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A Plumber with Words: Seeking Constitutional Responsibility and an End to the Little Sisters Problem
Get PDFIn this article, written in tribute to and memory of Joseph A. Arvay, the authors explore and address the “Little Sisters problem”: the tracing of endemic Charter wrongs to the “maladministration” of a law, rather than holding the law itself — and, with it, the legislator — responsible. This doctrinal move, which crystallized in the first Little Sisters case, is a structural impediment to Charter justice not only because it raises serious access to justice concerns, but because it badly disrupts and distorts lines of constitutional accountability. Having first defined the Little Sisters problem and its effects, the paper demonstrates how this problem can arise by reference to the solitary confinement litigation in BC, in which Joe was set to tackle this issue that so concerned him. Ultimately, the authors offer an argument that a sensitive reading of the Court’s decision in R. v. Boudreault suggests a significant circumscription of the Little Sisters problem, and that future courts should treat demonstrated and systemic rights-violative harms that arise from the maladministration of a statute as “latent constitutional defects” in the legislation itself, warranting a s. 52 remedy. Only this reading makes sense of the Boudreault decision, and only this reading adequately honours access to Charter justice, democratic accountability, and the rule of law
The 14th Annual Sir Hugh Laddie Lecture - Mr. Justice Laddie and His Intellectual Property Cases: Of Millefeuilles and a Fish Called Elvis
Get PDFFor me, it was a trip through the judgments of a master craftsman who could succinctly summarize the dispute before him; weigh the conflicting evidence; say what rang true and what did not; state the applicable law, often from first principles set in their historical and policy context; and end by saying who won and lost and what to do. Copyright law might be over-strong , as he suggested in a 1996 lecture;14 but when he had to decide whether a TV documentary critical of cheque-book journalism could freely use another channel\u27s footage to make its point, Laddie J. said his job was to interpret, not supplement, the law: courts had no general wide discretion . . . to refuse to enforce copyright where they believe such refusal to be fair and reasonable. In the 1980s, he had appeared as counsel for the Registrar of Trade Marks to argue successfully against Coca-Cola\u27s attempts to register its distinctive bottle as a trademark to get what every trader craves: potentially perpetual protection.20 The bottle wasn\u27t art (except perhaps to Andy Warhol); it had nothing patentable about it; and the registration for its design, though new in 1925, had expired in 1940. Trademark law does not rush in where other IP fears to tread
Written Submission to the House of Commons’ Justice and Human Rights Committee on Bill C-9: An Act to amend the Judges Act
Get PDFThis is a brief entered into evidence before the Canadian House of Commons’ Justice and Human Rights Committee during its consideration of Bill C-9, An Act to amend the Judges Act. Bill C-9 was introduced on First reading by the Government of Canada on December 16, 2021. The amendments in Bill C-9 concern the procedures by which the Canadian Judicial Council handles complaints of judicial misconduct. The brief argues that the Bill C-9 presents problems of transparency that undermine accountability of the judiciary in the face of concerns of misconduct. It seeks to demonstrate that Bill C-9’s effort to hide from view both the “Reasons for referral of a complaint to a [Review] Panel” and the “Report of the Review Panel” strikes at a key foundation for independence of the judiciary, namely, that the independence of the judiciary and indeed our entire approach to the rule of law depend to a significant extent on the giving of reasons by the judiciary and the publication of those reasons so that the legal profession, the public, scholars, and legislators can understand, apply, critique, and reform the law as it evolves.
The brief also draws attention to two broad conceptual and discursive moves that the Canadian Judicial Council has tried to make in various fora–and that inform while not being completely endorsed by Bill C-9. On the one hand, CJC legal counsel argue that CJC decision-making up to the stage of Panels of Inquiry (the current system) / Hearing Panels (the C-9 system) is a purely administrative regime no different from any other professional regulatory body, in such a way that reasons can be kept secret until forced to light by disclosure obligations in the rare instances of judicial review. On the other hand, before the courts, the CJC has sought to frame the administration of the judicial misconduct as a sacrosanct preserve of the CJC based on a highly overdrawn conception of the independence of the judiciary and its self-regulatory powers (so far, an unsuccessful effort before the Federal Court and Federal Court of Appeal). The brief argues these rationales are inconsistent with both the special substantive role of a constitutionally-responsible judiciary in society and with the foundations of the constitutional principle of the independence of the judiciary that include the open court principle and corollary practices of transparent, public reasoning (practices with obvious relevance also for the principle of the rule of law).
The brief ends with eight recommended amendments to the amendments to the Judges Act proposed by Bill C-9
“Inducing” Copyright Infringement in Canada: Is it a Thing?
Get PDFIs there such a thing as “inducing” copyright infringement? There isn’t in the United Kingdom, but the Federal Court in Bell Canada v L3D Distributing Inc (INL3D) 2021 FC 832 (“L3D Distributing”) thought there was in Canada and the defendants had done it. Indeed, the court thought that inducing infringement, which to date had been considered wrong only in respect of patents, applied to all forms of intellectual property (“IP”)
Chinese Antitrust Exceptionalism: How the Rise of China Challenges Global Regulation by Angela Huyue Zhang
Get PDFHOW IS CHINA DISTINCT? What are the implications of Chinese exceptionalism? Chinese Antitrust Exceptionalism: How the Rise of China Challenges Global Regulation (“Chinese Antitrust Exceptionalism”) explores these questions in the context of antitrust law and policy making. The book, authored by Angela Huyue Zhang, positions the relatively young Chinese antitrust regime in contrast to its more mature global counterparts, namely, the European Union (EU) and the United States (US). In this analysis, Chinese Antitrust Exceptionalism considers how China crafts and enforces antitrust policy, as well as how its counterparts enforce their policies against China. While it focuses on this one particular domain, the book serves to highlight the tension between an increasingly powerful Chinese state and the Western liberal democratic order
UBC Press Publishing Seminar with Randy Schmidt
No full textPresentation by Randy Schmidt, Senior Editor, UBC Press on November 24, 2022 at Osgoode Hall Law School
Failure of Mobile Money Services: Standards for Systemic Risk
No full textAgainst an overview analyzing the mobile money system, this article provides a preliminary criterion for determining potential systemic risk of collapse of a mobile money firm (MM firm). The article has two main components: first, defining systemic risk, it clarifies that systemic risk is likely to arise through a delay in returning customers’ funds from an MM firm in insolvency proceedings. Second, the article points out that determining whether this delay will have systemic consequences ought to consider diverse elements, particularly, the range of components of the economy which could be impacted by the failure of an MM firm, the size of the failing MM firm, available substitutes for mobile money, and interconnections with the remainder of the economy. Future research should explore this topic in greater depth and begin developing regulatory tools that can address potential systemic consequences of failure, such as accelerated bankruptcy regimes
Bentham’s Public Utilitarianism and Its Jurisprudential Significance
No full textOne of the ways by which Gerald Postema’s Bentham and the Common Law Tradition revolutionized the study of Bentham’s jurisprudence was by challenging the idea, made popular by Hart (both in his jurisprudential work and his interpretation of Bentham), that the study of law in general is normatively neutral. Against this view, Postema argued that one must understand Bentham’s views on law and jurisprudence in relation to his utilitarianism. At the time of publishing the book, Bentham went very much against the grain, but this view has since gained considerable support. In my paper I seek to refine it. As I see it, Bentham did not think of utilitarianism as a moral theory. Rather, he is best understood as advancing utilitarianism as a public philosophy—an end for the legislator, and only indirectly applicable for individuals in their everyday lives. This makes Bentham’s utilitarianism tied to his legal philosophy in an even deeper sense than Postema suggested. Law is not there to imitate and help enforce an already existing utilitarian morality that tells people (independently of the law) what they should do. Instead, we should think of law as a mechanism (or a technology) for generating normative guidelines (where those do not otherwise exist). The effect of this is to reverse the familiar way of understanding the relationship between law and morality
Judgments v Reasons in Federal Court Refugee Claim Judicial Reviews: A Bad Precedent
No full textThis article offers an empirical examination of policies on the publication of refugee law decisions in Canada’s Federal Court. In 2015, the Court issued a notice describing the Court’s general practice of publishing written reasons in cases that the deciding judge considers as having precedential value and of issuing unpublished judgments in cases that the deciding judge does not view as precedential. In 2018, the Court reversed course and issued a new notice. This time, the Court indicated that all final decisions on the merits will be published.
Drawing on data obtained via automated data scraping processes from thousands of online court dockets and from published decisions in cases involving refugee judicial reviews, the article examines patterns in unpublished judgments and published written reasons. Based on this analysis, the authors conclude that the Court’s earlier policy of not publishing supposedly non-precedential decisions was not successful and that this policy should not be replicated by other courts. Instead, other courts should be encouraged to follow the Federal Court’s more recent practice in this area, which entails publishing all final decisions on the merits
Canada–AU Human Rights Engagements: A TWAIL Perspective
No full textDespite the problematique of Global North/South relationships, human rights require transnational collaboration to successfully protect vulnerable people in the world. In particular, human rights engagements between Africa and the West are cemented in legacies of colonialism and mediated by development discourses that portray the continent as a paragon of poverty, corruption and backwardness. Within this context, we explore how an African Union (AU) human rights instrument could impact or transform Africa’s transnational human rights engagements. Specifically, we use Canada–Africa human rights engagements as a starting point and basis for analysing the nature, orientation and impacts of such engagements (especially over three salient issues). Situating Canada as allegorical for the West, our findings show that Canadian human rights actors are critical of colonial legacies, have faith in the AU’s leadership, and see the African Human Rights Action Plan as a potentially transformative instrument in human rights engagements in Africa