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Articles 1 - 30 of 184
Full-Text Articles in Law
Current Complications In The Law On Myths And Stereotypes, Lisa Dufraimont
Current Complications In The Law On Myths And Stereotypes, Lisa Dufraimont
Articles & Book Chapters
Myths and stereotypes represent an ongoing problem in Canadian sexual assault trials. Often, and paradigmatically, defence lawyers and trial judges rely on discredited sexist assumptions to the prejudice of female sexual assault complainants. However, a review of the recent appellate case law reveals many cases that do not fit this paradigm. Complications that have arisen include stereotypes about men or accused persons, legitimate defence arguments misidentified as stereotypes, close cases where reasonable people disagree about whether stereotypes have been invoked, and prejudicial forms of reasoning based other axes of discrimination. This paper surveys these developments and assesses an attempt by …
User Rights In Canadian Copyright Law, David Vaver
User Rights In Canadian Copyright Law, David Vaver
Conference Papers
It is very kind of you to invite me to talk about User Rights at the Association’s Copyright Symposium. In ancient times, symposia were occasions to discuss and debate matters of great moment, to the accompaniment of copious food, wine, and revelry. Zoom of course limits the conduct of this symposium but I hope participants will take the ancient precedent to heart at their end of their internet connection. Sometimes a symposium would wait until the hunt for a wild boar was over before starting. I hope that was not the motive behind your organizers hunting me down for this …
Access To Justice For Refugees: How Legal Aid And Quality Of Counsel Impact Fairness And Efficiency In Canada’S Asylum System, Craig Damien Smith, Sean Rehaag, Trevor C. W. Farrow
Access To Justice For Refugees: How Legal Aid And Quality Of Counsel Impact Fairness And Efficiency In Canada’S Asylum System, Craig Damien Smith, Sean Rehaag, Trevor C. W. Farrow
Canadian Forum on Civil Justice
This report presents findings from a study exploring relationships between refugee legal aid, quality of counsel, the fairness and efficiency of asylum procedures, and access to justice for refugee claimants in Canada. Legal scholars, jurists and legal associations across Canada have recognized an access to justice “crisis”. The crisis extends to refugee claimants, and is exacerbated by unique vulnerabilities and barriers to justice. This report defines access to justice for refugee claimants in Canada as early and affordable access to high-quality legal representation to both prepare claims and appear before the Immigration and Refugee Board, without systemic or economic barriers; …
Rearguard Or Vanguard? A New Look At Canada’S Constitutional Act Of 1791, Philip Girard
Rearguard Or Vanguard? A New Look At Canada’S Constitutional Act Of 1791, Philip Girard
Articles & Book Chapters
The Constitutional Act 1791, which provided representative governments to Upper and Lower Canada, has often been regarded as a reactionary document. Here, a comparison with the constitutions of the eastern colonies of British North America as well as the pre-revolutionary constitutions of the Thirteen Colonies reveals a variety of ways in which the 1791 Act was more liberal and more committed to the popular element of the constitution than its comparators. The significance of the statutory form of the 1791 Act is emphasised and contrasted with the much less secure position of the popular element under prerogative constitutions. Significant concessions …
Black Voices Matter Too: Counter-Narrating Smithers V The Queen, Amar Khoday
Black Voices Matter Too: Counter-Narrating Smithers V The Queen, Amar Khoday
Osgoode Hall Law Journal
This article presents a legal history and counter-narrative of the Supreme Court of Canada’s unanimous 1977 decision in Smithers v The Queen. Smithers is a criminal law case that focused largely on the issue of causation and is likely taught in most if not all Canadian law faculties annually. The case arose out of a fight following a midget league hockey game where one of the combatants died. In constructing its brief narrative of the facts, the Court drastically understated the racial dynamics that were in play during the game which prompted Paul Smithers, a Black and white biracial teenager …
Radical Hope: A Teaching Manifesto By Kevin M. Gannon, Fenner L. Stewart
Radical Hope: A Teaching Manifesto By Kevin M. Gannon, Fenner L. Stewart
Osgoode Hall Law Journal
Kevin Gannon's Radical Hope: A Teaching Manifesto (“Radical Hope”) is a call for all of us who teach in higher education to realize the full extent of our opportunity to improve the lives of others. He argues that by inspiring our students to develop their practice of learning, we not only help them to succeed in school, but throughout their lives.
The Human Rights-Based Approach To Carbon Finance By Damilola S. Olawuyi, Christie Mcleod
The Human Rights-Based Approach To Carbon Finance By Damilola S. Olawuyi, Christie Mcleod
Osgoode Hall Law Journal
Rising sea levels, changing rainfall patterns, annual average temperature increases, and other impacts of climate change threaten the security and livelihood of individuals around the world today.3 Projects intended to mitigate greenhouse gas emissions and lessen future impacts of climate change (“carbon projects”), however, can also cause significant harm.
Frontline Justice: The Evolution And Reform Of Summary Trials In The Canadian Armed Forces By Pascal Lévesque, David Galvin Heppenstall
Frontline Justice: The Evolution And Reform Of Summary Trials In The Canadian Armed Forces By Pascal Lévesque, David Galvin Heppenstall
Osgoode Hall Law Journal
The security of Canada and the safety of its inhabitants depend on the readiness of the Armed Forces. To maintain this readiness, service members are subject to special disciplinary standards and penal processes that ordinary courts are ill-suited to handle. A separate military justice system—which exists parallel to the civilian criminal justice system—imposes these distinct standards and enforces swift, stern discipline.
The Puzzle Of Soft Law, Lorne Sossin, Chantelle Van Wiltenburg
The Puzzle Of Soft Law, Lorne Sossin, Chantelle Van Wiltenburg
Osgoode Hall Law Journal
Soft law is a puzzle. It shapes a wide range of public decision making, but its contents are said to lie beyond the rule of law. This paper explores the largely uncharted terrain of soft law in Canada. It is organized in three parts. Part I examines the existing treatment of soft law in Canadian jurisprudence, including soft law’s relationship to administrative law concepts such as the standard of reasonableness and the Constitution. Part II proposes the foundations of a new framework to characterize soft law, termed the “spectrum approach.” This approach aims to assist courts in responding to the …
Positive Charter Rights: When Can We Open The “Door?”, Michael Da Silva
Positive Charter Rights: When Can We Open The “Door?”, Michael Da Silva
Osgoode Hall Law Journal
Whether the Supreme Court of Canada can and should recognize so-called “positive” rights (viz., rights that require the performance of certain actions, possibly including the provision of goods, by the government) under the Canadian Charter of Rights and Freedoms remains contentious. Binding Supreme Court precedent states that there are no positive Charter rights—at least under sections 7, 12, and 15, under which demands for positive action are most controversially raised—but positive aspects of Charter rights could be recognized in the future. Yet the circumstances under which such recognition would be appropriate remain opaque. This work suggests that the law of …
Smart Cities In Canada: Digital Dreams, Corporate Designs Edited By Mariana Valverde And Alexandra Flynn, Matt Malone
Smart Cities In Canada: Digital Dreams, Corporate Designs Edited By Mariana Valverde And Alexandra Flynn, Matt Malone
Osgoode Hall Law Journal
Canada received an early and important education in smart cities but has been slow to distill the lessons to be learned from it. The challenge lies in conducting an objective post-mortem of the collapse of Sidewalk Toronto, a joint venture between Alphabet subsidiary Sidewalk Labs and tri-level government entity Waterfront Toronto. The latter was originally established in 2001 to develop a site south of the Gardiner Expressway in Toronto. The site, known as Quayside, had languished in development hell for decades. Originally purposed as part of a possible bid by Toronto for the 2008 Summer Olympics, the site had continued …
Section 24(2) In The Trial Courts: An Empirical Analysis Of The Legal And Non-Legal Determinants Of Excluding Unconstitutionally Obtained Evidence In Canada, Steven Penney, Moin Yahya
Section 24(2) In The Trial Courts: An Empirical Analysis Of The Legal And Non-Legal Determinants Of Excluding Unconstitutionally Obtained Evidence In Canada, Steven Penney, Moin Yahya
Osgoode Hall Law Journal
This empirical study explores the legal and non-legal factors influencing trial judges’ decisions to admit or exclude illegally obtained evidence under section 24(2) of the Canadian Charter of Rights and Freedoms. Mining an original dataset of 1,472 reported decisions from 2013–2018, we found little evidence that they are affected by judges’ gender or partisan ideology. We did find, in contrast, that they are substantially influenced by judges’ previous professional backgrounds: Former criminal defence lawyers are more likely to exclude evidence than former non-criminal practitioners, who are in turn more likely to exclude evidence than former prosecutors. We also found significant …
A History Of Law In Canada, Volume One: Beginnings To 1866 By Philip Girard, Jim Phillips & R. Blake Brown, Shelley A. M. Gavigan
A History Of Law In Canada, Volume One: Beginnings To 1866 By Philip Girard, Jim Phillips & R. Blake Brown, Shelley A. M. Gavigan
Osgoode Hall Law Journal
This is a book that every student of Canadian law should read in the first month of law school, before the smoke of the Charter of Rights and Freedoms gets in their eyes and they succumb to the notion that Canadian law really began in 1982. The smoke that blurred the eyes of previous generations of law students carried the message that law arrived in Canada in whatever year English law had been deemed to be received in British North America. With this first volume, A History of Law in Canada Volume One: Beginnings to 1866, and the anticipated publication …
Book Review: Is Law Computable?: Critical Perspectives On Law And Artificial Intelligence, F. Tim Knight
Book Review: Is Law Computable?: Critical Perspectives On Law And Artificial Intelligence, F. Tim Knight
Librarian Publications & Presentations
No abstract provided.
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 …
How Will I Know? An Epistemology Of Lawyering, Emanuel Raul Tucsa
How Will I Know? An Epistemology Of Lawyering, Emanuel Raul Tucsa
PhD Dissertations
What does anyone know after a trial, after a witness gives testimony, or even after seeking the counsel of a lawyer? Hopefully, the answer to these questions has something to do with the truth. Legal systems claim to have truth-seeking functions. Lawyers have specific roles in the procedures by which legal systems seek the truth and these roles are informed by the norms of legal practice. Yet, lawyers' relationship to truth and knowledge remains underexplored in the philosophy of lawyering. I argue that the philosophy of lawyering needs to develop the epistemic branch of inquiry. The epistemic study of the …
Just Greening The Gulf: Sustaining Justice For Migrant Workers, Asma Atique
Just Greening The Gulf: Sustaining Justice For Migrant Workers, Asma Atique
PhD Dissertations
This dissertation investigates the relationship between doctrines and rhetoric of sustainable development (SD) and their compatibility with robust notions of migrant justice. I use migrant-workers-built Masdar City, Abu Dhabis "eco-smart city," as an entry point to examine this relationship. Drawing on Amartya Sen, I rely on a critical capabilities-based environmental justice lens that focuses on the full range of opportunities migrants have at home, in their destination country, and anywhere in between. While this lens offers a means-ends distinction and a pluralistic notion of justice, it must be further specified and supplemented by explicit accounts of structural constraints. The focus, …
Measuring Access To Civil Justice: An Empirical Study Of Ontarios Reform Initiatives, Matthew Dylag
Measuring Access To Civil Justice: An Empirical Study Of Ontarios Reform Initiatives, Matthew Dylag
PhD Dissertations
Access to civil justice remains one of the most pressing concerns within the legal community in Canada. Yet, despite over a half century of reform efforts, many people still struggle to resolve their legal difficulties in a timely and cost effective manner. Part of the reason that reform efforts have yet to solve this crisis is that scholarship has only recently begun to investigate possible measures that can evaluate whether programs and initiatives have positively impacted the ability of ordinary Canadians to resolve their legal problems. The primary purpose of this dissertation is to support the development of such measures …
Law And Empire, 1500–1812, Philip Girard, Catherine Evans
Law And Empire, 1500–1812, Philip Girard, Catherine Evans
Articles & Book Chapters
When we think about law and empire, it is most accurate, if inelegant, to pluralize everything: empires, colonies, peoples, cultures, sources of law. The transnational turn has dramatic implications for the history of law in the Americas. Most obviously, especially for the period from 1500 to 1812, scholars have become increasingly sensitive to the role of European empires – including the British, French, and Spanish – in shaping America’s legal cultures. Groups of colonists from across Europe brought a multiplicity of understandings of law and social order with them, encountering Indigenous nations with their own rich legal traditions. Colonists used …
The Multimodal Electronic Transferable Transport Record (Ettr) : A Survey Of Laws And Basic Concepts, Benjamin Geva
The Multimodal Electronic Transferable Transport Record (Ettr) : A Survey Of Laws And Basic Concepts, Benjamin Geva
Articles & Book Chapters
A transport document is a receipt issued by the carrier of goods upon taking possession of them under a contract for their carriage. It is a document of title when its transfer may facilitate not only the transfer of the right to claim the goods from the carrier but also the transfer of title to the goods. Particularly in relation to the carriage of goods other than by sea, and by reference to banking and commercial practices, this study surveys the current legal position of both digitization and negotiability of transport documents. This is done with a view to preparing …
Welcome Home: Aboriginal Rights Law After Desautel, Kent Mcneil, Kerry Wilkins
Welcome Home: Aboriginal Rights Law After Desautel, Kent Mcneil, Kerry Wilkins
All Papers
In R v Desautel, decided April 23, 2021, a majority of the Supreme Court of Canada held, for the first time, that an Indigenous community located in the United States, whose members are neither citizens nor residents of Canada, can have an existing Aboriginal right, protected by section 35 of the Constitution Act, 1982, to hunt a specified area within Canada. This will be so, the Supreme Court majority held, where the community can show that it descends from (is a successor of) an Indigenous community that was present in what is now Canada at the time of …
Protection Of Victim-Witnesses Of Human Rights Violations In Criminal Prosecutions In Nigeria, Suzzie Onyeka Oyakhire
Protection Of Victim-Witnesses Of Human Rights Violations In Criminal Prosecutions In Nigeria, Suzzie Onyeka Oyakhire
The Transnational Human Rights Review
The protection of victims of crime and witnesses in criminal trials from intimidation is gradually being recognised in Nigeria as a critical aspect of criminal justice administration. Policing activities leave a record of widespread human rights violations committed by law enforcement and security personnel. Attempts to investigate and prosecute these violations are impeded by acts of intimidation or threats of reprisals against the victim who testifies as a witness in criminal proceedings against the perpetrators. This expository paper brings to the fore the importance of interrogating the issues of protection for victim-witnesses participating in criminal proceedings and ensuring accountability for …
Citizenship Deprivation As An Act Of Persecution: Case Study Of The Assam Citizen Exercise As A Precursor To A Nation-Wide Determination Of Citizenship, Ishita Chakrabarty
Citizenship Deprivation As An Act Of Persecution: Case Study Of The Assam Citizen Exercise As A Precursor To A Nation-Wide Determination Of Citizenship, Ishita Chakrabarty
The Transnational Human Rights Review
This essay explores the reasons behind describing India’s Citizenship practices (now modified through the Citizenship Amendment Act 2019) as ‘persecutory’. In doing so, the essay refers to the international law on citizenship conferment and withdrawal that has traditionally been viewed as exclusive to a state’s sovereign domain. The essay also looks into the socio-political dynamics, past persecutory conduct exemplified by the Assam-NRC exercise and the lack of protection afforded by those entrusted with the legal duty of conferring and withdrawing citizenship. The essay further uses the Assam-NRC exercise as a case study to claim that there exist well-founded grounds for …
Transformative Constitutions And Constitutionalism : A New Theory And School Of Jurisprudence From The Global South?, Willy Mutunga
Transformative Constitutions And Constitutionalism : A New Theory And School Of Jurisprudence From The Global South?, Willy Mutunga
The Transnational Human Rights Review
The article seeks to interrogate, historicize, and problematize what transformative constitutions and their attendant constitutionalism/jurisprudence are. Some of the critical elements of transformative constitutions are analyzed as well as the development of the jurisprudence that is emerging from these constitutions. In the quest for an answer to the question posed, which is the title of the article, Kenya is used as a case-study. Kenya has had a transformative constitution since it was promulgated on 27 August 2010. Its core elements/pillars of transformation are highlighted in this article. Kenya’s experience with the implementation of this Constitution, particularly with regard to the …
Joint Submission Of Ip Scholars, Re. Consultation On A Modern Copyright Framework For Artificial Intelligence And The Internet Of Things, Carys Craig
Commissioned Reports, Studies and Public Policy Documents
No abstract provided.