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A commitment to free speech means protecting speech for reasons that are independent of the truth or merit of its content. This commitment, though, depends on certain assumptions or conditions – most notably that individuals are capable of making reasoned and independent judgments and have access to different opinions and reliable factual information. These conditions, of course, never hold perfectly, but they now seem to be eroding at a rapid pace.The character of public speech has changed in the internet era: how we speak to one another and how we experience that speech. Audiences have become more fragmented. Disinformation and conspiracy theories seem to spread easily and widely, so that distortion and deceit rather than direct censorship may now be the most significant threat to public discourse. There is little common ground in the community on factual matters or the reliability of different sources of information, which has made it difficult, even impossible, to discuss issues and to agree or compromise on public policy. Those who hold competing positions seem rarely to engage with one another and, when they do, their engagement is often combative. A growing number of people feel they should not be expected to hear speech with which they disagree, or which is critical of their views. The spaces or platforms in which public speech occurs have become increasingly privatized and therefore outside the scope of the constitutional right to freedom of expression. What future does the right to free speech have in this changing communication environment?

This paper considers the different types of challenges that technological innovation poses to the Legal Services Act 2007’s regulatory framework, and whether the framework is capable of supporting technological innovation that benefits consumers while also addressing the risks it poses to them.The paper makes some recommendations about how the current regime could be adapted to better address these challenges, but its overall conclusion is that the LSA regime remains capable, for the time being, of responding to them.

This paper examines the recent Supreme Court of Canada judgment in LSBC v. TWU, in which the court upheld the decision of the BC law society not to accredit a law program proposed by an Evangelical Christian university. The paper argues that the task for the courts in this and other religious freedom cases is not to balance competing civic and religious interests but is instead to mark the boundary between the spheres of civic and spiritual life. More particularly, in this case, the issue was whether TWU (in applying to operate an accredited law program) should be viewed as a private religious institution that is free to govern itself according to its own norms, or whether, because its actions directly impact outsiders to the religious group, it should be viewed as performing a public role and therefore subject to non-discrimination and other civic norms. The different judgments in the case begin with different assumptions about the public/private character of TWU (or at least its proposed law program) and so never really address the key issue and never really engage with each other. The paper argues that because admission to law school continues to be a significant barrier to entry into the legal profession in Canada, TWU’s admission decisions will have an impact on non-members. The law society, therefore, was justified in requiring TWU to conform to non-discrimination norms as a condition of accreditation.

In 2017, the Law Commission of Ontario (LCO) initiated an independent study to consider Ontario’s experience with class actions since the enactment of the Class Proceedings Act, 1992 (CPA). During this period, class actions have grown significantly in volume, complexity, and impact in Ontario and across Canada. Class actions also have systemic implications for access to justice, court procedures and efficiency, and government and corporate liability. Finally, this form of litigation has had major financial, policy and even cultural implications across the country.Following an intensive 18-month research project that included over 100 interviews with stakeholders and an empirical examination of Ontario cases, the LCO published its final report, and made over 40 recommendations for amendment and reform of the CPA. It is the first review of the CPA since the Act's inception, and the most detailed examination of class actions in Canada in three decades.

The Canadian government has recently tabled legislation for self-governance of the Canadian patent and trademark agent professions, thereby creating the Canadian College of Patent and Trademark Agents. As such, regulation of the Canadian patent and trademark agent professions might become unique amongst comparable countries – Canada’s self-regulatory body may have authority over setting and administering competency-based standards, ethical standards and continuing professional education.With respect to patent agency, self-regulation of the Canadian profession comes at a pivotal time, not just for Canada, but in technological history generally. We are now moving into the age of the fourth Industrial Revolution, where file sharing, additive manufacturing (i.e. 3D printing) and artificial intelligence (AI) are democratizing invention and along with it challenging long-standing patent law concepts. Furthermore, developments in AI are set to disrupt our traditional notions of professionalization and the delivery of professional services. Patent agency rests on the nexus of both movements and as such, patent agency and patent agent self-governance are approaching unique historical crossroads.Part 1 of this piece highlights some of the issues that the Canadian profession has had to contend with in recent years along with several emerging trends, such as the growing IP clinical movement, new AI-driven service providers and a growing academic interest in the sociology and administration of patent law, all of which are coming to prominence while the Canadian patent agent profession is acquiring self-regulatory authority. Combined with changing notions of the patent system’s role in society, this raises the possibility of conflicts between professional self-interest entrenched within a self-regulatory governance model and shifting perceptions of the public interest. How the new Canadian patent agent self-regulatory body responds to these challenges will define whether Canada will be a leader in forward-thinking patent agency or whether patent agent self-regulation will become a convenient front for professional, rather than public interests.

The Canadian government has recently tabled legislation for self-governance of the Canadian patent and trademark agent professions, thereby creating the Canadian College of Patent and Trademark Agents. As such, regulation of the Canadian patent and trademark agent professions might become unique amongst comparable countries – Canada’s self-regulatory body may have authority over setting and administering competency-based standards, ethical standards and continuing professional education.With respect to patent agency, self-regulation of the Canadian profession comes at a pivotal time, not just for Canada, but in technological history generally. We are now moving into the age of the fourth Industrial Revolution, where file sharing, additive manufacturing (i.e. 3D printing) and artificial intelligence (AI) are democratizing invention and along with it challenging long-standing patent law concepts. Furthermore, developments in AI are set to disrupt our traditional notions of professionalization and the delivery of professional services. Patent agency rests on the nexus of both movements and as such, patent agency and patent agent self-governance are approaching unique historical crossroads.Part 2 of this piece critically analyzes the new College of Patent Agents and Trade-mark Agents Act [College Act] in view of the issues and concerns set out under Part 1. Part 2 argues that a responsive regulation approach to patent agent governance is required to ensure that Canadian patent agency remains open and flexible to the challenges ahead. From this perspective, Part 2 assesses the ways in which the proposed College Act appears to achieve the necessary responsiveness and where it falls short. In some instances, the analysis under Part 2 will also provide proposed revisions or additions to the College Act intended to better address the concerns set out under Part 1.

Graffiti is vilified, and at the same time is increasingly revered and celebrated. This ambivalence is reflected in the general legal landscape that surrounds graffiti and other forms of street art at the criminal, civil and municipal levels. Within this general legal framework, the application of copyright law to graffiti and street art reveals a complex web of interwoven issues about the protection of the graffiti artist’s economic and moral rights and questions of illegality and public policy, and about the rights of the property owner of the “wall” on which the art resides, and the public. This book chapter explores how the law mediates between the rights of graffiti and street artists, the rights of the property owner on which the art resides, and members of the public. The application of copyright law to graffiti and street art offers an opportunity to investigate where the balance should lie between various competing rights and interests relating to these types of works.

Populist candidates and causes have scored a series of remarkable victories in Europe and the Americas since 2015. It is too soon to say whether we are living in a populist “moment,” or at the dawn of a new populist age. It is not, however, too soon to think carefully about the consequences of populism for public policy. Nor is it too soon to consider policy decisions by non-populist governments today that might affect the likelihood that this will be only a moment and not an age.This paper considers the relationship between two ideologies: welfare-consequentialism and populism. Welfare-consequentialism, reviewed in Part 1, holds that governments should always try to adopt the policies that are most likely to make individuals’ lives go best. Part 2 juxtaposes it with populism, defined as the view that (i) society is divided into a pure people and a corrupt elite, and (ii) public policy should give effect to the general will of the pure people (Mudde 2004). The paper then argues that welfare-consequentialism and populism are diametrically opposed ideologies. They are fundamentally incompatible in their representations of “the people,” and in the weight they give to public opinion. Populism’s anti-elitism may sometimes be reconciled with welfare-consequentialism, but not in the many cases where it takes the form of anti-intellectualism. Part 3 concludes by asking whether, in the long-term, welfare-consequentialism makes a polity more or less vulnerable to populism.

A life-evaluation question asks a person to quantify his or her overall satisfaction with life, at the time when the question is asked. If the goal of public policy is to make individuals’ lives better, does it follow that maximizing aggregate life-evaluations constitutes policy success? This paper argues that life-evaluation data provides a solid basis for welfare-consequentialist policy-making. This is illustrated by the successful argument for expanding state-funded mental health services in the United Kingdom.However, life-evaluations do not always provide a complete account of individual welfare. Policy-makers therefore must sometimes inquire into the extent to which individuals’ preferences would be fulfilled, if different policies were to be adopted. This article proposes synthesizing life-evaluationist and preferentist data about individual welfare, as a basis for rational policy-making.

How can we preserve and extend what's good about contingency fees, while minimizing the bad and the ugly? In order to identify the regulatory tools best suited to this challenging task, this Chapter proposes a consumer welfare analysis. The consumers of contingency fee legal services are the individual clients, and the members of classes, represented by law firms working on this basis. These consumers, like other consumers, have interests in:(i) quality, (ii) price, (iii) fairness, and (iv) choice. Part 2 of this Chapter will analyze these four sets of consumer interests, all of which are affected by the regulation of contingent fees. Part 3 scrutinizes various regulatory approaches to contingency fees against the consumer welfare criterion. I argue that heavy-handed interventions, such as fee caps and retrospective price review, can do as much harm as good for consumers. "Light touch" alternatives such as disclosure and standardized contracts, and fostering the "invisible hand" of the market, are preferable approaches for a regulators interested in maximizing consumer welfare.

In popular culture and imagination, World War I was a bloody, muddy, senseless, almost accidental conflict. International law seems far removed from the causes of the war or the way hostilities were conducted. This seeming irrelevance of international law in popular imagination is rejected in intellectual, literary, and scholarly accounts. However, during the centenary of the war, it is time to rethink the role law played in this first large-scale conflict of the twentieth century. Drawing on recent legal historiography as well as original research, this article will argue, through a look at the conduct of naval warfare, that law was central to how Allied, Central, and neutral states navigated the conflict. Specifically, we examine the role law played in the practices of the warring parties in navigating the interdiction of – and attacks on – the civilian shipping of belligerents and neutrals.

Since 2009, the United Nations has been engaged in a process of ‘strengthening’ the human rights treaty body system which monitors the implementation of the core international human rights treaties. The number of human rights treaty bodies has, over time, expanded to ten, with each treaty body independently tasked with monitoring an increasing number of States Parties’ compliance with human rights treaties and optional protocols. This proliferation has in turn precipitated the need for a process to improve the overall functioning of the system.While significant attention has been dedicated in the treaty body strengthening process to the issue of States Parties’ under-reporting and capacity deficits, comparatively little attention has been directed towards accessibility issues, capacity building, and technical assistance for domestic civil society organizations (CSOs) - groups whose informed and active participation are essential to the proper functioning of the entirety of the treaty body system. In light of this lack of attention, an ecosystem of intermediary non-government organizations (NGOs) has emerged organically to provide much needed capacity building, advisory services, and technical assistance to domestic CSOs looking to engage with treaty bodies. However, the ad hoc nature in which these intermediary NGOs have emerged and the lack of formalized institutional relationships with treaty bodies has resulted in a number of systemic issues that desperately need to be addressed in the treaty body strengthening process.This paper will discuss the ongoing process of treaty body strengthening, current services provided by intermediary NGOs to assist domestic CSOs in engaging with human rights treaty bodies (as well as the Universal Periodic Review), gaps within the current framework, and recommendations to improve access for domestic CSOs within the current treaty body strengthening process.

The Supreme Court of Canada’s decision in Google Inc. v Equustek has been criticized as amounting to an excessive claim of extra-territorial reach and possibly a way to bring the right to be forgotten to Canadian shores. In this comment, the author argues that the case is in fact an orthodox application of equitable principles, and one that stresses the importance of the notion that equity acts in personam. On occasion, equity does purport to exert an influence on a litigant’s conduct which takes place beyond the court’s geographical jurisdiction, but it does so, mindful of the practical limitations on enforcement of such orders.

In Anglo-American legal discourse, the juridical subject of dispute resolution has traditionally been conceived as a bearer of rights or a bearer of interests: rights, in the model of liberal legalism that regards adjudication (i.e. court and tribunal processes) to be the preferred means of resolving disputes in the adversarial tradition; or interests, in an alternative or complementary model that regards consensual dispute resolution (i.e. negotiated and mediated settlement processes) to be the preferred means of resolving disputes in the non-adversarial tradition. This article explores the ethical implications of reframing the bearer of interests as a bearer of desires. This is more than just semantics. Reconceiving the juridical subject in this way invokes the contemporary tradition of progressive social theory that has centered the concept of desire in its critique of the liberal humanist subject. This critique has yet to be fully explored in the legal scholarship. One of the most productive lines of argument in this tradition is derived from queer theory – in particular, a strand of post-identitarian thinking in queer theory that regards sexual desire as something that is disruptive of ontology regardless of gender or sexual identity. This strand of thinking raises important questions in this context. Is it possible to theorize juridical subjectivity as a form of sexual subjectivity? What follows from such an effort to “queer” the constitution of the juridical subject, independent from its politicized identity as a bearer of rights in liberal legalism? Could this theory teach us something about the ethics of rights and interests-based dispute resolution processes?This paper argues that theorizing about the juridical subject of dispute resolution through the lens of sexual desire encourages us to think about the practice of settlement non-instrumentally, not unlike sexuality itself, which reveals the practice to be immune to the liberal legal imperatives of politicized identity. This is what makes it a fitting analogue for the trope of sexual freedom in queer theory, which opens up a pressing line of criticism about legal policy initiatives that have sought to limit, and in some cases categorically ban the use of consensual dispute resolution altogether. At the same time, however, this theory raises difficult questions about the ethics of sexual desire given the risk that consent to sex and settlement may be induced by coercive force. This helps us to understand the proper role of law – and specifically, the legal doctrine of consent – in regulating the conduct of these practices, or at least to understand it as something deeply fraught with uncertainty.

Legal scholars have long discussed the Supreme Court of Canada’s (”the Court”) erasure of race in its Charter jurisprudence. The lack of recognition is particularly noticeable in the Court’s jurisprudence on policing. It is well-established that African-Canadians and Indigenous people are disproportionately detained, arrested and charged by police, and thereby overrepresented in the criminal process. Criminologists and legal scholars largely agree that biased policing is one of the primary conduits through which Black, Indigenous and other racialized bodies are funnelled into the criminal justice system. Despite this fact, the Court has only ever marginally engaged in a race-based analysis of the Charter rights that are engaged by police encounters. In R. v. Le, the Court may have potentially lifted the judicial embargo on the discussion of race and biased policing; and, in so doing made a significant and much needed, contribution to critical race Charter litigation. The precedential impact of Le is challenging to predict, but there is reason to hope that Le will provide a veritable roadmap for lawyers who are seeking to mobilize race in the detention analysis under s. 9 of the Charter.

Beverley McLachlin is the architect of a flexible, socially conscious and principled approach to evidence admissibility in Canada. Her jurisprudence has infused the law of evidence with tools that enable it to adapt to new situations, to be aware of and reflect concerns for systemic issues all with an eye to ensuring it can fulfill its regulatory purpose of facilitating justice. I call this the McLachlin principle. This chapter explores the foundations of that approach in two early McLachlin decisions: R v Khan; R v Seaboyer; and then, as Chief Justice, in Mitchell v MNR where she set out, for the first time in a Supreme Court decision, a theory of evidence admissibility. After examining this evidence trilogy, the chapter will consider the application of the McLachlin principle in the context of defence applications to limit cross-examination of an accused on their prior criminal record under R v Corbett. Section 12(1) of the Canada Evidence Act permits all witnesses, including an accused, to be cross-examined on their criminal record and our common law has, for the most part uncritically, accepted that a criminal record is relevant to a witness’s credibility and whether they are prepared to abide by their oath or affirmation. In Corbett, the Supreme Court of Canada upheld the constitutionality of section 12(1) by reading into the provision a judicial discretion to prohibit or limit cross-examination on a prior record. Corbett was decided in 1988 and since then we have become more aware of the existence and manifestations of systemic racism, particularly as it relates to Indigenous and Black communities and the criminal justice system. Chief Justice McLachlin recognized this social reality in both Sauvé v Canada (Chief Electoral Officer) and R v Williams. Despite this consciousness, little, if any, attention has been given in our trial and appellate courts to how social conditions and bias are relevant in thinking about admissibility under Corbett. Enter the McLachlin principle.The chapter examines how it can be used to impact Corbett applications and stimulate future consideration of how evidence law can adapt to better facilitate justice in cases involving Indigenous and racialized participants.

There is much to learn from the trial of Saskatchewan farmer Gerald Stanley on the dangers of not directly confronting the potential impact of racial bias on the trial process. Stanley was acquitted in February 2018 by an all-White jury in the shooting death of 22-year-old Cree man Colten Boushie. The law gives us tools to safeguard trials from racial bias that we shouldn’t ignore. One of these tools is the law of evidence.The law of evidence is a set of rules aimed at regulating the admissibility and use of evidence, in order to fairly promote the search for truth. It recognizes that judges and jurors bring to court every day assumptions about human experience and behaviour that are grounded in unreliable, stereotypical or discriminatory assumptions. That is precisely why it gives judges a discretion to exclude evidence where its prejudicial effect outweighs its relevance or probative value. And why we have rules, for example, that make prior sexual history evidence in sexual assault cases or evidence that paints an accused in a negative light (bad character evidence) presumptively inadmissible.Unfortunately, despite the fact that Indigenous, Black and Brown lived experiences are disproportionately before courts consisting of largely White jurors or judges, we have failed to ensure that our rules of evidence protect against racial bias in the same way that they do against other types of unreliable and discriminatory generalizations. The Stanley trial is a stark reminder of this reality.This short piece examines the Stanley trial and how the law of evidence can incorporate systemic racism as a lens to address issues of admissibility.

In contemporary copyright law, there is an ongoing debate around the nature and scope of the rights users should have to copyright works, exacerbated by ongoing technological developments. Within that debate, this article queries the value of looking at the remedies users may have against copyright holders restricting their legitimate uses of works, as a means to further elucidate the nature and scope of user rights. While there is some value in looking at remedies to situate copyright user rights, an access to justice perspective to rights and remedies suggests that such approach may be too limiting with respect to the position of potential claimants in a legal system. On that basis, this paper identifies structural deficiencies of copyright user rights and proposes an analytical framework towards achieving greater “justice for users” both in the realm of public law and private law.

Transportation is the lifeline that connects persons with disabilities with the community, and facilitates greater opportunities for work, social inclusion and overall independence. Adequate accessible transportation has long been a concern of persons with disabilities, yet there is a dearth of sustained research on the legal and societal implications of transportation inequality for persons with disabilities. This article contributes to the research on both transportation inequality and equality theory by providing an empirical and theoretical analysis of the human rights tribunal decisions on transportation equality in Canada. In doing so, it examines the issues from the perspective of the voices of persons with disabilities by focusing on the substance of their legal claims. Ultimately, the author argues that narrow interpretations of prevailing law and doctrine have resulted in missed opportunities for achieving transportation equality on the ground for persons with disabilities. These opportunities may be captured by the application of a new theory of equality that addresses disability discrimination through the lens of what the author terms the ‘universality of the human condition’.

Colour, as a ground of discrimination, is usually equated with or subsumed under the ground of race. We argue that colour does and should have a discrete role in human rights and equality cases because it highlights certain hierarchies and forms of marginalization unaddressed by the ground of race. To support this argument, we first explore the concepts of “race” and “colour” and their relationship to one another, as well as the harms done by discrimination based on colour. Then, after a brief review of the use of race and colour in international and domestic instruments, we examine American anti-discrimination employment cases to learn from that country’s experience with separating the race and colour grounds of discrimination. We then turn to the emerging Canadian jurisprudence recognizing a distinct role for the colour ground and examine the possible consequences of that recognition.