus tractatus. Thus the second section of this chapter ends with a look at the “Gérin-Lajoie” statement. Finally, the conclusion will examine the significance of these historical developments for contemporary public law in Canada.

Download the full text of the essay from SSRN at the link.

Dodek, Woolley, and Wells on Ethical Lawyering: Stories From the Canadian Legal Profession

Adam M. Dodek, University of Ottawa, Common Law Section, Alice Woolley, University of Calgary, and Paul Wells, Maclean's, have published Front Matter for In Search of the Ethical Lawyer: Stories from the Canadian Legal Profession, in In Search of the Ethical Lawyer: Stories from the Canadian Legal Profession (UBC Press, 2016). Here is the abstract.

This paper contains the front matter - Table of Contents, Foreword by Paul Wells of Maclean's and the Introduction - to this book. We wrote this book in order to attempt to tell the stories about some important cases and people in Canadian legal ethics. All too often appellate cases and texts strip out the facts from cases. However, as any good lawyer will attest, the facts matter. Our goal in writing this book was to put the people back into the conversation about law, at least when it comes to Canadian legal ethics. In Search of the Ethical Lawyer contains stories about important cases, issues and people in Canadian legal ethics. It includes chapters by David Asper, Constance Backhouse, Janine Benedet, Brent Cotter, Richard Devlin, Adam Dodek, Trevor Farrow, Allan Hutchinson, Micah Rankin, Lorne Sossin and Alice Woolley. Here is the Table of Contents: Foreword / Paul Wells Introduction / Adam Dodek and Alice Woolley 1 Keeping Secrets or Saving Lives: What Is a Lawyer to Do? / Adam Dodek 2 Putting Up a Defence: Sex, Murder, and Videotapes / Allan C. Hutchinson 3 "No One’s Interested in Something You Didn’t Do": Freeing David Milgaard the Ugly Way / David Asper 4 "Begun in Faith, Continued in Determination": Burnley Allan (Rocky) Jones and the Egalitarian Practice of Law / Richard F. Devlin 5 Feminist Lawyering: Insiders and Outsiders / Janine Benedet 6 Gender and Race in the Construction of "Legal Professionalism": Historical Perspectives / Constance Backhouse 7 The Helping Profession: Can Pro Bono Lawyers Make Sick Children Well? / Lorne Sossin 8 A New Wave of Access to Justice Reform in Canada / Trevor C.W. Farrow 9 Michelle’s Story: Creativity and Meaning in Legal Practice / Alice Woolley 10 Ian Scott: Renaissance Man, Consummate Advocate, Attorney General Extraordinaire / W. Brent Cotter 11 Gerry Laarakker: From Rustic Rambo to Rebel with a Cause / Micah Rankin

Download a sample from SSRN at the link.



 

Liston on Substance and Process in Canadian Public Law

Mary Liston, University of British Columbia School of Law, is publishing Transubstantiation in Canadian Public Law: Processing Substance and Instantiating Process in Public Law Adjudication in Common Law Systems: Process and Substance (John Bell, Mark Elliott, Jason Varuhas, and Philip Murray, eds.; Oxford, 2015). Here is the abstract.

Canadian public law blurs process and substance, a result confirming the prevailing view that this dichotomy ought never to be conceived as a simplistic bright-line distinction. Recent developments have created more than just a blurring but, rather, a strong linking or even fusion of the two. This paper probes the implications of these developments in public law. Section two briefly presents the historic and jurisprudential distinctions between process and substance and assesses its current legal import. Here I argue that judicially created analytic frameworks could assist by bringing a process-substance problem to the surface and constraining its potentially pernicious effects. Section three grounds this initial discussion in Canadian public law by showing how the distinction generally appears in judicial review of procedures in administrative law. The decisional framework employed in procedural fairness is examined. Sections four and five turn to two significant new developments in Canadian public law. Section four considers how the duty to consult and accommodate in public law completely fuses process and substance. Aboriginal administrative law currently provides the most vibrant and dynamic jurisprudential example of the conceptual puzzles that the distinction raises and its decisional framework exemplifies many of the tensions discussed in the paper as a whole. Section five examines the new Canadian approach to the substantive review of discretionary decisions and how the current decisional framework may fall short in terms of rights protection. The paper concludes that the ‘transubstantiation’ of process and substance is conceptually and legally desirable due to the cross-fertilization of rule of law and democratic norms in public law and that improved decisional frameworks could fruitfully assist in this cross-fertilization.

Download the essay from SSRN at the link.

DesBaillets on Magna Carta and Contemporary Canadian Law

David DesBaillets, University of Quebec at Montreal (UQAM), Faculty of Law; University of Ottawa, Faculty of Law, has published Symbolism and Significance: The Place of Magna Carta in Contemporary Canadian Law. Here is the abstract.

When the e-mail arrived in my inbox inviting me to view the Magna Carta I was, as I imagine any law student would be, utterly thrilled. The event was part of the international celebration of the 800th anniversary of the ancient Latin legal document from the 13th century BCE that would see a handful of surviving copies tour the world, including a Canadian sojourn, and be given the sort of red carpet treatment normally reserved for rock stars and foreign heads of State.

Download the article from SSRN at the link.

Constitutional History and National Identity In Canada

Eric M. Adams, University of Alberta Faculty of Law, is publishing Canadian Constitutional Identities in volume 38 of the Dalhousie Law Journal. Here is the abstract.

Constitutions are stories nations tell about themselves. Despite the famous declaration in the Constitution Act, 1867 that the “Provinces of Canada…Desire…a Constitution similar in Principle to that of the United Kingdom,” most of Canada’s constitutional history can be understood as the search for a distinctly Canadian constitutional identity. Canadians have always looked to their constitutional instruments to both reflect and produce a particular vision of the nation and its citizens. This article focuses on the search for Canada’s constitutional identity during its first century as a nation, from Confederation until the 1960s. Drawing on a varied array of sources and voices, this article argues that the powerful yearning for identity operated as a driving force in Canadian constitutional law, politics, and culture in an era before the catalytic arrival of the Canadian Charter of Rights and Freedoms.

Download the text of the article from SSRN at the link.

Canadian Journal of Women and the Law/Special Issue: After Equality

Now available via Project MUSE

Canadian Journal of Women and the Law/Revue Femmes et Droit

Volume 27, Number 1, April 2015 

Special Issue: After Equality / Après l'égalité

http://bit.ly/cjwl271pm

Introduction: After Equality

Robert Leckey, Régine Tremblay              

Introduction : Après l'égalité

Robert Leckey, Régine Tremblay              

D'un mythe à l'autre : de l'ignorance des lois à la présomption du choix éclairé chez les conjoints en union libre

Hélène Belleau

Nouvelles normativités de la famille : la garde partagée au Québec, en France et en Belgique

Denyse Côté, Florina Gaborean

Vulnerability, Equality, and Animals

Maneesha Deckha         

Comprendre le besoin de reconnaissance légale en matière de pluriparentalité : pistes de réflexion à partir des coparentalités gaies et lesbiennes

Cathy Herbrand               

Surrogates in Quebec: The Good, the Bad, and the Foreigner

Régine Tremblay             

Cohabitation Reform in England and Wales: Equality or Equity

Simone Wong   

               

Book Reviews / Chroniques bibliographiques

Elizabeth A. Sheehy, ed., Sexual Assault in Canada: Law, Legal Practice and Women's Activism, reviewed by Doris Buss and Jennifer Koshan

Robert Leckey, ed., After Legal Equality: Family, Sex, Kinship, reviewed by Darren Rosenblum

Submission Information

The CJWL/RFD is Canada's oldest feminist legal periodical. Since it began in 1985, the journal has provided a forum in which feminist writers from diverse backgrounds, speaking from a wide range of experience, can exchange ideas and information about legal issues that affect women. We are looking to build on this tradition and remain committed to reflecting a diversity of political, social, cultural, and economic thinking, unified by a shared interest in law reform.

We invite submissions from people who are engaged in feminist analysis of socio-legal issues that reflect a range of approaches, including multidisciplinary, action-focused, theoretical, and historical, and that reflect linguistic and regional differences in Canada. We particularly encourage submissions authored by women from different backgrounds, disciplines and jurisdictions who are doing new feminist work.

The CJWL/RFD is seeking papers for publication in the following sections of the CJWL/RFD: articles, review essays, commentaries, case comments, research notes, book reviews, and notes on Canadian and International events of interest to our readers. Comments on previously published materials are also welcome. The journal is a refereed publication.

Canadian Journal of Women and the Law/Revue Femmes et Droit is available online at:

CJWL Online - http:// bit.ly/cjwlonline

Project MUSE - http:// bit.ly/cjwl_pm

Problems of Exclusion, the Occupy Montreal Movement and the Homeless

Veronique Fortin, University of California, Irvine, Department of Criminology, Law and Society, has published Occupation, Exclusion and the 'Homeless Problem' during Occupy Montreal as Oñati Socio-Legal Series, Vol. 5, No. 1, 2015. Here is the abstract.

English Abstract: As part of the Occupy movement in the fall of 2011, the Indignés in Montreal occupied a public square and set up an autonomous encampment to protest against socio-economic inequality. However, cohabitation problems soon arose in the camp and tensions between so-called homeless occupiers and Indignés occupiers developed, leading to the exclusion of the homeless people. This paper addresses this tension and inscribes the concept of occupation in a larger historical context. It teases out the legal histories of occupation-as-exclusive-appropriation to cast another light on occupation-as-protest.

Spanish Abstract: Como parte del movimiento “Ocupa” del otoño de 2011, los indignados de Montreal ocuparon una plaza pública, y levantaron un campamento autónomo para protestar por la desigualdad socio-económica. Sin embargo, en el campamento pronto se dieron problemas de cohabitación, y se produjeron tensiones entre los llamados ocupantes sin-techo y los ocupantes indignados, que llevaron a la exclusión de los primeros. Este artículo refleja esta tensión, y sitúa el concepto de ocupación en un contexto histórico mayor. Clarifica la historia legal de “ocupación como apropiación exclusiva” para dar una luz diferente a la “ocupación como protesta”.

Download the article from SSRN at the link.

Kevin, Save Their Bacon

I've blogged elsewhere about Taber, Alberta's new bylaw (4-2015) which bans swearing, yelling, spitting, loud music, and gathering in groups of three or more, if local police reasonably believe the gatherers are likely to breach the peace. Fines range from the low hundreds for the swearing to the high hundreds to failing to disperse, and on up from there. Local attorneys have already suggested that the bylaw runs afoul of the Canadian Charter of Rights and Freedoms and have announced that they will meet with citizens who receive tickets to evaluate their cases.

Now, some local residents have decided to try to raise funds to pay for Kevin (Footloose) Bacon to visit Taber and cut a rug, cavort, twirl, trip the light fantastic, what you will, and participate in a "raucous dance party/protest against an embarrassing, archaic, vaguely worded law passed by an out of touch town-council — held of course, just outside of Taber." Well, of course, he couldn't do it in town--remember that restriction on more than two people assembling.  Excellent: law and popular culture meet on the Alberta plains to guarantee the right to dance. I like it.

               

Engaging the Homeless Through New Media

Suzanne Bouclin, University of Ottawa Common Law Section, has published Homeless Nation: Producing Legal Subjectivities Through New Media as Ottawa Faculty of Law Working Paper No. 2015-10. Here is the abstract.

This book chapter describes “Homeless Nation” [HN], a Montreal-based non-profit organization dedicated to “democratizing technology” throughout Quebec and elsewhere in Canada. The overarching goal of Homeless Nation is to facilitate the street community’s ability to “tell their stories and have their voices heard” through written, audio, and video testimonials.

Its primary vehicle for doing so is a website that has been designed ‘for and by the street community’. In step with new user-friendly medial (file-sharing, portable cinematographic equipment, camera-ready phones, and new exposition venues such as YouTube), HN has, since 2003, provided access to interactive communication technologies (e-mail, blogging) and training in new media technologies (digital cameras, sound equipment, and editing software) to its members. The organization boasts more than six thousand users and one hundred guests (or “members”). Street-involved people who use the HN social media write poetry, post information about rallies, and suggest appropriate shelter or other survival strategies such as how to cash a check without identification and how to pass a driver’s test. Contributors provide “life updates” and also express political views such as critiquing cuts to social programs.

Download the paper from SSRN at the link.

Multilingualism and Statutory Interpretation

Lawrence M. Solan, Brooklyn Law School, has published Multilingualism and Morality in Statutory Interpretation, at Language & Law/Linguagem e Direito, Vol. 1, Issue 1 (2014). Here is the abstract. 

This article discusses some of the costs and benefits of multilingual legislation, focusing largely on Canada and the European Union. Courts interpreting these laws must take into account the different language versions, since each version is equally authoritative. Fidelity to the legislature’s will comes with very high stakes in this context, because multilingual legislative systems are most typically a means for recognizing the autonomy of minority groups, which, in exchange, cede some of that autonomy to a higher legal order. Thus, there is a special moral duty to ensure that the laws are construed faithfully at the same time that language barriers make it appear, at least on the surface, that it is more difficult to do so. Moreover, the risk of judges substituting their own values for those of the legislature when there is no single, definitive legal text, appears to become magnified in multilingual settings, creating the risk of decision making that would not stand up to moral scrutiny even in monolingual systems.

This article argues that despite the apparent difficulties inherent in multilingual legislation, it actually reduces uncertainty in meaning by creating additional data points for statutory interpreters to consider. Multilingualism does, however, lead to certain additional problems of ambiguity. These, for the most part, however, are generally resolved fairly easily. It is further argued that the European approach to interpretation, which I call Augustinian Interpretation, is likely to lead to results more faithful to the legislature’s intent than is the standard Canadian approach, called the Shared Meaning Rule. Arguments from the case law, from linguistics and from the philosophy of language are adduced to support these conclusions.

Download the article from SSRN at the link. 

The Representation of Canadian Law In Art and Architecture

David DesBaillets, University of Quebec, Montreal (UQAM), Faculty of Law; University of Ottawa, Faculty of Law, has published Representations of Canadian Justice: The Iconography and Symbolism of the Supreme Court of Canada. Here is the abstract.

The goal of this paper would be to bridge the world of artistic and architectural representations of the law, primarily in the form of the constitutional court house, and the legal cultures and values that inspire their design. I will proceed by undertaking a comprehensive research of the Supreme Court of Canada, including its history, esthetics, architectural and design innovations, personal input of the architects, social and historical contexts, as well as some of the legal and constitutional concepts that they embody. The assumption of my hypothesis being constitutional court houses, with their often impressive artistic details and inscribed legal maxims, seem to possess a quasi-spiritual significance, being an extension of what has become in many societies, especially developed liberal democracies with strong rule-of-law traditions, the secular approximation of a religious institution and, thus, transform the courts into a kind of temple of law. However, the challenge of creating a courthouse, especially the Supreme Court, that reflects the legal traditions and social norms (the former often being in conflict with the latter) as well as the ever evolving aspirations of a dynamic and highly diverse, pluralistic society such as Canada’s is ,in many respects, an impossible one, and it remains an open question whether the image that the court conveys to the visitor, be they layperson or legal official, is ,as Gournay & Vanlaethem state in their essay found in The Supreme Court of Canada and Its Justices 1875-2000: A Commemorative Book , the most “eloquent three dimensional representation of the role the Supreme Court has assumed in the life of the nation.”

The full text is not available from SSRN. 

The History of Riparian Rights In Anglo American Law

David Schorr, Tel Aviv University, Buchmann Faculty of Law, has published Riparian Rights in Lower Canada and Canada East: Inter-Imperial Legal Influences. Here is the abstract. 

The development of the law of riparian rights in the Anglo-American world in the nineteenth century has been analyzed from several points of view, including economic property theory and Marxian legal history. Transnational aspects of the subject have not been neglected, as some have highlighted the transatlantic framework in which this body of doctrine developed, and others have examined the use of Continental, civil law sources by some of the American jurists responsible for that development. Yet the inter-imperial aspect of this story, in particular the meeting of the laws of the British and French Empires, has gone unremarked.
This paper examines the crossed histories of English common law, French civil law, and American law in the jurisprudence of water rights in Lower Canada/Canada East/Quebec in the mid-nineteenth century, and the influence of this jurisprudence on the developing water law of the British Empire.

Download the paper from SSRN at the link. 

Child Abuse and Legal Intervention In Early Nineteenth Century Quebec

Ian C. Pilarczyk, Boston University School of Law, has published 'To Shudder at the Bare Recital of Those Acts': Child Abuse, Family, and Montreal Courts in the Early Nineteenth Century in IX Essays in the History of Canadian Law 370 (G. Blaine Baker and Donald Fyson eds., Toronto, University of Toronto Press for the Osgoode Society for Canadian Legal History, 2013).

This paper uses archival and other primary sources to reanimate the judicial response to child abuse by family members in Montreal for the period 1825-1850. In a period before the operation of child protection agencies, the records reveal a tentative but growing engagement with issues related to child abuse and a limited judicial response to impose limitations on parental authority. Parents and guardians were prosecuted and imprisoned for a range of offences, including assault, aggravated assault, ill-usage, and attempted murder. While incest was not a cognizable offence during this period, the judicial archives also reveal some evidence of the existence of incest as a social phenomenon, as well as some prosecutions (generally brought under the charge of ravishment or, more unusually, abduction). This paper contributes to our understanding of Quebec socio-legal history for an understudied time period, and adds dimension to our understanding of the manner in which the legal system grappled with compelling social phenomena before widespread legislative or public action on these issues.

Download the essay from SSRN at the link. 

Oh, That Anne Shirley

Two articles on IP rights and Lucy Maud Montgomery's Anne of Green Gables have crossed my desk recently. First is

Andrea Slane, University of Ontario Institute of Technology, Legal Studies, Guarding a Cultural Icon: Concurrent Intellectual Property Regimes and the Perpetual Protection of Anne of Green Gables in Canada, forthcoming in the McGill Law Journal. Here is the abstract.

The article examines problems for the public domain raised by the ongoing intellectual property protection afforded to the classic Canadian children's novel Anne of Green Gables. The author suggests that three conceptual difficulties in distinguishing between different intellectual property regimes have allowed the owners of rights in the novel wider and longer protection than they should enjoy: 1) confusion between concepts of source in copyright and source in trade-mark; 2) confusion between an author's moral rights and personal reputation in copyright and goodwill in trade-mark; and 3) willingness to grant public benefit to public authorities seeking official marks protection without consideration of the public interest in limited copyright terms.

Download the article from SSRN at the link.

The second is

Cecily Devereux, University of Alberta Department of English and Film Studies, "Not a 'Usual' Property": A Hundred Years of Protecting Anne of Green Gables, 7 Law, Culture, and the Humanities 121 (February 2011).

Why might redhaired, freckle-faced Anne still be controversial, especially after a hundred years? Because the Montgomery heirs and the Prince Edward Island Provincial government jointly own the rights to the trademark (they administer it through the Anne of Green Gables Licensing Authority), and they guard those rights. Creators of a website established in 2008, Anne's Diary, began using images of Anne without permission. The creators billed it as "the most secure website for children in the world," and it certainly boasted many security features, including a fingerprint reader and registration papers. The problem was that it used the Anne of Green Gables trademark and image (friendliness, security, safety, home) without a license, although the creators apparently tried to get permission. The PEI government and its attorneys began to investigate, according to the Canadian Trademark Blog.  I clicked on a number of the links at Anne's Diary, none of which seem to work now, and the girl's image now on the home page, while redhaired and straw-hatted, does not really resemble Anne Shirley.