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Current plans for oversight of social and other online media platforms are a soft but important exercise. More should be done.

When can a trier of fact take into account the absence of a complainant's motive to lie in assessing credibility in sexual assault cases. How much weight can be attributed to that absence? Resolution of these questions has led to a surprisingly sizable number of appellate cases. R v Gerrard 2022 SCC 13 is now the leading case on the issue. It confirms somewhat cryptically that the absence of evidence of a motive to fabricate can be considered in assessing credibility. Clarity on the issue is still needed. In particular, what consitutes "proved absence" and/or evidence of an absence of motive. This piece argues that courts need to start afresh. If we better understand what courts are trying to get at by referencing the issue of motive as being "proved"and, we apply the everyday rules of evidence, we can escape from this confusing trap of trying to fit the issue into a particular box. When the cases talk about proved absence (or presence) of motive, the phrase should be interpreted to mean that there is a sufficient and compelling evidentiary basis or foundation to allow for the conclusion or inference to be drawn. After setting out how the ordinary rules of evidence and policy support this principled approach to the issue, the article offers some model instructions on the issue.

This paper brings forward Justice Pal's dissenting opinion at the Tokyo Tribunal to add to Third World Approaches to International Law (TWAIL) literature on international criminal law and the rules of evidence and procedure. It is part of a TWAIL effort to scrutinize the everyday practices of international prosecutions through procedural and evidentiary rules. By locating and situating Justice Pal's reasoning within the broader academic literature on dissents in international criminal law, it is possible to illustrate how and why Justice Pal's views were obscured as a relevant dissent. From this vantage point, this paper pursues Justice Pal's legacy as it relates to the rules of evidence and procedure in the International Criminal Tribunal for the Former Yugoslavia and International Criminal Tribunal for Rwanda. It traces the evolution of the judicial power to draft and amend these rules, and examines the impact of these decisions on the everyday functions of the tribunals and how truth is determined.

Feminist law and policymakers have been inspired by collectively generated experiences of emotion that help to shape what counts as justice and injustice in campus sexual violence cases. Focusing on events surrounding the Dalhousie University Faculty of Dentistry in 2014–2015, this article explains how emotional incitements in the case contributed to an infrastructure that supported formal and specifically carceral responses to campus sexual violence. Correspondingly, this article explains why alternative modes of legal and political formation that challenged the premises of the formal law, including restorative justice, were misread by some commentators as a form of “weak justice” and therefore outside the bounds of feminist action. The central claim of the article is not that particular emotional reactions are right or wrong, but that feminist law and policymakers should reflect on and assess their political force. Considering the ways that emotions are mobilized reveals the benefits and drawbacks of engaging with law in ways that feel emotionally gratifying and therefore politically necessary, but which can lead to harmful consequences that contradict feminist goals.

Relative to non-Indigenous youth, Indigenous youth have been under-represented when studying pathways to mental wellness. Yet, a broad range of adversity is acknowledged, from intergenerational and ongoing trauma arising from colonial policies. This scoping review explores resilience definitions, measures, key stressors, and what Indigenous youth identify as pathways to their wellness, based on quantitative and qualitative peer-reviewed literature in Canada and the Continental United States. Eight databases (EBSCO, PsycINFO, Science Direct, Social Science Citation Index, Web of Science, PsycARTICLES, and EMBASE) and hand searches of 7 relevant journals were conducted to ensure literature coverage. Two independent reviewers screened each article, with one Indigenous screener per article. The final scoping review analysis included 44 articles. In articles, no Indigenous term for resilience was found, but related concepts were identified (“walking a good path,” “good mind,” Grandfathers’ teachings on 7 values, decision-making for 7 generations into the future, etc.). Few Indigenous-specific measures of resilience exist, with studies relying on Western measures of psychological resilience. Qualitative approaches supporting youth-led resilience definitions yielded important insights. Youth stressors included the following: substance use, family instability, and loss of cultural identity. Youth resilience strategies included the following: having a future orientation, cultural pride, learning from the natural world, and interacting with community members (e.g., relationship with Elders, being in community and on the land). Indigenous traditional knowledge and cultural continuity serve as prominent pathways to Indigenous youth resilience. More research is needed to yield a holistic, youth-centered measure of resilience that includes traditional practices.

This article examines the relationship between colonialism, capitalism, and violence in Sri Lanka through the combined lenses of international economic law (IEL) and transitional justice. We argue that colonialism instantiates vicious cycles in the histories of violence of ethno-racial capitalism through the creation of states with debts that can never be repaid. This system of ‘indebted impunity’ persists even under ‘new’ Southern sovereigns. We illustrate how IEL and transitional justice are co-constitutive in maintaining international law’s racial hierarchies, while pursuing the construction of racial hierarchies that precipitate ethno-racial capitalist formations, and violence, in Sri Lanka. We first attend to the emergence of international law with racial capitalism as a story of sustained violence, where offshoots like IEL and transitional justice remain tied to the foundational violence in ways that cannot be reformed away. The final section examines the colonial transformation of Sri Lanka, focusing on the British Empire’s role in configuring ethno-racial communities, to consider how IEL and transitional justice work together to maintain this cycle. We observe that indebted impunity persists as a structural condition even when the ‘white’ colonial masters have formally departed, and ‘brown’ differentially racialized compatriots become the ones in charge.

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More Canadians are riding bicycles than ever before, but misinformation about cycling and the law is common.   Whether you are a cycling commuter, the parent of a child with their first two-wheeler, a recreational rider, or a racer, the chances are you will need this book. In this second edition of Every Cyclist’s Guide to Canadian Law, Christopher Waters, a law … Every Cyclist’s Guide to Canadian Law Read More »

Cities’ international relations are under a spotlight following Russia’s invasion of Ukraine

Scholars and practitioners have long called for a sentencing methodology that incorporates the social realities of Black Canadians and thereby takes seriously the ameliorative impacts that judicial recognition of systemic anti-Black racism could have on sentencing outcomes — including quantitative impacts on the length of individual criminal sentences and qualitative impacts on the mode of criminal sentence. In Ontario, the criminal jurisprudence around the sentencing of Black offenders has dramatically increased in the past few years, culminating in the Court of Appeal for Ontario’s (”the ONCA”) decision in R. v. Morris. However, while the ONCA has long acknowledged the plights of Black Canadians at the hands of the criminal justice system, until Morris, the ONCA has not explicitly discussed what, if any, role that acknowledgement should play in crafting a proportionate sentence for a Black offender. Through its sustained analysis of this urgent question, Morris may represent a watershed moment in the criminal jurisprudence relating to the sentencing of Black offenders.

In Actavis v Eli Lilly, the UK Supreme Court overturned its previous Kirin-Amgen decision, ushered in a new U.K. doctrine of ‘extended protection’, and in so doing, proclaimed that it had finally brought U.K. patent jurisprudence in line with the objectives of Article 69 of the European Patent Convention [EPC]. A considerable amount of commentary leading up to Actavis, as well as the Actavis judgment itself, highlighted how U.K. patent jurisprudence of the post-Article 69 era suffered from a flawed, U.K.-centric tunnel vision, instinctively presuming that Article 69 was simply a reflection of existing U.K. patent practice and, as such, U.K. patent law was already in compliance with EPC obligations. The weight of opinion was that Article 69 was meant to stake out a middle ground of claim scope, between literalistic, peripheral-style claiming, exemplified by traditional U.K. patent jurisprudence, and the non-literalistic, central-style claiming, exemplified by traditional German patent jurisprudence. In extending protection beyond literal claim infringement to cover non-literal equivalents, the UKSC declared that it had finally moved U.K. patent doctrine to the desired middle ground of the Article 69. However, what these commentaries overlook is that movement away from literalism was not the only shift in U.K. patent practice that Article 69 intended to achieve. Rather, a historical and comparative analysis demonstrates that in the lead-up to Article 69, commentators and EPC negotiators held similar apprehensions regarding the U.K. ‘colourable evasion’ doctrine. To these commentators, ‘colourable evasion’ embodied many of the concerns surrounding both literalistic, peripheral claiming and non-literal, central claiming. Similarly to literalism, ‘colourable evasion’ relied almost entirely on judicial interpretation, as opposed to the more fact-based and infringement-focused claim scope doctrines of Continental patent practice. Furthermore, like the non-literalistic approach of central claiming, such as the German ‘general inventive concept’, ‘colourable evasion’ could undermine the notice function of claims by permitting the judicial vitiation of claim elements based entirely on a generalized ‘inventive concept’. Post-Actavis jurisprudence demonstrates that the Actavis test, with its reliance on the inventive concept as the point of departure for non-literal infringement, has re-introduced many of the same concerns associated with both the U.K. ‘colourable evasion’ doctrine and the German ‘general inventive concept’. Accordingly, the Actavis test, in many ways, may be a return of ‘colourable evasion’ and the ‘general inventive concept’ rather than the doctrine of ‘pith and marrow’. The irony is that in pursuit of harmonization, German patent practice abandoned the ‘general inventive concept’ only now to see its return in the form of the U.K.’s Actavis test. In this sense, while Actavis took a critical view of preceding jurisprudence’s narrow, U.K.-centric reluctance to embrace the trans-European harmonization goals of Article 69, Actavis may end up undermining its own objectives of finally breaking free from the cycle of U.K.-centric patent practice.

In Canada, Indigenous populations have an increased prevalence of psychiatric disorders and distress. Mental health mobile applications can provide effective, easy-to-access, and low-cost support. Examining grey literature and academic sources, this review found three mobile apps that support mental health for Indigenous communities in Canada. Implications and future directions are discussed.

As Darryl Li writes in the Universal Enemy, this new world order is characterized by two forms of armed conflicts: national ethnic wars and a "globally threatening militant Islam." The latter characterization is attributed to the attacks of September 11, 2001 against the United States, after which the figure of the 'Muslim' evil 'terrorist' was designated as the enemy of all humankind. In light of this, the present paper tells a story of the development of the international legal regime in the realm of counter-terrorism, focusing on the doctrine of anticipatory self-defence that was introduced by the United States' National Security Strategy in 2002. The paper argues that the novel doctrine of anticipatory self-defence introduced by the Bush administration not only undermines the principles of necessity and proportionality that govern the use of force under international law, but it also represents a neo-colonial extension of earlier colonial legacies of domination.

The Federation of Law Societies of Canada’s Model Code of Professional Conduct recognizes the commitment of the legal profession to protect the public interest and respect the requirements of human rights laws. Following in the wake of the Statement of Principles controversy at the Law Society of Ontario, this article argues that the standard conception of lawyers’ professional role morality in Canada—the neutral partisan—takes a thin and “bleached out” view of legal ethics. In making this case, the article reads the limited body of professional discipline caselaw through the lens of critical theory to show that current practices of lawyer regulation pertaining to human rights and equality are underinclusive. Next, the article argues that lawyers have a positive obligation to promote substantive equality in their professional life and work. This obligation should be reflected by revisions to the Model Code and other professional regulatory measures to ensure that law societies take a comprehensive and systematic approach to promoting substantive equality within their mandate. As such, the purpose of the article is to shift the terms of professional debate about what protecting the public interest and respecting the requirements of human rights laws mean.