Authors:Camas Ussery Pages: 3 - 18 Abstract: When a sexual assault survivor testifies in court, it is highly likely that their demeanour will be impacted by the trauma they suffered. Despite an array of research on how trauma can affect demeanour, legal professionals and juries often have misconceptions about how a sexual assault survivor “should” behave on the stand. As the standard of proof in criminal law is incredibly high, and often only the survivor and the accused have firsthand knowledge of what happened, the outcome of the case can hinge on the survivor’s credibility. If a misconception about demeanour impacts the assessment of their credibility, the accused may be wrongfully acquitted. This paper explores the research on trauma and demeanour and explains why it is critical that the legal profession appreciates its importance. The paper looks at many available yet underused options within the Canadian criminal justice system to mitigate the effects of trauma on demeanour and support survivors, and argues that their increased use would benefit survivors while maintaining the presumption of innocence that lies at the heart of a criminal trial. PubDate: 2022-03-23
Authors:Larissa Parker Pages: 19 - 41 Abstract: Pollution hotspots exist across Canada and disproportionately affect low-income and racialized populations. Examples include Indigenous communities like Aamjiwnaang First Nation in Ontario or Beaver Lake Cree Nation in Alberta; predominantly Black communities in rural Nova Scotia; and poor neighbourhoods in urban cities like Toronto or Vancouver. Such communities face disproportionate environmental burdens due to their proximity to landfills, fossil fuel infrastructure, plastic pollution, and toxic waste. This proximity causes harrowing health effects that would otherwise not be acceptable elsewhere in Canada. Although these inequalities stem from a number of interrelated factors, the role of the state in regulating (and facilitating) polluting activity is key. Across jurisdictions, ministries grant pollution permits to new and existing facilities based on deficient regulatory standards laid out under environmental protection legislation. Ministry officials have direct control over when and where pollution occurs. This paper contends that the inequality that results from these regulatory frameworks triggers constitutional scrutiny under section 15 of the Charter of Rights and Freedoms. It is an example of adverse effects discrimination from a legislative framework that appears neutral on its face. Although the application of section 15 to environmental inequality is underexplored, recent developments in the jurisprudence suggest that remedying adverse (environmental) effects discrimination may be more viable than ever. This viability stems from the majority decision in Fraser v Canada (Attorney General), 2020 SCC 28, which introduced significant flexibility into the causation and evidentiary requirements needed to establish adverse effects discrimination under the section. Under the new framework, the popular slogan “Not in Anyone’s Backyard” might just be given room to transform from a longstanding aspiration to a new reality. PubDate: 2022-03-23
Authors:Sarah Nixon Pages: 42 - 69 Abstract: Reconciliation has become a popular and contentious term in Canadian politics, media, jurisprudence, and legal education. In this paper, I explore what is at stake in our approach to reconciliation by contrasting two prevailing forms. The first is a form pursued in Canadian jurisprudence which I refer to as “reconciliation to Crown sovereignty.” The second is a form advocated by numerous scholars and Indigenous leaders which I call “reconciliation as treaty.” Reconciliation to Crown sovereignty is a process whereby Indigenous polities’ interests in political autonomy and control of land are systematically undermined or rendered legally inert, thereby reconciling these interests with the sovereignty of the Crown. Reconciliation as treaty, by contrast, entails building and renewing treaty relationships through Crown engagement with Indigenous peoples robustly constrained by a principle of non-domination. I argue that these two forms of reconciliation are mutually exclusive and that reconciliation as treaty should be preferred because it respects and protects Indigenous peoples’ law and ontologies. I use the recent Federal Court of Appeal decision in Coldwater et al v Canada (Attorney General) as a case study to explore these two approaches to reconciliation. PubDate: 2022-03-23
Authors:Darren N. Wagner Pages: 70 - 81 Abstract: In AstraZeneca Canada Inc v Apotex Inc, the Supreme Court of Canada abolished the so-called promise doctrine in patent law. Large pharmaceutical companies that sought greater patent protections through litigation routinely mischaracterized the promise doctrine. To demonstrate that mischaracterization, this case comment begins by examining historical and international perspectives that informed the Supreme Court’s decision. This paper then turns to a critical yet subjective element of the decision: the analysis of the meaning and purpose of “use” and “useful” in the Patent Act. The reasons for the decision are then considered against the advantages that more stringent utility requirements offer to both patent law and the pharmaceutical industry. This paper concludes with the recent legacy of the decision and recommendations for why and how the courts might seek a middle ground for utility promises in patents. PubDate: 2022-03-23
Authors:Ryan Ng Pages: 82 - 102 Abstract: The duty to consult and accommodate Indigenous peoples under section 35 of the Constitution Act, 1982 is frequently fulfilled through environmental assessments. However, environmental statutes and the common law do not always properly reflect the constitutional nature of the duty, nor do they ensure that decisions are environmentally sound. In light of these shortcomings, this paper recommends three reforms: (1) a revision of the federal Impact Assessment Act; (2) the codification of environmental rights; and (3) a change in the standard of review applied to administrative decisions stemming from environmental assessments. These adjustments would not subvert the current legal framework. Nonetheless, they have the potential to assist in advancing the related goals of sustainable development and reconciliation between Canada and Indigenous peoples. PubDate: 2022-03-23
Authors:Vanessa Di Feo Pages: 103 - 132 Abstract: This article argues that CM Callow Inc v Zollinger was wrongly decided, and that the Supreme Court of Canada unnecessarily expanded the duty of honest contractual performance established in Bhasin v Hrynew. In this decision, the Supreme Court applied a contract law analysis to a fact scenario that did not entirely call for it. This is to say that the contract that Mr. Callow hoped to incentivize through freebie work never came into existence, so it should not have been assessed through the lens of the duty of honesty. This article argues that this approach was erroneous, given Canadian contract law’s strong stance against imposing pre-contractual duties of good faith. While the article agrees that the duty of honesty was applicable to the ongoing contract between Mr. Callow and Baycrest, it submits that the tort of negligent misrepresentation should have addressed Baycrest’s statements in relation to the potential future renewal. Such an analysis would have allowed for greater clarity in Canadian contract law, and it would have allowed for a more pronounced dividing line between contracting parties’ disclosure obligations and the duty of honesty. As a result, this article predicts that the Supreme Court’s decision will perpetuate confusion in the law pertaining to good faith and contracting parties’ disclosure obligations. Further, this decision is likely to have a chilling effect on contracting parties’ communications, given the justified fear of painting a misleading picture for the other side vis-à-vis potential future endeavours. PubDate: 2022-03-23
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