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Articles 1 - 30 of 61
Full-Text Articles in Law
Safety Valves: A Band-Aid Solution To The Ills Of Mandatory Minimums?, Venus Sayed
Safety Valves: A Band-Aid Solution To The Ills Of Mandatory Minimums?, Venus Sayed
LLM Theses
This work examines the Supreme Court of Canada’s statutory safety valve proposal in the case of R. v. Lloyd as a solution to the problems presented by mandatory minimum sentences. The thesis develops a safety valve matrix which allows various valves to be plotted along broad-narrow and high-low discretion matrices. Following a review of the development of exemptions in Canadian jurisprudence, the paper then takes a comparative approach of analysis to look at three similarly placed jurisdictions – Australia, the United States and the United Kingdom. By examining the statutory safety valves in use in these jurisdictions, this work concludes …
Hartazgo: Understanding How #Yotecreo Emerged In Venezuela, Maria Corina Muskus Toro
Hartazgo: Understanding How #Yotecreo Emerged In Venezuela, Maria Corina Muskus Toro
LLM Theses
This thesis explores how digital feminist activism sparked, using as a case study #YoTeCreo movement in Venezuela. Using the FemMesh to connect feminists knowledges, nodes and entanglements together with a transnationalized intersectionality, I discuss how this digital activism occurred locally. As this topic is novel and this thesis is exploratory, I combine the theoretical framework mentioned before together with feminist qualitative methodology by interviewing the leaders of #YoTeCreo and answer my research question. I concluded that the spark of #YoTeCreo in Venezuela is a combination of different factors and it is not a transplantation of the #MeToo movement from North …
Law And Indigenous Religion: Theorizing A Complex Relationship, Kristen Elizabeth Lewis
Law And Indigenous Religion: Theorizing A Complex Relationship, Kristen Elizabeth Lewis
LLM Theses
This thesis asks what preconditions are necessary to think the relation between law and Indigenous religion without marginalizing perspectives, such as those germane to Indigenous religion, that fall outside law’s frame (often figured, erroneously, as ‘objective’ and ‘neutral’). The research grounds itself in the only Supreme Court of Canada case that, to date, has involved Indigenous religious freedoms and s. 2(a) of the Canadian Charter of Rights and Freedoms (Ktunaxa Nation v British Columbia 2017 SCC) and in the very few lower court decisions that have followed in its not-unproblematic wake. Inspired by several currents of both Indigenous thought and …
Understanding The Failure Of Police Reform In Nigeria: A Case For Legal History Through Literature, Olaoluwa Folasade Oni
Understanding The Failure Of Police Reform In Nigeria: A Case For Legal History Through Literature, Olaoluwa Folasade Oni
LLM Theses
On the 21st of October 2020, the world woke to images and video clips of the bloodied, broken bodies of Nigerians shared across social and traditional media. The night before, young Nigerians protesting police brutality were met with a government-sanctioned, combined police and military onslaught; Nigerias decades-long struggle with police dysfunction was brought to a head with the massacre of its citizens at the Lekki toll gate on the evening of October 20, 2020. This work problematizes the cycle of attempts at, and ultimate failure of, police reform in Nigeria. I argue that the colonial nature of policing is retained …
Accepting The Unacceptable: Trinity Western University, Religious Freedom, And The Meaning Of Liberal Constitutionalism, Robert Stephen Boissonneault
Accepting The Unacceptable: Trinity Western University, Religious Freedom, And The Meaning Of Liberal Constitutionalism, Robert Stephen Boissonneault
LLM Theses
This thesis proposes an answer to the question of when, and under what conditions, a state operating within the framework of liberal constitutionalism may legitimately condition receipt of public benefits on the recipient's conformity with liberal values—a question that is implicitly asked, but never directly answered, by the decision of the Supreme Court of Canada in Law Society of British Columbia v Trinity Western University. How this question is answered has significant implications for the law of religious freedom in Canada. This thesis posits a conceptual distinction between two types of public benefit: public licences and public mandates. This distinction …
Transcending The Impasse: Towards An Indigenous Vision Of Legality In Palestine, Juman Abujbara
Transcending The Impasse: Towards An Indigenous Vision Of Legality In Palestine, Juman Abujbara
LLM Theses
This thesis attempts to demonstrate that the international legal impasse surrounding Palestine is animated by incommensurable visions of legality. It argues that in portraying the Palestinian struggle for liberation as a struggle for state sovereignty, international law subjects the indigenous worldview to a violent and perpetual erasure. The thesis employs Aaron Mills' theoretical framework to argue for an incommensurability between Palestine's indigenous conception of legality and the dominant conception of legality underlying international law. Further, the thesis offers a reading of Ghassan Kanafani's novel The Other Thing to explore the consequences and normative implications of an impasse characterized by incommensurability. …
Executive Power, Territorial Jurisdiction, And The (Non-)Protection Of Human Rights In Canadian Extradition, Jay De Santi
Executive Power, Territorial Jurisdiction, And The (Non-)Protection Of Human Rights In Canadian Extradition, Jay De Santi
LLM Theses
This thesis grapples with the complexity of the relationship between the political executive, embodied in the Minister of Justice, and the individual. It examines the trajectory of individual rights under the current Extradition Act, in the context of extradition requests for prosecution of alleged criminal offences that occurred primarily, or entirely, within Canadas territorial jurisdiction. This project uses a mix of doctrinal and empirical methods to analyse both the law as it is, and the law as it is practised. I argue that the current state of rights protections in Canadian extradition law, at least where the person is sought …
Transitional Justice, Peace And Everyday Reality: Somalilands Experience With Justice And Security-Sector Reform, Siham Rayale
Transitional Justice, Peace And Everyday Reality: Somalilands Experience With Justice And Security-Sector Reform, Siham Rayale
LLM Theses
This paper looks at Somalilands transitional justice process and the role that legal pluralism has played in shaping its attempts at justice and security-sector reform. By utilizing concepts like hybridity and the everyday, this paper frames these processes with an understanding that while legal pluralism has established Somalilands peace and security infrastructure, it has created opportunities and challenges for marginalized and vulnerable groups. Such challenges include accessing and participating in legal reform initiatives that support social transformation. This paper concludes with the need to frame transitional justice, from the onset, in a way that recognizes the importance of communities as …
Aandaakonan Inaakonigewin: Considering An Anishinaabe Meaning To The Canadian Law On Consultation And Accommodation, Veronica Ann Guido
Aandaakonan Inaakonigewin: Considering An Anishinaabe Meaning To The Canadian Law On Consultation And Accommodation, Veronica Ann Guido
LLM Theses
Indigenous laws are resurging throughout Turtle Island and have vital roles to play in the creation and application of laws, governance structures, and decision-making. However, for this to happen, the understanding of the law which is predominant and dictates legal processes must change, specifically when such laws apply to Indigenous land and peoples. This will allow Indigenous legal orders – including Anishinaabe legal norms such as mutual aid, kinship, giftedness and doodem – to flourish. This thesis explores Anishinaabe law resurgence by asking: how can decision-making about land, natural resources, and Aboriginal rights through the duty to consult and accommodate …
Finding A Governing Law To Resolve Conflicts Of Tax Laws, Catharine Marie Mcmillan
Finding A Governing Law To Resolve Conflicts Of Tax Laws, Catharine Marie Mcmillan
LLM Theses
This thesis explores how tax treaty articles providing foreign tax recognition, distributive rules, meanings for undefined terms, and anti-treaty shopping rules implicitly employ conflict of laws "choice of law" ("COL/col") principles to derive the governing law in situations where more than one tax law and therefore more than one legal system applies to characterize a person or income. COL/col principles are implicitly acknowledged and specifically operate in tax treaties to reconcile contending tax laws and therefore legal systems. Considering tax treaty articles implore countries to ascertain the governing law through reconciliation, supranational approaches that advocate harmonization to ascertain governing law …
Health Insurance, A False Dichotomy And A Negative Right To Abortion In Canada's Maritime Provinces, Clare Joanne Shrybman
Health Insurance, A False Dichotomy And A Negative Right To Abortion In Canada's Maritime Provinces, Clare Joanne Shrybman
LLM Theses
This thesis examines the jurisdictional movement of abortion regulation resulting from R v Morgentaler and the barriers to abortion which emerged as a result of the transition in the Maritime provinces. Following decriminalization, the Maritime provinces responded by implementing health insurance barriers to clinic abortions, restricting access. While contemporary scholarship has predominantly examined the issue through a health law and positive rights lens, this thesis asserts that these barriers can most successfully be challenged as a negative rights violation of the Charters section 7 guarantee of security of the person. This is because, although the dichotomy between positive and negative …
Doomed To Fail: Ag-Gag Laws And The Canadian Charter, Samantha Lynne Skinner
Doomed To Fail: Ag-Gag Laws And The Canadian Charter, Samantha Lynne Skinner
LLM Theses
In late 2019, ag-gag laws began being introduced in Canada. Ag-gag laws are named for their intended effect of gagging activists from exposing the realities of the animal agriculture industry. Animal activists seek to gather and publicly disseminate information using means of bearing witness, undercover investigations, and civil disobedience. Ag-gag laws originated in the US in the 1990s, but saw a revival in the 2010s. In the US, animal law organizations such as the Animal Legal Defense Fund have been successfully challenging the constitutionality of ag-gag laws, with courts in six states finding ag-gag laws to violate the First Amendment …
To Set Aside Or To Not Set Aside The Agreement Pursuant To Section 56(4) Of The Family Law Act: Applying Relational Theory To Domestic Contracts Involving Spousal Support Releases And Waivers, Sara Kun
LLM Theses
This work applies the lens of relational theory to five Ontario Superior Court of Justice cases where a party previously executed a spousal support agreement, but subsequently sought to have it set aside pursuant to section 56(4) of the Family Law Act. While the outcomes in the five cases differed as to whether section 56(4) of the Family Law Act was successfully engaged and, if so, whether the judge in turn exercised his discretion to set aside the agreement, it is argued that the cases are united by a common theme that is resonant with relational theory. The distinct relational …
Fighting Climate Change With The Charter: An Inquiry Into The Effects Of Litigating The Right To A Healthy Environment, Kevin Patrick Berk
Fighting Climate Change With The Charter: An Inquiry Into The Effects Of Litigating The Right To A Healthy Environment, Kevin Patrick Berk
LLM Theses
This thesis examines whether the litigation of the legal right to a healthy environment can adequately advance the values of its supporters. This question is answered through examining scholarly arguments in favour of the right, promotional material from Environmental Non-Governmental Organizations (ENGOs) litigating the right, court documents, as well as the results of a select number of interviews with senior members of Canadian ENGOs. It is ultimately argued that the intervention of lawyers and the interpretation of judges will narrow the intended scope of the right. Additionally, it is argued that the act of choosing to litigate implicitly affirms the …
Access To Environmental Justice: Ngo Environmental Advocacy On Mining-Related Environmental Issues In Mongolia, Ulziilkham Enkhbaatar
Access To Environmental Justice: Ngo Environmental Advocacy On Mining-Related Environmental Issues In Mongolia, Ulziilkham Enkhbaatar
LLM Theses
In this thesis, I apply the theory of environmental justice to determine how NGOs use substantive and procedural environmental rights to advocate for mining-affected nomadic communities in Mongolia. Environmental NGOs often possess legal and scientific expertise pertinent to resolving and mitigating environmental risks and demanding justice for environmental damages on behalf of the mining-affected local communities. Based on the environmental justice theories, I have constructed a theoretical framework to examine how NGOs access and implement environmental justice tools, both domestically and internationally. Using a multi-methods research approach, including documentary analysis and qualitative interviews with NGO experts and lawyers, I was …
Self-Determination As Resistance To Legal Violence: Jurisdiction, Property, And The Geographies Of Conflict In Unistoten And Xolobeni, Daniel Luke Huizenga
Self-Determination As Resistance To Legal Violence: Jurisdiction, Property, And The Geographies Of Conflict In Unistoten And Xolobeni, Daniel Luke Huizenga
LLM Theses
Indigenous peoples struggles of the right to self-determination are often framed as claims against a unified state. However, explanation of the forces inhibiting the expression of Indigenous self-determination should not settle with an understanding of the imposing power of the state. As I show, the realization of self-determination is undermined by the cumulative effects of legal practices and knowledges that contribute to the division of collective autonomies and disruption of their governance practices. In this transnational and comparative work on the emerging right to consent to resource extraction in South Africa and Canada, I argue that we might understand these …
Liquid Laws: Extractivism And Unstable Authority, Caitlin Rose Sargeant Murphy
Liquid Laws: Extractivism And Unstable Authority, Caitlin Rose Sargeant Murphy
LLM Theses
This thesis concerns the co-constitution of extractivism and claims to authority, particularly in contexts where the legal narrative hides the ways that extractivism is facilitated. I examine how law implicitly structures extractivism, as well as how states use extractivism to generate authority. I look at this relationship in the context of international legal debates over the Antarctic Treaty, and a history of extractive interventions by the settler colonial state towards the Murray-Darling River Basin in south-eastern Australia. The way I read claims to authority engages both the violence and instability of these claims. The specific ways in which the relationship …
Procedural Discretionary Decisions And Access To Justice Before Administrative Tribunals, Rachel Elizabeth Weiner
Procedural Discretionary Decisions And Access To Justice Before Administrative Tribunals, Rachel Elizabeth Weiner
LLM Theses
This thesis considers procedural discretionary decision-making by administrative tribunals and access to justice for marginalized and low-income individuals. I begin by reviewing literature regarding discretionary decision-making, access to justice, procedural justice, and ideal theories focusing on transparent and respectful engagement and dialogue between decision-makers and litigants. I then analyze three case studies regarding procedural discretionary decision-making and accommodations in the hearing process, addressing primarily disability and language barriers experienced by litigants before the Social Benefits Tribunal, Human Rights Tribunal of Ontario, and Landlord and Tenant Board. I then compare theories of discretionary decision-making with actual decision-making practices employed by tribunal …
Towards Implementing The Truth And Reconciliation Commission's Calls To Action In Law Schools: A Settler Harm Reduction Approach To Racial Stereotyping And Prejudice Against Indigenous Peoples And Indigenous Legal Orders In Canadian Legal Education, Scott James Franks
LLM Theses
Many Canadian law schools are in the process of implementing the Truth and Reconciliation Commissions Call to Actions #28 and #50. Promising initiatives include mandatory courses, Indigenous cultural competency, and Indigenous law intensives. However, processes of social categorization and racialization subordinate Indigenous peoples and their legal orders in Canadian legal education. These processes present a barrier to the implementation of the Calls. To ethically and respectfully implement these Calls, faculty and administration must reduce racial stereotyping and prejudice against Indigenous peoples and Indigenous legal orders in legal education. I propose that social psychology on racial prejudice and stereotyping may offer …
Sex Workers And The Best Interests Of Their Children: Identifying Issues Faced By Sex Workers Involved In Custody And Access Legal Proceedings, Julie Eleanor Dewolf
Sex Workers And The Best Interests Of Their Children: Identifying Issues Faced By Sex Workers Involved In Custody And Access Legal Proceedings, Julie Eleanor Dewolf
LLM Theses
Sex worker parents often lose custody of their children. The purpose of this research was to determine what impact the status of a parent as a past or present sex worker has had on judicial decision-making in custody and access disputes. Through doctrinal legal research, I explored judicial treatment of sex worker parents in custody and access disputes in Ontario Child Protection and Family Law case law. Parental involvement in sex work was often presented as an unfavourable aspect of the parent, or otherwise had a negative influence on their claim. Sex work was treated as a negative quality in …
Using Charter Damages To Provide Meaningful Redress And Promote State Accountability: A Re-Examination Of The Omar Khadr Case, Katharine June Fisher
Using Charter Damages To Provide Meaningful Redress And Promote State Accountability: A Re-Examination Of The Omar Khadr Case, Katharine June Fisher
LLM Theses
In July 2017, the Government of Canada reportedly paid Omar Khadr $10.5 million to settle his civil suit. Khadr sought damages under the Canadian Charter of Rights and Freedoms resulting from Canada’s active participation in human rights breaches during his imprisonment at Guantánamo Bay. Although the Charter damages remedy serves critically important public law functions, it is not achieving its full potential in many cases. Using Khadr as a case study, I apply the framework developed in Vancouver (City) v Ward to analyze what Khadr’s entitlement to Charter damages might have been if his civil claim had not settled. The …
Punishing Black Bodies In Canada: Making Blackness Visible In Criminal Sentencing, Danardo Sanjay Jones
Punishing Black Bodies In Canada: Making Blackness Visible In Criminal Sentencing, Danardo Sanjay Jones
LLM Theses
This thesis explores whether and how criminal sentencing may provide an effective platform to address and remedy some of the structural violence that contribute to Black mass incarceration. Introducing race at sentencing represents an attempt to promote, at the back end of the criminal process, a discussion that is generally obscured at earlier stages. In critically assessing the merits of an explicit discussion about race, this thesis considers the “paradox of visibility”: in some contexts, a focus on Blackness operates to disadvantage African Canadians interfacing with the criminal justice system; while in other contexts, a refusal to focus on Blackness …
Girls, Who Run The World? Not Yet: An Analysis Of The Underrepresentation Of Women On Boards In Canada And The Underlying Theory Of The Regulation Thereof, Diana Christine Nicholls
Girls, Who Run The World? Not Yet: An Analysis Of The Underrepresentation Of Women On Boards In Canada And The Underlying Theory Of The Regulation Thereof, Diana Christine Nicholls
LLM Theses
This thesis provides an in-depth analysis of the underlying theories of the regulation of the underrepresentation of women on boards. In particular, it focuses on the Canadian board gender diversity policy found in National Instrument 58-101F1. The theories justifying regulation of this issue are typically categorized into business case rationales and normative rationales. Through an analysis of the regulatory journey of the Canadian policy, it is argued that while securities regulators claim that the policy contained in NI 58-101F1 was rooted in business case rationales, it in fact arose from normative concerns. Not only that, but because of the policy’s …
With Great Advantage Should Come Responsibility: How The Territorialist Approach In Private International Law Maybe Overcome To Ensure Justice Is Done For Those Left In The Wake Of Canadian Business Abroad, Michele Dominique Lemieux Charles
With Great Advantage Should Come Responsibility: How The Territorialist Approach In Private International Law Maybe Overcome To Ensure Justice Is Done For Those Left In The Wake Of Canadian Business Abroad, Michele Dominique Lemieux Charles
LLM Theses
Conflict of laws rules in Canada bias toward taking jurisdiction over matters involving human rights or environmental abuse inflicted abroad, particularly when inflicted by Canadian corporations. Contrary to enumerated tests for jurisdiction, many Canadian courts have instead preferred a regressive state-centric/hyper-comity anchor in applying such tests to putative foreign plaintiffs. This Thesis argues this preference can be effectively understood using the lens and language of Pierre Bourdieu’s field theory as representing a habitus of the Canadian judiciary. In light of the habitus of the Canadian judicial field, and in order to encourage an interpretation of conflict of laws rules in …
Presumptive Deference And The Role Of Expertise On Questions Of Law In Canadian Administrative Law, Cheryl Laura Bowman
Presumptive Deference And The Role Of Expertise On Questions Of Law In Canadian Administrative Law, Cheryl Laura Bowman
LLM Theses
Administrators in Canada are presumptively accorded deference on questions of law. This deference is grounded largely in expertise, a pragmatic justification for deference. This thesis examines the relationship of expertise to other practical justifications for deference and to legislative intent. This thesis questions (i) whether assumptions about administrative expertise are grounded in administrative realities; (ii) whether deference to expertise has a meaningful nexus with legislative intent; and (iii) whether heavy reliance on expertise leaves meaningful room for judicial review on questions of law within reasonableness. I conclude that the doctrine of deference relies too heavily on presumptions about the expertise …
The Nigerian Niger Delta And The Invisible Hand Of Tremf: Exploring The (Im)Possibility Of Socio-Economic Justice Under The Un 'Ruggie' Guiding Principles, Ikenna Emmanuel Aniekwe
The Nigerian Niger Delta And The Invisible Hand Of Tremf: Exploring The (Im)Possibility Of Socio-Economic Justice Under The Un 'Ruggie' Guiding Principles, Ikenna Emmanuel Aniekwe
LLM Theses
The Nigerian Niger Delta region which is home to Nigeria’s large crude oil reserves, has grappled with many problems since the inception of crude oil explorations in the area over six decades ago. From environmental degradations to flagrant violation of human rights, the pitfalls of the exploration activities have hugely undermined the socio-economic wellbeing of the people and thereby causing them socio-economic injustice. This thesis tested how, and found that, the protracted socio-economic problems in the Niger Delta exemplifies Upendra Baxi’s germinal theory on the emergence (and now prevalence) of a trade-related and market-friendly (TREMF) paradigm that supplants human rights …
Understanding Trans Racialized Youth Autonomy In Health Care Decision Making In Ontario, Gitanjali Natasha Lena
Understanding Trans Racialized Youth Autonomy In Health Care Decision Making In Ontario, Gitanjali Natasha Lena
LLM Theses
This thesis re-evaluates the concept of autonomy and the possibilities for trans racialized youth to practice it in current health care decision making contexts. After discussing access to health care in Ontario for this demographic using diverse research, an analytical foundation is laid using legal pluralism, relational autonomy, transgender theory and disidentification theory. The study uses Photovoice with trans racialized youth to produce visual texts analysed using thematic network analysis. Secondly, the study considers how together, law and medicine discursively work to encourage law-makers and health care providers to undermine the autonomy of trans racialized youth. Authoritative diagnostic and clinical …
Charter Damages: Private Law In The Unique Public Law Remedy, Peter Krikor Adourian
Charter Damages: Private Law In The Unique Public Law Remedy, Peter Krikor Adourian
LLM Theses
In 2010, the Supreme Court of Canadas decision in Vancouver (City) v Ward created a framework for a Charter damages claim. In two subsequent decisions, the Court deviated from Ward by relying extensively on private law principles to award public law damages. In doing so, the Court has created increasingly troubling results. I review the history of Charter damages and the Courts relevant Charter and private law damages jurisprudence, with a particular focus on factors like fault thresholds, immunities, and direct liability of government. I find that Ward provides an appropriate and just remedy in accordance with a purposive approach …
Toxic Enactments: Materializing Estrogen And Regulation Under Canada's Food And Drugs Act, 1939-1953, Lara Jessie Tessaro
Toxic Enactments: Materializing Estrogen And Regulation Under Canada's Food And Drugs Act, 1939-1953, Lara Jessie Tessaro
LLM Theses
The study describes how estrogen was standardized in Canada, in the 1940s and early 1950s, under the Food and Drugs Act. Contributing to interdisciplinary conversations, it provides an empirical case of how regulatory practices enact material realities. Using archival material, the study describes how estrogen was achieved, in part, through heterogeneous practices of the Canadian Committee on Pharmacopoeial Standards, National Health, and government solicitors. These regulators disagreed on whether, how, and by whom estrogens should be standardized. Rather than resolve these disagreements, Canada enacted multiple regulations purporting to standardize estrogen, and government solicitors practiced techniques of validating to render the …
The Legal Treatment Of Informal Caregivers Of The Elderly In Canada And Australia: The Importance Of Recognizing Relations In Creating Reforms, Sara Nicole Pon
The Legal Treatment Of Informal Caregivers Of The Elderly In Canada And Australia: The Importance Of Recognizing Relations In Creating Reforms, Sara Nicole Pon
LLM Theses
This thesis examines the policy implications of the legal treatment of caregivers of the elderly in Canada and Australia and how this can inform law and policy reforms in Canada. Legislation and policy on the formal care system and supports for informal caregivers of the elderly in Canada and Australia are described, with a focus on BC and Ontario in Canada. These supports are analyzed and evaluated through the lens of relational autonomy. Australia for the most part has more supports than Canada, although improvements can be made to these supports to make them more effective in supporting informal caregivers …