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Placing Expediency Before Principle: An Empirical Analysis of the Joint Sentencing Practices of Canadian Crown Prosecutors and Defence Lawyers
Full text linkOld Habits Die Hard: Precedent, Psychology, and the Admissibility of Forensic Evidence
Full text linkForensic evidence, long considered a cornerstone of criminal justice, has faced increasing scrutiny as recent studies and reports expose significant flaws in its scientific foundation. Techniques such as latent fingerprint analysis, microscopic hair comparison, and ballistics matching, which had been widely accepted for decades, are now being challenged for their lack of empirical validation. Reports by the National Research Council and the President’s Council of Advisors on Science and Technology have highlighted the deficiencies in these forensic methods, calling into question their reliability and the weight they are given in courtrooms. Yet despite the growing acknowledgement of widespread issues affecting the reliability and validity of many types of forensic evidence, there are surprisingly few successful challenges to the admissibility of this type of forensic evidence, and when the evidence is challenged, it is often found to be admissible. And while Daubert and Rule 702 mandate that expert evidence be based on reliable principles and methods, many courts have failed to rigorously apply these standards, often deferring to precedent rather than conducting a thorough analysis of the scientific validity of forensic techniques. The article argues that cognitive biases play a significant role in the judicial system\u27s continued acceptance of unreliable forensic evidence. Biases like information cascades, the status quo bias, and the omissions bias can cause judges to favor precedent and established practices, even in the face of new scientific evidence challenging the validity of these forensic methods. The discussion also considers how heuristics, like the bias blind spot, contribute to judges’ reluctance to reject long-standing but scientifically flawed forensic techniques. Notwithstanding these challenges, judicial education on scientific standards, greater diversity on the bench, and a heightened awareness of cognitive biases could help mitigate these issues and promote more rigorous evaluation of forensic evidence in the courtroom
The Banality of Crimmigration—Can Immigration Law Recover Itself?
No full textThis article argues that criminal law has overtaken immigration law to such an extent that the notion of “crimmigration” is no longer shocking. In Canada, where the population has long been supportive of immigration and where national politics have been remarkably consensual in matters of immigration, crimmigration now forms the basis of a new form of bipartisan consensus. By looking back on the Justin Trudeau Liberal government, we see that most of the Harper-era crimmigration measures were left in place, and the advance of crimmigration continued unabated. If we are to make any progress in recovering space for values other than crimmigration in our immigration law and politics, we need to both think more creatively about the future and recover our sense of outrage
Evaluating Elective Egg Freezing Consent Materials From Canadian Fertility Clinics
No full textThe use of elective egg freezing (EEF) has rapidly increased in recent years. Despite its popularity, scholars have documented a host of concerns in relation to the use of this technology, especially given aggressive advertising of EEF by the fertility industry as “insurance” and lack of data about success rates. Informed consent processes, and informed consent materials, are particularly important in situations like EEF where healthy people are undergoing interventions that are neither life nor health preserving. Despite these concerns necessitating a rigorous consent process, no research in Canada has explored consent processes surrounding EEF at Canadian fertility clinics to assess whether they are meeting this heightened standard. In this paper, I analyze EEF consent forms and accompanying materials collected from 11 Canadian fertility clinics. I assess the extent to which the consent forms and accompanying materials adhere to a seven-part ethical framework for minimum standards of disclosure for EEF that I argue is supported by Canadian legislation, regulations, guidelines, case law and Health Professions Appeal and Review Board (HPARB) decisions on informed consent. Ultimately, I found that consent processes for EEF rely on an unstandardized patchwork of information sources. Clinic consent forms and accompanying materials do not adhere to minimum elements of disclosure for consent for EEF and, in many cases, do not adhere to existing law, guidelines and HPARB decisions governing these consent processes in Canada. I argue that an overhaul is needed to ensure that people freezing their eggs have the basic information they need to make informed decisions and make recommendations for how to further regulate EEF consent processes
Policy Forum: Are Carbon Contracts for Difference Well Suited for Canada?
No full textAt least up to the release of the federal 2024 budget, many Canadian politicians, climate policy think tanks, and industry groups promoted carbon contracts for difference (CCfD) to complement carbon pricing. This commentary urges caution against the broad adoption of CCfDs. The author begins by noting that the current designs of provincial output-based pricing systems (OBPS) are not consistent with the expectation of the systems delivering robust price signals. He argues that CCfDs depend on such price signals, and they are not a plausible policy for encouraging the emergence of such signals. The author then argues that it is hard to justify the government making a bet against itself on the “policy price” of carbon. An extensive scholarly literature has long argued against providing businesses with “certainty” against future policy changes in general, and there is little reason to think carbon pricing is relevantly different. The author concludes that, overall, the use of CCfDs should remain narrowly targeted
Legal incentives for Simple Agreement for Future Equity holders in the United States of America, Canada and Nigeria
No full textNigeria\u27s Start-Up Act, 2022, aims to promote growth in the technology sector via several initiatives, including investment incentives. However, the landscape of early-stage venture finance has seen important changes over the last 10 years, marked by the increasing prominence of hybrid instruments like the Simple Agreement for Future Equity. Traditional investment incentive frameworks rely on classifying investments as debt or equity, categories into which the SAFE does not neatly fit at execution. This raises concerns about whether the Act\u27s incentives will effectively capture innovative financing methods crucial for startups. This thesis addresses the central question: How should lawmakers (specifically in Nigeria) effectively draft investment incentive laws to ensure that innovative contracting methods such as the SAFE are captured in the investment criteria? This research examines the nature and classification of the SAFE, comparing its treatment under investment incentive laws in the United States and Canada, jurisdictions with significant SAFE usage. The analysis also investigates the tax classification challenges of the SAFE (considering debt, equity, and derivative characterizations) and examines fiscal incentives to see if they accommodate the SAFE investor. The findings suggest that holding on to debt/equity distinctions would exclude investments made via the SAFE and hinder the Start-Up Act\u27s Incentive objectives. Drawing lessons from US and Canadian state/provincial approaches that adopt more flexible, substance-over-form criteria, this research provides a template for a similar adaptable approach in Nigeria. It concludes by offering policy recommendations and potential drafting considerations for Nigerian policymakers to ensure the Start-Up Act\u27s investment incentive includes instruments like the SAFE
Maintaining Legitimacy: Artificial Intelligence, Automated Decision Making, and Reasonableness Review under Canadian Administrative Law
Full text linkLethal Autonomous Weapons Systems & International Law: Growing Momentum Towards a New International Treaty
Full text linkWhile existing international humanitarian law, international criminal law, and international human rights law provide foundational rules and principles governing LAWS, gaps in specificity and enforcement highlight the pressing need for a dedicated international treaty. Such a treaty could harmonize interpretations, establish clear prohibitions and restrictions, and ensure accountability in the use of these technologies
Assessing Ghana\u27s participation under the African continental free trade agreement : a journey from the past and lessons for the future
No full textThe African Continental Free Trade Agreement (AfCFTA) entered into force on the 30th of May 2019, with trading commencing on the 1st of January 2021, thus creating the largest free trade area in the world in terms of participating countries. It seeks to create a single market for goods in Africa for Africa with an agreement adopted in line with the Pan-African vision of promoting a prosperous Africa and stimulating economic development in Africa. This thesis focuses on free trade, a background of free trade as an economic policy rooted in the Global North. The popularity and results of free trade\u27s economic development in developed countries led to developing countries wanting similar benefits. However, developing African countries have struggled to implement free trade policies over the years, ranging from regional trade agreements to regional economic communities (RECs), with the implementation challenges significantly attributed to trade barriers, infrastructure, and lack of political will. This thesis assesses Ghana’s participation in the AfCFTA by analysing its membership of the Economic Community of West African States (ECOWAS) since its launch in 1975 and probes whether the country has achieved the intended benefits it sought to achieve by its participation with the ECOWAS, and whether these benefits or otherwise may be replicated in the AfCFTA. This thesis employs the doctrinal method of legal research in analysing various theories of the free trade policy, the ECOWAS Revised Treaty, the AfCFTA Protocol on Trade in Goods, as well as specific provisions of the General Agreement on Tariffs and Trade (GATT) and World Trade Organisation (WTO) agreements. This thesis also suggests addressing the problems identified under Ghana’s ECOWAS membership, that a solution to these problems is the key to ensuring that it achieves its aims in its membership of the AfCFTA. In conclusion, the thesis suggests that Ghana must improve its ability to remove all trade barriers, especially those faced by the ECOWAS, invest in its regional infrastructure, and reinforce its transparency obligations to the WTO to achieve its objectives in participating in the AfCFTA
Flourishing: A plan to strengthen public legal education and information, the BC PLEI Ecosystem Project
No full textThe Public Legal Education and Information (PLEI) Sectoral Planning Project, headed by Dr. Catherine Dauvergne, K.C., was commissioned by the Law Foundation of British Columbia with the goal of making recommendations about how to improve public legal education and information in the province. The project was co-sponsored by the Law Foundation and the province’s Ministry of the Attorney General. We have come to understand this constellation of resources and organizations as the “public legal education and information ecosystem.” There is a wide array of high-quality, easily accessible, clearly written, legal information available in British Columbia. Ecosystem leaders are at the forefront of innovation, and are deeply committed to the communities they serve. Other leaders across Canada have a deep respect for the work done in this province. However, people struggle to locate and understand publicly available legal information. Frontline legal service providers, who often help people understand this information, are stretched very thin and often struggle themselves with highly pressured work and inability to meet their clients’ needs. For those creating and delivering PLEI, a desire for strengthened collaboration and cooperation is strong. This report presents the findings from our research and the 30 recommendations that we believe can address many of the challenges we identified