Law Commons^™

Implicating The System: Judicial Discourses In The Sentencing Of Indigenous Women By Elspeth Kaiser- Derrick, Arunita Das

Osgoode Hall Law Journal

In Implicating the System: Judicial Discourses in the Sentencing of Indigenous Women, Elspeth Kaiser-Derrick critically engages with sentencing decisions involving Indigenous women and the application of Gladue reports during sentencing. With an impressive selection of pre-sentence reports and case law, Kaiser-Derrick examines how the histories of victimization are recorded and filtered through legal narratives.

Reconciling Relationships With The Land Through Land Acknowledgements, Deborah Mcgregor, Emma Nelson

Articles & Book Chapters

One of the limitations of conventional Canadian conceptions of reconciliation is the underlying assumption that reconciliation applies, virtually exclusively, to relationships among peoples. There are, however, other dimensions to reconciliation that are equally important from an Indigenous point of view. As Mi’kmaq Elder Augustine suggests, “other dimensions of human experience—our relationships with the earth and all living beings—are also relevant in working towards reconciliation” (TRC 2015a, 122). Indigenous conceptions of reconciliation extend beyond people to the natural world and are informed by direct relationships to the Land. In this chapter. an Anishinaabe scholar, living in her own Lands, and a …

From “Trust” To “Trustworthiness”: Retheorizing Dynamics Of Trust, Distrust, And Water Security In North America, Nicole J. Wilson, Teresa Montoya, Yanna Lambrinidou, Leila M. Harris, Benjamin J. Pauli, Deborah Mcgregor, Robert J. Patrick, Silvia Gonzalez, Gregory Pierce, Amber Wutich

Articles & Book Chapters

Assumptions of trust in water systems are widespread in higher-income countries, often linked to expectations of “modern water.” The current literature on water and trust also tends to reinforce a technoscientific approach, emphasizing the importance of aligning water user perceptions with expert assessments. Although such approaches can be useful to document instances of distrust, they often fail to explain why patterns differ over time, and across contexts and populations. Addressing these shortcomings, we offer a relational approach focused on the trustworthiness of hydro-social systems to contextualize water-trust dynamics in relation to broader practices and contexts. In doing so, we investigate …

Competition And Labour Law In Canada: The Contestable Margins Of Legal Toleration, Eric Tucker

Articles & Book Chapters

In Canada, as elsewhere, the norms of capitalist legality include an aversion to permitting collective action by sellers of commodities to increase their price. Labour law, however, is built on the norm of freedom of association and the right of commodified workers to combine for the purpose of improving the terms of their labour contracts. This gives rise to a recurring regulatory dilemma. In Canada, this conflict has been resolved by granting workers a legal immunity from liability under competition law for engaging in approved collective action to improve or defend their terms and conditions of work. However, the zone …

Reframing Technology-Facilitated Gender-Based Violence At The Intersections Of Law & Society, Jane S. Bailey, Carys Craig, Suzie Dunn, Sonia Lawrence

Articles & Book Chapters

This special issue of the Canadian Journal of Law and Technology focuses on the growing problem of technology-facilitated gender-based violence (TFGBV): an expansive, dynamic, and rapidly evolving phenomenon that Jane Bailey and Carissima Mathen have defined as “a spectrum of behaviours carried out at least in some part through digital communications technologies, including actions that cause physical or psychological harm.” The collection of articles in this issue offers multi-disciplinary insights on TFGBV by bringing together the work of emerging scholars in information and media studies, communications, and law. This approach reflects our firm belief that in order to be meaningful …

“I See My Culture Starting To Disappear”: Anishinaabe Perspectives On The Socioecological Impacts Of Climate Change And Future Research Needs, A.K. Menzies, E. Bowles, M. Gallant, H. Patterson, C. Kozmik, S. Chiblow, Deborah Mcgregor

Articles & Book Chapters

Climate change disproportionately affects Indigenous Peoples because of strong connections between environmental, cultural, and spiritual well-being. While much of the global discourse surrounding climate change is founded in Western science, the holistic, place-based knowledge of Indigenous Peoples offers a complementary way of understanding and mitigating climate change impacts. The goal of this research was to elevate Anishinaabe concerns, observations, and perspectives about climate change impacts and future research needs. We organized a workshop called “Connecting Guardians in a Changing World” where participants shared concerns about animal and plant life cycles, water cycles and water quality, and impacts to ways of …

Multi-Disciplinary Legal Problem Resolution: Selected Annotated Bibliography, Lisa Moore

Canadian Forum on Civil Justice

There is a growing body of research and scholarship on medical-legal partnerships, social work-legal services partnerships, and other models for multi-disciplinary legal problem resolution. The goal of this selected annotated bibliography is to gather in one place examples of some of these models, and the research questions that are being explored in this area. This document is not intended to be exhaustive. In some jurisdictions, multi-disciplinary models that facilitate legal problem resolution have been part of the legal landscape for several decades; in other jurisdictions they are newer, growing in number in recent years. This document provides insights into published …

Understanding Chilling Effects, Jonathon W. Penney

Articles & Book Chapters

With digital surveillance and censorship on the rise, the amount of data available unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence and facial recognition technology for surveillance and data analytics, concerns about “chilling effects,” that is, the capacity for these activities to “chill” or deter people from exercising their rights and freedoms, have taken on greater urgency and importance. Yet, there remains a clear dearth in systematic theoretical and empirical work points. This has left significant gaps in understanding. This Article has attempted to fill that void, synthesizing theoretical and empirical insights from law, privacy, …

Platforms, Encryption, And The Cfaa: The Case Of Whatsapp V Nso Group, Jonathon W. Penney, Bruce Schneier

Articles & Book Chapters

End-to-end encryption technology has gone mainstream. But this wider use has led hackers, cybercriminals, foreign governments, and other threat actors to employ creative and novel attacks to compromise or workaround these protections, raising important questions as to how the Computer Fraud and Abuse Act (CFAA), the primary federal anti-hacking statute, is best applied to these new encryption implementations. Now, after the Supreme Court recently narrowed the CFAA’s scope in Van Buren and suggested it favors a code-based approach to liability under the statute, understanding how best to theorize sophisticated code-based access barriers like end-to-end encryption, and their circumvention, is now …

The Pillar 2 Undertaxed Payments Rule Departs From International Consensus And Tax Treaties, Jinyan Li

Articles & Book Chapters

The OECD released pillar 2 model rules last December to provide a template for domestic legislation to implement the agreement reached on October 8, 2021, by almost 140 inclusive framework members on a two-pillar solution to address global ta challenges. The model rules are limited to the income inclusion rule (IIR) and undertaxed payments rule (UTPR) (collectively known as the global anti-base-erosion (GLOBE) regime) in the October agreement. However, and rather surprisingly, the meaning of the letter “P” in the UTPR was effectively changed from payments to profits in the model rules. There was little, if any, public discussion about …

Canadian Privacy Law And The Post-War Freedom Of Information Paradigm, Jonathon W. Penney

Articles & Book Chapters

An overemphasis on technology among Canadian privacy scholars has neglected other important historical factors in the development of privacy law. The chapter aims to help fill that void through a case study examining how a broader Post War paradigm, centred on freedom of information, impacted on Canada's most important early privacy laws, including Canada's first privacy law - Part VI of the Canadian Human Rights Act (1977); the federal Privacy Act (1983); and the Personal Information Protection and Electronic Documents Act (PIPEDA)(2000). The case study suggests that despite wider concerns about privacy when each law was enacted, those concerns were …

Toward Indigenous Visions Of Nature-Based Solutions: An Exploration Into Canadian Federal Climate Policy, Graeme Reed, Nicolas D. Brunet, Deborah Mcgregor, Curtis Scurr, Tonio Sadik, Jamie Lavigne, Sheri Longboat

Articles & Book Chapters

Political traction for nature-based solutions is rapidly growing as governments recognize their role in addressing the simultaneous climate and biodiversity crises. While there has been recognition of the role of Indigenous Peoples in nature-based solutions, there has also been limited academic review on their relationship. This paper explores how the Government of Canada’s conceptualization of nature-based solutions either support or prevent Indigenous sustainable self-determination. Drawing on past policy frameworks, we construct a novel four-dimensional sustainable self-determination policy lens focused on: Indigenous knowledge systems; Indigenous jurisdiction over land; the full and effective participation of Indigenous Peoples; and Indigenous Peoples as rights-holders …

Judicial Depictions Of Responsibility And Risk: The Erasure Of State Accountability In Canadian Sentencing Judgments Involving Indigenous People, Sarah Jane Nussbaum

PhD Dissertations

This dissertation is set within the context of Canadas mass imprisonment of Indigenous people and centres on a critical evaluation of reported sentencing judgments. In particular, the dissertation examines some of the ways in which sentencing judges both draw attention to, and obscure, state accountability. The dissertation demonstrates that sentencing judges erase the role of the state in the criminalization of Indigenous people and in the construction of Indigenous people as risky. The result is that sentencing judgments rationalize and support the re-entrenchment, rather than the redressing, of the states oppression of Indigenous people. The dissertation is theoretical and descriptive, …

The Norm Life Cycle Theory And The Role Of Insol International In Shaping The Uncitral Model Law On Cross-Border Insolvency, Anthony Ikemefuna Idigbe

PhD Dissertations

The involvement of non-state entities in global public norm evolution has been the subject of many studies, especially in international human rights law and policy. This study explains the role of a non-state entity, INSOL International, in shaping the UNCITRAL Model Law on Cross-Border Insolvency, adopted by the UN General Assembly in 1997 using the life cycle approach developed in the human rights and policy context. The study utilized a triangulation of doctrinal, empirical and legal history data to determine whether the norm life cycle theory could explain the role of INSOL in shaping the Model Law. The study found …

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 …

Crossing Boundaries: Exploring Multi-Disciplinary Models For Legal Problem Resolution, Lisa Moore

Canadian Forum on Civil Justice

Legal problems rarely occur in a vacuum. They are often borne from other, non-legal problems or else give rise to non-legal problems and adverse circumstances. Legal research and scholarship has long recognized the broader non-legal contexts of legal problems as important for understanding legal problem experiences and individual approaches to problem resolution. In fact, decades of empirical research into the prevalence of civil legal problems has been conceptualized on the notion that, to understand the extent of legal problems in society, it is important to consider these problems as the people experiencing them might view them—through their varied financial, family, …

The Communities Being Served Are The Resources That Are Needed: Innovations In Community-Based Justice In Ontario, An Anthology Of Canadian Research, Ab Currie

Canadian Forum on Civil Justice

THIS VOLUME deals with one aspect of community-based justice in which community legal clinics take the lead in building collaborative partnerships with community groups to bring greater access to justice to people. This is not the only model of community-based justice. There are large numbers of helping organizations in communities, some staffed by professional service providers and some by capable volunteers, assisting people to resolve problems involving fairness and social justice in everyday life. There may be other ways in which community organizations assisting people may receive help from legal professionals in the form of direct advice or public legal …

Ai And Digital Tools In Workplace Management And Evaluation: An Assessment Of The Eu's Legal Framework, Valerio De Stefano, Mathias Wouters

Commissioned Reports, Studies and Public Policy Documents

This study focuses on options for regulating the use of AI enabled and algorithmic management systems in the world of work under EU law. The first part describes how these technologies are already being deployed, particularly in recruitment, staff appraisal, task distribution and disciplinary procedures. It discusses some near-term potential development prospects and presents an impact assessment, highlighting some of these technologies' most significant implications.

The second part addresses the regulatory field. It examines the different EU regulations and directives that are already relevant to regulating the use of AI in employment. Subsequently, it analyses the potential labour and employment …

Book Review: Justice In Transactions Benson Peter, Jennifer Nadler

Articles & Book Chapters

No abstract provided.

Submission Of The Citizens And Technology (Cat) Lab To The United States Copyright Office, U.S .Library Of Congress, Washington, D.C., Re Notice Of Inquiry Technical Measures Public Consultations [ Docket No. 2021–10 ][ Federal Reg. No: 2021-27705 ], J. Nathan Matias, Jonathon W. Penney, Lucas Wright

Commissioned Reports, Studies and Public Policy Documents

No abstract provided.

A Double Take On Debt: Reparations Claims And Regimes Of Visibility In A Politics Of Refusal, Vasuki Nesiah

Osgoode Hall Law Journal

This article proposes that the concept of “odious debt” provides an especially fruitful legal framework for the Haitian and Caribbean Community (CARICOM) demands for reparations and debt severance. The concept renders visible different dimensions of the background economic order that have been constitutive of postcolonial sovereignty, and the histories of trade and aid that have engendered debt. In analyzing the work of different regimes of visibility, I have found it useful to think with Abderrahmane Sissako’s 2006 film Bamako, and the world of Wakanda in Ryan Coogler’s Black Panther (2018)—two films that work through the stakes of visibility, recognition, and …

Class Actions In Canada: The Promise And Reality Of Access To Justice By Jasminka Kalajdzic, Jina Aryaan

Osgoode Hall Law Journal

CLASS ACTION LITIGATION IS OFTEN REGARDED as a successful instrument for advancing access to justice, which continues to be a significant cause for concern within the justice system. The three pillar objectives of class action litigation are to ensure judicial economy, behaviour modification, and access to justice. Professor Jasminka Kalajdzic’s book, Class Actions in Canada: The Promise and Reality of Access to Justice, explores the debatable interpretation and meaning of the third pillar and whether the reality of class action litigation reflects this promise.

Looking Into Law And Development: Pedagogies And Politics Of The Frame, Ruth Buchanan

Osgoode Hall Law Journal

International development can be understood as a particular way of seeing the world that is both a pedagogical and a political project. It frames the citizens of “underdeveloped” states as subjects, available to be both “seen” and “known” in particular ways that have important implications for governance and law. This Special Issue approaches development as a discourse and as a set of practices that encompass a “way of seeing” and operate as a “frame” through which the subjects of development are apprehended and acted upon.

Hiding In Plain Sight: Black Panther, International Law And The “Development Frame”, Christopher Gevers

Osgoode Hall Law Journal

This article explores the “troubling antinomies” of the 2018 film Black Panther and its entanglements with the collective fantasies of the West—and those of international lawyers and development technocrats in particular—through its reliance on the “lost world” genre, as typified by H. Rider Haggard’s King Solomon’s Mines and John Buchan’s Prester John. The article then situates these troubling antinomies within the tradition of Black Internationalism and the novels of Pauline Hopkins, George S. Schuyler, and Peter Abrahams as practices of “poetic revolt.” Doing so, it is argued, reveals much about the conditions of possibility of the “development frame” and international …

Picturing Pedagogy: Images, Teaching, And Development, Jeremy Baskin, Sundhya Pahuja

Osgoode Hall Law Journal

Images are powerful. They shape how we see and understand the world and, in the process, challenge (or reinforce) our assumptions and perspectives. The images we use in the classroom are no exception, whether used passively as visual aids or as a “medium through which active learning is energized.”1 In this article we embrace the “pictorial turn” in university teaching and reflect on the use of images when teaching “development.”2 Development is an area that typically attracts students with an internationalist orientation and who seek to make a positive change in the world. Yet the concept of development is fraught …

Constitution-Making Under Un Auspices: Fostering Dependency In Sovereign Lands By Vijayashri Sripati, Frank J. Luce

Osgoode Hall Law Journal

This book is a groundbreaking study of United Nations Constitutional Assistance (UNCA), that is, constitution making in nominally sovereign states, carried out under the auspices of the United Nations (UN) in the guise of technical assistance. The book is of interest to scholars in various fields, from those engaged directly in the emerging field of international constitutional law to those with a general interest in globalization, peace building, and the international institutions that give structure to international governance.

Seeing Like A Clinic, Adrian A. Smith

Osgoode Hall Law Journal

The prevailing commitment in clinical law programs like the Intensive Program in Poverty Law at Osgoode Hall Law School is to an engaged-contextualism, which serves to see law in action. It has provided participating students with some insight into the everyday life of ordinary people, approaching—but not necessarily fully perceptive to—certain socio-legal perspectives. But what does clinical legal education vision and envision? How precisely do clinics see? And from what source or place is that visual authority derived? Here, by attending to the prevailing “pedagogy of seeing” in contemporary poverty law clinical practice, I engage with teaching, learning, and praxis …

The Class Actions Controversy: The Origins And Development Of The Ontario Class Proceedings Act By Suzanne Chiodo, Michael Kennedy

Osgoode Hall Law Journal

The enactment of class proceedings legislation revolutionized civil procedure in Ontario by providing citizens with a mechanism that both increased access to justice and served as a powerful deterrent against wrongdoing. Suzanne Chiodo’s book, The Class Actions Controversy: The Origins and Development of the Ontario Class Proceedings Act, provides an in-depth exploration of the history of the legislation and the social and political forces that influenced it.

The Comic And The Absurd: On Colonial Law In Revolutionary Palestine, Mai Taha

Osgoode Hall Law Journal

As part of the Special Issue, this article adopts a methodological orientation that works through and with international law’s cultural legal archive. It focuses on one colonial literary artifact that shows the historical tension between colonization and revolution and examines the traces of those constitutive relations in the present. The artifact in question is an intriguing literary excursion by a British colonial-era judge in Palestine entitled Palestine Parodies. It mocks the legal life of Mandate Palestine through the use of comics, puns, and riddles. This raises a number of provocative themes relating to Mandate law, revolution, humor, and humiliation. The …

“Making Up” With Law In Development, Kerry Rittich

Osgoode Hall Law Journal

This article draws on Ian Hacking’s idea of “making up people” to reflect on the relationship between development knowledge, practice, and expertise. Using Hacking’s five-part model as a counterpoint to mainstream accounts of development and its tasks, it (re)describes the manner in which development vision informs practice, while practice itself reconstructs the horizon of possibilities for developing states and their populations. The picture that emerges is one of tight interconnections between expertise-driven institutional practice and what we come to see and therefore to “know” about development. It is also one in which iconic figures such as the entrepreneurial woman emerge …