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In Canada, like the USA, exclusions to patentable subject matter are driven primarily by the courts. Two recent decisions by the Canadian Patent Appeal Board (one on patentability of business methods and the other on the patentability of methods of medical treatment) have highlighted the inherent difficulty of crafting exclusions to patentable subject matter grounded not on legislative intent but on judicial activism.Courts, patent examiners, and the patent appeal board should be slow to deny patents where their subject matter is considered ineligible; rather patent applications should be assessed by the traditional criteria of patentability (namely, novelty, inventiveness, and utility). If the subject matter can be made to fit within the definition of ‘invention’ (even if slightly uncomfortably), the courts should aim to ‘breathe life’ into the bare, sometimes dated, words of the patent statute. Since the patent statutes are drafted with a view to the unforeseen, any judicial interpretation of the word ‘invention’ must give deference to this vision. A theory of subject-matter eligibility is also proposed.

“No one has advanced a just and logical reason why reward for service to the public should be extended to the inventor of a mechanical toy and denied to the genius whose patience, foresight, and effort have given a valuable new [discovery] to mankind” (Katopis CJ. Patents v patents: policy implications of recent patent legislation. St John’s Law Review 1997;71:329). The law around the world permits the granting of patents for drugs, medical devices, and cosmetic treatment of the human body. At the same time, patentability for a method of treatment of the same body is denied in some countries on various public policy grounds. Is there any logical justification for this distinction? Are methods of medical treatment not as vital to the health or even to the life of a patient as drugs or medical devices? Why is a cosmetic result patentable and a curative result not?

As many authors have already observed, intellectual property increasingly permeates ordinary people’s daily lives. And yet, this area of law, reputed for its complexity and its constant evolution prompted by frequent legislative activities and case law developments, is to a great extent portrayed as the exclusive province of specialists. Nevertheless, patent law, like other legislative activity, must not be reserved to the experts: to the contrary it should be made accessible to the ordinary jurist and, whenever possible, to the general public. Accordingly, this article, which will appear in two parts, seeks to provide a concise text, aimed at those interested in a succinct overview of the present state of Canadian patent law. In this first part, we present the normative sources of the relevant Canadian legal regime and proceed to succinctly explain what can be patented and the conditions of patentability. The second part, to be published in an upcoming issue of the Review, will deal with the scope and limits of exclusive rights, the procedure to obtain patent protection and the duration of the legal protection.

In this paper, I defend a deflationary account of proportionality, which suggests that proportionality does not explain anything valuable about a system of punishment. Proportionality, rather, is a conventional means for presenting judgments about whether punishment fits the crime. A system of punishment is proportionate to the degree that it coheres with widely shared norms about punishment. There are many reasons such coherence could be valuable, not all of which are retributive. Hence, while on a deflationary view it may be important for a system of punishment to be proportionate, proportionality does not identify a uniquely important retributive value. I motivate the argument for a deflationary account of proportionality by canvassing some of the problems associated with both relative (“ordinal”) and absolute (“cardinal”) proportionality and examining how both legal theorists and courts have actually used the concept. I focus on the work of Doug Husak, and the jurisprudence of the Supreme Court of Canada.

Federal elections between 2008 and 2019 saw a great of volatility in Quebec, with important consequences for election outcomes. The surge in New Democratic Party (NDP) support in Quebec led the party to official opposition, while Liberal gains in 2011 led the party to a majority government, and Bloc Québécois gains in 2019 helped to reduce the Liberals to a minority. To what extent was this volatility driven by voters switching parties and to what degree was it driven by voters entering and exiting the electorate? This article uses ecological inference based on riding-level data to examine the dynamics of party competition in Quebec from 2008 to 2019. We show that while voter mobilization mattered to volatility, vote switching was the important driver of changing party fortunes during this period., RésuméLes élections fédérales entre 2008 et 2019 ont connu une grande volatilité au Québec, avec des conséquences importantes sur les résultats électoraux. La poussée du soutien du NPD au Québec a conduit le parti à l'opposition officielle, tandis que les gains des libéraux en 2011 ont conduit le parti à un gouvernement majoritaire et que les gains du Bloc Québécois en 2019 ont contribué à réduire les libéraux à une minorité. Dans quelle mesure cette volatilité est-elle due au fait que les électeurs changent de parti et dans quelle mesure est-elle due au fait que les électeurs entrent et sortent de l'électorat ? Cet article utilise l'inférence écologique basée sur des données au niveau des circonscriptions pour examiner la dynamique de la concurrence entre les partis au Québec de 2008 à 2019. Nous montrons que, bien que la mobilisation des électeurs ait joué un rôle dans la volatilité, le changement de parti a été le principal moteur de l'évolution de la situation des partis au cours de cette période.

This article examines, from the standpoint of corrective justice, three basic situations of causal uncertainty in the law of negligence. In the first situation the uncertainty is about which of the possible defendants wrongfully caused the injury. In the second situation the uncertainty is whether the injury resulted from the innocent or the wrongful aspect of the defendant’s activity. In the third situation the uncertainty is whether the defendant’s negligence failed to prevent the materialisation of an independently existing risk. In viewing the parties as the doer and the sufferer of the same injustice, corrective justice confirms the centrality of causation to negligence liability. The article shows, nonetheless, how these three situations of uncertainty can be resolved within the corrective justice framework. Moreover, what emerges from the corrective justice analysis is that causal uncertainty is not a homogeneous problem; its solution varies with the kind of situation in which the uncertainty appears.

Polls have had a number of high-profile misses in recent elections. We review the current polling environment, the performance of polls in a historical context, the mechanisms of polling error, and the causes of several recent misses in Britain and the US. Contrary to conventional wisdom, polling errors have been constant over time, although the level of error has always been substantially beyond that implied by stated margins of error. Generally, there is little evidence that voters lying about their vote intention (so-called ‘shy’ voters) is a substantial cause of polling error. Instead, polling errors have most commonly resulted from problems with representative samples and weighting, undecided voters breaking in one direction, and to a lesser extent late swings and turnout models. We conclude with a discussion of future directions for polling both in terms of fixing the problems identified and new approaches to understanding public opinion.

The traditional requirement of proof of causation on a balance of probabilities is being challenged, in cases ranging from toxic pollution to medical negligence, by tort plaintiffs whose success depends on acceptance of "probabilistic" rather than "particularistic" evidence based on epidemiological and other statistical data falling below 50% probability. Courts in various jurisdictions have experimented with devices such as reversal of onus of proof against negligent defendants, recognition of mere risk of injury as a cause of action and damages proportioned to the degree of probability or chance. Recent pronouncements by the House of Lords oppose this trend.

There are two different models of judicial decision-making that have been illustrated in American legal thinking. In this article the author thoroughly examines those models and illustrates the workings of each. First, the author discusses the adjudication of disputes model and examines its purpose, as well as its key elements and characteristics. He also examines its limits, namely the obstacle of polycentricity. The author then discusses the characteristics of the judicial-policy-maker model, as well as the various problems with which it is associated. In conclusion, the author suggests that although the judicial process in Canada fits neither model exactly, it is more or less organized along adjudicative lines.