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<div> While human rights remains the predominant lens used to analyze the Chinese government’s recent intensification of surveillance, incarceration, and contr

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.

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.

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.

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.

English Abstract: This bilingual volume of the Supreme Court Law Review dedicates itself to the legacy of the Honourable Justice Clément Gascon, who became a judge of the Supreme Court of Canada in 2014 and retired in 2019. This introduction provides an overview of his career and a summary of the papers included in the collection, written by: Rt. Hon. Richard Wagner; Hon. Marie Michelle Lavigne; Hon. Rosalie Silberman Abella; Hon. Nicole Duval Hesler; Hon. Nicholas Kasirer; Catherine Le Guerrier; Prof. Janis Sarra; Sajeda Hedaraly & Éléna Sophie Drouin; Jérémy Boulanger-Bonnelly; Alex Bogach & Ben Lerer; Brodie Noga; Hon. Louis LeBel; Brandyn Rodgerson; and Prof. Joshua Sealy-Harrington.French Abstract: Ce volume bilingue de la Supreme Court Law Review se dédie à l’héritage juridique de l’honorable Clément Gascon, lequel est devenu juge à la Cour suprême du Canada en 2014 et a pris sa retraite en 2019. Cette introduction fournit un aperçu de sa carrière et un résumé des essais inclus dans la collection, lesquels ont été rédigés par: le très hon. Richard Wagner; l'hon. Marie Michelle Lavigne; l'hon. Rosalie Silberman Abella; l'hon. Nicole Duval Hesler; l'hon. Nicholas Kasirer; Catherine Le Guerrier; Prof. Janis Sarra; Sajeda Hedaraly & Éléna Sophie Drouin; Jérémy Boulanger-Bonnelly; Alex Bogach & Ben Lerer; Brodie Noga; l'hon. Louis LeBel; Brandyn Rodgerson; et Prof. Joshua Sealy-Harrington.

This article explores two disability justice legacies of Justice Clément Gascon. One legacy is embodied in his personal narrative of disability. Another legacy is jurisprudential and seen in his legal reasoning. On his embodied legacy, the article juxtaposes Justice Gascon’s widely publicized anxiety attack with Justice Le Dain’s private forced resignation following his hospitalization for depression thirty years earlier. This comparison reveals how, in many ways, attitudes around disability have not progressed, but rather reconfigured into more palatable forms. And on his jurisprudential legacy, this article conducts a critical disability theory analysis of Justice Gascon’s dissent in Stewart v. Elk Valley Coal Corp. In so doing, it highlights the ideological undercurrents that shape Canadian law, the link between ableism in society and ableism on the Court, and the importance of incorporating disability in contemporary discourse around judicial diversity.

English Abstract: Ottawa police sergeant Steven Desjourdy was the first officer in Canada to be prosecuted for sexual assault based upon an illegal strip search of a woman, arguably a “sexual assault by the state.”1 Sexual assault prosecutions present innumerable hurdles for all complainants, but when the accused is a police officer engaged in his duties, those hurdles are almost insurmountable. The prospect of racism loomed large in this case, given that Desjourdy was white and SB was a Black Canadian woman portrayed as volatile and dangerous. Using the transcripts of Desjourdy’s trial and drawing upon sexual assault and critical race literatures, this article explores the systemic biases that favour police officers on trial and facilitate the construction of white innocence and racialized danger.French Abstract: Le sergent Steven Desjourdy, de la police d’Ottawa, a été le premier policier au Canada à être poursuivi en justice pour agression sexuelle à la suite d’une fouille à nu illégale d’une femme, ce qui constitue sans doute une « agression sexuelle par l’État ». Les poursuites pour agression sexuelle présentent d’innombrables obstacles pour tous les plaignants, mais lorsque l’accusé est un policier dans l’exercice de ses fonctions, ces obstacles sont presque insurmontables. La perspective du racisme était très présente dans cette affaire, étant donné que Steven Desjourdy était blanc et que SB était une femme noire canadienne décrite comme volatile et dangereuse. À l’aide des transcriptions du procès de Steven Desjourdy et en s’appuyant sur les écrits en matière d’agressions sexuelles et de critiques de la race, les auteurs explorent les préjugés systémiques qui favorisent les policiers en instance de procès et facilitent la fabrication de la chimère d’une innocence blanche et d’un danger racialisé.* Assistant Professor, University of Windsor Faculty of Law; PhD candidate, Osgoode Hall Law School.**Professor Emerita, University of Ottawa Faculty of Law.1 Amanda George, “Strip searches: Sexual Assault by the State” (1993) 18:1 Alternative LJ 31.

We write as a group of experts in the legal regulation of artificial intelligence (AI), technology-facilitated violence, equality, and the use of AI systems by law enforcement in Canada. We have experience working within academia and legal practice, and are affiliated with LEAF and the Citizen Lab who support this letter. We reviewed the Toronto Police Services Board Use of New Artificial Intelligence Technologies Policy and provide comments and recommendations focused on the following key observations: 1. Police use of AI technologies must not be seen as inevitable2. A commitment to protecting equality and human rights must be integrated more thoroughly throughout the TPSB policy and its AI analysis procedures3. Inequality is embedded in AI as a system in ways that cannot be mitigated through a policy only dealing with use 4. Having more accurate AI systems does not mitigate inequality5. The TPS must not engage in unnecessary or disproportionate mass collection and analysis of data6. TPSB’s AI policy should provide concrete guidance on the proactive identification and classification of risk7. TPSB’s AI policy must ensure expertise in independent vetting, risk analysis, and human rights impact analysis8. The TPSB should be aware of assessment challenges that can arise when an AI system is developed by a private enterprise9. The TPSB must apply the draft policy to all existing AI technologies that are used by, or presently accessible to, the Toronto Police ServiceIn light of these key observations, we have made 33 specific recommendations for amendments to the draft policy.

<div> This report examines the Canadian government’s repressive and carceral approach to human trafficking, which has created what the authors describe as an &

This in an introduction to the special Issue "Media and Communication Theory and the Regulation of the Networked Society" published by the international peer-review journal LAWS. The collection of articles builds on the interdisciplinary dialogue that took place at the University of Windsor (Canada) symposium on the regulation of digital platforms, new media and technologies in the fall of 2019. The articles of the collection explore the various effects of media and borders, networks, amidst pandemics and environmental crises, different understandings of regulation, and the particular challenges of interdisciplinarity as it connects to law and regulation. The collection gathers the works of several academics worldwide who reflect on some of the biggest questions and challenges of our time: how do transnational digital media platforms, algorithms and big data shape commerce, politics, speech and mobilization or resistance on pressing issues such as climate change, the pandemic, elections, racial discrimination or social justice? How do transnational digital platforms redefine the role of our governments, our everyday lives, the citizenry? How do governments, private undertakings, institutions and citizens resort to, or respond to, this ultra-mediatized networked environment? To what extent have national borders become obsolete in this networked global village? Building on the scholarship of Canadian media theorist Marshall McLuhan and others, as a point of departure to explore the regulation of new media, this Special Issue tackles several of these pressing questions in a post-colonialist, posttruth environment. Various theories about media, networks and borders at the intersection of law and regulation may better inform the goals that law and policy makers should pursue (or not). This is particularly timely as governments, private corporations and citizens around the world face unprecedented challenges with flows of (dis)information about the global pandemic, hate speech and environmental crises.

In response to the Canadian government consultation process on the modernization of the copyright framework launched in the summer 2021, we hereby present our analysis and recommendations concerning the interaction between copyright and the Internet of Things (IoT). The recommendations herein reflect the shared opinion of the intellectual property scholars who are signatories to this brief. They are informed by many combined decades of study, teaching, and practice in Canadian, US, and international intellectual property law.In what follows, we explain:•The importance of approaching the questions raised in the consultation with a firm commitment to maintaining the appropriate balance of rights and interests in Canada’s copyright system, within the broader framework of the Constitution;•That the modernization of the Copyright Act requires a careful examination of the copyright framework within larger observable trends of dominant positions in the marketplace and anti-competitive practices, of the extraction of big (personal) data, and of market and legal infrastructures’ heavy reliance on non-negotiated standard form contracts;-That the growing prevalence of the IoT shows more clearly than ever before why Technological Protection Measures (TPMs) need to be recalibrated in keeping with the objectives of copyright, the Constitution, property rights, and of promoting competitive markets.As such, we recommend: -To narrow the scope of the TPM prohibitions under the Copyright Act, whereby the circumvention of access controls or copy controls for non-copyright-infringing purposes would be lawful, with a non-exhaustive list of such purposes to provide greater legal certainty. The same treatment would apply to the dealing in TPM circumvention technology enabling the exercise of non-copyright-infringing purposes.In the alternative, the Copyright Act should be amended to:-Introduce a new exception that would confirm that the TPM provisions (and other relevant exclusive rights in the Copyright Act) do not apply to the right to repair, including for maintenance and diagnostics purposes. -Introduce a new exception to encourage follow-on innovation. -Additionally, just as copyright holders should not be allowed to contract out of exceptions to copyright infringement through non-negotiated standard form agreements, neither should they be allowed to opt out of exceptions to TPM prohibitions by contract.

In response to the Canadian government consultation process on the modernization of the copyright framework launched in the summer 2021, we hereby present our analysis and recommendations concerning the interaction between copyright and artificial intelligence (AI). The recommendations herein reflect the shared opinion of the intellectual property scholars who are signatories to this brief. They are informed by many combined decades of study, teaching, and practice in Canadian and international intellectual property law. In what follows, we explain:- The importance of approaching the questions raised in the consultation with a firm commitment to maintaining the appropriate balance of rights and interests in Canada’s copyright system, consistent with a robust principle of technological neutrality.- The importance of ensuring that text and data mining (TDM) activity can be undertaken in Canada without the threat of potential copyright liability. We therefore propose both an opening up of Canada’s fair dealing doctrine to better accommodate TDM activities, and the enactment of a specific statutory provision to confirm that uses of copyright works and other subject matter for TDM (whether commercial or non-commercial) do not infringe copyright. - The importance of resisting calls to extend copyright protection to AI-generated outputs. We therefore propose maintaining and confirming the existing principled requirements of human authorship and original expression as preconditions of copyright protection, and we caution against any move to establish new neighbouring or sui generis rights in respect of AI outputs. Works generated by AI should remain in the public domain. As such, we recommend:- Enacting a broad statutory provision confirming that use of a work or other subject matter for TDM does not infringe copyright. This specific exception should be available to all users, apply to commercial and noncommercial uses, permit the retention and sharing of copies, and be protected from contractual override. - Amending section 29 of the Copyright Act to make the list of purposes an illustrative list (“for purposes such as”) and adding TDM or data/informational analysis as an enumerated purpose therein.- Confirming in section 2 of the Copyright Act that “author” means a human being/natural person; and confirming in section 5 of the Copyright Act that copyright shall not subsist in a work created without a human author.

When proposals are made to reform legal procedure, improving access to justice is often identified as the goal. What does access to justice mean in this context? This article proposes that “better access” and “better justice” should be understood as two distinct goals. Access improves when procedural costs confronting litigants (and potential litigants) are reduced. Justice has three qualities – substantive justice, procedural justice, and public justice – which legal procedure can produce to a greater or lesser degree. Although access and justice are sometimes in tension as goals for procedural reform, they are also harmonious. Better access to better justice is a worthy goal for procedural reformers. Welfare-consequentialism is introduced in the final part of the article, as a way to focus access to justice reforms and make the necessary tradeoffs. This article’s argument is illustrated throughout by three procedural reform trends – mandatory mediation, small-dollar procedure, and inquisitoriality.

This article examines the legal and normative foundations of media content regulation in the borderless networked society. We explore the extent to which internet undertakings should be subject to state regulation, in light of Canada’s ongoing debates and legislative reform. We bring a cross-disciplinary perspective (from the subject fields of law; communications studies, in particular McLuhan’s now classic probes; international relations; and technology studies) to enable both policy and language analysis. We apply the concept of sovereignty to states (national cultural and digital sovereignty), media platforms (transnational sovereignty), and citizens (autonomy and personal data sovereignty) to examine the competing dynamics and interests that need to be considered and mediated. While there is growing awareness of the tensions between state and transnational media platform powers, the relationship between media content regulation and the collection of viewers’ personal data is relatively less explored. We analyse how future media content regulation needs to fully account for personal data extraction practices by transnational platforms and other media content undertakings. We posit national cultural sovereignty—a constant unfinished process and framework connecting the local to the global—as the enduring force and justification of media content regulation in Canada. The exercise of state sovereignty may be applied not so much to secure strict territorial borders and centralized power over citizens but to act as a mediating power to promote and protect citizens’ individual and collective interests, locally and globally.

Perpetrators of Technology-Facilitated gender-based violence are taking advantage of increasingly automated and sophisticated privacy-invasive tools to carry out their abuse. Whether this be monitoring movements through stalker-ware, using drones to non-consensually film or harass, or manipulating and distributing intimate images online such as deep-fakes and creepshots, invasions of privacy have become a significant form of gender-based violence. Accordingly, our normative and legal concepts of privacy must evolve to counter the harms arising from this misuse of new technology. Canada’s Supreme Court recently addressed Technology-Facilitated violations of privacy in the context of voyeurism in R v Jarvis (2019). The discussion of privacy in this decision appears to be a good first step toward a more equitable conceptualization of privacy protection. Building on existing privacy theories, this chapter examines what the reasoning in Jarvis might mean for “reasonable expectations of privacy” in other areas of law, and how this concept might be interpreted in response to gender-based Technology-Facilitated violence. The authors argue the courts in Canada and elsewhere must take the analysis in Jarvis further to fully realize a notion of privacy that protects the autonomy, dignity, and liberty of all.

A clear legal test for equality is impossible, as it should be. Indeed were the test clear, it could not be for equality. It would have to be for something other than equality — in effect, for inequality. The abstract character of equality is not a new idea. In fact, the Supreme Court of Canada’s first decision under section 15 of the Canadian Charter of Rights and Freedoms recognized equality as “an elusive concept” that “lacks precise definition.” Why, then, do judges continue to demand such definition over thirty years later? The answer, at times, is politics.

This draft chapter is part of a larger research project exploring the question of patent quality from a human agency perspective. This chapter explores the changing relationship between agency, and specifically, 'professionalized' agency, and patent quality.

This paper explores from a Canadian perspective the awarding of damages for non-pecuniary losses that arise in commercial settings and asks the question whether there is any useful function performed by such awards. It is difficult to find cases that support such awards and thus if they are to be awarded, it will be advancing damages for non-pecuniary losses in a new direction. To justify such a movement, I suggest that the any development should be measured by two concepts: legitimacy - what is it that courts can legitimately do, and coherence - how does the award fit into a coherent and predictable legal system.I argue that from a purely compensation point of view, awarding compensation for a loss that is incommensurable does not make much sense. Only if the justification is vindication, deterrence or punishment is there merit in awarding more than compensation, but then, courts or legislatures should develop separate criteria to add quantification and to meet the standards of legitimacy and coherence.