Alberta Law Review Online Supplement

Welcome to the Alberta Law Review's Online Supplement

The Online Supplement complements our traditional journal publication by providing an opportunity for legal scholars and practitioners to discuss and debate contemporary legal issues of relevance and interest to the legal community. Contributions may take the form of debates, opinion pieces, and case comments.

We welcome new submissions to the Online Supplement from legal practitioners, scholars, and students. Submissions can be sent by email to editors@albertalawreview.com.

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The Supreme Court Revisiting Corporate Accountability: BCE Inc. in search of a legal construct known as the “Good Corporate Citizen”

Jeffrey Bone

Abstract:

In the seminal corporate law case of BCE and Bell Canada, the Supreme Court stated that corporate directors must resolve to balance stakeholder interests “in accordance with their fiduciary duty to act in the best interests of the corporation, viewed as a good corporate citizen.”[1]  The initial reaction of the corporate and legal community to the BCE decision has been to suggest that the U.S. principle of maximizing shareholder value in a change of control situation is no longer the default rule. Beyond this principle, BCE has also introduced the progressive concept of the ‘good corporate citizen.’ The article questions whether this statement carries any legal import, or is merely an insignificant judicial remark of diminutive value.

Jeffrey Bone

Abstract:

In the seminal corporate law case of BCE and Bell Canada, the Supreme Court stated that corporate directors must resolve to balance stakeholder interests “in accordance with their fiduciary duty to act in the best interests of the corporation, viewed as a good corporate citizen.”[1]  The initial reaction of the corporate and legal community to the BCE decision has been to suggest that the U.S. principle of maximizing shareholder value in a change of control situation is no longer the default rule. Beyond this principle, BCE has also introduced the progressive concept of the ‘good corporate citizen.’ The article questions whether this statement carries any legal import, or is merely an insignificant judicial remark of diminutive value.

Perversion of Justice II

Bruce's timely post reminded me that (former) Judge Samuel Kent was notorious for lambasting counsel if they annoyed him. Furthermore, he would do so in publsihed judicial opinions with names and all. The one many of us have heard by now is his:

Both attorneys have obviously entered into a secret pact – complete with hats, handshakes and cryptic words – to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by t heir c hild- like efforts that t heir utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor’s edge sense of exhilaration, the Court begins.

147 F. Supp. 2d 668 (S.D. Tex. 2001).

These remarks may seem funny to law students (at least they were to me), but they are painful for both lawyers involved. On the one hand, one courld argue that good lawyering is important, and judges with huge dockets have no patience for bad arguments. On the other hand, many times the submissions are driven by the clients (the case above was a civil case), and sometimes there are no good legal arguments. At the very least, it serves as a cautionary tale for lawyers. 

The one author, I know of, who looked at this issue and took a different approach is Steven Lubet. He authored a piece on Kent's writings many years ago (long before his resignation) titled Bullying from the Bench. It is a quick read and very easy to follow, so I would commend it, especially to those interested in legal ethics.

Bill C-268: Minimum Sentences for Child Trafficking Needed

Assistant Professor Benjamin Perrin[1] (Faculty of Law, University of British Columbia)

I. Introduction

Under-aged girls as young as 12 years old are being subjected to sexual exploitation by traffickers according to a Criminal Intelligence Service of Canada (CISC) strategic intelligence brief entitled “Organized Crime and Domestic Trafficking in Persons in Canada.”[2] Younger victims are more impressionable and easier for traffickers to control. The CISC also sounded the alarm that this is a pressing national problem: “Across the country, organized crime networks are actively trafficking Canadian-born women and under-age girls inter- and intra-provincially, and in some instances to the United States (US), destined for the sex trade.”[3]

R. v. Labaye: The Fogginess of “Increased” Causality in Obscenity Law

Assistant Professor Richard Jochelson (Criminal Justice, University of Winnipeg)

In 2005, the Supreme Court of Canada, in R. v. Labaye,[1] at long last retired the community standards of tolerance test for obscenity and indecency.[2] While the former community standards of tolerance test had a long and laboured history, its modern iteration melded the determination of “tolerance” with “undue exploitation of sex” (or “harm”). This later test was famously constituted in R. v. Butler,[3] where the majority of the Court considered the constitutionality of the obscenity provisions in the Criminal Code (which prohibit expression of unduly exploited sex)[4] and summarized the test succinctly as it applied to sexually explicit expression. The test was an objective assessment of the tolerance of Canadians (that is, whether the average Canadian would tolerate other Canadians being exposed to the impugned materials):

[T]he portrayal of sex coupled with violence will almost always constitute the undue exploitation of sex [and therefore be intolerable to the average Canadian]. Explicit sex which is degrading or dehumanizing may be undue if the risk of harm is substantial. Finally, explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production.[5]

In Labaye, the majority considered this Butler construction and reconstituted to clarify the community standards of tolerance test as a harm test for obscenity and indecency. It did so in the context of determining whether the appellant was keeping a “common bawdy-house” for the “practice of acts of indecency” under s. 210(1) of the Criminal Code.[6] The assessment of the Court took place in the context of a swingers’ club operating in a Montreal apartment, which required members to pay dues, interviews prior to joining, and an opportunity for its members to engage in consensual sex with other members. Since “only those already disposed to this sort of sexual activity were allowed to participate and watch,”[7] “[n]o one was pressured to have sex, paid for sex, or treated as a mere sexual object for the gratification of others.”[8] Further, there was no “physical or psychological harm to persons participating,”[9] and the majority could not find sufficient harm to trigger indecency.

Reynolds' Review of International Law and Indigenous Knowledge: Intellectual Property, Plant Biodiversity and Traditional Medicine

Graham Reynolds*

Abstract:

Professor Graham Reynolds reviews Dr. Oguamanam’s book, International Law and Indigenous Knowledge: Intellectual Property, Plant Biodiversity and Traditional Medicine. The book discusses how traditional knowledge, specifically, indigenous plant-based therapies, can best be protected. Reynolds reflects on Oguamanam’s contention that intellectual property rights, a Western world system, may not be the best method of preserving and protecting traditional knowledge. Instead, a “cross-cultural” solution is proposed. This solution would be respectful of both Western and indigenous methods. By incorporating indigenous customs and practices into the solution for the preservation of traditional knowledge, Reynolds summarizes Oguamanam’s argument that the epistemic schism between indigenous and non-indiegnous knowledge systems will be overcome and traditional knowledge will be better preserved.

Graham Reynolds*

Abstract:

Professor Graham Reynolds reviews Dr. Oguamanam’s book, International Law and Indigenous Knowledge: Intellectual Property, Plant Biodiversity and Traditional Medicine. The book discusses how traditional knowledge, specifically, indigenous plant-based therapies, can best be protected. Reynolds reflects on Oguamanam’s contention that intellectual property rights, a Western world system, may not be the best method of preserving and protecting traditional knowledge. Instead, a “cross-cultural” solution is proposed. This solution would be respectful of both Western and indigenous methods. By incorporating indigenous customs and practices into the solution for the preservation of traditional knowledge, Reynolds summarizes Oguamanam’s argument that the epistemic schism between indigenous and non-indiegnous knowledge systems will be overcome and traditional knowledge will be better preserved.

EdStelmach.ca and the Tort of Misappropriation of Personality

Darren LaRose (Third-year Law Student, University of Alberta)

Introduction

The World Wide Web has grown at a phenomenal rate since it burst into the public consciousness in the mid 1990s. As the Internet has become increasingly pervasive both in our day-to-day lives and in the world of business, it makes sense that legal disputes would arise as well. The sheer quantity of domain names available online and the potential for overlap of competing interests mean that domain disputes in particular are bound to continue increasing, at least for the near future.[1]

ADISQ vs. Heri: Can the CRTC Control Internet Radio Content?

Dave Ranson

Abstract:

Recently, the Canadian Radio-television Telecommunications Commission indicated that it may be reconsidering its 1999 decision not to regulate Internet content.  This article analyzes the legal and regulatory context in which Internet radio operates, and examines the feasibility of regulating Internet content, specifically in the context of cross-border transmissions of Internet radio content.  After reviewing the historical development of Canadian content regulations in traditional broadcasting and the current state of regulation of Canadian content in radio broadcasting, the author goes on to examine the manner in which Canadian courts have treated jurisdictional issues in the field of Internet regulation.  The author then examines historical examples of cross-border radio broadcasting in the United States, coming to the conclusion, that, given the provisions of the Broadcasting Act and the real and substantial connection test for Internet developed in Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, the CRTC has the authority to regulate Internet content.  However given that the CRTC has less ability to ensure compliance of Internet radio through licensing, as is the case in traditional broadcasting, the effectiveness of any regulation would be questionable.

Dave Ranson

Abstract:

Recently, the Canadian Radio-television Telecommunications Commission indicated that it may be reconsidering its 1999 decision not to regulate Internet content.  This article analyzes the legal and regulatory context in which Internet radio operates, and examines the feasibility of regulating Internet content, specifically in the context of cross-border transmissions of Internet radio content.  After reviewing the historical development of Canadian content regulations in traditional broadcasting and the current state of regulation of Canadian content in radio broadcasting, the author goes on to examine the manner in which Canadian courts have treated jurisdictional issues in the field of Internet regulation.  The author then examines historical examples of cross-border radio broadcasting in the United States, coming to the conclusion, that, given the provisions of the Broadcasting Act and the real and substantial connection test for Internet developed in Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, the CRTC has the authority to regulate Internet content.  However given that the CRTC has less ability to ensure compliance of Internet radio through licensing, as is the case in traditional broadcasting, the effectiveness of any regulation would be questionable.

Property Crimes in Virtual Worlds

Maurice C. Dransfeld (Third Year Law Student, University of Alberta)

Abstract:

In this paper, the author examines the legitimacy of various arguments with respect to whether a property interest can be found in virtual objects, and he also explores the extent to which Canadian criminal law can be extended to crimes affecting these virtual objects. The author begins by describing the types of environment these “crimes” are purported to take place in and defines “virtual crime.” He then goes on to critically consider the theories surrounding property rights in an online world including the utilitarian theory of property and the labour-desert theory of property. Subsequently, he answers the question of whether criminal law can extend to virtual worlds in relation to a these potential property interests.

Chief Justice McLachlin's Centenary Event Lecture

The Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada and a member of the University of Alberta Faculty of Law's Class of 1968, delivered a lecture to a capacity crowd at the Law Centre on September 19th. Her speech was entitled "Lawyers' Professional Obligations, Public Service and Pro Bono Work". The Chief Justice reserved significant time for questions from students and faculty, and should any wish to continue discussion on that topic, we invite comments here.

Chief Justice McLachlin's Centenary Speech - PDF

 

Free Information Exchange or Free Riding Profit Taking? Exploring the Effectiveness of Existing Copyright Law in the Context of Online Media

Alex Coombes (Third-year Law Student, University of Alberta)

Abstract:

Changes in online content delivery raise new issues for intellectual property law. Existing doctrine, such as copyright’s fair dealing and fair use exceptions, fails to adequately describe and address the competing interests that exist in the online context. With regard to data aggregation sites such as Google News and Digg.com, a better approach to resolving potential intellectual property disputes is a revenue sharing model.