Ireland Law Reform Commission Consultation Paper on Missing Persons

The Law Reform Commission of Ireland has released a Consultation Paper on Civil Law of Missing Persons:

"The main feature of current law in this area is that there is a presumption that a missing person is alive for up to 7 years, and that a presumption of death applies after 7 years. These presumptions may be rebutted by contrary evidence, so that a person can be presumed dead where they have been missing for less than 7 years; and an absence of 7 years does not always lead to a declaration of presumed death."

"In the Consultation Paper the Commission examines how the existing law in this area deals with, for example, succession rights of family members, payment of any life insurance policy and the ongoing legal status of a marriage or civil partnership. The Consultation Paper also deals with the precise circumstances in which a declaration of presumed death (in some countries, also referred to as a declaration of death in absentia) may be issued before or after 7 years have elapsed. The Commission also examines the effect that long absence (or a declaration of presumed death) has for the civil status of a missing person. This is especially important if he or she returns after a long time; in turn, this raises civil status questions such as whether his or her marriage remains valid, whether parental responsibilities to any children remain in place and whether any dealings with his or her property during his or her absence should stand."

"In the Consultation Paper, the Commission also examines some immediate practical problems for family members – often referred to as those left behind – such as how to access a missing person‘s bank account (especially where the bank account is in his or her sole name) so that bills can be paid. As discussed in the Consultation Paper, the Commission notes that this area needs to be dealt with separately from the question of presumed death."

The Commission also looks at the approach to the question of missing persons in other jurisdictions such as Northern Ireland, Scotland, England and Wales, Australia and Canada.

Canadian Association of Law Libraries Eunice Beeson Memorial Bursary

The Canadian Association of Law Libraries (CALL) has established the Eunice Beeson Memorial Bursary to help CALL members who wish to attend the Annual Meeting but, for financial reasons, are unable to do so. The Bursary is meant to cover travel and/or accommodation expenses.

The 2012 conference will take place May 6 – 9 in Toronto.

Details about the bursary and the application form are on the CALL website.

The application deadline is March 31, 2012.

Supreme Court of Canada: New Library Titles

The list of new library titles added to the Supreme Court of Canada collection for the period of December 1-15, 2011 is now available on the Court website.

The web page explains: "The Supreme Court of Canada Library does not lend materials from this list, which is provided for information only."

But, once the material goes into the general collection, after about a month, the works do become available for inter-library loan to authorized libraries.

It is possible to subscribe via e-mail to receive the list.

La Presse Profile of Departing Supreme Court of Canada Justice Ian Binnie

The Montreal newspaper La Presse today printed a profile of Justice Ian Binnie who retired earlier this year from the Supreme Court of Canada.

In the article, justice columnist Yves Boisvert quotes Binnie's remarks about the prohibitive costs of the justice system, the collegial working atmosphere at the Court under the leadership of Chief Justice Beverley McLachlin and his disappointment over the Chaoulli ruling on private healthcare.

According to Boisvert, what Binnie retains of his 14 years on the top bench is the Canadian population's decency:

«Je suis impressionné par la décence fondamentale de la population. Les gens absorbent les changements avec une rapidité extraordinaire. Prenez le mariage gai. Ce fut une controverse immense. Qu'en reste-t-il?» [I am impressed by the fundamental decency of the population. People absorb changes with extraordinary speed. Take gay marriage. It was a huge controversy. What left of it?]

Earlier Library Boy posts about Binnie's retirement include:

• Departing Supreme Court Justice Ian Binnie Talks to the Globe And Mail (September 26, 2011)
• Legacy of Departing Supreme Court of Canada Justice Ian Binnie (October 10, 2011)
  

New Zealand Law Commission Fifth Issues Paper on Law of Trusts

The Law Commission of New Zealand has published its fifth issues paper in its review of the law of trusts. It is the final in a series of Issues Papers that have discussed particular issues and problems with trusts law in order to enable the development of law reform proposals to modernize trusts legislation in New Zealand:

"Part 1 of this Issues Paper examines the various powers the courts have in respect of trusts and trustees. There is a public interest in ensuring the effective, prudent and honest management of trusts. The courts have a crucial role in this context, and accordingly, exercise a number of powers, both facilitative and regulatory. The Commission has broken its discussion on the role of the courts down into three broad topics, addressed in separate chapters (...)"

"Part 2 discusses alternative methods to the courts for resolving trust disputes and making decisions. Chapter 4 outlines the argument for introducing a new mechanism for trust dispute resolution and decision-making. It examines the options of an ombudsman, tribunal and commission. Chapter 5 discusses how alternative dispute resolution methods can be put to greater use in the context of trusts."

"Part 3 focuses on a particular type of trust used in New Zealand – trading trusts (...)"

"Part 4 discusses placing greater regulatory requirements on trusts. Chapter 9 discusses possible problems with the current lack of regulation of trusts in New Zealand and looks at the ways in which trusts are regulated overseas. It raises several options for regulation of trusts, including registration and reporting requirements. Chapter 10 considers whether there is a need for additional regulation of those providing services to trusts. It examines existing regulation and also looks at the more comprehensive regulatory regimes some overseas jurisdictions have adopted in this area."

Earlier Library Boy posts about the New Zealand Law Commission's review of trust legislation include:

• New Zealand Law Reform Commission Introductory Issues Paper on Law of Trusts (November 17, 2010): "The first issues paper is primarily a background paper. It traces the development of the trust from its origins in England through to the present day uses of the trust both in New Zealand and internationally."
• Recent Reports by the Law Commission of New Zealand (December 30, 2010): "The second issues paper will cover issues with the use of trusts (especially family trusts) in New Zealand. This paper will look at the purposes for which family trusts are established, including reducing tax obligations, protection of assets from creditors and relationship property claims, and meeting eligibility thresholds for government assistance. The paper examines different legislative and judicial responses to the use of trusts to 'look through' or disregard a trust where a trust has been used to frustrate the underlying policies of particular statutes."
• New Zealand Law Reform Commission Third Issues Paper on Law of Trusts (May 4, 2011): "Part one of the paper examines the rules that limit the duration of a trust: the common law rule against perpetuities and the Perpetuities Act 1964. The Commission explores the underlying rationale for the rule against perpetuities and asks whether the rule continues to meet a relevant policy need or whether either the mechanism for achieving this policy or the policy basis itself should change. The paper canvasses different options, including retaining the statutory perpetuity rule, adjusting or extending the statutory rule and abolishing the rule altogether, as has been done in a number of overseas jurisdictions. Part two of the paper looks at the rules that allow trusts to be altered. "
• New Zealand Law Reform Commission Fourth Issues Paper on Law of Trusts (June 30, 2011): "Part one of the paper examines the duties that a trustee owes to beneficiaries of a trust. It gives particular attention to the duty to inform beneficiaries about matters relating to the trust (...) Part two of the paper discusses the appointment, retirement and removal of trustees. It also addresses the powers given to a trustee."

Library of Parliament Publication on Question Period

The Library of Parliament recently published a document on Question Period in the Canadian Parliament and Other Legislatures:

"Question period is, for better or worse, the parliamentary proceeding that attracts the most attention from the media and the Canadian public. On each day that the House of Commons is in session, the 45-minute question period gives members of the opposition an opportunity to seek information from the government and to hold it accountable on its policies and administration of public affairs. Question period may make or end careers, unveil scandals or be used as a launching pad by the government of the day. Because there is so much at stake, the process sometimes gives rise to a lack of decorum. For this and other reasons, members of Parliament (MPs), as well as commentators on parliamentary proceedings, have been increasingly critical of question period, and possible reforms have been put forward on several occasions, including an April 2010 motion sponsored by MP Michael Chong."

"Mr. Chong’s motion, Motion M-517, instructed the House of Commons Standing Committee on Procedure and House Affairs to study the rules and procedures relating to question period and to contemplate changes. These included consideration of the Speaker’s power to enforce decorum, the time restrictions for questions and answers, the non-obligation of ministers to respond, the selection of MPs to ask questions by a random draw, and a roster system for ministers to ensure an equitable distribution of their time in question period. The House amended Motion M-517 to call upon the committee to look into the conventions and practices of the United Kingdom (U.K.) parliament and the legislatures of other Commonwealth jurisdictions. In 2010, the committee undertook its study, but it did not report to the House before the dissolution of the 40^th Parliament on 26 March 2011."

"This paper reviews the rules, conventions and practices of the Canadian Parliament in respect of question period. In addition to the House of Commons and the Senate, this paper examines processes similar to question period in other Commonwealth countries - namely, the U.K., Australia and New Zealand - as well as in Canadian provinces. All these jurisdictions share similar parliamentary and government systems; as a result, many rules in these legislatures are alike. This paper focuses on the general framework that governs question period, and does not discuss the specifics of any particular rules. As question period in some jurisdictions is intertwined with written questions, this paper also briefly reviews the rules regarding this parliamentary tool."

British Columbia Law Institute Launches Two-Year Project on Tests of Mental Capacity

The British Columbia Law Institute (BCLI) is launching a two-year project to consider reforms to judge-made rules governing when a person is determined to have the mental capacity to carry out a transaction or enter into a relationship:

"There is no single, global test of capacity. Instead, the law has developed many different tests of capacity, each geared to specific types of transactions or relationships. Over the past 20 years, British Columbian and Canadian law has seen significant development of legislation relating to mental capacity, which has yielded modern and sophisticated rules on when a person is mentally competent to perform certain tasks or enter into certain transactions. But many areas of the law continue to rely on older common-law tests of capacity, which hold sway in contract law, wills-and-estates law, and family law, among other areas. This project’s goals are to study and illuminate selected common-law tests of capacity, to determine where the current law has shortcomings that require modernization or harmonization, and to recommend legislative reforms to address those shortcomings."

The BCLI website has 2 backgrounder documents on the topic:

• Common-Law Tests of Capacity Project Backgrounder no. 1 - Introduction to the Rationalizing and Harmonization of BC Common-Law Tests of Capacity Project
• Common-Law Tests of Capacity Project Backgrounder No. 2 - Members of the Common-Law Tests of Capacity Project Committee
  

English Law Commission Final Report on Intestacy

The Law Commission in England today published its final report on Intestacy and Family Provision Claims on Death.

Intestacy rules govern the inheritance of assets where a person dies without leaving a will disposing of the whole of his or her property.

The report proposes 2 draft bills to bring inheritance law into line with the needs and expectations of modern families, and simplify the law to help the bereaved deal with the property of a deceased family member:

"The draft Inheritance and Trustees’ Powers Bill includes reforms that would:

• ensure that where a couple are married or in a civil partnership, assets pass on intestacy to the surviving spouse in all cases where there are no children or other descendants;
• simplify the sharing of assets on intestacy where the deceased was survived by a spouse and children or other descendants;
• protect children who suffer the death of a parent from the risk of losing an inheritance from that parent in the event that they are adopted after the death;
• amend the legal rules which currently disadvantage unmarried fathers when a child dies intestate;
• remove arbitrary obstacles to family provision claims by dependants of the deceased and anyone treated by the deceased as a child of his or her family outside the context of a marriage or civil partnership;
• permit a claim for family provision in certain circumstances where the deceased died 'domiciled' outside of England and Wales but left property and family members or dependants here; and
• reform trustees’ statutory powers to use income and capital for the benefit of trust beneficiaries (subject to any express provisions in the trust instrument)."

"The draft Inheritance (Cohabitants) Bill contains further provisions that would give certain unmarried partners who have lived together for five years the right to inherit on each other’s death under the intestacy rules. Where the couple have a child together, this entitlement would accrue after two years’ cohabitation, provided the child was living with the couple when the deceased died."

This is the final report of the Commission's project on Intestacy and Family Provision Claims on Death that began in October 2008.

Library of Parliament Legislative Summary of Act to Amend the Air Canada Public Participation Act

The Library of Parliament recently published a legislative summary of Bill C-17: An Act to amend the Air Canada Public Participation Act:

"Bill C-17: An Act to Amend the Air Canada Public Participation Act (short title: Air Canada and Its Associates Act) was introduced by the Minister of Transport, Infrastructure and Communities, the Honourable Denis Lebel , on 17 October 2011 and given first reading the same day. The bill’s main components:

• extend the application of Parts IV, IX and X of the Official Languages Act to designated air carriers under contract with Air Canada;
• deem the articles of ACE Aviation Holdings Inc. to include provisions respecting the location of its head office and the right of persons to communicate with that corporation in either official language; and
• exempt Air Canada from the application of section 25 of the Official Languages Act with respect to air services provided or made available by air carriers with which it has only code-sharing arrangements."
  

It is possible to follow the progress of the bill through Parliament on the LEGISinfo website.

Non-Profit Environmental Law Association Organizers Twitter Moot

The non-profit organization West Coast Environmental Law is hosting a moot court competition entirely on Twitter.

Law students from 5 Canadian universities (British Columbia, Dalhousie, Ottawa, Victoria and Osgoode Hall) will present their arguments over Twitter in a simulated appeal of an actual court case, West Moberly First Nations v. British Columbia.

The competition takes place on February 21st, 2012 at 10am PST (1pm EST).

Canadian Environmental Commissioner Finds Government Enforcement Weak

Scott Vaughan, Canada's Commissioner of the Environment and Sustainable Development, tabled a report in Parliament today that states that the federal government's environmental enforcement capabilities are inadequate and poorly managed.

The position of Commissioner was created in 1995 within the Office of the Auditor General of Canada.

Vaughan writes that the government:

"does not have adequate information on whom it is regulating and who is not complying with the Canadian Environmental Protection Act, 1999 (CEPA 1999) regulations. This information is needed to determine which regulatees and activities pose the greatest risks to human health or the environment as a result of non-compliance. Without a clear understanding of whom it is regulating and which regulatees pose the greatest threats, the Directorate cannot be sure that its National Enforcement Plan is targeting the highest risks to human health and the environment." (para. 3.73)

Earlier this week, environmental lawyers from the organization Ecojustice concluded that prosecutions under the Canadian Environmental Protection Act are rare:

"The report found that the number of inspections and warnings issued under the Canadian Environmental Protection Act (CEPA), one of Canada’s most important pollution laws, has declined since 2005-06 — despite an increase in the number of enforcement officers. The number of CEPA investigations, prosecutions, and convictions has also declined steadily since 2003-04 (...)"

"Average fines for environmental offenders, which amount to about $10,000 per CEPA conviction, are also too low to serve as an effective deterrent for would-be polluters, according to the report. It took Environment Canada more than 20 years to collect $2.4-million in fines under CEPA. In comparison, the Toronto Public Library collected $2.6-million in fines for overdue books in 2009 alone."

"Part of the problem, the report found, is that enforcement data gathered under different federal environmental laws is often inconsistent, incomplete and hard to access. Very limited information identifying environmental offenders, incident location and the exact nature of the violation is then disclosed to the public. Data on compliance rates by regulated entities is not publicly available."

5th Annual ABA Journal Blawg 100

One hundred law blogs have been nominated in 12 categories for the latest ABA Journal Blawg 100 competition.

People have until December 30, 2011 to register and vote for the blogs they think are the best of the year in each group.

Some self-promotion: the Canadian group blog Slaw.ca (to which I occasionally contribute) has been nominated in the Legal Technology category. Here is how Slaw has been described:

" 'Slaw is to law what Slate is to popular culture,' law blogger Robert Ambrogi writes. 'It is an online magazine with a diverse array of writers and perspectives covering a wide array of legal topics. It is always interesting, always smart and always insightful. It represents the best of what a legal blog—strike that—any blog can aspire to be'. "

Couldn't have said it better myself.

Ottawa Citizen Series on Medical Marihuana in Canada

The Ottawa Citizen has written a special multi-part series of articles on the legal and health aspects of access to marihuana for medical purposes in Canada.

Under the federal Marihuana Medical Access Regulations (MMAR) program, patients can get approval to possess and grow their own cannabis for pain relief, as well as gardeners to grow pot for approved patients.

The Canadian government is considering amendments to the MMAR to reduce what it considers the risk of abuse and exploitation by criminal elements.

openDemocracy Drug Policy Forum: Medical Pot and Mushroom-Munching Xmas Reindeer

The British website openDemocracy publishes a regular feature called the Drug Policy Forum that takes a critical reformist look at stories about the "war on drugs" and criminal justice issues.

The most recent issue includes stories about:

• US state medical marijuana laws
  
• Latin American drug cartels
• Copenhagen's moves to legalize pot
• drug abuse in Iran
• the shamanic origins of many Christmas traditions (what are those "magical" reindeer eating before they fly through the air?)
  

Ontario Law Reform Commission Reports Now Online

All of the reports of the old Ontario Law Reform Commission (1964-1996) are now available online on the site of the Internet Archive thanks to an initiative of Osgoode Hall Law School in Toronto.

The digital collection also includes consultation papers, collections of papers and other related documents.

[Source: Law Commission of Ontario]

Library of Parliament Legislative Summary of Bill C-21, the Political Loans Accountability Act

The Library of Parliament has published a legislative summary of Bill C-21: An Act to amend the Canada Elections Act (accountability with respect to political loans):

"Bill C-21 amends the Canada Elections Act with regard to loans, guarantees and suretyships to registered parties, registered associations, election candidates, leadership contestants and nomination contestants (hereinafter collectively called 'political entities')."

"Bill C-21 is based, in part, on Recommendations of the Chief Electoral Officer of Canada to the House of Commons Standing Committee on Procedure and House Affairs Respecting Specific Issues of Political Financing, submitted in 2007 (...)"

"Bill C-21 builds on the 2007 Chief Electoral Officer’s report by proposing the following changes to the Canada Elections Act:

• All loans to political entities, including mandatory disclosure of terms, and the identity of all lenders and loan guarantors, must be transparent.
• Unions and corporations are prohibited from making loans to political parties, associations, and election candidates.
• The amount of loans and loan guarantees that individuals can make are limited within the framework of the permitted individual annual contribution.
• The ability to make loans beyond the annual contribution limit for individuals would be restricted to financial institutions and political entities, and could be provided at commercial rates of interest only.
• Tighter rules would be instituted for the treatment of unpaid loans to ensure that election candidates cannot walk away from those loans."
  

It is possible to follow the progress of the bill through Parliament on the LEGISinfo website.

Supreme Court of Canada: New Library Titles

The list of new library titles added to the Supreme Court of Canada collection for the period of November 16-30, 2011 is now available on the Court website.

The web page explains: "The Supreme Court of Canada Library does not lend materials from this list, which is provided for information only."

But, once the material goes into the general collection, after about a month, the works do become available for inter-library loan to authorized libraries.

It is possible to subscribe via e-mail to receive the list.

Canadian Association of Law Libraries Survey on Publication Formats

In order to develop a position paper on publication formats, the Vendor Liaison Committee of the Canadian Association of Law Libraries (CALL) has developed a short survey to gather members’ views and input regarding publication formats (print, bound, loose-leaf, supplemented, electronic books, online subscription products, etc.) .

The survey takes approximately 10 minutes to complete and responses are anonymous. It will remain until December 30, 2011.

You can find publications of the Vendor Liaison Committee on the CALL website.

New Custom Search Engine for Canadian Military Information

Annette Demers, reference librarian at the Paul Martin Law Library at the University of Windsor, has created a custom search engine of Canadian military law journal articles, publications, reports and news.

It allows for one-stop searching of the following:

• Canadian Army Journal
• Army Lessons Learned Bulletin
• Army Lessons Learned Dispatches
• Canadian Forces College Papers
• Canadian Forces College Review
• Canadian Military Journal
• Canadian Naval Review
• Jane’s Information Group
• Canadian Army News
• Canadian Defence Academy Publications
• Chief Military Judge Documents
• Chief of Defence Staff Publications
• National Defence Key Documents
• Judge Advocate General Publications
• The Maple Leaf
• Military Police Complaints Commission Documents
• National Defence News Archives

[Source: Slaw.ca]

Nominations Open for 6th Annual Canadian Law Blog Awards

Nominations are now being accepted for the 6th annual Canadian Law Blog Awards known as the Clawbies.

The Clawbies recognize "the interesting, innovative, and informative sites that are the Canadian legal blogosphere’s best and brightest".

There are 3 ways to make nominations:

1. Tweet your nomination via Twitter with the hashtag: #clawbies2011. We’ll be monitoring!
2. Email your favourite blog, including a couple sample posts or any other notable highlights, to Steve Matthews at steve AT stemlegal.com. We’d prefer a public nomination, but this is still acceptable.
3. Write a blog post nominating up to three other Canadian law blogs you currently read, with a brief explanation of why you think those blogs were award-worthy in 2011. Don’t forget our 'humble Canadian' rule, though – make no mention of your own blog. In return, we’ll take a thorough look at your blog as well as your nominations.

The deadline to nominate is Wednesday, December 28th and the 2011 Clawbies winners will once again be announced on New Year’s Eve.

Statistics Canada Report on Perceptions of Personal Safety and Crime

The Statistics Canada publication Juristat has published an article about Canadians' perceptions of personal safety and crime, 2009.

Among the highlights:

• In 2009, the vast majority (93%) of Canadians aged 15 years and older living in the provinces said they felt satisfied with their personal safety from crime. This proportion was similar to 2004, the last time this survey was conducted
• Despite higher rates of victimization, younger Canadians were more satisfied with their personal safety from crime than older Canadians. In 2009, 94% of Canadians aged 15 to 24 years said they felt very or somewhat satisfied, compared with 90% of Canadians aged 65 years and older
• Most Canadians said they felt safe at night. About 83% of Canadians said that they were not at all worried when home alone in the evening. Of those who walked alone in their neighbourhood at night, 90% said they felt safe doing so
• About 39% of Canadians reported having used a crime prevention method to protect themselves from becoming a victim of crime in the 12 months preceding the survey. The use of crime prevention measures was more common among Canadians who had been previously victimized (57%) than those who had not (32%)
• The most common crime prevention method, reported by 27% of Canadians, was to change their routine or avoid certain people or places. About 13% said they had installed new locks or security bars and 10% had installed a burglar alarm or motion detector lights
• Canadians living in the eastern part of the country, where rates of both self-reported victimization and police-reported crime are generally lower, reported being more satisfied with their personal safety from crime than those in the west. In 2009, residents of Prince Edward Island were among those with the highest levels of satisfaction (97%) while residents in British Columbia were among those with the lowest (89%).

Data are drawn from the 2009 General Social Survey on Victimization, a self-reported survey conducted every five years on Canadians aged 15 years and older living in the 10 provinces.