Alberta Law Review (ALR)
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The Impact of the Canadian Copyright Act on the Voices of Marginalized Groups
Get PDFFor as long as stories have been written, they have been rewritten. Authors rewrite texts for a variety of reasons. This article will focus on one particular type of rewriting – namely, the rewriting of culturally significant texts from the perspective of marginalized groups that are either missing from or oppressed in the original text. These rewrites serve important social purposes. However, it is likely that many of these rewrites infringe Canadian copyright laws and laws with respect to moral rights. This article argues that works that rewrite culturally significant texts from the perspective of marginalized groups ought not to infringe copyright and violate moral rights in Canada. To this end, it suggests five amendments to Canada’s Copyright Act that would help ensure that the attempts by marginalized groups to express themselves through the rewriting of culturally significant texts cannot be enjoined by copyright owners and authors. Some of these proposed amendments have been incorporated into Bill C-32 (An Act to Amend the Copyright Act), the Government of Canada’s latest attempt at copyright reform
Compensation Where No Land Is Taken: Update of the Law in Alberta
Get PDFEconomic and population growth in Alberta has led to a proliferation of projects and works for the public benefit, but the negative impacts of these are often borne by private landowners. The question arises as to what compensation should be given to landowners whose land is injuriously affected by public works, but is not actually expropriated. This article examines the common law remedies of negligence and nuisance; addresses the impact of the four tests set out in R. v. Loiselle for assessing statutory remedies; and provides a review of the evolution of and remedies available under the Municipal Government Act and Proceedings Against the Crown Act
Intimate Femicide: A Study of Sentencing Trends for Men Who Kill Their Intimate Partners
Get PDFThis article examines sentencing trends over the past 18 years for men who kill their intimate partners. Using a sample of 252 cases, the article demonstrates that sentences for second degree murder rose significantly after the Supreme Court of Canada’s decision in Shropshire but have more recently levelled off to a range that is still higher than the pre-Shropshire era. With respect to manslaughter, the amendments to the Criminal Code making the spousal nature of the crime an aggravating factor and changing social attitudes have resulted in increasingly severe sentences for spousal manslaughters. While a large number of the cases in this sample involved the intoxication of the accused and/or the victim, the defence of intoxication rarely reduced murder to manslaughter. Similarly, the number of successful provocation defences was lower than expected
Exploring the Balance of Power in the Operator/Non-Operator Relationship Under the CAPL Operating Procedure
Get PDFThis article explores the differing rights and obligations of operators under the evolving versions of the Canadian Association of Petroleum Landmen (CAPL) Operating Procedure, particularly its 1981, 1990, and 2007 forms. It investigates the way in which the various iterations of the CAPL Procedure attempt to manage the balance between the competing interests of operators, and the way in which the courts have allocated responsibilities among the parties in their decisions. The evolution of the CAPL Procedure, in response to changes in industry or the courts\u27 interpretation, speaks to the continued responsiveness of CAPL to industry needs
Indigenous Environmental Rights in Canada: The Right to Conservation Implicit in Treaty and Aboriginal Rights to Hunt, Fish, and Trap
Get PDFThis article is an exploration of Aboriginal and treaty rights strategies for protecting Indigenous environmental rights in Canada. The analysis begins with an outline of the problem, and the shortcomings of the available general law avenues. The authors then argue for the existence of a constitutionalized right to environmental preservation implicit in treaty and Aboriginal rights to hunt, fish, and trap. The article explores the theoretical, historical, and precedential support for this proposition. The central argument is that in securing the right to hunt, fish, and trap, Aboriginal peoples were in fact contracting for the continued existence of their traditional subsistence activities. These practices could not survive without the preservation of the ecosystems on which they depend, and the harvesting rights must therefore be seen to encompass a right to such preservation. Examination of the specific histories of treaty-making in Canada reveals that in many if not most cases, both the Crown and the Aboriginal signatories understood this substantive protection to be a part of the treaty guarantees. The authors then present a brief articulation of the corresponding Aboriginal right to conservation
The Administration of Justice? Certificate Proceedings, Charkaoui II, and the Value of Disclosure
Get PDFIn the wake of 9/11, Canada was among a number of Western states that instituted a wide range of legal frameworks designed to more efficiently prevent and suppress transnational terrorism. One of the defining features of its national security policy has since been the integration of a selection of intelligence agencies into a global counterterrorism network. Operationally distinct agencies, such as the RCMP, the Canadian Security Intelligence Service (CSIS), the Communications Security Establishment, and the Canada Border Services Agency have been centrally coordinated towards the end of facilitating intelligence exchange within and across our borders. With few opportunities for public scrutiny or parliamentary and judicial review, the flow of information has gone on largely unregulated and, in a selection of notable cases, has contributed to serious human rights abuses both at home and abroad
The Law of the Land: The Advent of the Torrens System in Canada by Greg Taylor
No full textAs a former history student and erstwhile professor of first-year property, The Law of the Land: The Advent of the Torrens System in Canada by Greg Taylor offered me an opportunity to engage in academic reading with just a hint of “night table book” indulgence. As the title suggests, the author carefully traces the development of the Torrens registration system in Australia and its subsequent reception within Canada — an undertaking that even those within the legal profession may find as dry as the dust on the land titles records. However laborious the research, the book itself manages to bring history to life; chasing clues from Adelaide to the United Kingdom National Archives to the records of the Toronto Globe in an attempt to divine the motives and influences of the Torrens prophets and their opponents. The result is an original and interesting account incorporating law and politics spanning some 150 years of Canadian history
Securities Class Actions Move North: A Doctrinal and Empirical Analysis of Securities Class Actions in Canada
Get PDFThe article explores securities class actions involving Canadian issuers since the provinces added secondary market class action provisions to their securities legislation. It examines the development of civil liability provisions, and class proceedings legislation and their effect on one another. Through analyses of the substance and framework of the statutory provisions, the article presents an empirical and comparative examination of cases involving Canadian issuers in both Canada and the United States. In addition, it explores how both the availability and pricing of director and officer insurance have been affected by the potential for secondary market class action liability. The article suggests that although overall litigation exposure for Canadian companies remains relatively low when compared to their U.S. counterparts, Canadian issuers that have listed their shares in the U.S. face considerable uncertainty as to the extent of their exposure to securities class actions. Through analysis of case law in both jurisdictions, the article highlights the crucial role of liability caps relating to costs in the decision of which jurisdiction to file suit
Calm Like a Bomb: An Assessment of the Partial Defence of Provocation
Get PDFThe partial defence of provocation has been used by the common law courts for some 400 years. Recently, it has been attacked for promoting male heterosexual violence and for its presupposition that ordinary people fly into homicidal rages. The author examines the provocation doctrine and argues that while some changes can be made to the drafting and deployment of the defence, provocation serves a legitimate purpose in accounting for the complexity of being human. The author supports this position by reviewing the application of the doctrine, addressing common criticisms of the defence, and suggesting improvements to the application of provocation that will prevent it from being used to devalue and degrade murder victims