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Safe Havens Or Dangerous Waters? A Phenomenological Study Of Abused Women's Experiences In The Family Courts Of Ontario, Lois Shereen Winstock

PhD Dissertations

This qualitative, interdisciplinary research study explores the experiences of women abused by their intimate partners who appear as litigants in family court proceedings in Ontario, and the responses of judges presiding over those proceedings.

Domestic violence and abuse affects families from all social, economic and cultural groups. Women have been overwhelmingly identified as the victims of domestic violence and abuse. Children exposed to domestic violence and abuse, either directly or indirectly, are also negatively impacted. The term woman abuse has been employed to denote the gendered nature of the phenomena.

Studies of abused womens interactions with the legal system across …

Feminisms, Structural Violence And Transitional Justice (October 2014)

Conferences and Workshops

Friday, October 31, 2014
Location: Helliwell Centre for Innovation in Dispute Resolution, Room 1014, Osgoode Hall Law School, York University.
Time: 9am – 6pm

Recovering The Promise Of Public Truth: Juridification And The Loss Of Purpose In Public Inquiries, Jessica Mckeachie

LLM Theses

My intention in this work is to investigate the apparent disconnect between the intended social purposes of inquiries and the impact pressures of juridification have had on them, and consider what steps inquiries may take to resist these pressures. Public inquiries, formerly relied on as an alternative to criminal and civil proceedings and as a means to engage the public on issues of policy, now seem to exhibit more intense procedures akin to those found in the alternative processes they were designed to resist. Under increasing juridification pressures, what function should public inquiries fulfil? In short, my aim is to …

Proportionality, Discretion, And The Roles Of Judges And Prosecutors At Sentencing, Palma Paciocco

Articles & Book Chapters

The Supreme Court of Canada recently held that prosecutors are not constitutionally obligated to consider the principle of proportionality when exercising their discretion in a manner that narrows the range of available sentences: since only judges are responsible for sentencing, they alone are constitutionally required to ensure proportionality. When mandatory minimum sentences apply, however, judges have limited sentencing discretion and may be unable to achieve proportionality. If the Court takes the principle of proportionality seriously, and if it insists that only judges are constitutionally bound to enforce that principle, it must therefore create new tools whereby judges can avoid imposing …

The Application Of Gladue To Bail: Problems, Challenges, And Potential, Jillian Anne Rogin

LLM Theses

This paper argues that the principles articulated by the Supreme Court of Canada in R. v. Gladue and re-iterated in R. v. Ipeelee are being interpreted and implemented at the bail phase in a manner that exacerbates, rather than ameliorates the systemic failures of the criminal justice system in its dealings with Aboriginal people. Aboriginal people are grossly over-represented in Canadian prisons including those being detained in remand custody. It is now settled that the principles expressed in Gladue are applicable outside of the context of sentencing and in many jurisdictions have been found to be applicable to judicial interim …

Creating A Cultural Analysis Tool For The Implementation Of Ontario's Civil Mental Health Laws, Roby Dhand

PhD Dissertations

The purpose of the study was to develop a Cultural Analysis Tool (CAT). The CAT consists of specific thematic questions that can serve as a cultural and equity analysis instrument for practitioners to use in the implementation of Ontario’s civil mental health laws. The rationale behind creating the CAT is based on research suggesting that ethno-racial people with mental health disabilities experience inequities and differential outcomes while interacting with Ontario’s civil mental health laws. Given the increasing multi-racial population in Ontario, there is a need to develop mechanisms to address these intersecting issues. Other countries that have created evaluative tools …

Rights And Responsibilities: What Are The Prospects For The Responsibility To Protect In The International/Transnational Arena?, Carolyn Helen Filteau

PhD Dissertations

The dissertation involves a study of the emerging international norm of ‘The Responsibility to Protect’ which states that citizens must be protected in cases of human atrocities, war crimes, ethnic cleansing and genocide where states have failed or are unable to do so. According to the work of the International Commission on the Responsibility to Protect (ICISS), this response can and should span a continuum involving prevention, a response to the violence, when and if necessary, and ultimately rebuilding shattered societies. The most controversial aspect, however, is that of forceful intervention and much of the thesis focuses on this aspect. …

Workshop: Canadian-Nigerian Human Rights Cooperation (1999-2011) (April 2014)

Conferences and Workshops

hursday, May 8 – Saturday, May 10, 2014

Background and Conference Theme

The Osgoode-Nathanson/NIALS/CENSOJ Partnership Development will be holding a workshop on May 8-10, 2014 at Osgoode Hall Law School. The workshop, hosted by the Nathanson Centre, will focus on Canadian-Nigerian human rights cooperation between 1999 and 2011.

Led by Professor Obiora Okafor (Osgoode/Nathanson), Professor Dakas C.J. Dakas (NIALS) and Mr. Eze Onyekpere (CENSOJ), the workshop is part of a four-year collaborative research and dissemination project funded by the Social Sciences and Humanities Research Council of Canada. The purpose of this workshop is to engage in joint academic debate and …

What Is Access To Justice?, Trevor C. W. Farrow

Osgoode Hall Law Journal

Access to justice is the most pressing justice issue today. It has become the major focus of essentially all stakeholders in the legal community—governments, regulators, bar associations, researchers, and educators. It now needs to become an increasing topic of attention for those who use the system: the public. With all of this attention, what does the phrase “access to justice” really mean, particularly from the perspective of the public? In addition to reviewing the access to justice literature and policy initiatives, this article develops a public centered understanding of access to justice. It does so primarily by reporting on a …

Book Review: Mistrial: An Inside Look At How The Criminal Justice System Works…And Sometimes Doesn't, By Mark Geragos And Pat Harris, Ryan Heighton

Osgoode Hall Law Journal

No abstract provided.

Law Reform For Dummies (3rd Edition), Roderick A. Macdonald

Osgoode Hall Law Journal

Legal pluralist law reform engages citizens in dialogue through which they gain richer insight into their normative lives and learn to manage everyday interactions with each other. Noting that first- and second-generation law reform commissions have been critiqued for their narrow vision and goal of modifying individual legal rules, this article shifts the focus to the general public as a key player in the enterprise. This is how law reform responds to public concerns and engages the public’s assumptions about the reform process. The true ambition of law reform is to find opportunities for Canadians to examine their assumptions about …

Investigating Integrated Domestic Violence Courts: Lessons From New York, Jennifer Koshan

Osgoode Hall Law Journal

Extensive law and policy reforms in the area of domestic violence have occurred in the last several decades in the United States and Canada, the latest being the development of specialized domestic violence (DV) courts. DV courts typically operate in the criminal realm, particularly in Canada. A recent innovation that is relatively unique in the United States is integrated domestic violence (IDV) courts, where criminal, civil, and family matters are heard together in a one judge/one family model. This article examines the literature on DV and IDV courts in Canada and the United States, and situates these reforms in the …

Osgoode Syllabus Of Courses And Seminars: 2014 - 2015, Office Of Student Services

Syllabi

No abstract provided.

Criminalization Of Polygamy In Canada: Historical, Legal And Sociological Analysis, Washi Ahmed

Osgoode Legal Studies Research Paper Series

The Canadian Criminal Code criminalizes the act of polygamy pursuant to s.290, and bigamy (another act which is similar to polygamy) pursuant to s.293 under the assumption that such practices have an adverse impact on women and children. However, the history of the criminalization of polygamy in Canada suggests that it was enacted deliberately to marginalize a particular minority group. This paper is divided into four chapters. Chapter I discusses the historical background of polygamy and indicates that the criminalization of polygamy in Canada was an adoption of the American legal approach to Mormonism. Chapter II analyzes the provisions of …

Constitutional Principles In Substantive Criminal Law, Benjamin L. Berger

Osgoode Legal Studies Research Paper Series

Since Milsom’s famous dismissal of the “miserable history of crime in England,” criminal law has undergone a revolution in constitutional significance. The rise of rights constitutionalism as the heart of the modern liberal rule of law has given criminal law a new life in which it is subject to substantial justice-based innovation through appeal to the internal and basic norms of the legal system itself. Far from the marginal and exceptional status once ascribed to it by Milsom, this chapter argues that criminal law is now best understood and approached as a species of constitutional reflection. Substantive criminal law has …

International Human Rights In Canada: At The Juncture Of Law And Politics, Faisal Bhabha

Osgoode Legal Studies Research Paper Series

This paper addresses the topic of international human rights law from the Canadian perspective. As the title suggests, this paper’s analysis of the topic sits at the intersection of law and politics, where all questions of international law necessarily do. It proceeds in three parts. First, it provides a sketch of the political context, drawing from recent events and trends, to describe a conflicted official government approach to international human rights. Next, it examines the formal legal status of international human rights law in Canada, drawing selectively from Supreme Court of Canada jurisprudence. Finally, it addresses the adoption of the …

Deliberate Disregard: Judicial Appointments Under The Harper Government, Rosemary Cairns Way

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

This paper examines the apparent disregard of diversity in appointments by the federal government to the Canadian bench. It begins with an examination of the principal academic arguments supporting the claim that Canadians are entitled to a representative bench. After explaining the current federal appointments process, the paper goes on to examine patterns in three identity characteristics of recent appointees (gender, racialization and professional experience). The author concludes that the patterns suggest, at the least, a failure to pay attention to, and at the most, a deliberate disregard of, diversity. In her view, this is inconsistent with constitutional anti-discrimination norms, …

R. V. Ryan And The Principle Of Moral Involuntariness, Kimberley Crosbie

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

In 2013, the Supreme Court released its decision in R. v. Ryan. The Court overturned an acquittal that Ms. Ryan had secured at trial based on the defence of duress. She had been charged with counselling the commission of an offence, namely, attempting to hire someone to kill her ex-husband. At trial, her defence succeeded because the trial court — and later the Nova Scotia Court of Appeal — found that her husband had subjected her to a reign of terror during their relationship and she feared for her life, and her daughter’s. In this situation, the courts below held, …

A Positive Future For Section 7?: Children And Charter Change, Alison M. Latimer

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

It has been more than a decade since Justice Arbour’s dissenting judgment in Gosselin, the first and only Supreme Court of Canada judgment recognizing positive rights under section 7. The jurisprudence that has developed in the intervening years presents some challenges to pursuing such a claim today. Yet the author offers the view that because of the special vulnerability of children, their capacity for development and the state’s treatment of children in other contexts, recognition of positive rights for children is consistent with Canada’s legal/political traditions, current laws and jurisprudence. Childhood, the refore, may well be the “special circumstance” necessary …

The Punishment Agenda In The Courts, Debra Parkes

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

This paper critically examines the potential of prisoner litigation in Canada to shed light on what U.S. Supreme Court Justice Anthony Kennedy has called “the hidden world of punishment”. It considers whether prisoners’ rights litigation can act as a meaningful legal check on the growing punishment agenda in Canada. The paper begins with a brief description of some aspects of the punishment agenda before moving on to consider case law under the section of the Canadian Charter of Rights and Freedoms which speaks directly to punishment and its limits, the section 12 right to be free from “cruel and unusual …

Poverty Law, Access To Justice, And Ethical Lawyering: Celebrating 40 Years Of Clinical Education At Osgoode Hall Law School, Shelley Gavigan, Sean Rehaag

Journal of Law and Social Policy

Collects papers presented at the Symposium in 2011 celebrating forty years of clinical legal education at Osgoode Hall Law School.

Proving A Violation: Rhetoric, Research And Remedy, Alan N. Young

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

This paper explores the uses and abuses of relying upon legislative fact evidence to prove a violation of a claimant’s constitutional rights. The Supreme Court of Canada has stated that, in the criminal law context, an accused is entitled to challenge a law that violates the constitutional rights of third parties but that applies in a constitutionally sound manner with respect to the accused. This principle spawned the conventional wisdom that in order to obtain a declaration that a statute is invalid, a litigant must present voluminous legislative fact evidence to demonstrate that the statute unjustifiably limits rights of third …

Informal Transnational Police-To-Police Information Sharing: Its Structure And Reform, Michael Robert Walton

LLM Theses

This thesis examines the informal sharing of information and cooperation between police agencies across international borders, and how it is or should be informed by international human rights law. The author looks at how intelligence-led policing theory has affected transnational policing. A distinction is made between police actions made on domestic soil that have adverse consequences abroad and police actions made on foreign soil that have adverse consequences. The first category of cases is firmly within jurisdiction and covered by domestic and international legal obligations. The second category of cases introduces the concept of the extraterritorial application of international human …

What Is Access To Justice?, Trevor C. W. Farrow

Osgoode Legal Studies Research Paper Series

Access to justice is the most pressing justice issue today. It has recently and very quickly become the major focus of attention of essentially all stakeholders in the legal community – governments, regulators, judges, bar associations, researchers and educators. And it needs also to become an increasing topic of attention for those who use the system – the public. But with all of this new attention, do we really know what we are talking about? What does the phrase "access to justice" mean, particularly from the perspective of the public? Primarily through a series of qualitative interviews, this study looks …

The Panopticon Of International Law: B’Tselem's Camera Project And The Enforcement Of International Law In A Transnational Society, Pini Pavel Miretski, Sascha-Dominik Oliver Vladimir Bachmann

Osgoode Legal Studies Research Paper Series

This paper analyzes the influence of transnational non-state actors on compliance with international legal rules, as part of Foucault’s power/knowledge structure. Particularly it examines the effect of the “Shooting Back” project, by the Israeli NGO B’Tselem, on the level of investigations of alleged violations of the law of occupation. According to Bentham’s principles of Panoptism, power should be visible and unverifiable. The implementation of these principles by transnational actors is highlighted by the “Shooting Back” project in Israel. In 2007 the NGO B’Tselem supplied Palestinians living in high-conflict areas with video-cameras in order to capture, expose, and “seek redress for” …

Poetry, Mercy, And The Phenomenology Of Justice, Benjamin L. Berger

Osgoode Legal Studies Research Paper Series

What would a phenomenology of justice look like and what role would mercy play in that account? The unruly experiences and lives of the individuals and communities wrapped up in the dramas of justice are paradoxically distant from legal and philosophical reasoning, laundered by rules of evidence for the instrumental exigencies of the former, and frequently effaced by the disciplinary conventions of the latter. One casualty of these habits of reflection is our understanding of the role of mercy in the experience of justice. Wanting to recapture space to imagine the role of mercy in justice, this paper makes an …

Faithful Translations? Cross-Cultural Communications In Canadian Religious Freedom Litigation, Howard Kislowicz

Osgoode Legal Studies Research Paper Series

In three religious freedom cases pursued to the Supreme Court of Canada – Amselem, Multani, and Huterrian Brethren of Wilson Colony – religious freedom claimants engaged in litigation over a religious practice particular to their group. Some have argued that cases like these can be seen as cross-cultural encounters. How did the religious freedom claimants seek to make their practices – the succah, the kirpan, and the prohibition on being photographed – understood to the courts? And how did the courts respond to these claims? In this paper, I draw out two central values from the literature on cross-cultural communication: …

Investigating Integrated Domestic Violence Courts: Lessons From New York, Jennifer Koshan

Osgoode Legal Studies Research Paper Series

Extensive law and policy reforms in the area of domestic violence have occurred in the last several decades in the United States and Canada, the latest being the development of specialized domestic violence (DV) courts. DV courts typically operate in the criminal realm, particularly in Canada. A recent innovation that is relatively unique in the U.S. is Integrated Domestic Violence (IDV) courts, where criminal, civil and family matters are heard together in a one judge/one family model. This paper examines the literature on DV and IDV courts in Canada and the U.S., and situates these reforms in the context of …

Access To Justice And Corporate Accountability: A Legal Case Study Of Hudbay In Guatemala, Valerie Crystal, Shin Imai, Bernadette Maheandiran

Osgoode Legal Studies Research Paper Series

This case study looks at the avenues open for addressing serious allegations of murder, rape and assault brought by indigenous Guatemalans against a Canadian mining company. While first generation law and development reforms have facilitated foreign mining in Guatemala, “second generation” reforms have not yet provided a meaningful way of addressing conflicts arising from the development projects. The judicial mechanisms available in Guatemala are difficult to access and suffer from problems of corruption and intimidation. The corporate social responsibility mechanisms applicable to the mining company cannot provide enforceable orders. Canadian courts have been reluctant to permit law suits against Canadian …

R V. Ns: What's Fair In A Trial? The Supreme Court Of Canada's Divided Decision On The Niqab In The Courtroom, Faisal Bhabha

Osgoode Legal Studies Research Paper Series

In 2008, a woman entered an Ontario courtroom to give evidence at a preliminary inquiry involving childhood sexual assault charges against her uncle and cousin. She sought to testify while wearing a niqab, a garment that conceals the entire head and face, leaving only an opening for the eyes. The court was asked to decide the novel question whether it could accommodate the Muslim veil in a system of justice that provided the accused with a right to face his accuser. The Supreme Court of Canada divided three ways, with justices disagreeing deeply both about the analysis for determining whether …