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Taking ‘Third World’ Lives Seriously: Decolonising Global Health Governance To Promote Health Capabilities In The Global South, Uchechukwu Ngwaba
Taking ‘Third World’ Lives Seriously: Decolonising Global Health Governance To Promote Health Capabilities In The Global South, Uchechukwu Ngwaba
The Transnational Human Rights Review
Behind glib claims of universalism in global health, evidenced by the push for universal health coverage in the Sustainable Development Goals 2030 (SDGs), lies an uncomfortable truth about the unequal, uneven and broken system of the existing framework for global health governance. A situation made more evident by the behaviour of powerful states of the Global North at the height of the Covid-19 pandemic through the hoarding of vaccines, refusal to accommodate waivers to the Trade-Related Aspects of Intellectual Property Rights (TRIPS) regime to allow cheaper versions of the Covid-19 vaccines to be manufactured for the Global South and the …
Sustainable Development Goals And Persons With Disabilities In Education And Employment, Sonia Iyayi Akinyelu
Sustainable Development Goals And Persons With Disabilities In Education And Employment, Sonia Iyayi Akinyelu
The Transnational Human Rights Review
States under international law have obligations towards all, including persons with disabilities who are recognized as right holders. Moreover, states, especially in the areas of education and employment, are duty-bound to ensure quality education and productive employment for the realization of their human rights. Indeed, the Sustainable Development Goals (SDGs) impose additional obligations on states in achieving full productive employment and quality education for all, including those with disabilities. Therefore, this paper assesses the SDGs related to education and employment for persons with disabilities by considering whether the SDGs fully integrate the human rights standards as well as the disability …
An Examination Of The Framing Of Canada’S Copyright Exclusive Rights And Exceptions From A Human Rights Perspective, Justice Ogoroh, Zachary Lomo
An Examination Of The Framing Of Canada’S Copyright Exclusive Rights And Exceptions From A Human Rights Perspective, Justice Ogoroh, Zachary Lomo
The Transnational Human Rights Review
This paper examines the intersection of the framing of copyright law in Canada from the perspective of human rights. The study seeks to reconcile the rights of creators with public access to content. Asserting that copyright law is not a human right but a means to uphold the inherent human rights of both creators and the public. This study explores the legal instruments that articulate a copyright framework that aims to achieve the reconciliation of the rights of creators and the public. The discussion begins with the roots of copyright in Canada, tracing back to the Statute of Anne, and …
Falling Through The Protection Gaps: Inappropriate Protection Of Climate Displaced Persons In The International Refugee Legal Structure, Nischala Mcdonnell
Falling Through The Protection Gaps: Inappropriate Protection Of Climate Displaced Persons In The International Refugee Legal Structure, Nischala Mcdonnell
The Transnational Human Rights Review
The nexus between climate change and forced human mobility is recognised within the international climate legal framework through the vehicle of loss and damage; however, this nexus is absent in international refugee law. Cross-border climate displaced persons have not yet received official legal status nor protection as a consequence of this legal void in international refugee law. This is largely due to two interconnected and unresolved issues: first, definitional controversy in categorising climate-forced cross-border mobility; and second, the high threshold set by Article 1A(2) of the Refugee Convention inclusion requirements to receive international protection. Cross-border climate displaced person claims remain …
Book Review: Litigating Artificial Intelligence By Jesse Beatson, Gerold Chan, And Jill R. Presser, Jake Okechukwu Effoduh
Book Review: Litigating Artificial Intelligence By Jesse Beatson, Gerold Chan, And Jill R. Presser, Jake Okechukwu Effoduh
The Transnational Human Rights Review
It is no longer news that artificial intelligence (AI) is being deployed across the board in the legal industry, although the extent of AI use varies by jurisdiction.
Your Boss Is An Algorithm: Artificial Intelligence, Platform Work And Labour By Antonio Aloisi And Valerio De Stefano, Zoé Bernicchia-Freeman
Your Boss Is An Algorithm: Artificial Intelligence, Platform Work And Labour By Antonio Aloisi And Valerio De Stefano, Zoé Bernicchia-Freeman
Osgoode Hall Law Journal
In March 1964, the cover page of a popular German weekly magazine entitled Der Spiegel painted a frightening picture: An anthropomorphic robot with six mechanical arms commands an assembly line while a displaced human worker floats aimlessly in the foreground. Ejected from his station, the worker throws up his hands in despair next to a headline that reads, “Automation in Germany, the arrival of robots.” Over fifty years later, a cover page from the same magazine evoked similar themes: A giant robot arm yanks an office worker away from his computer under the headline, “You’re fired! How computers and robots …
Technology Mindfulness And The Future Of The Tort Of Privacy, Emily Laidlaw
Technology Mindfulness And The Future Of The Tort Of Privacy, Emily Laidlaw
Osgoode Hall Law Journal
This article investigates how to develop the tort of privacy to better address technology-facilitated abuse. The central question explored is how explicitly the role and function of technology should be engaged in a legal test. The article argues that technology is constitutive of our society, shaping our social and cultural institutions, which in turn shape the development of technology and together define the everyday ways that our privacy is enjoyed and invaded. A privacy tort should therefore directly engage with the social significance of technology—what this article frames as technology mindfulness. To develop the concept of technology mindfulness, and with …
Policing In The Shadow Of Legality: Pretext, Leveraging, And Investigation Cascades, Terry Skolnik
Policing In The Shadow Of Legality: Pretext, Leveraging, And Investigation Cascades, Terry Skolnik
Osgoode Hall Law Journal
Police officers often exercise their authority at the boundary of legality. Two of policing’s features contribute to this tendency: first, the scope of certain police powers is unclear; second, officers enjoy broad discretion to initiate proactive police encounters. This article argues that these interrelated features of policing result in three law enforcement phenomena: pretext, leveraging, and investigation cascades. Pretext denotes that police officers invoke lawful justifications to pursue unlawful aims. Leveraging implies that officers exploit individuals’ psychological vulnerabilities to secure compliance or to receive consent to engage in more intrusive investigatory tactics. Investigation cascades occur when officers gather information through …
Provincial Constitutions, The Amending Formula, And Unilateral Amendments To The Constitution Of Canada: An Analysis Of Quebec’S Bill 96, Emmett Macfarlane
Provincial Constitutions, The Amending Formula, And Unilateral Amendments To The Constitution Of Canada: An Analysis Of Quebec’S Bill 96, Emmett Macfarlane
Osgoode Hall Law Journal
This article critically analyzes provincial authority to unilaterally amend the Constitution of Canada. Via an assessment of the purported amendments in Quebec’s Bill 96, which would recognize Quebecers as a nation and French as the only language of the province, the article argues that provinces cannot make direct amendments altering, adding, or repealing provisions of the Constitution of Canada. This argument is reflected in the wording of the various constitutional amending procedures, the historical and contemporary constitutional practice, and the underlying purpose of, and fundamental distinction and complex relationship between, the Constitution of Canada as supreme law and the constitution …
The Elusive Motive Requirement In Canada’S Terrorism Offences: Defining And Distinguishing Ideology, Religion, And Politics, Michael Nesbitt, Leah West, Amarnath Amarasingam
The Elusive Motive Requirement In Canada’S Terrorism Offences: Defining And Distinguishing Ideology, Religion, And Politics, Michael Nesbitt, Leah West, Amarnath Amarasingam
Osgoode Hall Law Journal
Canada distinguishes “ordinary crime” from terrorism offences primarily by reference to whether an act meets the Criminal Code’s definition of “terrorist activity.” The most confusing and least understood element of terrorist activity is its motive requirement, that being that for a crime to constitute a terrorism offence, the actor must be motivated by politics, religion, or ideology. How do we know when such a motive exists, or even how to define these motivations? How do we differentiate ordinary crime from terrorism if we do not know what ideologies or religions “count” and which do not? Do far-right motivations picked and …
Canadian “Dreamers”: Access To Post-Secondary Education, Elise Mercier, Sean Rehaag, Francisco Rico-Martinez
Canadian “Dreamers”: Access To Post-Secondary Education, Elise Mercier, Sean Rehaag, Francisco Rico-Martinez
Osgoode Hall Law Journal
Youth with precarious legal status (PLS) in several provinces are entitled to access primary and secondary education regardless of their immigration status. However, once they graduate from high school their opportunities for post-secondary education are highly constrained. This article sets out an argument for expanding post-secondary educational opportunities for PLS students, drawing on the example of the only existing program in Canada targeting such students: York University’s “Access for Students with Precarious Immigration Status Program.” The article considers possible legal impediments to the establishment of such programs, including offences under Canadian immigration legislation, and argues that charges against post-secondary institutions …
No Legal Way Out: R V Ryan, Domestic Abuse, And The Defence Of Duress By Nadia Verrelli And Lori Chambers, Abigail March
No Legal Way Out: R V Ryan, Domestic Abuse, And The Defence Of Duress By Nadia Verrelli And Lori Chambers, Abigail March
Osgoode Hall Law Journal
The defence of duress in Canadian criminal law has been described by scholars and judges as a “complicated mess,” “[o]ften confusing and potentially gendered,” and “irrational, anomalous, perverse, illogical and fundamentally wrong.” The most recent Supreme Court of Canada case to attempt to bring clarity to the embattled duress defence, R v Ryan (“Ryan”), is the focus of Nadia Verrelli and Lori Chambers’ No Legal Way Out: R v Ryan, Domestic Abuse, and the Defence of Duress (“No Legal Way Out”).
Intervention In Civil Wars: Effectiveness, Legitimacy, And Human Rights By Chiara Redaelli, Sofya Cherkasova
Intervention In Civil Wars: Effectiveness, Legitimacy, And Human Rights By Chiara Redaelli, Sofya Cherkasova
Osgoode Hall Law Journal
Libya, Mali, Yemen, Syria, Ukraine. These are just some of the countries that have been subject to armed interventions in only the past eleven years. The list of countries that were invaded in the past fifty years is exponentially longer.
Peace And Good Order: The Case For Indigenous Justice In Canada By Harold R. Johnson, Scott Franks
Peace And Good Order: The Case For Indigenous Justice In Canada By Harold R. Johnson, Scott Franks
Osgoode Hall Law Journal
Harold Johnson was a Cree lawyer, trapper, author, and storyteller from the Montreal Lake Cree Nation. He practiced as a criminal defence lawyer and then as a Crown prosecutor in my hometown of La Ronge, Saskatchewan. Peace and Good Order: The Case for Indigenous Justice in Canada (“Peace and Good Order”) is Harold’s resignation letter to the legal profession, apology for his participation in Canada’s criminal law system, and argument for Indigenous jurisdiction. It is, in part, an autobiographical account of his relationship to Canadian law as a Nehiyaw man. And it comes at a time when more and more …
Digitally Rethinking Hunter V Southam, Lisa M. Austin, Andrea Slane
Digitally Rethinking Hunter V Southam, Lisa M. Austin, Andrea Slane
Osgoode Hall Law Journal
Lawful access—the legal regime that authorizes various methods used by law enforcement to intercept, search, or seize information for investigatory purposes—has been subject to much debate in Canada. However, those debates need a new solution space for the digital age. This must be able to incorporate new technological solutions for minimizing rights infringements and provide new forms of accountability and safeguards against misuse. This is not simply a matter of adopting the popular framework of “privacy by design,” or even a reworked “lawful access by design.” We argue that an appreciation of the challenges of the digital world requires us …
Assisted Suicide In Canada: Moral, Legal, And Policy Considerations By Travis Dumsday, Anita Singh
Assisted Suicide In Canada: Moral, Legal, And Policy Considerations By Travis Dumsday, Anita Singh
Osgoode Hall Law Journal
THE SUPREME COURT OF CANADA’S (SCC) decision in Carter v Canada (“Carter”) was a landmark moment in Canadian jurisprudence. In Carter, the SCC declared two sections of the Criminal Code to be of no force and effect because the “prohibition on physician assisted dying…deprives a competent adult of such assistance where (1) the person affected clearly consents to the termination of life; and (2) the person has a grievous and irredeemable medical condition…that causes enduring suffering that is intolerable to the individual.” Not only did Carter overturn an earlier decision in Rodriguez v British Columbia (Attorney General) (“Rodriguez”), which had …
Revisiting The Defence Of Diminished Responsibility, Andrew Botterell
Revisiting The Defence Of Diminished Responsibility, Andrew Botterell
Osgoode Hall Law Journal
My goal in this article is to revisit the defence of diminished responsibility. There are three things that, taken together, suggest to me that a defence of diminished responsibility ought to be made available to certain individuals accused of certain criminal offences. The first is that Canadian criminal law already recognizes a number of defences that reflect ideas about diminished responsibility. The second is that despite the availability of these specific defences to criminal liability, no general defence of diminished responsibility is formally recognized in Canadian criminal law. And the third is that given the Supreme Court of Canada’s ongoing …
How Antitrust Failed Workers By Eric A. Posner, Maria Arabella M. Robles
How Antitrust Failed Workers By Eric A. Posner, Maria Arabella M. Robles
Osgoode Hall Law Journal
IN RECENT YEARS, GROWING ECONOMIC INEQUALITY and anxieties about market power, monopolization, and other such concerns have rejuvenated competition and antitrust law and policy. It is well known that antitrust enhances competition by addressing issues of monopolization, price-fixing arrangements, and cartels, among other anticompetitive practices in markets. This allows dynamic competition to flourish in markets and ensures that consumers are provided with competitive prices and product choices. Although the negative impacts of market concentration are frequently recognized in the context of product markets, its impact on labour markets and the workers therein have largely been unexplored until recently. Professor Eric …
Oversight Of Police Intelligence: A Complex Web, But Is It Enough?, Lyria Bennett Moses
Oversight Of Police Intelligence: A Complex Web, But Is It Enough?, Lyria Bennett Moses
Osgoode Hall Law Journal
This article analyzes the jurisdiction, function, powers, and expertise of oversight mechanisms with reference to capacity to oversee the legality of emerging police intelligence practices such as facial recognition, social media analytics, and predictive policing. It argues that oversight of such practices raises distinct issues ranging from the general oversight of policing, given the secrecy associated with police intelligence generally, to the use of complex software in particular. It combines doctrinal analysis with analysis of interviews with policing intelligence analysts, intelligence managers, lawyers, and IT professionals in three jurisdictions: Canada, Australia, and New Zealand. It brings together the roles of …
Clamouring For Legal Protection: What The Great Books Teach Us About People Fleeing From Persecution By Robert F. Barsky, Julia Schabas
Clamouring For Legal Protection: What The Great Books Teach Us About People Fleeing From Persecution By Robert F. Barsky, Julia Schabas
Osgoode Hall Law Journal
THE POWER OF STORIES and storytelling is central to the refugee experience, both from a legal and social perspective. In the refugee claim context, seeking asylum after fleeing one’s home country due to a well-founded fear of persecution requires, as Anthea Vogl explains, “that refugee applicants tell a good story—that is, one that predominantly conforms to the conventions of model narratives.” This demand for narrative requires the refugee to draw on well-known genres and stories of how certain people act in the face of fear and persecution.
Transfer Theory And The Assignment Of Contractual Rights, Stéphane Sérafin
Transfer Theory And The Assignment Of Contractual Rights, Stéphane Sérafin
Osgoode Hall Law Journal
The possibility of assigning contractual rights to third parties has often been taken to suggest that they amount to a form of “property” or “asset.” This point has been seized upon by proponents of transfer-based accounts of contract law, which understand contract as a means of transferring existing rights instead of creating new rights and duties between its parties. In this article, I set out to critically examine the extent to which this assumed compatibility between transfer theories of contract and the assignment of contractual rights can truly be sustained. As I argue, only one version of transfer theory is …
International Status In The Shadow Of Empire: Nauru And The Histories Of International Law By Cait Storr, Jordan Crocker
International Status In The Shadow Of Empire: Nauru And The Histories Of International Law By Cait Storr, Jordan Crocker
Osgoode Hall Law Journal
IN 2007, THE PARLIAMENT OF NAURU, a (formerly) phosphorus-rich island nation located in the southwest of the Pacific Ocean, was presented with a report completed by its appointed Constitutional Review Commission that sought to explain, in short, “‘[w]hat’…had gone ‘wrong’ with the Republic of Nauru.” The Commission, funded by the United Nations Development Programme, produced a scathing report, which concluded that Nauru was in dire need of constitutional reform and that the nation needed to better its institutions, laws, and training of leaders in the business of governance in order to address thefailures of the state. The government initiated a …
Social Rights And Transformative Private Law, Edward BéChard-Torres
Social Rights And Transformative Private Law, Edward BéChard-Torres
Osgoode Hall Law Journal
Although constitutional social rights continue to attract much scholarly attention, their role in shaping private law is often overlooked. This neglect has led some scholars to underestimate social rights’ transformative potential. This article considers social rights’ influence over contract and property law in India, Colombia, and South Africa—three leading jurisdictions of the Global South. It argues that social rights can promote redistributive outcomes and inspire important shifts in private law’s values and modes of reasoning. However, it cautions that the depth of this transformation will depend on how judges choose to cross the public– private divide. One tradition rejects any …
A Pattern Of Violence: How The Law Classifies Crimes And What It Means For Justice By David Alan Sklansky, Ainsley Doell
A Pattern Of Violence: How The Law Classifies Crimes And What It Means For Justice By David Alan Sklansky, Ainsley Doell
Osgoode Hall Law Journal
What is violence? What may appear in its face to be a simple question does not have a simple answer, especially when we are searching for it within our legal systems. The answer is not clear, and yet it has wide-reaching and potentially life-changing implications. Professor and former Assistant United States Attorney David Alan Sklansky does not seek to answer this question, but rather suggests that there is no definition of violence “that will allow the category of violence to do the work that we have asked it to do.”3 In A Pattern of Violence, Sklansky instead turns to the …
Navigating The Free Trade—Fair Trade Fault-Lines By Michael Trebilcock, Nicholas Slagter
Navigating The Free Trade—Fair Trade Fault-Lines By Michael Trebilcock, Nicholas Slagter
Osgoode Hall Law Journal
The COVID-19 pandemic came with several revelations about our pre-pandemic lives. One of these revelations was the importance of international trade law in the lives of average individuals. Headlines about food supplies, shortages of essential medical supplies, and countries’ plans to acquire and produce vaccines dominated the media following March 2020. It was a time that spurred the public’s interest in international trade law and how it functions. Indeed, media headlines showcased the growing concern about international trade during the pandemic. This is the context in which Michael Trebilcock’s Navigating the Free Trade—Fair Trade Fault-Lines situates itself. At a time …
Litigating The Carceral Soundscape, David Howes, Simcha Walfish
Litigating The Carceral Soundscape, David Howes, Simcha Walfish
Osgoode Hall Law Journal
Sound has always been a material issue in prisons, whether it be in connection with sonic surveillance, the “silent cell,” or the insistence of sound (excessive noise, counter-carceral music making). This article asks: How and when does the carceral soundscape become a litigable issue? Our article opens with a discussion of the challenges involved in attempting to study the sonic ambiance of the penitentiary through the medium of written documents and proposes a methodology of “sensing between the lines” by way of a solution. It goes on to analyze the “moral architecture” at the foundation of the modern prison in …
The Business Judgment Rule, The Public Interest Powers, And The “Fair And Reasonable” Test: Fellow Travellers Or Ships In The Night?, Jeffrey Macintosh
The Business Judgment Rule, The Public Interest Powers, And The “Fair And Reasonable” Test: Fellow Travellers Or Ships In The Night?, Jeffrey Macintosh
Osgoode Hall Law Journal
In the most controversial corporate transaction in Canadian history, Magna repurchased all of the Class B superior voting shares from its controlling shareholder, Frank Stronach, at a 1799 per cent premium to the otherwise identical but inferior voting Class A shares, thus ending Stronach’s long reign as de jure controller of Magna. Despite this massive and unprecedented premium, the transaction generated about three billion US dollars in aggregate value, or about 40 per cent of the pre-transaction market cap of Magna. I nonetheless argue that the transaction was massively flawed from both a procedural and substantive point of view and …
Statutory Interpretation: Pragmatics And Argumentation By Douglas Walton, Fabrizio Macagno And Giovanni Sartor, Matthew Traister
Statutory Interpretation: Pragmatics And Argumentation By Douglas Walton, Fabrizio Macagno And Giovanni Sartor, Matthew Traister
Osgoode Hall Law Journal
Statutory Interpretation is a comprehensive and nuanced account of some of the most fundamental features of the law: legal reasoning and interpretation. The book draws on philosophy, argumentative theory, linguistics, artificial intelligence, and dialectics to develop a robust theory of argumentation and pragmatics both in and outside of the law. The work is written by Douglas Walton, former Distinguished Research Fellow at the University of Windsor’s Centre for Research in Reasoning, Argumentation and Rhetoric; Fabrizio Macagno, professor at Universidade NOVA de Lisboa; and Giovanni Sartor, professor at the University of Bologna. This work represents a balance, most of all, of …
The Notwithstanding Clause In Canada: The First Forty Years, Tsvi Kahana
The Notwithstanding Clause In Canada: The First Forty Years, Tsvi Kahana
Osgoode Hall Law Journal
This article evaluates the use of section 33 of the Canadian Charter of Rights and Freedoms, commonly known as the notwithstanding clause (NWC), over the first forty years of its existence. It provides a comprehensive account of all uses of the NWC in this period, introduces the notion of tyrannical use of the NWC, and develops criteria to evaluate whether a particular use is tyrannical. It then demonstrates that most NWC uses have not been tyrannical; rather, the NWC was used for temporary, ameliorative, or transitional purposes. That said, in the studied period, there have been three instances of tyrannical …
Sin Of Omission: Exploring A Key Credibility Inference In Canadian Refugee Status Rejections, Hilary Evans Cameron
Sin Of Omission: Exploring A Key Credibility Inference In Canadian Refugee Status Rejections, Hilary Evans Cameron
Osgoode Hall Law Journal
Refugee claimants in Canada must submit a “Basis of Claim” form to the Refugee Board before attending a hearing with the adjudicator who will decide their claim. On this form, they are expected to produce a written narrative that explains “everything that is important” about their experiences. At their hearing, many claimants encounter, for the first time, a key principle of Canadian refugee law: The omission of any “important information” from this narrative suggests that they have invented their claim. This study takes a close look at how this “omission from the narrative” inference is operating within a set of …