Law Commons^™

Let’S Talk About Sexual Assault: Survivor Stories And The Law In The Jian Ghomeshi Media Discourse, Dana Phillips

Osgoode Hall Law Journal

The recent allegations against former Canadian radio host Jian Ghomeshi catalyzed an exceptional moment of public discourse on sexual assault in Canada. Following public revelations from several women who described being attacked by Ghomeshi, many others came forward with accounts of sexual violence in their own lives. Affirming feminist critiques of sexual assault law reform, many survivors drew on their experiences to expose the criminal justice system’s ongoing flaws in processing sexual assault cases. While some held out hope for the criminal law’s role in addressing sexual violence, most rejected its individualizing and retributive aspects. Instead, survivors emphasized the need …

Unreasonable Disagreement?: Judicial–Executive Exchanges About Charter Reasonableness In The Harper Era, Matthew A. Hennigar

Osgoode Hall Law Journal

Assessments of “reasonableness” are central to adjudicating claims under several Charter rights and the section 1 “reasonable limits” clause. By comparing Supreme Court of Canada rulings to facta submitted by the Attorney General of Canada to the Court, this article examines the federal government’s success under Prime Minister Harper at persuading the Supreme Court of Canada that its Charter infringements in the area of criminal justice policy are reasonable, and when they fail to do so, on what grounds. The evidence reveals that the Conservative government adopted a consistently defensive posture in court, never conceding that a law was unreasonable, …

The Wastelander Life: Living Before And After The Release Of Daniels V Canada, Signa A. Daum Shanks

Osgoode Hall Law Journal

The difficulties of entering the Canadian legal system for Indigenous peoples often includes the challenge of using the tools that have a history of harming those same peoples in the first place. Such a reality means the pursuit of recognition in Canadian law will not always be a positive experience—even when a decision supposedly represents a ‘win.’ Here, the author considers some of the effects that have developed from the release of Daniels v Canada. As with other Supreme Court of Canada releases, it inspires observations about colonialism, the modern plight of Indigenous peoples, and the rule of law.

A Legal History Of Adoption In Ontario, 1921-2015, By Lori Chambers, Adam Giancola

Osgoode Hall Law Journal

During the period of the Great War—when the rest of the world had its eyes turned towards Europe—the province of Ontario found itself in the midst of a domestic crisis. Only two decades earlier, the provincial government had enacted legislation giving the newly-founded Children’s Aid Society (CAS) the authority to identify and protect neglected and maltreated children. This legislation emerged out of a concern over juvenile delinquency, but its range was limited: services for children were given little financial backing, and CAS workers were only locally regulated. By the end of the Great War, then, concerns about rising rates of …

Keynote Address: Meaningful Inclusion Creates Opportunity, Gillian Smith

Osgoode Hall Law Journal

There is no city in North America that has a greater opportunity to create economic prosperity for many in the way Toronto does. If we don’t keep our eye on how to take advantage of the benefits, we risk squandering that opportunity. Let’s take stock of Toronto. We’re booming. Toronto is one of the top cities in North America in the number of construction projects on the go. People are choosing to move to our city in staggering numbers—roughly 120,000 people per year make Toronto their home. We have a financial sector that is one of the most sophisticated in …

Tension And Reconciliation In Canadian Contract Law Casebooks, David Sandomierski

Osgoode Hall Law Journal

Canadian common law contract law casebooks are beset with a tension. On the one hand, they all reveal a sustained commitment to the “wholesale assault on the jurisprudence of forms, concepts, and rules” that typifies American Legal Realism and its intellectual descendants. Concern with underlying values, functional reasoning, social realities, and policy thinking pervades the explicit messages of Canadian contract law casebooks and their editors’ related writings. On the other hand, the two casebooks most frequently assigned embody an allegiance to rules and courts that has a close kinship with the classical attitudes purportedly rejected. They convey a monolithic image …

Breakdown: The Inside Story Of The Rise And Fall Of Heenan Blaikie By Norman Bacal, Daniel Del Gobbo

Osgoode Hall Law Journal

The Canadian legal landscape is changing. Data over the last three decades show a trend toward larger law firms. Many of the country’s most storied ‘big law’ corporate firms have exploded in size and reach. Almost all of these firms maintain offices across the country and satellite offices in key international markets. Other large firms have been subsumed into foreign conglomerates pursuing expansion into the Canadian legal market. These developments have led to an increase in revenues and business opportunities for senior partners at these firms. It has also led to unprecedented challenges for the management of big law firms …

Social Enterprise, Law & Legal Education, Lorne Sossin, Devon Kapoor

Osgoode Hall Law Journal

This article examines the relationship between law and social enterprise. More specifically, it explores ways in which the law and the law school can serve to refine and promote the development of social enterprise. The article begins by canvassing the existing conceptions of social enterprise to provide a basis for understanding and to identify points of access for legal intervention. At the end of this analysis, we arrive at a working definition of social enterprise: A legal entity engaged in socially responsible economic activity for the purpose of generating revenue that is to be used to advance a social mission. …

Introduction To Creating Opportunities: A Vision For The Future, Jamil Jivani, Joseph Mcdonald, Michael Thorburn

Osgoode Hall Law Journal

We are pleased to present the Creating Opportunities: A Vision for the Future Special Issue of the Osgoode Hall Law Journal. The topics that make up this Special Issue were originally presented at the Creating Opportunities Summit held at Osgoode Hall Law School on 26-27 January 2017. The Summit explored challenges and opportunities regarding local, regional, and national economic development in Canada. Participants learned about strategies, initiatives, and policies that create the conditions for economic success as well as the indirect effects on a range of communities, with a particular focus on those that are disadvantaged and underserved.

Renewing Human Rights Law In Canada, Dominique Clément

Osgoode Hall Law Journal

Human rights law was one of the great legal innovations of the twentieth century. And yet human rights agencies and practitioners face a backlash that has resulted in regressive legislative reforms in recent years. These reforms have only succeeded in undermining some of the key pillars of the Canadian model for human rights law. The following article places the current backlash within historical context. The author argues that many recent reforms have replicated the deficiencies of past anti-discrimination laws. Commissions and policy-makers must respond by building on the strengths of the original Canadian model by improving public education, engaging with …

Lawyering With Heart: A Warrior Ethos For Modern Lawyers Reviewing Allan C. Hutchinson, Fighting Fair: Legal Ethics For An Adversarial Age, W. Bradley Wendel

Osgoode Hall Law Journal

Prolific legal theorist Allan C. Hutchinson offers a provocative critical perspective on the relationship between law, the public interest, and lawyers’ practices. His recent book, Fighting Fair, seeks to ground legal ethics in the principles regulating one of the most universal and characteristic of all human activities—warfare. Readers of Candide, All Quiet on the Western Front, or Catch-22, or viewers of Gallipoli, Apocalypse Now, or Hacksaw Ridge may be excused for thinking that all we have learned about war is that it is senseless, brutal, dehumanizing, and in all ways an unmitigated ethical catastrophe. Hutchinson, however, is perfectly serious about …

Economic Approaches To Intellectual Property, By Nicola Searle And Martin Brassell, Alexandria Chun

Osgoode Hall Law Journal

Intellectual property (IP) is well recognized as an important economic asset. Many companies rely heavily on their IP to contribute value to their enterprise: Apple has built an empire on its trademarked logo and branding, Coca-Cola on its secret soft drink formula, and Pfizer on its pharmaceutical patents (to name just a few). The economic value of IP and its strong relationship to business is even reflected in IP legislation. For example, trademark statutes in various jurisdictions share an underlying policy of promoting free and fair competition in trade.

Millennials In Crisis: Myth-Busting Millennial Debt Narratives, Stephanie Ben-Ishai, Tanner Stanley

Osgoode Hall Law Journal

Intense pop-cultural commentary on millennial finances and indebtedness perpetuates two conflicting narratives. One suggests that millennials are doomed and face higher debt levels than earlier generations, compounded by rising tuition costs, a lack of affordable housing, high costs of living, and an increasingly competitive job market. The contrary “millennial bootstrapping” narrative denies that millennials are more financially challenged than previous generations and argues that millennials need to pull themselves up their proverbial bootstraps and improve their work ethic to secure financial success. This article fact-checks these two narratives and fills a significant gap in the Canadian academic literature on the …

The Shifting Frontiers Of Law: Access To Justice And Underemployment In The Legal Profession, Nandini Ramanujam, Alexander Agnello

Osgoode Hall Law Journal

The article examines two interrelated issues attracting attention from the legal academy, the profession, and policy makers: i) the crisis of access to justice among ordinary Canadians, and ii) the increasing number of qualified and underemployed lawyers. This article sets out to understand the interrelated factors underlying these two trends, and explores long-term, accessible solutions to address the misalignment between the supply of underemployed law graduates and a demand for affordable legal services. In response to these twin problems, we examine how legislative reform, open source networks, and the automation of legal work can allow lawyers to create more cost-effective …

Effecting A Culture Shift—An Empirical Review Of Ontario’S Summary Judgment Reforms, Brooke Mackenzie

Osgoode Hall Law Journal

Lawyers and policymakers in Canada frequently discuss the need for reforms to increase access to civil justice, but concrete efforts to improve the efficiency and cost-effectiveness of our justice system are few and far between. Unfortunately, even when reforms are implemented, measures are rarely put in place to assess whether the reforms were effective. Ontario’s Civil Justice Reform Project inspired a package of amendments to Rules of Civil Procedure in 2010 but, aside from anecdotal reports, little is known about whether they achieved their desired effects. This paper presents an empirical analysis of all reported summary judgment decisions in Ontario …

Canadian-Zambian Human Rights Engagements: A Critical Assessment Of The Literature And Research Agenda, Misozi Lwatula

The Transnational Human Rights Review

Canada’s engagements with African states with regards to human rights began about five decades ago, and different countries in Africa have since benefited from such engagements. With Zambia specifically, such engagements have mainly centered along human rights issues. Recently, Canada has heavily invested in Zambia’s mining sector. This article explores Canada’s human rights engagements with Zambia. The article first reviews the economic performance of Zambia since its independence and the effect that this has had on the country. The article then looks at Canadian engagements with Zambia in terms of health, women’s rights, refugees’ rights and mining. It acknowledges that …

In Search Of Accountability: A Critical (If Preliminary) Assessment Of The Literature On Canadian-Nigerian Engagements On The Immunities Of State Officials For Human Rights Violations, Udoka Ndidiamaka Owie

The Transnational Human Rights Review

The trials of German and Japanese state officials following the end of World War II at the International Military Tribunals in Nuremberg and Tokyo along with treaty obligations undertaken by states since at least the establishment of the United Nations, have together given rise to the question of whether states and their officials are entitled to immunity for violations of human rights. This question was highlighted by the case against Pinochet Ugarte of Chile, which came more recently before the United Kingdom House of Lords. The case propelled the immunity of state officials into the limelight of judicial and academic …

Towards Justiciability Of Economic, Social, And Cultural Rights In Nigeria: A Role For Canadian-Nigerian Cooperation?, Halima Doma Kutigi

The Transnational Human Rights Review

On the broad level, this article discusses ESC rights in Nigeria in the context of the international human rights architecture, and in the context of the reality and play of global affairs. In these contexts, bilateral as well as other international agreements maintain a vital role in fostering transnational cooperation in the field of human rights. It is within this framework that Canadian-Nigerian engagement in the fulfilment of ESC rights is considered. The article also considers the theoretical aspects of ESC rights juxtaposed against CP rights, thereby expounding interdependence of these categories of rights. In the course of the discussion, …

Canada-Botswana Human Rights Engagements: A Critical Assessment Of The Literature And A Research Agenda, Bonolo Ramadi Dinokopila

The Transnational Human Rights Review

This article discusses the past and present of Canada-Botswana human rights engagements, offering an insight into their nature and significance. The article highlights that despite the absence of strong diplomatic ties between the two countries, there nonetheless have been significant human rights engagements. The engagements, though not entirely systematic or clearly defined in their focus, have certainly improved the human rights situation in Botswana. It is also noted that the sustainability of these engagements is questionable considering that the weak ties between the two countries have resulted in reduced Canadian funding to Botswana. In the end, the article emphasizes that …

Canadian-Anglophone African Human Rights Engagement: A Critical Assessment Of The Literature On Health Rights, Uchechukwu Ngwaba

The Transnational Human Rights Review

Contrary to common expectations, the engagement between Canada and Anglophone African countries on the issue of health rights has not been a “one-way-street” whereby Canada is the “giver” and Anglophone African countries are the “takers” of health benefits. This article, which undertakes a preliminary and critical assessment of the literature documenting this engagement, finds that both Canada and Anglophone African countries have mutually benefitted from their engagement in the area of health rights. These benefits have taken the form of Canada’s financial and technical contributions to various initiatives that seek to improve the availability and accessibility of health-related goods and …

Canadian-African Human Rights Engagements –A Literature Review And An Agenda For Future Research: An Introduction, Obiora Chinedu Okafor

The Transnational Human Rights Review

No abstract provided.

Human Rights Discourses In Nigeria Across Time: Trajectory, Successes And Potentials For Canadian-Nigerian Engagement, Solomon Ukhuegbe

The Transnational Human Rights Review

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Canada has, for decades, been actively involved in funding and providing support for the development of legal and political institutions and rights advocacy activities in Nigeria. A careful documentation and assessment of this support will likely show that its impact has been significant and perhaps critical in some areas. This article, however, considers a different form of engagement, or rather, a possible engagement. Although Canada’s human rights jurisprudence, especially the Charter of Rights case law, is highly regarded the world over, its influence on Nigerian courts has been limited. Yet, there is a great opportunity for meaningful engagement here, …

Background: Towards A Critical Assessment Of Canadian-Nigerian Bilateral Relations, Olabisi Akinkugbe

The Transnational Human Rights Review

Although the diplomatic relations between Canada and Nigeria is almost six decades old, the nature of this bilateral relationship has not been the subject of rigorous academic research. While a recent body of research by international relations scholars has taken up the broad critical study of Canadian-African relations, a significant gap exists with respect to studies that focus on the context of Canada’s engagement with individual African countries. Against this background, this paper briefly examines the bilateral trade and investment engagements between Nigeria and Canada. The modest aim is to highlight the existing framework that guides the relations of both …

Assessing Universalism And The Rhetoric Of Development Assistance In Human Rights Research: Canadian-Ghanaian Human Rights Engagements, Sylvia Bawa

The Transnational Human Rights Review

This article is a contribution to the question of how Canada engages human rights in Ghana and Anglophone sub-Saharan Africa in general. In order to critically assess human rights engagement between Ghana and Canada, I situate the discussion within the broader global human rights milieu to deconstruct the myriad ways in which power dynamics in the global arena shape human rights practice and discourse. Using the rights concerns of women and minorities in Ghana as an entry point, I discuss the interconnected nature of first- and second-generation rights and cultural relativism in universal rights discourses. This discussion aims to propose …

Canadian-Tanzanian Human Rights Engagements: A Critical Assessment Of The Literature And A Research Agenda, Julena Jumbe Gabagambi

The Transnational Human Rights Review

This article examines the historical background of human rights in Tanzania and the ways in which Canada has been engaging with Tanzania on the improvement of human rights. In the past, Tanzania was ruled by colonial powers, for which respect for human rights was never a priority. Having attained independence in 1961, however, the country did not adequately respect human rights. This is in part due to the argument that, if the British themselves did not practice it, then independent Tanzania should not be forced to. Furthermore, the introduction of human rights at the time held the potential to paralyze …

Women’S Health Rights In Canadian-Anglophone African Human Rights Engagements: Normativity, Indigeneity And The Spaces Beyond The Norm Life Cycle, Irehobhude Iyioha

The Transnational Human Rights Review

Canada has a demonstrated interest in sustaining a human rights agenda in Anglophone Africa. While this commitment is of common knowledge, its nature and achievements, as well as associated complications and possibilities have not been subjected to as much critical analysis as these issues deserve. This paper takes a prelusive step towards a rigorous assessment of human rights engagements between Canada and the Anglophone African region within the specific field of women’s health. It conducts a summative appraisal of the nature of norms and a dialectic enquiry into the origin of norms within the context of Finnemore and Sikkink’s theory …

Canada-Ghana Engagements In The Mining Sector: Protecting Human Rights Or Business As Usual?, Cynthia Kwakyewah, Uwafiokun Idemudia

The Transnational Human Rights Review

While states have traditionally had the responsibility to protect human rights, multinational corporations (MNCs) are now increasingly expected to also respect human rights in their pursuit of profitability. However, the increased incidence of human rights violations associated with the activities of MNCs in developing countries has led to various efforts to promote the corporate duty to respect human rights. This article seeks to examine the extent to which Canada’s national Corporate Social Responsibility (CSR) strategy can contribute to the prevention or amelioration of incidences of human rights violation associated with the activities of Canadian mining companies operating in Ghana. The …

Evaluating Canadian And South African Collaborative Human Rights Initiatives: A Preliminary Analysis And Research Agenda, Moses Retselisitsoe Phooko

The Transnational Human Rights Review

South Africa’s now defunct, autocratic apartheid government was based on minority rule, racially discriminatory laws, and disregard for the fundamental human rights of almost all black people. At that time, Parliament was supreme and could do anything that it wished, including enacting laws that denied the vast majority of the population from the right to vote. This regime lasted until the 1990s when parliamentary supremacy was replaced by constitutional supremacy. The adoption of the Interim Constitution of South Africa in 1993 eventually paved way for, among other things, respect for the fundamental human rights of all peoples without any distinctions …

Canada’S First Malpractice Crisis: Medical Negligence In The Late Nineteenth Century, R. Blake Brown

Osgoode Hall Law Journal

This article describes and explains the first Canadian medical malpractice crisis. While malpractice had emerged as a prominent legal issue in the United States by the mid nineteenth century, Canadian doctors first began to express concerns with a growth in malpractice litigation in the late nineteenth century. Physicians claimed that lawsuits damaged reputations and forced them to spend lavishly on defending themselves. Doctors blamed lawyers for drumming up spurious lawsuits and argued that ignorant or malicious jurors tended to side with plaintiffs. Evidence, however, points to additional factors that contributed to litigation. Medical professionals in rural areas sometimes avoided lengthy …

The Brussels Peace Conference Of 1874 And The Modern Laws Of Belligerent Qualification, Tracey Leigh Dowdeswell

Osgoode Hall Law Journal

The Brussels Conference of 1874 was convened after the Franco-Prussian War (1870-71). At stake was not only the restoration of the fragile balance of power in Europe, but also the articulation of a new ideal of warfare and its role in the European state system. This article discusses the Conference in relation to the “new war” thesis put forth by Mary Kaldor in New and Old Wars (1999). It was at Brussels that the “old war” crystalized as a political ideal: war would be a tournament, fought by professional armies, organized by nation states; civilians who refrained from participation would …