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Articles 1 - 30 of 147
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 …
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 …
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 …
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 …
Transcending The Impasses: Towards An Indigenous Vision Of Legality In Palestine, Juman Abujbara
Transcending The Impasses: 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. …
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 …
Redressing The Past To Repair The Present: The Role Of Property Law In Creating And Exacerbating Racial Disparities In Wealth And Poverty In Nova Scotia, Melissa Marsman
Redressing The Past To Repair The Present: The Role Of Property Law In Creating And Exacerbating Racial Disparities In Wealth And Poverty In Nova Scotia, Melissa Marsman
LLM Theses
For over 200 years African Nova Scotians have been fighting to confirm legal title to the land on which their ancestors were settled. In 2020, the Nova Scotia Supreme Court remarked “the lack of clear title and the segregated nature of their land triggered a cycle of poverty for black families that persisted for generations.” Nova Scotia has a long history of obscure land titles; however, the ensuing cycle of poverty appears to have disproportionately impacted African Nova Scotians. This thesis reframes the African Nova Scotian land titles discourse into a broader understanding about systemic anti-Black racism and White supremacist …
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 …
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 …
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 …
Fiscal Decolonization-Indigenous Fiscal Autonomy And Tax Jurisdiction, Riad Kherallah
Fiscal Decolonization-Indigenous Fiscal Autonomy And Tax Jurisdiction, Riad Kherallah
LLM Theses
This thesis focuses on the relationship between Indigenous fiscal autonomy and self-determination. Indigenous nations’ ability to achieve self-determination is dependent upon their ability to autonomously finance self-government. Unfortunately, Canada’s colonial policies have weakened Indigenous economies and rendered them dependent upon the Crown. Due to Indigenous nations’ lack of fiscal autonomy, Crown policies designed to promote Indigenous self-government have proven inadequate. This thesis argues for using the United Nations Declaration on the Rights of Indigenous Peoples as a blueprint for developing more equitable economic relations. While there are various elements to Crown-Indigenous economic relations, this thesis focuses on the distribution of …
Pushing The First Domino: Freeing The Whales In Canada, Luc Paul Bourgeois
Pushing The First Domino: Freeing The Whales In Canada, Luc Paul Bourgeois
LLM Theses
In 2019, the Canadian Parliament adopted Bill S-203, titled the Ending the Captivity of Whales and Dolphins Act [Whales Act], to phase-out the captivity of cetaceans – that is, whales, dolphins, and porpoises – mainly for entertainment purposes. This new law reflected scientific knowledge and signaled a shift in public attitudes relating to cetacean captivity. Undeniably, this piece of legislation raises many legal and normative questions. Drawing on the capabilities approach, espoused by Martha C. Nussbaum, this paper will explore the nature and impact of the Whales Act in the Canadian political and legal landscape, as well as the newly …
Putting The Constitutional Horse Before The Cart: Federal Jurisdiction Over Next Generation Environmental Assessment, Anna Johnston
Putting The Constitutional Horse Before The Cart: Federal Jurisdiction Over Next Generation Environmental Assessment, Anna Johnston
LLM Theses
This thesis explores the extent of federal jurisdiction over a next generation environmental assessment (EA) model proposed by Sinclair, Doelle and Gibson. Examining the jurisprudence and literature, it analyses the scope of federal constitutional authority during the triggering, information-gathering and analysis and decision-making stages of project, strategic and regional assessment. A federal next generation EA law focused on impacts on areas of federal authority could be upheld under various federal constitutional heads of power. Federal jurisdiction is most important at decision-making, and authority to trigger an assessment should be based on the low jurisdictional threshold of reasonable probability of federal …
Responsible Business Conduct In The Extractive Industries: Prospect Of Respecting Women's Human Rights In Ghana, Veronica Dossah
Responsible Business Conduct In The Extractive Industries: Prospect Of Respecting Women's Human Rights In Ghana, Veronica Dossah
LLM Theses
Business operations in the extractive industries (EI) continue to violate women’s human rights and the environment in the communities in which they operate. In Ghana, existing laws and regulations do not preclude businesses from such violations. This makes it important to reflect on innovative means including soft laws which could encourage companies operating in the EI in Ghana to respect women’s human rights and the environment over and above compliance with national laws and regulations. This thesis examines the problem of land grabbing by EI companies operating in Ghana, the unique negative impacts women in mining communities face as a …
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 …
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 …
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 …
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 …
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 …
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 …
Metaphysics & Morals In Canadian Criminal Justice: A Pragmatic Analysis Of The Conflict Between Neuroscience And Retributive Folk Psychology, Sarah Greenwood
Metaphysics & Morals In Canadian Criminal Justice: A Pragmatic Analysis Of The Conflict Between Neuroscience And Retributive Folk Psychology, Sarah Greenwood
LLM Theses
The retributive justification of Canadian criminal law contains several assumptions about human nature that conflicts with what neuroscience has established regarding human behavior and the function of rationality. Interdisciplinary discourse on this conflict between law and neuroscience has unnecessarily implicated the free will debate and is further stagnated by epistemic cultural differences between the two disciplines. To avoid these roadblocks, this thesis applies the methodological principles of pragmatic philosophy. Rather than asking which description of human nature is true, pragmatic inquiry focuses on the difference either would make in practice. This analysis reveals that retributive folk psychology in practice causes …
Biosimilars: The Quest For A Rational Regulatory And Intellectual Property Approach In Canada, Elizabeth S. Dipchand
Biosimilars: The Quest For A Rational Regulatory And Intellectual Property Approach In Canada, Elizabeth S. Dipchand
LLM Theses
Biologics and biosimilars represent the promise for more effective treatments of many diseases. International treaty obligations influenced heavily by the biopharmaceutical industry and advanced through the international trade agenda may lead to an imbalance between incentivizing innovation and the public interest. Canada’s implementation of its obligations into national patent and regulatory laws encourages aggressive biologic patent protection strategies that, coupled with linked regulatory assessments, may establish compounding layers of exclusion that disproportionately disincentivizes both the biologics innovation and biosimilar development. This comparative analysis addresses the progression of international obligations and the way in which they have been implemented into Canada’s …
Using Canadian Law To Prevent, Respond To And Remedy Maltreatment In Sport: Listening To And Learning From Athletes, Wendy Macgregor
Using Canadian Law To Prevent, Respond To And Remedy Maltreatment In Sport: Listening To And Learning From Athletes, Wendy Macgregor
LLM Theses
This thesis addresses maltreatment of athletes in Canada, in the post-Nassar era, by considering applicable law, policy, academic literature and a qualitative study. Athlete maltreatment may include: psychological, physical and sexual maltreatment, and neglect. Prevalence and impacts of maltreatment are examined. Legal and administrative options available to complainants are discussed, as well as applicable international human rights and child rights conventions, Canadian legislation, legal principles, and jurisprudence. An academic literature review provides maltreatment definitions in order to lay the groundwork for the discussion. Academic perspectives and proposals for redress are considered. A qualitative athlete study produced four key themes which …
Proposing A Constructivist Approach To Resolving Trade Conflicts Under The African Continental Free Trade Area Agreement (Afcfta): A Cross-Jurisdictional Analysis, Oluwayesi Sanni
LLM Theses
Essentially a research of an interdisciplinary nature, this thesis seeks to carefully combine budding thoughts from two different areas of scholarship in order to present a unique underlying perspective. On the one hand, there is the study of conflict and its resolution from such intrinsic standpoint as to appreciate it as constitutive of the Society with the aim of achieving more wholesome outcomes that accentuates the uniqueness of each society. On the other hand, the recent coming to force of AfCFTA has left so much for scholars to grapple with, including how its dispute settlement regime could reflect more on …
The Province Of (Substantive) Legitimate Expectation In Nigeria's Tax Administration: A Law And Policy Evaluation, Okanga Ogbu Okanga
The Province Of (Substantive) Legitimate Expectation In Nigeria's Tax Administration: A Law And Policy Evaluation, Okanga Ogbu Okanga
LLM Theses
The interplay between tax administration and legitimate expectation has been the subject of debate and scholarship in many jurisdictions. Questions around how much discretion tax authorities should be allowed and whether courts should uphold the (substantive) legitimate expectations of taxpayers – by implication, bind the tax authority – when the tax authority reverses itself on a guidance, promise, position, etc. feature prominently in this conundrum. In Nigeria, the disposition of both the tax authority and the court appears to lean towards outright dismissal of legitimate expectation. Put differently, it seems that the tax authority does not consider itself bound by …