Dalhousie University

Schulich Scholars (Schulich School of Law, Dalhousie University)
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    3723 research outputs found

    International Judicial Cooperation in Criminal Matters (Overview)

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    The Elgar Encyclopedia of Crime and Criminal Justice stands apart as the most comprehensive global reference title in its field.Featuring the work of over 200 scholars and practitioners from around the world, the Encyclopedia presents an accessible and uniquely far-reaching set of entries on topics associated with crime and criminal justice. Within this flagship work, the incredible breadth and depth of the field is captured by a diverse and international range of contributors.The Encyclopedia is curated by a team of globally renowned scholars and is ambitious in its scope – comprising thematic, regional and comparative coverage with an emphasis on international and European criminal law. Entries give a concise summary of the accumulated knowledge on their topic, followed by a list of references to facilitate further study.• Over 250 entries• Entries organized alphabetically for ease of navigation• Fully cross-referenced• Entries written by scholars and practitioners from around the world• World class editorial team.The Encyclopedia will be available online ahead of print, followed by a multi-volume print edition

    Aducanumab, Accelerated Approvals & the Agency: Why the FDA Needs Structural Reform

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    The US Food and Drug Administration’s controversial decision to grant accelerated approval to aducanumab (Aduhelm), a therapy for Alzheimer’s disease, has motivated multiple policy reforms. Drawing upon a case series of other drugs granted accelerated approval and interviews of senior FDA officials, I argue that reform should be informed but not defined by aducanumab. Rather, structural reforms are needed to reshape FDA’s core priorities and restore the regulatory system’s commitment to scientific rigor

    Legal Hurdles and Pathways: The Evolution (Progress?) of Climate Change Adjudication in Canada

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    Citizens, civil society, and environmental organisations throughout the world are increasingly turning to courts to find solutions to the perils of climate change. In July 2023, the United Nations Environment Programme (“UNEP”) reported that as of November 2022, there were 2,180 climate change litigation cases underway throughout the world, that this number is 2.5 times higher than it was five years ago, and that the number of jurisdictions involved has grown from 24 in 2017, to 39 in 2020, to 65 in 2023. The authors of this report describe climate litigation as “a frontier solution to change the dynamics of what the UN Secretary-General has described as ‘the fight of our lives.’” In both its 2020 and its 2023 reports, the Intergovernmental Panel on Climate Change (“IPCC”) concludes that “litigation is central to efforts to compel governments and corporate actors to undertake more ambitious climate change mitigation and adaptation goals

    Anchoring Lifeline Criminal Jurisprudence: Making the Leap from Theory to Critical Race-Inspired Jurisprudence

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    This article takes as a starting point the claim that anti-Black racism permeates Canadian society and finds expression in our institutions, most notably the criminal justice system. Indeed, anti-Black racism in criminal justice and its impact on Black lives are not credibly in dispute. Thus, what should concern legal scholars is the staying power or permanence of racism. In other words, should Canadian legal scholars ‘get real’ about the intractability of race? Or can anti-Black racism be effectively confronted by developing legal and evidentiary tools designed to fix, rather than dismantle, the current system? Put another way, this article aims to move from describing a well-known phenomenon—the existence of anti-Black racism in the criminal justice system—to identifying radical approaches to confront and subvert it. In that vein, this article will explore a critical question: how can we make the leap from CRT to CRT-inspired, lifeline criminal jurisprudence? Cet article prend comme point de départ l’affirmation selon laquelle le racisme anti-Noir imprègne la société canadienne et trouve son expression dans nos institutions, plus particulièrement dans le système de justice pénale. En effet, le racisme anti-Noir dans la justice pénale et son impact sur la vie des Noirs ne sont pas contestés de manière crédible. Par conséquent, ce qui devrait préoccuper les juristes, c’est le caractère durable ou permanent du racisme. En d’autres termes, les juristes canadiens doivent-ils se rendre à l’évidence que la race est un problème insoluble? Ou bien peut-on lutter efficacement contre le racisme anti-Noir en élaborant des outils juridiques et probatoires conçus pour réparer, plutôt que démanteler, le système actuel? En d’autres termes, cet article vise à passer de la description d’un phénomène bien connu—l’existence du racisme anti-Noir dans le système de justice pénale—à l’identification d’approches radicales pour le combattre et le subvertir. Dans cette veine, cet article explorera une question critique : comment faire le saut de la TRC à une jurisprudence pénale inspirée de la TRC, qui soit une ligne de vie

    A Historical Account of the Orderly Payment of Debts Act Reference: Limiting Provincial Efforts to Protect Insolvent Debtors

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    This paper analyzes the history of the Alberta Orderly Payment of Debts Act and the constitutional controversy that followed. The legislation sought to protect debtors by imposing restrictions on creditors. In 1960, the Supreme Court of Canada in Reference re Validity of Orderly Payment of Debts Act, 1959 (Alberta) ruled that the legislation was ultra vires on the basis that it interfered with the federal bankruptcy and insolvency power. The Orderly Payment of Debts Act reference is the capstone in a trilogy of cases in which provincial legislation was invalidated for encroaching upon the federal bankruptcy and insolvency power. The reference case represents a high-water mark for the expansion of the federal bankruptcy power and a curtailment of provincial authority to assist insolvent debtors. The paper argues that the OPDA reference is a landmark case in that it continued a trend of limiting provincial efforts to assist insolvent debtors by giving a broad reading of the federal bankruptcy and insolvency power. Cet article analyse l’historique de la Alberta Orderly Payment of Debts Act (Loi albertaine sur le paiement ordonné des dettes) et la controverse constitutionnelle qui s’en est suivie. Cette loi visait à protéger les débiteurs en imposant des restrictions aux créanciers. En 1960, la Cour suprême du Canada, dans l’affaire Reference re Validity of Orderly Payment of Debts Act, 1959 (Alberta), a jugé que la loi était ultra vires au motif qu’elle interférait avec le pouvoir fédéral en matière de faillite et d’insolvabilité. La référence à l’Orderly Payment of Debts Act est la pierre angulaire d’une trilogie d’affaires dans lesquelles la législation provinciale a été invalidée pour avoir empiété sur le pouvoir fédéral en matière de faillite et d’insolvabilité. L’affaire représente un point culminant pour l’expansion du pouvoir fédéral en matière de faillite et une réduction de l’autorité provinciale pour aider les débiteurs insolvables. L’article soutient que l’arrêt OPDA est un arrêt de principe dans la mesure où il a poursuivi la tendance à limiter les efforts des provinces pour aider les débiteurs insolvables en donnant une interprétation large du pouvoir fédéral en matière de faillite et d’insolvabilité

    Guiding Principle 11: The Responsibility of Business Enterprises to Respect Human Rights

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    This comprehensive Commentary provides an in-depth analysis of each of the 31 UN Guiding Principles on Business and Human Rights, as well as the 10 Principles for Responsible Contracts. It engages in both a legal and contextual examination of the Principles alongside their application to real world practices at both the domestic and international levels.Key Features:• One of the first detailed considerations of each of the Principles for Responsible Contracts• Contributions from more than 40 leading international academics and practitioners in the field• Discussion of legal and regulatory instruments as well as case law emanating from the Principles• Offers information on interpreting, analyzing, and using the UNGPs and the Principles for Responsible Contracts in a centralized accessible format.Practitioners, including government officials, who are responsible for corporate governance and human rights issues will find this Commentary invaluable for its systematic analysis of the obligations of both States and corporations. It will also be of interest to academics and those working for NGOs in the area of business and human rights, as well as businesses themselves looking to incorporate sustainability initiatives into their corporate practices

    Indigenous Self-Government and Criminal Law: The Path Towards Concurrent Jurisdiction in Canada

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    This is a special contribution that has not been peer-reviewed. The past few decades have seen an increase in culturally responsive policies and programs aimed at ameliorating the hardship and disadvantage faced by Indigenous peoples in the Canadian criminal justice system. These policies and programs, however, operate within a criminal justice system that consistently fails Indigenous peoples. What has yet to be tried is a nation-to-nation approach to criminal law jurisdiction where Indigenous peoples have legislative authority to enact and administer their own criminal laws. This paper shows that Indigenous jurisdiction over criminal law is possible within Canada’s constitutional framework. In Part I, I outline the current state of Indigenous self-government over criminal law. Although initiatives such as sentencing circles and Indigenous courts allow Indigenous peoples to exercise greater self-government over the administration of justice, they still do not exercise true criminal law-making authority. In Part II, I analyze existing discussions about separate Indigenous justice systems and identify a framework for how concurrent jurisdiction over criminal law can be exercised. In Part III, I draw on the doctrine of cooperative federalism to argue that Indigenous jurisdiction over criminal law can coexist with the federal government’s jurisdiction over criminal law. Lastly, in Part IV, I discuss four ways Indigenous nations can attain jurisdiction over criminal law: (1) a constitutional amendment; (2) a self-government agreement; (3) a claim under section 35 of the Constitution Act, 1982; and (4) federal legislation. While a constitutional amendment is the preferable solution, I argue that federal legislation informed by Indigenous peoples is the best alternative

    CRISPR, Like any Other Technology: Shedding Determinism & Reviving Athens

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    This article examines current narratives surrounding CRISPR (clustered regularly interspaced short palindromic repeats) and the current Canadian treatment of this novel biotechnology. It argues that Canada’s current approach to genetic research and CRISPR appear to have succumbed to the false narrative of technological determinism. It argues that Canada must buck the narrative and alter the current status quo in two principal ways: Canada should pursue more somatic CRISPR clinical trials in humans and permit pre-clinical germline editing. To design a regulatory regime for clinical germline editing and better guidance on somatic CRISPR clinical trials, Canada should engage Deliberative Polling to ensure Canadians’ views are represented in future legislation and regulations

    Digital Surveillance of COVID-19: Privacy and Equity Considerations

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    In this paper, we examine the potentially deleterious effects of surveillance on vulnerable Canadians. A wide range of digital surveillance technologies have either been deployed or considered for deployment both in Canada and around the world in response to the international emergency created by the COVID-19 pandemic. Some of these technologies are highly effective in predicting or identifying individual cases and/or outbreaks; others assist in tracing contacts or enforcing compliance with quarantine and isolation measures. However, there are necessarily risks associated with their deployment. First are the infringements on privacy rights of citizens and groups. Second, these technologies run the risk of ‘surveillance creep’ in the context of their desired usage for purposes and in time frames other than for fighting a pandemic. Third, some of these technologies impact more severely on members of racialized and socioeconomically disadvantaged groups. We argue that, without addressing the impact that digital technologies have on vulnerable populations in relation to COVID-19, legislators risk deepening the inequalities that create the very conditions for transmission of the virus and that put vulnerable persons at greater risk of contracting the disease

    A Human Rights and Legal Analysis of the Understanding Our Roots Report

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    In October 2023, the University released Understanding Our Roots - Nstikuk tan wtapeksikw Report written by the Task Force on Settler Misappropriation of Indigenous Identity. The Report recommends the creation of a Standing Committee who would verify claims to Indigenous identity by students, faculty and staff seeking to benefit from any opportunity at the University that prioritizes access for Indigenous peoples, as well as investigate and recommend sanction in cases of suspected academic fraud whereby an individual assumes an Indigenous identity. The Report does not address or respond to potential legal issues and rights violations arising from its recommendation. To our knowledge, no legal analysis has been conducted on the implications of the proposed verification process. In the hopes of encouraging more nuance and circumspection on this issue we offer the following analysis, informed by our respective areas of expertise. Our concerns about the Report can be distilled into the following: The Task Force was comprised of members unqualified in the historical and legal complexity of Indigenous identity; The Task Force’s engagement process may have violated research ethics, was grossly inadequate in both scope and timeline, and may be in breach of procedural fairness standards; The proposed verification process conflates self-identification and uncertainty over Indigenous identity with academic fraud; The proposed verification process is underinclusive and discriminatory by overlooking several categories of Indigenous people who have legitimate, legally-supported claims to being Indigenous, including the large and growing Non-Status First Nation population in the region, and members of Indigenous collectives like NunatuKavut Community Council and the Peskotomuhkati Nation at Skutik; The proposed verification process fails to support Indigenous self-determination over identity because it centers Indigenous identity on official federal government recognition, which is not in keeping with constitutional law, domestic and international human rights, including the United Nations Declaration on the Rights of Indigenous Peoples; The proposed verification process exposes Dalhousie to liability, including in relation to labour, employment, and human rights law; Implementation of the verification criteria is already occurring without appropriate review and legal analysis; The verification process will actively cause harm to Indigenous students, faculty, and staff and compromise current and planned work; and The University already has all the necessary tools to address situations of academic fraud of Indigenous identity, as well as to respond to the distinct concern of privileging individuals whose self-identification as Indigenous rests solely on having distant ancestry over those with legitimate, legally-supported claims to being Indigenous. Thus, no new process is necessary

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    Schulich Scholars (Schulich School of Law, Dalhousie University) is based in Canada
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