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Articles 1 - 30 of 55
Full-Text Articles in Law
Judicial Influence On The Duty To Consult And Accommodate, Andrew Green
Judicial Influence On The Duty To Consult And Accommodate, Andrew Green
Osgoode Hall Law Journal
The duty to consult and accommodate has increasingly become front and centre in a wide range of resource and development projects and the related litigation. The Supreme Court of Canada has stated that it seeks to foster negotiation and limit litigation through its approach to the duty. This article examines, from a theoretical perspective, whether the Court is furthering this objective. It builds on a simple model of How the legislature and courts interact in the administrative law context and discusses how the relationship changes with the addition of Indigenous peoples seeking enforcing the government’s constitutional duty to consult and …
Humans As A Service: The Promise And Perils Of Work In The Gig Economy, By Jeremias Prassl, Ara Dungca
Humans As A Service: The Promise And Perils Of Work In The Gig Economy, By Jeremias Prassl, Ara Dungca
Osgoode Hall Law Journal
The gig economy is “the collection of markets that match providers to consumers on a gig basis in support of on-demand commerce.” Some of the most recognizable examples in Canada are Lyft and Uber. In a September 2017 report by the Bank of Montreal on the gig economy, it was estimated that 2.18 million Canadians were categorized as temporary workers, which include people who take on term, contract, or temporary employment, such as freelancers. This report defines a gig as “any job, especially one of short or uncertain duration.” A recent Ontario Court of Appeal Case, Heller v Uber Technologies …
Race On The Brain, By Jonathan Kahn, Shruti Ramesh
Race On The Brain, By Jonathan Kahn, Shruti Ramesh
Osgoode Hall Law Journal
Canadians and Americans alike are often reluctant to honestly confront our respective nations’ histories of racism and discrimination. Unflinchingly describing a legacy of colonialism, genocide of Indigenous peoples, and multigenerational slavery, is a great deal more uncomfortable than the academically “safe” analyses advanced by critical race theory. Simply put, academic conversations around “racism” are increasingly being replaced with conversations about “bias.” This is what legal scholar Jonathan Kahn addresses in his book Race on the Brain: What Implicit Bias Gets Wrong about the Struggle for Racial Justice. Kahn’s book is a response to a trend toward scientism within the interdisciplinary …
Whipping Up A Storm: Trying To Make Sense Of Constitutional Law, Allan C. Hutchinson
Whipping Up A Storm: Trying To Make Sense Of Constitutional Law, Allan C. Hutchinson
Osgoode Hall Law Journal
The effort to make sense out of what the judges of any Supreme Court do is all the more pressing and acute in times of political turbulence. Lawrence Lessig’s Fidelity and Constraint offers itself as one such effort to distinguish constitutional decision-making from “the ad hoc in politics” by its reliance upon principled and neutral reasons; it is the judges’ detached and professional nature that underwrites their democratic legitimacy and institutional commitment. This review challenges those claims and demonstrates how Lessig’s analysis does more to undermine that project than achieve it.
Family Status Discrimination: Caregiving And The Prima Facie Case, Melanie Vipond, Benjamin Oliphant
Family Status Discrimination: Caregiving And The Prima Facie Case, Melanie Vipond, Benjamin Oliphant
Osgoode Hall Law Journal
The growing number of dual-income families with young children and ageing parents has led to a corresponding increase in the number of accommodation requests relating to childcare and eldercare. Determining whether an employer’s denial of such a request constitutes prima facie discrimination on the basis of family status has bedeviled adjudicators, resulting in various “tests” being enunciated across Canada. While some scholars and adjudicators have suggested that these “tests” are inconsistent with the test set out by the Supreme Court of Canada in Moore v. British Columbia and place a uniquely high burden on claimants to establish prima facie discrimination, …
“Help Is The Sunny Side Of Control”: The Medical Model Of Gambling And Social Context Evidence In Canadian Personal Bankruptcy Law, Anna J. Lund
Osgoode Hall Law Journal
At the start of the twentieth century, people who gambled excessively were viewed as morally deviant. Now, they are viewed as suffering from a medical disorder. Legal actors incorporate this medical approach to gamblers into how they apply the law. This shift from a moral to a medical model reorients actors from punishing gamblers to helping them, and thus can be characterized as a positive, humane development. Yet the medical model has drawbacks too. The medical model can be used to justify paternalistic and potentially harmful interventions in the lives of individuals, and it obscures the social context in which …
Paradises Lost? The Constitutional Politics Of “Indian” Enfranchisement In Canada, 1857–1900, Coel Kirkby
Paradises Lost? The Constitutional Politics Of “Indian” Enfranchisement In Canada, 1857–1900, Coel Kirkby
Osgoode Hall Law Journal
Enfranchisement was the legal process for an individual or community to end their legal status as “Indians” under the Indian Act. The Canadian government hoped it would break up bands before assimilating them into settler society. This article aims to excavate the untold story of this attempt to extinguish special “Indian” status in the nineteenth century. It first traces enfranchisement as part of a Victorian discourse of civilization and as a specific Canadian legal process for the assimilation of “Indian” subjects. It then uses new archival sources to tell the untold story of the politics of enfranchisement over the second …
Industry Of Anonymity: Inside The Business Of Cybercrime, By Jonathan Lusthaus, Robert Van De Mark
Industry Of Anonymity: Inside The Business Of Cybercrime, By Jonathan Lusthaus, Robert Van De Mark
Osgoode Hall Law Journal
In Industry of Anonymity: Inside the Business of Cybercrime, Jonathan Lusthaus attempts to demystify the increasingly sophisticated business of cybercrime and examine how it has matured into a large, profit-driven industry. Through interviews with hundreds of subjects involved in the cybercrime industry in varying capacities, Lusthaus has sought to draw a map that, by showing how seemingly disparate elements in the industry relate to one another, can better explain how the cybercrime industry functions. In particular, Lusthaus strives to produce a better understanding of the people behind cybercrime and the contexts in which they operate. By doing so, the book …
Litigation Is “Just One Tool”: An Annotated Interview With Karin Baqi, Counsel For The End Immigration Detention Network In Brown V Canada, Kristen Lloyd
Journal of Law and Social Policy
The End Immigration Detention Network (EIDN) was formed as a coalition of migrant detainees, their family members, and allies, who organized to bring an end to indefinite immigration detention in Canada. In October 2016, EIDN was granted third party public interest standing in a constitutional challenge to Canada’s immigration detention regime. This granted an unprecedented legitimacy to EIDN, and to the rights and lives of immigration detainees, and should in itself be considered a victory. That said, it was a moment that would not have arrived without the three years of intensive political organizing that came before it. This article …
The Jail Accountability & Information Line: Early Reflections On Praxis, Souheil Benslimane, Sarah Speight, Justin Piché, Aaron Doyle
The Jail Accountability & Information Line: Early Reflections On Praxis, Souheil Benslimane, Sarah Speight, Justin Piché, Aaron Doyle
Journal of Law and Social Policy
Poor conditions of confinement and human rights violations have been commonplace at the Ottawa-Carleton Detention Centre (OCDC) since it opened in the early 1970s. Recently, the deplorable treatment of provincial prisoners at OCDC has been documented in reports by the Ontario Ombudsperson, the Ontario Human Rights Commission, the Independent Review of Ontario Corrections, the Community Advisory Board (established in 2014), the OCDC Task Force (established in 2016) and coronial inquests. Despite the avalanche of recommendations flowing from these reform-oriented interventions, pressing human rights issues persist at the facility—ranging from inedible food to inadequate health care that has contributed to preventable …
Out Of Sight, Out Of Mind: Bill C-83, Solitary Confinement, And Mental Health, Lydia Dobson
Out Of Sight, Out Of Mind: Bill C-83, Solitary Confinement, And Mental Health, Lydia Dobson
Journal of Law and Social Policy
This article investigates the recently passed Bill C-83, which aims to reduce harms caused by segregating people with mental health issues. In order to assess the capacity of the Bill to support meaningful change, the history of mental health institutions and correctional facilities in Ontario is first explored, followed by an analysis of recent cases on segregation and mental health in the province. Next, legislative oversight for federal prisons and provincial jails is described, followed by an overview of ongoing reforms. Here, a distinction between federal prisons and provincial jails is made in order to explore the different legislation governing …
No One Is Disposable: Towards Feminist Models Of Transformative Justice, Hannah Barrie
No One Is Disposable: Towards Feminist Models Of Transformative Justice, Hannah Barrie
Journal of Law and Social Policy
This article looks toward a future of prison abolition by arguing for feminist models of Transformative Justice (TJ), a strategy that responds to harm by aiming to transform the conditions that make violence possible. Autoethnographic reflections of the author’s experience volunteering with Circles of Support and Accountability (COSA), a TJ initiative based on friendship and accountability working to reintegrate people incarcerated for perpetrating sexualized violence back into communities, are combined with a critical analysis of the existing literature about TJ principles and initiatives. Insights from the author’s experience with COSA are examined for their potential use in a feminist TJ …
Detaining The Uncooperative Migrant, Siena Anstis, Molly Joeck
Detaining The Uncooperative Migrant, Siena Anstis, Molly Joeck
Journal of Law and Social Policy
A migrant held in a Canadian prison refuses to hand over a DNA sample to the Canadian Border Services Agency (CBSA). Another refuses to sign a statutory declaration of voluntary return to Somalia where his return is anything but voluntary. Others outright refuse at times to assist in any manner whatsoever with their own deportation. Canadian officials, judges, and adjudicators have treated all of these situations as instances of “non-cooperative” behaviour by an immigration detainee and, in turn, relied on such conduct to impose lengthy and indefinite periods of immigration detention. While the issue of an immigration detainee’s “non-cooperation” seems …
Intergenerational Imprisonment: Resistance And Resilience In Indigenous Communities, Linda Mussell
Intergenerational Imprisonment: Resistance And Resilience In Indigenous Communities, Linda Mussell
Journal of Law and Social Policy
The recent National Inquiry into Missing and Murdered Indigenous Women and Girls (the National Inquiry) identified “the ongoing criminalization of Indigenous women as … another iteration of residential schools or the Sixties Scoop.” Embracing these findings, this article aims to highlight the hidden and complex intergenerational and colonial nature of confinement for Indigenous Peoples in Canada. Inspired by a holistic approach used by certain Indigenous scholars, this article makes an argument for viewing imprisonment as a harmful colonial tool that has been used against Indigenous Peoples in different ways throughout colonial history. In other words, imprisonment in prisons follows in …
Thinking Broadly: This Volume As A Guide For Abolitionists, Adam Lee
Thinking Broadly: This Volume As A Guide For Abolitionists, Adam Lee
Journal of Law and Social Policy
No abstract provided.
Revisiting The “Private Use Exception” To Canada’S Child Pornography Laws: Teenage Sexting, Sex-Positivity, Pleasure, And Control In The Digital Age, Lara Karaian, Dillon Brady
Revisiting The “Private Use Exception” To Canada’S Child Pornography Laws: Teenage Sexting, Sex-Positivity, Pleasure, And Control In The Digital Age, Lara Karaian, Dillon Brady
Osgoode Hall Law Journal
In R v Sharpe, the Supreme Court of Canada read in a “private use exception” to the offence of possessing child pornography. The Court reasoned that youths’ self-created expressive material and private recordings of lawful sexual activity—created by, or depicting the accused and held by the accused exclusively for private use—would pose little or no risk to children and may in fact be of significance to adolescent self-fulfillment, self-actualization, sexual exploration, and identity. Fundamental changes in the technological, social, sexual, and legal landscape since Sharpe have resulted in a lack of clarity regarding the exception’s scope. Federal and provincial police …
Holocaust, Genocide, And The Law: A Quest For Justice In A Post-Holocaust World By Michael J. Bazyler, Irina Samborski
Holocaust, Genocide, And The Law: A Quest For Justice In A Post-Holocaust World By Michael J. Bazyler, Irina Samborski
Osgoode Hall Law Journal
LAW IS COMMONLY THOUGHT OF as an antidote to genocide rather than its facilitator. In Holocaust, Genocide, and the Law, Professor Michael Bazyler of Chapman University’s Fowler School of Law refutes the notion that the Holocaust was an extralegal event—instead, he isolates the law as the preferred instrument of wholesale murder and destruction. The book traces the long shadow that the Holocaust has cast on the contemporary corpus of international law and many legal systems across the world. While it tells the unfolding catastrophe of the Holocaust as a legal history, the book considers the legal triumphs that followed the …
Search Engines And Global Takedown Orders: Google V Equustek And The Future Of Free Speech Online, Robert Diab
Search Engines And Global Takedown Orders: Google V Equustek And The Future Of Free Speech Online, Robert Diab
Osgoode Hall Law Journal
The Supreme Court’s decision in Google v Equustek (2017) to uphold a global content takedown order remains controversial and consequential to wider debates about governing the internet. This commentary examines the Court’s underlying assumption – a common view in takedown jurisprudence – that where a portal directs a critical mass of users to a harmful site, it facilitates harm and no longer engages in valuable speech. This ran contrary to the Court’s more considered view of links in Crookes v Newton (2011) as a form of mere reference and valuable per se for enabling the internet as a public forum. …
A Narrowing Field Of View: An Investigation Into The Relationship Between The Principles Of Treaty Interpretation And The Conceptual Framework Of Canadian Federalism, Joshua Ben David Nichols
A Narrowing Field Of View: An Investigation Into The Relationship Between The Principles Of Treaty Interpretation And The Conceptual Framework Of Canadian Federalism, Joshua Ben David Nichols
Osgoode Hall Law Journal
In its recent decisions in Tsilhqot’in Nation and Grassy Narrows, the Supreme Court of Canada has significantly altered the position of Indigenous peoples within the structure of Canadian federalism. This article sets out to investigate the basis for the Court’s jurisdiction to change this structure. Its approach is historical, as it covers judicial treaty interpretation from St Catherine’s Milling to Grassy Narrows. By contextualizing the most recent change in light of the last 250 years of treaty making, we can see how the notion of Crown sovereignty has become entangled with the Westphalian model of the state (i.e., the state …
Operative Subsidiarity And Municipal Authority: The Case Of Toronto’S Ward Boundary Review, Alexandra Flynn
Operative Subsidiarity And Municipal Authority: The Case Of Toronto’S Ward Boundary Review, Alexandra Flynn
Osgoode Hall Law Journal
In 2013, under threat of a resident petition and, at worst, an Ontario Municipal Board (OMB) order that would unilaterally impose new electoral districts, the City of Toronto embarked on its first ward boundary review (WBR) since the enactment of the City of Toronto Act, 2006 (COTA). The WBR highlighted the scattered application of subsidiarity within Canada’s federation. Under the notion of federalism enshrined in the Canadian Constitution, municipalities are granted only those powers that derive from provincial legislation. However, the Supreme Court of Canada has invoked the European principle of “subsidiarity” to reframe municipal authority over local issues. The …
Bringing Rule Of Law And Fairness To The Dysfunctional World Of Sovereign Debt: A Role For Canada?, Maziar Peihani, Mark Jewett
Bringing Rule Of Law And Fairness To The Dysfunctional World Of Sovereign Debt: A Role For Canada?, Maziar Peihani, Mark Jewett
Osgoode Hall Law Journal
Restructuring sovereign debt has long proved challenging: There is no formal regime for sovereign insolvencies similar to those that that govern domestic bankruptcy and insolvency and attempts to create one by international treaty have been met with political resistance. Currently, sovereign debt restructuring is governed by the debt contracts themselves along with the background law in the jurisdiction in which the debt is issued. Sovereign immunity also protects most state assets from seizure. These ad hoc restructuring processes are plagued by unpredictability, however, and there are incentives for individual creditors to “hold out,” demanding full repayment of their claims and …
Re-Charting The Remedial Course For Section 11(B) Violations Post-Jordan, Andrew Pilla, Levi Vandersteen
Re-Charting The Remedial Course For Section 11(B) Violations Post-Jordan, Andrew Pilla, Levi Vandersteen
Osgoode Hall Law Journal
In R v Jordan, the Supreme Court of Canada adopted a new framework for establishing violations of the right to be tried within a reasonable time under section 11(b) of the Charter. It did not, however, adopt a new approach to the remedy applicable thereafter. Since the 1987 decision R v Rahey, the only remedy for unreasonable delay has been a stay of proceedings. This article contends that this “automatic stay rule” must be revisited post-Jordan. It does so by conceptualizing Jordan as a shift from an “interest balancing” framework—where individual and societal interests are …
Pillars Of Justice: Lawyers And The Liberal Tradition, By Owen Fiss, Saba Samanian
Pillars Of Justice: Lawyers And The Liberal Tradition, By Owen Fiss, Saba Samanian
Osgoode Hall Law Journal
AT TIMES, IT IS POSSIBLE TO UNDERESTIMATE, or perhaps momentarily forget, the individuals who have been instrumental in shaping the evolution of the justice system. Thankfully, Pillars of Justice by Owen Fiss serves as a reminder of the resilience and the triumph of such individuals. Each chapter of the book is dedicated to someone who he considers to have made a significant contribution to justice, and, as such, has become a personal hero.
Antitrust Law In The New Economy By Mark R Patterson, Thomas Dicsi
Antitrust Law In The New Economy By Mark R Patterson, Thomas Dicsi
Osgoode Hall Law Journal
THE DRAFTERS OF THE SHERMAN ANTITRUST ACT of 1890 would understandably be perplexed by the complexity of modern economic systems. These drafters, including the Act’s namesake, US Senator John Sherman, were operating in a world where protectionist economics dominated. Karl Marx had just recently completed his critique of untethered capitalism, Das Kapital, and international trade was largely confined to the exchange of raw materials. These drafters were responding to an issue very topical to the late-nineteenth century— John D. Rockefeller’s monopoly over American oil. The situation came to a head in 1882 when Samuel Dodd, the attorney to Rockefeller’s company, …
Human Rights In Global Health: Rights- Based Governance For A Globalizing World Edited By Benjamin M. Meier And Lawrence O. Gostin1, Regiane Garcia, Kristi Heather Kenyon
Human Rights In Global Health: Rights- Based Governance For A Globalizing World Edited By Benjamin M. Meier And Lawrence O. Gostin1, Regiane Garcia, Kristi Heather Kenyon
Osgoode Hall Law Journal
THIS GROUNDBREAKING COMPILATION, edited by two scholars who helped to establish the “health and human rights” field, systematically explores the structures and processes of human rights implementation in global health institutions while arguing that a rights-based approach to health governance advances global health. The 640-page volume brings together forty-six experienced scholars and practitioners who have contributed to twenty-five chapters organized into six thematic sections. This “unprecedented collection of experts” provides unique, hands-on insights into how the “institutional determinants of the rights-based approach to health” facilitate—or hinder—the “mainstreaming” of human rights into global health interventions. The institutional determinants, which—in the contributors’ …
Implementing Undrip In Canada: Any Role For Corporations?, Basil Ugochukwu
Implementing Undrip In Canada: Any Role For Corporations?, Basil Ugochukwu
The Transnational Human Rights Review
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) offers guidance on how the rights of indigenous populations could be protected in the context of member states of the United Nations. While the Declaration prescribes what states need to do to effectively realize its objective, question is whether there are expectations on non-state actors such as corporations to contribute towards attaining those objectives. Though on the one hand the UNDRIP is textually not directed at corporations, on the other hand, corporations are routinely implicated in environments where massive violations of indigenous rights have occurred in various regions of …
Book Review: Irini Papanicolopulu, International Law And The Protection Of People At Sea (Oxford: Oxford University Press) 2018, Ramat Tobi Abudu
Book Review: Irini Papanicolopulu, International Law And The Protection Of People At Sea (Oxford: Oxford University Press) 2018, Ramat Tobi Abudu
The Transnational Human Rights Review
No abstract provided.
Opening The Doors To Justice In Africa: Analyzing State Acceptance Of The Right Of Individual Application To The African Court On Human And Peoples' Rights, Simon Zschirnt
The Transnational Human Rights Review
The African Court on Human and Peoples’ Rights took its place as the youngest of the three regional human rights courts with its establishment in 2006. However, the Court’s jurisdiction remains a work in progress. Thirty of the African Union’s fifty-five member states have ratified the protocol allowing the African Commission on Human and Peoples’ Rights to refer cases to the Court but only ten have made the optional declaration allowing individuals direct access. Previous research has indicated that transitional states desirous of “locking in” new commitments to democracy and human rights have been particularly likely to ratify the protocol …
International Accountability In The Implementation Of The Right To Development And The “Wonderful Artificiality” Of Law: An African Perspective, Obiora C. Okafor, Uchechukwu Ngwaba
International Accountability In The Implementation Of The Right To Development And The “Wonderful Artificiality” Of Law: An African Perspective, Obiora C. Okafor, Uchechukwu Ngwaba
The Transnational Human Rights Review
The landscape for the implementation of the right to development has undergone significant transformative shifts with the recent establishment of a new expert mechanism on the right to development by the UN Human Rights Council, and the finalisation of a draft treaty on the right to development. Yet, much more can clearly still be done to strengthen UN, state and non-state actors thinking on accountability in the implementation of the right to development, to add to the already considerable progress that has taken place. Our paper explores what can be done, focusing on the African and international context. We conclude …
Reflecting On Clinical Legal Education At The Indigenous Community Legal Clinic, Patricia Barkaskas, Melanie Alcorn, Ryan Adair, Kate Gotziaman, Jennifer Mackie, Madeleine Northcote, Victoria Wicks
Reflecting On Clinical Legal Education At The Indigenous Community Legal Clinic, Patricia Barkaskas, Melanie Alcorn, Ryan Adair, Kate Gotziaman, Jennifer Mackie, Madeleine Northcote, Victoria Wicks
Journal of Law and Social Policy
No abstract provided.