Renvoi: Lex Situs Conflictus

Canadian Conflict of Laws Blawg by Seva Batkin

Archive for the ‘extraterritoriality’ Category

RaSC Litmus Test: Copyright Tariffs and International Communications

Posted by Seva on October 31, 2008

Real and substantial connection is an inherently imprecise concept; its existence determined based on the full factual matrix of a particular matter. While fine for regular litigation, where the judge has the inherent jurisdiction to make this determination, it appears somewhat deficient in administrative contexts, where the jurisdiction should be determined via a standard test capable of being applied by non-judicial personnel. It appears that the Copyright Board of Canada was up to this challenge, elucidating just such a test in its recent decision on webcasting tariffs (see also discussion of this decision on Michael Geist’s blog).

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Charter and Defences to the Enforcement of Foreign Judgments

Posted by Seva on August 7, 2008

Enforcement of foreign judgments is prima facie concerned with foreign civil judgments. Enforceable foreign judgments, while no longer necessarily pecuniary, still exclude penal judgments and thus arise out of private disputes between parties. In this context, it is difficult to see how the Charter, imposing constraints on our government’s actions, particularly in criminal matters, would have any application. However, the duty of tenacious representation (and billable hours) relentlessly drives the lawyers’ search for loopholes. Thus, in King v. Drabinsky, 2008 ONCA 566, the defendants argued that the difference between the US and Canadian constitutional protections against self-incrimination, in the situation where the defendants were sued in a civil action in the US, and charged with a related criminal offence in Canada, resulted in a breach of natural justice and thus a defence to the recognition and enforcement of the judgment. Holding that s. 13 of the Charter “would likely protect” the defendants and prevent the use of the testimony from the US civil proceedings in a Canadian criminal trial, the court upheld the trial judge’s decision to recognize the foreign judgment.

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The Two Sides of Extraterritoriality

Posted by Seva on March 18, 2008

To those who have studied R. v. Hape in detail, the decision of Blanchard J. in Canadian Security Intelligence Service Act (Canada) (Re), 2008 FC 301 will probably not come as a big surprise. However, seeing as at the time I did not pay much attention to Hape due to its criminal law context, I found the CSISA decisin to quite interesting and, my opnion, very controversial in its conclusion regarding application of the Charter to extra-territorial state actions. In CSISA, Blanchard J. dealt with two issues: (1) the power of the court to issue extraterritorial information collection warrants; and (2) application of the Charter and the Criminal Code to CSIS investigative activities conducted off Canadian soil.

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