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Jurisdictions that have created class action regimes provide as one of their justifications the promotion of behavioural modification or deterrence of wrongdoers. Peculiar to some class action regimes is the phenomenon of cy-pres distributions, in which the class counsel and judge choose a form of distribution for class members. The justification for cy-pres distributions is to ensure that a defendant receives nothing back from the monetary award and is thereby required to internalize the true cost of wrongdoing, or to disgorge the profits of wrongdoing. The cy-pres remedy is seen as furthering the deterrence function of class actions. I argue that it is difficult to find empirical evidence to substantiate the claim of behavioural modification in class action litigation. However, if courts are serious about deterrence, then I suggest that reorienting the focus of cy-pres distributions to properly account for behavioural modification may provide a better chance of that outcome.

Throughout Commonwealth jurisdictions, courts, initially relying upon their inherent jurisdiction, have created what are called Anton Piller injunctions or orders. These orders are akin to a civil search warrant. They require, on pain of being held in contempt of court, the defendant to permit the plaintiff entry to the defendant’s premises so as to secure property or documents for which the plaintiff has been able to demonstrate that there is a high risk of loss or destruction if the plaintiff had commenced its action with the usual filing of statement of claim and notice of suit. The order has been described as the ‘nuclear weapon of civil procedure’. The order arose in much the same fashion as the development of Mareva injunctions, or what are now known as ‘asset preservation orders’. Viewed as being at the extremes of a court’s powers, the orders have generated a great number of procedural safeguards, both as to what a plaintiff must prove to obtain the order as well as in its execution once obtained.What follows is a brief overview of the development of Anton Piller orders in Canada, together with some of the problems and solutions engaged by this extraordinary order.

Notwithstanding Pierre Trudeau's famous quote from 1967 that the "state has no business in the bedrooms of our nation", adults in Canada who engage in certain kinds of consensual sexual activity in private continue to face the stigma of criminalization and, in some cases, the very real possibility of imprisonment.This comment examines two such situations: (i) section 159 of the Criminal Code and anal intercourse; and (ii) the judicial nullification of consent in cases involving S/M and other sexual practices, like erotic asphyxiation, as evidenced most recently in the case of R. v. A.(J.) which is currently before the Supreme Court of Canada.

The law of entrapment has received very little scholarly attention in Canada despite the fact that its reliance on branding neighbourhoods and other locations as "high crime areas" and its low visibility encounters serve to engender discriminatory policing. This article relies on recent Charter decisions in other contexts to argue that an anti-racist lens is now required as part of the assessment of the bona fides of the investigation branch of the entrapment test from R v Barnes.

Copyright laws throughout the world are copyright holder centric and present a very fragmented source to comprehend the rights of users, and in particular of consumers owning copies of copyrighted works. Although in recent years, a growing number of commentators have worked towards defining the place of users in copyright law, little attention has been devoted to the nature and justifications of copy ownership of copyrighted works. This paper applies property and copyright theory to define and justify the existence of copy ownership of copyrighted works. It seeks to carve out in clearer terms the place of copy ownership legally and normatively, to offer a counterbalance to a predominant copyright holder centric approach to copyright law. In Part One of this paper ((2010) 23 I.P.J. 83) I lay out the theoretical framework of property and copyright theory. In this Part Two, I apply the theoretical framework to define the nature of the copy of a copyrighted work, as well as its justifications. I also explore the ramifications of copyright acting as a property limitation rule to copy ownership, and how copy ownership can also act as a property-limitation rule of copyright.

One of the main obstacles in criminal and civil proceedings involving intelligence and executive officials is the objection to disclosure of information and evidence on the basis of national security privilege. Known as the "state secrets privilege" in the United States and “public interest immunity” in England, this evidentiary rule has been invoked successfully in an increasing number of cases in the US and England. Indeed, the privilege has been identified as one of the most serious obstacles to effective human rights remedies. In this essay, I discuss the use of national security privilege in civil litigation in the three jurisdictions, focusing specifically on the role the privilege has played in blocking claims by purported torture survivors and other victims of anti-terrorism activities in the US and England. I also evaluate the potential impact of the privilege on a torture survivor’s civil claim, when such a case ultimately goes to trial in Canada. My conclusion, based on the approach courts have taken to the public interest balancing exercise, is that it will be very difficult for private litigants to obtain disclosure of information over which a claim of privilege has been made.

In the ubiquitous Hollick decision, the Supreme Court of Canada offered what has become the definitive articulation of the evidentiary burden to be met for an action to be certified as a class proceeding: The plaintiff must show, “some basis in fact,” for each of the certification criteria, other than the criterion that the pleadings disclose a cause of action. Several 2010 certification decisions from three different provinces illustrate the continuing judicial tinkering with the standard of proof to be met on certification. In this brief article, I analyze these three recent decisions, reconcile them with established principles of the law of evidence, and highlight the rapidly widening difference in approaches between Canadian and U.S. certification jurisprudence, including the pending Wal-Mart decision.

In recent years, the Canadian courts have been confronted with a number of cases in which freedom of religion and sexual orientation equality appeared to clash. Specifically, the courts have had to decide whether religiously motivated anti-gay expression violated a provincial human rights code restriction on hateful expression (Owens v. Saskatchewan 2006). They have also had to rule on whether a human rights code ban on discrimination in the provision of services to the public was breached when a business owner refused to provide services to a gay advocacy group (Ontario v. Brillinger 2002). And, in two judgements, Trinity Western University v. British Columbia College of Teachers (2001) and Chamberlain v. Surrey School district No. 36 (2002), the Supreme Court of Canada dealt with the competing claims of sexual orientation equality and religious freedom in the public schools.

This article examines the judicial treatment of complaints of discrimination from workers with mental health issues. Equality protections promise full inclusion in social, work and community life. The principle of inclusion is understood in three inter-related parts: inclusion in the workforce, inclusion in decision-making and, in the most broad and prospective sense, inclusion in Canadian society. The current framework of equality protections has not effectively addressed these core values of inclusion for workers with mental health issues. The workplace continues to be a site of discrimination and harassment. Barriers prevent workers with mental health issues from getting or keeping employment, discourage their participation in decision-making, and entrench the devaluation, isolation and exclusion of persons with mental health issues. Accommodative measures must be alive.

In the early morning hours of September 6, 2008, S.B., a twenty-seven-year old African Canadian, experienced the depths of depravity at the hands of five officers with the Ottawa Police Service. She was arrested unlawfully for effectively questioning why she had been stopped by the police, taken to the police station where she was assaulted and strip searched in the presence of a number of male officers, one of whom cut off her shirt and bra with a pair of scissors, and then left half-naked in a cell for over three hours. When she left the police station, she found herself charged with assaulting a police officer. The case was reviewed on a number of occasions by senior prosecutors who believed that the prosecution of S.B. was in the public interest. Two years after the incident, a trial judge stayed the charge concluding that it was a "travesty" and that what happened to her was an "indignity to a human being."

This paper explores Canadian law societies’ involvement in human rights protection and promotion abroad. The authors identify strategies for provincial law societies to contribute overseas, and point out the challenges with adopting such an international focus.

The Special Court for Sierra Leone has been noted for becoming the first international court to convict accused of the crimes of sexual slavery, the use of child soldiers, 'forced marriage', and intentionally directing attacks against peacekeepers. This article analyzes how prosecutions of some of these supposedly 'new' crimes were found not to be in violation of the principle of legality, nullum crimen sine lege. In particular, this article will focus on the crimes of 'forced marriage', intentionally directing attacks against peacekeepers, and sexual slavery: the judgments in the RUF case (Prosecutor v. Sesay, Kallon and Gbao) and the AFRC case (Prosecutor v. Brima, Kamara and Kanu) together reveal two different processes through which the law has proven able to evolve and adapt to accommodate so-called 'new' crimes without violating the principle of legality.

Copyright laws throughout the world are copyright holder centric and present a very fragmented source to comprehend the rights of users, and in particular of consumers owning copies of copyrighted works. Although in recent years, a growing number of commentators have worked towards defining the place of users in copyright law, little attention has been devoted to the nature and justifications of copy ownership of copyrighted works. This paper applies property and copyright theory to define and justify the existence of copy ownership of copyrighted works. It seeks to carve out in clearer terms the place of copy ownership legally and normatively, to offer a counterbalance to a predominant copyright holder centric approach to copyright law. Part One of this paper lays the theoretical framework of property and copyright theory. Part Two applies the theoretical framework to define the nature of the copy of a copyrighted works as well as its justifications. It explores the ramifications of copyright acting as a property-limitation rule to copy ownership, and how copy ownership can also act as a property-limitation rule of copyright.

This paper was written on the occasion of the 40th anniversary of the Annual Workshop on Commercial and Consumer Law and as a contribution to a collection of retrospective essays in the 50th volume of the Canadian Business Law Journal. In the paper, I reflect briefly on the impact of collective action on consumer access to courts, and the promised guarantee of effective justice. In the first part of the paper, I summarize the results of an empirical study which asked class action lawyers to identify the categories of cases being litigated, including those that come within the rubric of "consumer protection actions." I then examine two of the more significant advances in consumer rights litigation, namely, the development of the waiver of tort doctrine and the widespread rejection of mandatory arbitration clauses in consumer contracts. In the final part of the paper, I discuss two challenges to achieving substantive justice for consumers that have recently become more pronounced: increasing reliance on cy près distribution of settlements, and the effect of adverse costs awards on representative plaintiffs.

The Internal Inquiry into the Actions of Canadian officials in relation to Abdullah Almalki, Ahmad Abou-Elmatti and Muayyed Nureddin is a particularly pronounced example of the use of secrecy that has defined Canada in the wake of 9/11. Despite having the authority to hold some portions of the Inquiry in public, the Iacobucci Inquiry was conducted almost exclusively in camera and ex parte. The result was an inquiry that was unlike previous commissions called under the federal Inquiries Act.

Law can be the site through which women's dignity and equality can be expressed and pursued. Speaking the language of rights translates one's needs from private interests to public claims through words and concepts that the community – local, national and/or international – have already validated. Law can therefore offer a medium to confront the injustices and unfairness built into other systems of political, social and economic ordering. Women's rights advocates have won significant victories through law and have generated gains for women's dignity and equality. However, law can also be a place where women's rights are not only silenced but where social, economic and political power structures are replicated and work against women's rights.

The remedies that administrative tribunals can administer is an under studied area. Often, empowering legislation simply extoils an administrative tribunal to do what is ''fair and just''. In this paper, I argue that when confronted with open-textured remedial provisions, tribunals may often benefit from drawing by analogy from developed common law principles used to quantify monetary and non-monetary relief.

With this brief introduction to a special issue of the Osgoode Hall Law School Comparative Law and Political Economy Research Paper Series, we hope to evoke some of the discussions and background preparation that invigorated the 2010 Osgoode Graduate Law Students' Association conference.

As part of an international group of scholars who came together in December 2007 to discuss and debate the use of class actions worldwide, the authors prepared a report on the role of class proceedings in Canada. The original report followed a format designed by the conference organizers and traced the procedural particularities and historical pedigree of class actions in Canada, as well as the general policy rationales and arguments that continue to attend them. Condensed versions of the country reports, including this Canadian report, were published in March 2009.

On May 25 - 26, 2010, Université Laval, the University of Windsor Faculty of Law and the University of Louisville Brandeis School of Law, hosted the Sixth Administrative Law Discussion Forum in Quebec City, Canada.The forum provided an opportunity for thoughtful exchange among administrative law academics on contemporary issues that cut across national borders. The discussions reflected in this collection of papers touch on a variety of major administrative law themes. In addition, they examine local aspects of problems that transcend regional and national borders, and show connections and preoccupations between jurisdictions and indeed between countries.