Your search

For self-defence actions to be lawful, they must be directed at military targets. The absolute prohibition on non-military targeting under the jus in bello is well known, but the jus ad bellum also limits the target selection of states conducting defensive operations. Restrictions on targeting form a key aspect of the customary international law criteria of necessity and proportionality. In most situations, the jus in bello will be the starting point for the definition of a military targeting rule. Yet it has been argued that there may be circumstances when the jus ad bellum and the jus in bello do not temporally or substantively overlap in situations of self-defence. In order to address any possible gaps in civilian protection, and to bring conceptual clarity to one particular dimension of the relationship between the two regimes, this article explores the independent sources of a military targeting rule. The aim is not to displace the jus in bello as the ‘lead’ regime on how targeting decisions must be made, or to undermine the traditional separation between the two ‘war law’ regimes. Rather, conceptual light is shed on a sometimes assumed, but generally neglected dimension of the jus ad bellum’s necessity and proportionality criteria that may, in limited circumstances, have significance for our understanding of human protection during war.

The primary goal of this article is to look at the property attributes of copyright to inform a more nuanced understanding of the nature of copyright that emphasizes its distinct character. I resort primarily to James W. Harris' theory in Property and Justice, and in particular, on the insights that his characterization of property as the twin manifestation of trespassory rules and of an ownership spectrum, bring to the understanding of copyright. While copyright holders' right to exclude has been a focal point in copyright theory, looking at copyright through trespassory rules and the ownership spectrum allows me to discern two distinct yet interrelated property interests that bring a more refined understanding of the property attributes of copyright.

Over the last 15 years, English courts have developed the injunction contra mundum, one made against all the world and used primarily to prevent infringement of privacy and breaches of confidence. The order has attracted recent criticism because it is frequently sought by celebrities to suppress publicity about their private and family life. Such an order intersects a number of substantive areas of law, including: the developing tort of privacy; freedom of speech, the Internet and prior restraint; the open court principle; defamation; and the ability to enforce court orders across jurisdictional boundaries. This article addresses the difficulties of introducing such an injunction into Canadian common law and whether it is necessary.

This article draws on an emerging body of empirical research that indicates that parties place a greater emphasis in some situations on actual rather than substitutionary performance. It examines the case law on the enforcement of keep open clauses in Canada, Australia and other common law jurisdictions to highlight the disconnect between doctrinal orthodoxy on the enforceability of such clauses and party remedial preferences. The article explores the constraints of supervision and enforcement and concludes there is scope for enhancing party preference for performance through coercive remedies.

Commentators have predicted that machine intelligence and off-shoring will steadily undermine demand for lawyers in North America and Europe. This essay argues that this prediction is not equally valid for all types of legal practice. Personal plight practice — in which lawyers help individuals and small businesses involved in legal disputes — is largely sheltered from computerization and off-shoring. The article calls for the profession and legal educators to open doors between tomorrow’s lawyers and personal plight legal practice. Doing so will not only address the economic insecurity confronting tomorrow’s lawyers, but also enhance access to justice.

Canadian law sometimes allows gain-based remedies for certain wrongful acts. There is a strong suggestion that gain-based remedies are available in the common law provinces for torts and perhaps breaches of contract, but the courts have been hesitant. Common law provinces have also been willing to award gain-based remedies for breaches of confidence, in the court’s discretion. In the context of infringements of intellectual property rights, which is federal law, the legislation makes clear that gain-based remedies are available, although again this is in the discretion of the court. In both common law and Quebec civil law, in situations where one person is managing the property or affairs of another in a fiduciary capacity, improper gains must be surrendered, although it is arguable that the law ascribes rights acquired by the manager to the principal as the correct legal implementation of the parties’ relationship, rather than as a remedy for wrongdoing.

As has long been recognized, the contract of employment depends on the commodification of labour power. Notwithstanding debates amongst political theorists and trade union activists about whether individuals should be viewed as self-owners, and whether it is possible to sell one’s capabilities without selling one’s self, the law does treat labour power as a commodity. There has been little research on the ways in which the law does so, however, for the simple reason that self-ownership of one’s laboring capacities is often taken as fact, as the starting premise for analysis, and treated as a necessary pre-condition for individual self-realization through contract. Moreover, proprietary and contractual forms of regulating work are often presented as diametrically opposed: a proprietary method of labour regulation is said to create a relationship of slavery, while contract is presented as an institution of choice.

It is now an uncontroversial proposition that the choice of remedy following a determination of infringement of a substantive right engages distinct principles associated with the law of remedies and it is for the court to match remedial function to underlying substantive right. The law of remedies can be divided into a number of functional goals:Compensation – a measure of a monetary amount that will make good the plaintiff’s actual pecuniary losses or is seen as an adequate substitute to make good the plaintiff’s non-pecuniary losses.Deterrence – a remedy that is forward looking in that it is designed to deter the defendant, or similarly like-minded parties, from continuing or perpetrating the wrong in the future.Punishment – a remedy that is backward looking in that it is to exact retribution or societal condemnation on the defendant for the wrong perpetrated on the plaintiff.Restitution - Restoration – to give back to the claimant that which has been taken by the defendant.Disgorgement – To give up to the plaintiff that which has been acquired by the defendant through the perpetration of wrongdoing to the plaintiff. Coercion – a court order by way of injunction or specific relief that enforces the defendant to comply under pain of contempt of court.Self-help – Canadian common law is mostly antagonistic toward this form of relief.Vindication – a remedy designed to demonstrate to the world and to validate the plaintiff’s belief that the defendant has unjustly infringed its rights. Remedial functions are not categorical or mutually exclusive. For example, where everyone injured by a wrongdoer recovers compensation resulting in the full internalisation of the cost of wrongdoing by the tortfeasor, then, compensation can also achieve a deterrence function. In fact, this is a paramount reason used to support class actions in the area of tort law, in that it creates a procedural mechanism to maximise the internalisation by the tortfeasor of the true cost of their wrongdoing. A functional classification highlights that plaintiffs may well have concerns beyond compensation and deterrence. It also illustrates the strengths and weaknesses within any particular functional goal. For example, coercive remedies may effect deterrence better than damages; compensation compensates poorly for non-pecuniary losses; and vindication may be better achieved through resort to innovative remedies such as an ordered apology and publication than through damages, to name but a few. Similarly, a plaintiff does not necessarily pursue a single goal; rather, trade-offs are made. For example, the effect of a public retraction or correction of a defamatory statement lessens the damages payable on the basis that the plaintiff has been vindicated and his or her reputation restored, thereby lessening the need for compensation. Likewise, to order restitution – restoration, can also amount to compensation; may often be achieved by requiring disgorgement, and may effect punishment, deterrence and vindication all in the same process. The dominant remedial function in tort law remains compensation through an award of damages for pecuniary loss. However, tort actions that warrant an award of damages for non-pecuniary loss incur profound difficulties with respect to both quantification, as well as to function being pursued. Similarly, a number of emerging torts (i.e. the tort of misfeasance in public office, and intrusion upon seclusion ) do not fit comfortably into the compensatory function but appear to be more concerned with vindication and deterrence.

We all know that culture matters. Open any newspaper and stories that have a cultural aspect can readily be found. Whether it is ethnic tensions between Ukrainian and Russian speaking Ukrainians, or the xenophobic views of the Nigerian group Boko Haram that leads it to kidnap young Nigerian girls from school, or even a Chinese language only sign in Richmond, British Columbia, advertising toothpaste; debate is soon ignited. We also know that cultural issues have a habit of garnering public attention far in excess of any rational explanation of the particular issues’ importance. These are hot button issues; issues that our politicians are only too willing to tap into. But they are also issues that touch a wellspring of personal emotion, because they deal with personal dignity and cultural identity. It is against this background that I address my remarks. I want to address the issue of the extent to which common law doctrine, and in particular, common law remedies, should take account of cultural practices. I refer to cultural practices without distinguishing between religious or other ethnic practices. I ask; to what extent do courts have an obligation to model the common law to accommodate Canada’s commitment to multiculturalism? The issue I intend to touch upon is not one that is of daily occurrence in civil litigation; there are few cases to report on. However, it is one that can simply bubble to the surface, and, in that sense, forewarned is forearmed.

English Abstract: The purpose of this article is to contribute to the continuing debate over the relevance of International Humanitarian Law (IHL) to cyberwar. It does so by taking what is often said to be a particularly archaic aspect of IHL, the French Revolutionary notion of levée en masse, and asking whether the concept could have relevance in the cyber context. The article treats levée en masse as a litmus test for the law’s relevance; if this IHL “relic” could have relevance in the cyber context, then the continued relevance of the larger body of rules should also be less doubtful.

In both the U.S. and Canada, the now common use of cy près in the design of class action settlement distribution plans represents a radical transformation of the original cy près doctrine. Despite the facilitative role of class actions in aggregating claims, in some cases there may be no practical way to calculate or pay hundreds of thousands of small claims. In its current manifestation in class actions, cy près has become the mechanism by which aggregation of loss is effected. Cy près is therefore used not only to dispose of unclaimed settlement funds, but to avoid having class members claim a portion of the settlement at all. In this way, cy pres creates the "illusion of class of compensation” (to borrow Martin Redish's term), because the bulk of the class receives no compensation at all.

This personal narrative reflects on the author’s engagement with Patricia Williams’ The Alchemy of Race and Rights over a period of 15 years encompassing law school, private practice and activist and academic work. In charting the trajectory of the author’s development as a critical legal scholar, the piece highlights the enduring contribution of Williams’ work for those working and writing at the intersections of rights, contentious politics and the law.

The overall objective in the court approval process for class counsel fees is to arrive at a fee that is fair and reasonable. Ontario's courts have developed a number of benchmarks in determining fairness and reasonableness, focusing on the success achieved for the class and the work performed by counsel. In a series of cases released in late 2013, however, one Superior Court judge has posited that success achieved and work performed are either unascertainable or useless factors, and has proposed instead that all counsel be awarded a one-third contingency fee in all class action settlements. In this article, I critique that approach, and argue that it is is inconsistent not only with class proceedings legislation, but also out of step with US trends and with case law regarding contingency fees more generally.

Common law countries accord courts considerable latitude to shape common law doctrine, and which has significant impact on private ordering of relationships particularly through the law of torts. In a previous article I sought to illustrate that there were already a number of cases in which minority claimants had sought additional compensation based upon a loss, which, because of a particular cultural practice held by the claimant, was more intensely felt than if a member of the dominant culture had experienced the loss. I suggested that it was quite appropriate to make these awards in furtherance of Canada’s commitment to multiculturalism. However, I also explored the ‘dark side’ of such actions; whether a defendant could argue that a claimant’s adherence to a particular cultural practice or belief would have negative repercussions on their future economic prospects and thus could justify a deduction or negative contingency being applied to any compensation awarded. I argued that courts should not reduce or apply negative contingencies based solely on a cultural practice or belief largely on the basis that to do so would further victimize an individual of an already marginalized group. Because cultural practices and beliefs are subject to constant change in personal conviction and observance over a person’s lifespan, we need to respect the element of personal autonomy entailed by the claimant, rather than to allow the defendant to impose some stereotypical view of what impact a particular cultural belief or practice may have had, or will have, on the claimant.

In R. v. A. (J.), a majority of the Supreme Court of Canada rejected the legal validity of advance consent: consent to sexual acts anticipated to occur during unconsciousness. This article, to the contrary, argues that the legal validity of advance consent should be accepted. First, this article argues that the Criminal Code and jurisprudence are consistent with the legal validity of advance consent. Second, this article argues that, in the circumstance of a sleeping partner, advance consent should be accepted based on policy considerations in relation to sexual autonomy and the administration of justice.

What explains the dramatic contrast between legal services regulation in the United States and anglophone Canada, on one hand, and England/Wales and Australia, on the other? In order to help explain these divergent regulatory choices, and to further comparative analysis, this Essay proposes a taxonomy of theories of legal services regulation drawn from these common-law jurisdictions. Although most jurisdictions employ a combination of approaches, as well as some hybrid methods, the Essay identifies the two dominant perspectives: (1) the professionalist-independent framework, predominate in anglophone North America, and (2) the consumerist-competitive framework found in the common law jurisdictions of Northern Europe and Australia. This theoretical divide, in turn, helps explain why the United States and Canada have largely adhered to a body of self-regulation focused upon aspirations of professionalism and professional independence. Australia and England/Wales, by contrast, have embarked upon market-oriented reform that purports to promote consumer protection and consumer interests. In describing this taxonomy, we recognise jurisdictions sometimes employ hybrid regulatory strategies that combine elements of the professionalist-independent and consumerist-competitive frameworks, such as gatekeeper rules promulgated by the State (as opposed to gatekeeper regulations promulgated by judges or the legal profession). We also acknowledge that regulatory approaches are dynamic and that regulators may very well shift perspectives over time. Nevertheless, organising the claims of commentators and regulators into categories will help to promote analysis and comparison of legal services regulations, as well as to improve the quality of decision-making by those who craft and enforce the rules. We identify, for example, the crucial distinction between how these two approaches construct an understanding of legal services clients. Consumerist-competitive systems identify clients as consumers (who are similar to consumers of other goods and services) and apply this perspective to the particular context of purchasing legal services. In contrast, professionalist-independent systems understand the experience of a legal services client as fundamentally different from that of other consumers and, accordingly, require a wholly distinct regulatory approach.

An introduction to a general discussion of the Canadian courts' approach to religious freedom, which argues among other things that despite their formal commitment to state neutrality in religious matters, the courts have applied this requirement selectively - sometimes treating religion as a cultural identity towards which the state should remain neutral and other times (when it touches upon or addresses civic matters) as a political or moral judgment by the individual that should be subject to the give-and-take of politics. Behind the courts' uneven application of the neutrality requirement lies a complex conception of religious commitment in which religion is viewed as both an aspect of the individual's identity and as a set of judgments made by the individual about truth and right. The challenge for the courts is to find a way to fit this complex conception of religious commitment into a constitutional framework that that relies on a distinction between individual choices or commitments that should be protected as a matter of individual liberty, and individual attributes or traits that that should be respected as a matter of equality.

A recent request for religious accommodation at York University has generated controversy not just about the merits of the particular claim but also about the general practice of religious accommodation under human rights codes and the Canadian Charter of Rights and Freedoms. The issue in this case exposes some of the tensions in our understanding of religious freedom and religious equality – and more particularly the requirement of religious accommodation. “Religion” (religious belief and practice) does not fit comfortably within the model of equality rights or anti-discrimination laws and seeing why this is so might help us to better understand the conflict in this case – the university’s decision to accommodate and the public reaction to that decision. The first difficulty is that religious adherence may be viewed as both an individual commitment and a collective identity. The second, and related, difficulty is that religious belief systems or traditions may be seen as both a set of practices and a set of beliefs about truth and right, which sometimes have public implications.

‘Abysmal’ was the word used to describe the accessibility of Canadian civil justice in a recent major report. Access to justice is simultaneously a social problem, a professional obligation for the legal profession, and a market opportunity for law firms. Are there any signs of significant progress on any of these fronts? This short Correspondent's report will review recent Canadian efforts to connect people of modest means with the expert legal services they urgently need.

There is a strong case to be made that racist, and other forms of bigoted, speech, even when it is not so extreme that it breaches general hate speech laws, should be prohibited on campus. A commitment to academic freedom supports the free and open exchange of ideas and information but also certain standards of communicative engagement – most notably the treatment of others in the academic community as interlocutors, as conversation partners who should be addressed and heard. Racial (and other) stereotypes and insults are inconsistent with the educational mission of the school and the idea of membership in an educational community. More generally, the injury of racist speech may be more acute in the closer environment and tighter community of the campus. However, the regulation of a broad category of racist speech raises a variety of challenges. In addressing the question of the fair and appropriate limits (or forms of regulation) of speech on campus, I will consider the case of Israel Apartheid Week [IAW], an event that takes place each year on several Canadian campuses, and more particularly whether IAW (and its claim that Israel is an apartheid state) is anti-Semitic and appropriately banned from campuses. The recent report of the Canadian Parliamentary Coalition to Combat Anti-Semitism [CPCCA] argues that IAW is anti-Semitic. However, the CPCCA claim appears to rest on the politically contestable view that the existence of Israel is vital to the continued existence of the Jewish people and that any criticism of actions taken by Israel to ensure its viability or any questioning of Israel’s religious ethnic identity constitutes an attack on the Jewish people. But these are politically contestable claims – about the link between nation and state, the treatment of religious-ethnic minorities, and the actions necessary ensure the viability of the state … The challenge to these claims must be treated as a legitimate part of political debate and cannot be excluded from campus.