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Recent reforms to Canada’s system of federal judicial appointments have sought to make the process more transparent and better able to produce a bench reflective of the society it serves. This paper reviews these reforms and using judicial appointment data (2016–2020), considers whether the Liberal government has met these objectives. The relationship between official bilingualism and representation on the bench is also considered. The paper finds that “diversity” on Canada’s federally appointed provincial courts remains unbalanced. While women have made up the majority of appointments since the Trudeau Liberals formed government in 2015, other equity-deserving groups, like people of colour and people with disabilities, have been appointed in numbers below their proportion of the Canadian population. Additionally, an analysis of the official language skillsets of judicial appointees offers tentative evidence that there may be challenges to fostering a judicial branch that is both representative and officially bilingual. [ABSTRACT FROM AUTHOR]

The past few decades have seen an increase in culturally responsive policies and programs aimed at ameliorating the hardship and disadvantage faced by Indigenous peoples in the Canadian criminal justice system. These policies and programs, however, operate within a criminal justice system that consistently fails Indigenous peoples. What has yet to be tried is a nation-to-nation approach to criminal law jurisdiction where Indigenous peoples have legislative authority to enact and administer their own criminal laws. This paper shows that Indigenous jurisdiction over criminal law is possible within Canada’s constitutional framework. In Part I, I outline the current state of Indigenous self-government over criminal law. Although initiatives such as sentencing circles and Indigenous courts allow Indigenous peoples to exercise greater self-government over the administration of justice, they still do not exercise true criminal law-making authority. In Part II, I analyze existing discussions about separate Indigenous justice systems and identify a framework for how concurrent jurisdiction over criminal law can be exercised. In Part III, I draw on the doctrine of cooperative federalism to argue that Indigenous jurisdiction over criminal law can coexist with the federal government’s jurisdiction over criminal law. Lastly, in Part IV, I discuss four ways Indigenous nations can attain jurisdiction over criminal law: (1) a constitutional amendment; (2) a self-government agreement; (3) a claim under section 35 of the Constitution Act, 1982; and (4) federal legislation. While a constitutional amendment is the preferable solution, I argue that federal legislation informed by Indigenous peoples is the best alternative. [ABSTRACT FROM AUTHOR]

The number of nuisance and negligence tort claims in the US against “Big Oil” companies have grown significantly in the last five years. The Netherlands case of Milieudefensie et al v Royal Dutch Shell represents the first major success of such a claim internationally. While the US cases and Milieudefensie demonstrate starkly different approaches as to how to seek accountability from Big Oil for climate change harms, the increasing judicial engagement on these issues may mean the time is right for similar lawsuits in Canada. Three Canadian common law causes of action are examined: nuisance, negligence, and unjust enrichment. Defences and arguments which stem from society’s (and any potential plaintiff’s) acquiescence and authorization to allow the defendants’ conduct may present difficult barriers to success. This paper focuses on these types of defences, and argues that the responsibility of Big Oil for climate change harms should not be completely vitiated even if governments and plaintiffs have acquiesced, authorized, and arguably contributed to our climate crisis. [ABSTRACT FROM AUTHOR]

This paper argues that there is a fundamental conceptual gap between the cases of Doré and Vavilov. This is because both cases are motivated by different conceptions of administrative law. In Vavilov, the paper suggests that the Court melded together two theories of judicial review; a Diceyan theory based on a harmonious understanding of the principles of legislative sovereignty and the Rule of Law; and a "culture of justification" for administrative decision-makers. On the other hand, Doré is motivated by a functionalist understanding of administrative law, in which the expertise of decisionmakers is emphasized. The paper explores the doctrinal gap and suggests two ways in which it might be bridged. First, Doré might be recalibrated to bifurcate the standard of review analysis, so that decisions implicating the scope of Charter rights are reviewed more stringently. Second, Vavilov's justificatory standards might be imported into the Doré context. [ABSTRACT FROM AUTHOR]

This paper considers the evolution of Carleton University's Department of Law and Legal Studies and its approach to the study of law and the legal within the context of the continuing growth of legal studies programs across the country. It starts by outlining the historical development of the Department and the evolution of its perspective of its role and purpose. Part II examines a number of aspects of the architecture of fourteen undergraduate legal studies programs across the country and the ways in which the roles of these programs are described. Part III provides a brief outline of the current structure of the undergraduate programs offered by the Department and considers how it fi ts within the broader landscape of academic units offering undergraduate legal studies programs in Canada. The paper concludes by identifying some of the challenges faced by the Department as it prepares for the next 50 years. [ABSTRACT FROM AUTHOR]

Recent climate events such as Hurricane Harvey in Texas foreshadow the dangers that could result from critical energy infrastructure failure in Canada due to physical impacts caused by climate change. This article examines the types of climate impacts that could affect critical energy infrastructure in Canada. The article argues that these impacts translate into three types of corporate risk to the owners and operators of the critical asset: economic risks to the infrastructure asset; management and operational risks to the corporation; and risks arising from corporate disclosure obligations. Applying the theoretical approach of "risk management," the article concludes that, on this approach, any effects of climate impacts on the critical infrastructure asset will be limited to a narrow corporate risk. By contrast, the paper argues that by applying an expanded understanding of the critical energy infrastructure asset's context, one where the critical infrastructure asset is viewed as existing within its broader economic, social, and environmental geography, a climate impact on the infrastructure asset is thus also a climate impact on the infrastructure's environment. On this broader understanding, the risk of a climate impact may not fall solely upon the corporation, and the public and governments may seek to expand their influence over what adaptive measures are required to ensure resilience of the asset. It can be anticipated that increased public interest in the adaptation of critical energy infrastructure will result in uncertainty and potential resistance by corporations. A new corporate risk is likely to emerge. [ABSTRACT FROM AUTHOR]

Grace Wambolt was the fifth female graduate of Dalhousie Law School and the second woman to practise law in Nova Scotia. She was one of the relatively few female lawyers in Canada (up to the influx of the nineteen-seventies) who practiced law following the push by the first female lawyers for the elimination of formal barriers to practice. This paper examines the similarities and differences between the "firsts" and those who followed them, primarily by looking at the life of Wambolt and her letters and speeches preserved in the Wambolt fonds located in the Nova Scotia Archives and donated by Wambolt herself. The paper concludes with a comparison between Wambolt's efforts to obtain equality and justice for all women and those of the "firsts" who tended, for various reasons, to be less connected to the women's movement. [ABSTRACT FROM AUTHOR]

Canadian refugee status adjudicators must choose between two opposing bodies of law, one of which resolves doubt in the claimant's favour and the other at the claimant's expense. How do they decide which to prefer? How do they decide whether it would be better to risk accepting an unfounded claim or to risk rejecting a well-founded one? This paper explores one potentially relevant factor: the salience of the harms that decision-makers associate with potential risk outcomes. A brief account of recent events in Canadian refugee law history, beginning with the refugee law reforms of former Conservative Immigration Minister Jason Kenney, shows how risk salience can be manipulated. For each refugee claim to be heard on its own merits, the law cannot leave adjudicators to decide for themselves which kind of error to prefer. It must recognize that sending a refugee home to persecution is the wrong mistake. [ABSTRACT FROM AUTHOR]

This paper engages critically with the new orthodoxy holding that individuals have a "right" to know their genetic origins and that such knowledge is crucial to realizing their identities. It examines two case studies: the Pratten litigation under the Canadian Charter of Rights and Freedoms regarding anonymous donor conception and scholarship approving a reform to Quebec's adoption law. It addresses the supposed "identity gap" between those who are adopted or donor-conceived and those who are neither. Arguments for law reform exaggerate that gap, opposing the incomplete, insecure identity of the adopted or donorconceived to the ostensibly complete, secure identity of those raised by their putatively genetic parents. A result is to overstate what is distinct and harmful about being adopted or donor-conceived. The paper also identifies a mistaken perception of law's role in fashioning identity and recognizing family ties, including what law does for those who are not adopted or donor-conceived and what it might do for those who are. Some claims for law reform in the service of identity expect more from law than it can or should provide. [ABSTRACT FROM AUTHOR]

The purpose of this paper is to suggest a regulatory model by which Canadian securities regulators may monitor the systemic risk contributed to by the Canadian hedge fund industry. The bases for this model are recent regulatory reform initiatives adopted in the U.S. and Europe. There, securities regulators have adopted Form PF and AIFMD, respectively, to monitor the systemic risk contributed to by hedge funds. However, the features of those regimes are not necessarily appropriate for the Canadian industry. The appropriateness of the features of Form PF and AIFMD for the Canadian hedge fund industry is evaluated on two criteria: the average industry fund size, and the cost of regulatory compliance. This paper identifies three features of Form PF and AIFMD that are appropriate for the Canadian hedge fund industry: a minimum size exemption, uniform reporting depth, and extensive data sharing. [ABSTRACT FROM AUTHOR]

The unique role of the attorney general raises several special issues of legal ethics. This paper addresses one previously unaddressed: whether it is appropriate for the attorney general to publicly announce his or her reasons for resigning from Cabinet. Unlike other ministers, the attorney general is almost always a practicing lawyer and thus bound not only by Cabinet solidarity and Cabinet confidentiality, but also by the lawyer's professional duty of confidentiality and by solicitor-client privilege. The paper begins by canvassing a hierarchy of reasons for a principled resignation and the rare historical examples where these have occurred. It then turns to the roles of the attorney general, analyzing how the legal ethics implications of the primary role--legal advisor to Cabinet--may be affected by two more amorphous roles: legal advisor to the legislature and guardian of the public interest. Finally, it considers the special case of the non-lawyer attorney general and how these issues would apply, as well as the more common situation of lawyers with other portfolios. [ABSTRACT FROM AUTHOR]

This article critically examines the Supreme Court of Canada's treatment of the contract of employment in its wrongful dismissal jurisprudence over the last 25 years, with the aim of challenging the view that only by exempting the contract of employment from the ordinary workings of contract doctrine or by resorting to public policy considerations can the common law of dismissal provide adequate protection for employees. The Court's jurisprudence reveals a commitment to what this paper calls the presumption of employer freedom, a view of the contract of employment which has its origins in the status-based master and servant relationship and which continues to permeate the common law of wrongful dismissal. This paper offers a more straightforwardly contract-based account of these same entitlements, grounding them not in policy but instead in the work-for-wages exchange at the core of the contract of employment. [ABSTRACT FROM AUTHOR]

The language of counterfactual causation employed from the bench obscures the analytical vacuity of the "but for" test. This paper takes issue with the consistent recourse to "common sense" as a methodological tool for determining the deeply complex issue of causality. Despite manifestly empty gestures to, e.g., robust pragmatism, the current approach imposes the dominant values of the judiciary in a manner that perpetuates the current distribution of power. Whatever the merits of counterfactual inquiry, its legal iteration requires judges to construct a hypothetical narrative about "how things generally happen." This, in turn, impels a uniquely comprehensive brand of judicial creativity. The results are productively examined in the context of medical malpractice, where the phenomenological lens foregrounds the connection between meaningless doctrine and the protection of the medical elite. [ABSTRACT FROM AUTHOR]

While animal law has been subject to frequent reform in Canada and abroad, the basic legal foundations of animal oppression are largely unchanged. There are many reasons for this impasse, but part of the explanation is that legal reforms are caught in what we might call the property/personhood dilemma. In most legal systems, domesticated animals are defined as property, and so long as this remains true, reforms are likely to be marginal and ineffective. However, the main alternative--to shift animals from the category of property to personhood-- is politically unfeasible, particularly for the domesticated animals who are most intensively exploited in our society. In this paper, I explore a third option for legal reform, which is to include domesticated animals into other legal categories such as "workers" or "members of the family" which carry with them social standing and social rights, even if not full legal personhood. Indeed, there is already some movement in this direction: the law is recognizing (some) animals as (rightsbearing) workers or family members, for at least some purposes, without having declared them to be persons. I call this the social recognition strategy, and argue that it has unexplored promise for advancing justice for animals, although it is not without its own dilemmas and limits. [ABSTRACT FROM AUTHOR]

Due to constitutional protection of Aboriginal water rights, the Canadian government has a duty to consult Aboriginal peoples in water-related decision making. In 2015, Alberta and the Northwest Territories signed an agreement for managing their shared waters in the Mackenzie River Basin. In light of Canada’s record, ob-servers have praised the preceding negotiation process as path-breaking due to its high level of Aboriginal involvement. To evaluate such claims, this paper analyzes Aboriginal consultations in the 2011–2015 NWT-Alberta transboundary water negotiation. The comparative case study reaches the following conclusions. In their bilateral water negotiation, the two jurisdictions differed markedly in terms of consultative approaches. While Alberta was oriented towards legal minimum requirements under Canadian constitutional law, the NWT implemented extensive consultations characterized by early involvement, multifaceted engagement mechanisms, emphasis on dialogue and collaboration, capacity building, and recognition of Aboriginal groups as governments. Although shortcomings remained in terms of direct Aboriginal access and accommodation, the NWT achieved a high standard of consultation, which aligns with emerging thinking on the international principle of free, prior, and informed consent (FPIC). Overall, the NWT experience holds important implications for moving FPIC from an international norm to a domestic template for action in Canada. [ABSTRACT FROM AUTHOR]

As modern technologies leverage medical sciences, life expectancy is on the rise in Canada, and indeed globally, with a remarkable increase in the elderly population in need of health care. The same is true of the diversity of cultural groups who are now patrons and stakeholders in Canada’s health care landscape. An emergent feature of this landscape is the complexity of contexts for negotiating and mediating medical care delivery at the end of life. This paper examines the gaps in regulatory and legal interventions as well as the gaps and opportunities to negotiate the transition to palliative care in cross-cultural contexts that have the potential to escalate as Canada’s domestic health care system increasingly engages with non-dominant segments of Canada’s cultural mosaic at the endof- life spectrum. It calls attention to the increased relevance of palliative care, identifying cross-cultural elements required for continuing and future elaboration of that care regime fully into the Canadian health care system. [ABSTRACT FROM AUTHOR]

This paper reviews the legal status of a number of end-of-life law and policy issues that have, to date, been overshadowed by debates about medical assistance in dying. It suggests that law reform is needed in relation to palliative sedation without artificial hydration and nutrition, advance directives for the withholding and withdrawal of oral hydration and nutrition, unilateral withholding and withdrawal of potentially life-sustaining treatment, and the determination of death. To leave the law in its current uncertain state is to leave patients vulnerable to having no access to interventions that they want or, at the other extreme, being forced to receive interventions that they do not want. This can either inappropriately shorten life or extend suffering. It can also leave individuals at risk of being declared dead earlier than appropriate or much-needed organs not being available for transplantation because individuals are being declared dead later than appropriate. [ABSTRACT FROM AUTHOR]

For Indigenous communities and individuals in Canada, "Canadian" law has been a mechanism of assimilation, colonial governance and dispossession, a basis for the assertion of rights, and a method of resistance. How do Indigenous lawyers in Canada make sense of these contradictory threads and their roles and responsibilities? This paper urges attention to the lives and experiences of Indigenous lawyers, noting that the number of self-identified Indigenous lawyers has been rapidly growing since the 1990s. At the same time, Indigenous scholars are focusing on the work of revitalizing Indigenous law and legal orders. Under these conditions, Indigenous lawyers occupy a complicated space. This article considers scholarship about other outsider groups in the profession, including women and African Americans, and the existing literature about Indigenous lawyers, developing three themes: community and belonging after professionalization; expectations and discrimination; and the difference that Indigenous lawyers may make. The article concludes by addressing ethical questions raised by the proposal for a qualitative, interview based approach to studying the experiences and ethics of Canada's Indigenous lawyers. [ABSTRACT FROM AUTHOR]

The Canadian Minister of National Revenue is responsible for administering and enforcing the majority of tax legislation in Canada. Where disputes arise with particular taxpayers over the correct amount of tax owed, the taxpaying public ought to have confidence that the Minister has a principled basis in law for settling disputes for less than amounts previously assessed. Yet opponents of the principled basis for settlement consistently call for reform, arguing that compromise settlement should be permissible. This paper responds to arguments raised for compromise settlement by reconciling the jurisprudence on the authority of the Minister to settle tax disputes. It then challenges the Carter Commission's recommendation that U.S.-style offers in compromise should be available in Canada. Exercise of existing Ministerial discretion to grant advance rulings and taxpayer relief has been inconsistent, demonstrating that additional discretion would only deepen public suspicion that the tax system is administered unfairly. [ABSTRACT FROM AUTHOR]

The workload of the Supreme Court of Canada is shared among the Court's nine members, but is this sharing equal with respect to the writing of judgments? A simple count does not provide an answer because not all cases are equally important. This paper develops an objective measure of case importance--the Legal Complexity Index--and applies it to the cases decided by the McLachlin Court. It demonstrates that judgment-delivery opportunities for significant cases have not been shared equally, either overall or with respect to any of the major subdivisions of the caseload. Some judges enjoy the spotlight, while others are relegated to the margins. An assessment of the major correlates of this inequality--gender, seniority, and the "Chief Justice factor"--indicates that their combined impact poses a significant challenge for the Court. [ABSTRACT FROM AUTHOR]

This paper advocates for a more active role for adjudicators, one in which they provide direction to parties and actively shape the hearing process. Active adjudication can be an important access to justice tool. Without some direction and assistance from the adjudicator, growing numbers of self-represented litigants cannot meaningfully access administrative justice. Importantly, however, as the role of the adjudicator shifts, so too must our understanding of the notion of impartiality. If it is unfair to expect self-represented litigants to navigate the hearing process without adjudicative assistance and direction, it is also unfair to insist on a vision of impartiality that prevents adjudicators from actively managing the hearing process. To that end, the author develops the notion of "substantive impartiality" to show how existing legal principles can accommodate a more active role for the administrative adjudicator. The author also makes practical recommendations and suggests how administrative tribunals can help self-represented litigants understand the principles and procedures related to bias allegations. [ABSTRACT FROM AUTHOR]

In both Canada and Australia the conduct of public inquiries draws heavily from the expertise of the legal profession, with judges frequently serving as commissioners and inquiry hearings often reproducing the popular imagery of a courtroom. Despite this affinity between public inquiries and the legal profession, however, jurisprudential and academic authorities repeatedly stress that public Inquiries are non-adjudicative. Indeed, the received wisdom is that the investigative focus of public inquiries justifies their divergence from the procedural and substantive commitments of adjudication. This paper challenges that assumption. It argues that the service of judges as inquiry commissioners should be premised on their fidelity to the basic value of adjudication, a commitment necessary both to honour the due process rights of inquiry participants and the constitutional principle of separation of powers. Drawing from constitutional jurisprudence, practical examples of judicial service on inquiry commissions in Canada and Australia, and an understanding of adjudicative processes from the perspectives of their participants, I propose an analytic method to resolve the unique dilemmas faced by judges as inquiry commissioners. This method speaks directly to the ethics of judges, reinforcing a connection between their skills, procedural methods, and commitment to honour the basic principles of a just legal system. [ABSTRACT FROM AUTHOR]