Law Commons^™

Lost In Transmission: A Constitutional Approach To Achieving A Nationwide Net Zero Electricity System, Kristen Van De Biezenbos

Osgoode Hall Law Journal

Canada has announced plans to meet its Paris Agreement commitments on reducing greenhouse gas emissions and achieving net-zero by 2035; but standing in the way of these ambitions is an electricity crisis. The crisis is provincially balkanized electricity systems with a dearth of interprovincial transmission lines, and the impacts are three-fold. First, the country is divided into renewable have- and have-not provinces, with some jurisdictions generating more hydropower than they need while others struggle to wean themselves off coal and natural gas. Second, the lack of interprovincial transmission is a deterrent to private investment in renewable energy projects, which is …

Animal Rights Activism And The Constitution: Are Ag-Gag Laws Justifiable Limits?, Jodi Lazare

Osgoode Hall Law Journal

It is a troubling time to be an animal rights activist in Canada. Recently, Alberta adopted legislation to create harsh penalties for trespassing onto private property, for obtaining permission to enter private property based on false pretences, and for interfering with vehicles on public highways. These laws relate to agricultural lands, to private property generally, and, where roads are concerned, to public property. Ontario has adopted similar legislation aimed specifically at agricultural property. The legislation in both provinces purports to protect the security of farmers, their families, and rural property owners generally, as well as the safety of the food …

Chinese Antitrust Exceptionalism: How The Rise Of China Challenges Global Regulation By Angela Huyue Zhang, Dana Levin

Osgoode Hall Law Journal

HOW IS CHINA DISTINCT? What are the implications of Chinese exceptionalism? Chinese Antitrust Exceptionalism: How the Rise of China Challenges Global Regulation (“Chinese Antitrust Exceptionalism”) explores these questions in the context of antitrust law and policy making. The book, authored by Angela Huyue Zhang, positions the relatively young Chinese antitrust regime in contrast to its more mature global counterparts, namely, the European Union (EU) and the United States (US). In this analysis, Chinese Antitrust Exceptionalism considers how China crafts and enforces antitrust policy, as well as how its counterparts enforce their policies against China. While it focuses on this one …

Concessionaires, Financiers And Communities: Implementing Indigenous Peoples’ Rights To Land In Transnational Development Projects By Kinnari I. Bhatt, Ethan Guthro

Osgoode Hall Law Journal

THE PUBLICATION OF DOCTOR KINNARI I. Bhatt’s first book, Concessionaires, Financiers and Communities: Implementing Indigenous Peoples’ Rights to Land in Transnational Development Projects (“Concessionaires”), comes at a time of uncertainty for the field of Aboriginal law in Canada and across the globe. To contextualize the key themes found throughout Concessionaires, and to provide a basis upon which my critiques shall be built, it is important to briefly detail recent developments in Aboriginal law in Canada.

The New Breed: What Our History With Animals Reveals About Our Future With Robots By Kate Darling, Amanda Turnbull

Osgoode Hall Law Journal

ROBOTS WERE ONCE RELEGATED to roles that were “dirty, dull, or dangerous,”3 such as welding parts on car assembly lines, but today, they occupy more visible spaces in our workplaces, homes, and public areas. This visibility has provoked questions frequently seen in media inciting moral panic: Will robots cause job loss? Will robots become sentient? In The New Breed: What our History with Animals Reveals About our Future with Robots (“The New Breed”), Kate Darling explains that these fears are misplaced and that our tendency to anthropomorphize robots fosters false determinism. Darling imagines a different kind of agency, drawing on …

Between The Devil And The Deep Blue Sea—Towards Access To Justice For Local Communities In Investor-State Arbitration Or Business And Human Rights Arbitration, Akinwumi Ogunranti

Osgoode Hall Law Journal

This article focuses on the proposal to adapt international arbitration to business disputes involving human rights. The Business and Human Rights arbitration (BHR arbitration) proposal seeks to give local communities who are victims of multinational corporations’ human rights and environmental abuses access to justice in a specialized international BHR arbitration tribunal. Through a comparison between investor-state arbitration (ISA) and BHR arbitration, this article contends that it would be more efficient to reform ISA than to create a BHR arbitration tribunal. Reforming ISA would avoid the possible parallel arbitration systems that may arise from the duplication of international governance efforts. It …

A Gesture Of Criminal Law: Jews And The Criminalization Of Hate Speech In Canada, Kenneth Grad

Osgoode Hall Law Journal

In June 2020, the fiftieth anniversary of the criminalization of hate speech in Canada passed with little notice. Since their enactment in 1970, the hate-speech provisions in the Criminal Code have seldomly been enforced. They are commonly viewed as ineffective. In light of this half-century of experience, it is beneficial to re-examine the history of the criminalization of hate speech for lessons this story may hold. This article does so by exploring the genesis of the legislation from the perspective of the Canadian Jewish community. It focuses on the Jewish community because Canadian Jewry—especially the Canadian Jewish Congress—was the primary …

Far Beyond Baker: Heuristics And The Inadequacy Of The Reasonable Apprehension Of Bias Analysis, Arash Nayerahmadi

Osgoode Hall Law Journal

When we consider bias in an adjudicative setting, we think about cases such as Baker v. Canada where the interviewing officer’s emphasis on the applicant’s number of children, economic status, and mental health is glaring. It is easy to become accustomed to thinking about bias in clear examples such as prejudice against people of a disadvantaged group. However, bias can also be subtly present in the subconscious mind, even when a person appears to be acting objectively. The development of cognitive psychology research has revealed that the mind relies on heuristics, or mental shortcuts, to make quick decisions. Heuristics research …

The Webbing Of Public Law: Looking Through Deportation Doctrine, Asha Kaushal

Osgoode Hall Law Journal

The process of deporting non-citizens is subject to judicial review under several fields of public law. These fields—criminal law, constitutional law, and administrative law—arc towards the protection of the individual. And yet, a series of judicial interpretations place deportees on the margins of that otherwise protective arc. This marginalization is principally explained by the relationships between the fields: The “webbing” of public law joins the fields of criminal law, constitutional law, and administrative law together. Reading deportation cases laterally across these fields reveals that they function as mutual referents for one another, providing assurance that some other field will offer …

The Dialogical Language Of Law, Julen Etxabe

Osgoode Hall Law Journal

We live in a dialogical world. The normative environment around us is many-voiced. Legal activities like drafting, negotiating, interpreting, judging, invoking, and protesting the law take place in dialogical encounters, all of which presuppose entrenched forms of social dialogue. And yet, the dominant modes of thinking about the law remain monological. How can we bring our legal conceptions into alignment with the dialogical world in which we live?

The present article follows in the footsteps of a Bakhtinian dialogical theory of language that challenges the roots of contemporary positivist conceptions of law and language underpinning large swathes of legal academia …

American Contagions: Epidemics And The Law From Smallpox To Covid-19 By John Fabian Witt, Stephanie Cho

Osgoode Hall Law Journal

At the time of writing, the coronavirus known as COVID-19 has swept across the world and affected nearly every aspect of daily life as we know it. Canada has had approximately 20 thousand deaths and about 780 thousand total cases and the United States has had over 400 thousand deaths and more than 25 million total cases.

Identity Capitalists: The Powerful Insiders Who Exploit Diversity To Maintain Inequality By Nancy Leong, Zara Narain

Osgoode Hall Law Journal

In her first book Identity Capitalists: The Powerful Insiders Who Exploit Diversity to Maintain Inequality (“Identity Capitalists”), Nancy Leong gifts readers the reflective space—and a new vocabulary—to process the interplay between power, identity, and inequality that animates interpersonal relationships and institutional practices embedded in American life.

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.

“You Keep Using That Word”: Why Privacy Doesn’T Mean What Lawyers Think, Joshua A.T. Fairfeld

Osgoode Hall Law Journal

This article explores how the need to define privacy has impeded our ability to protect it in law. The meaning of “privacy” is notoriously hard to pin down. This article contends that the problem is not with the word “privacy,” but with the act of trying to pin it down. The problem lies with the act of definition itself and is particularly acute when the words in question have deep-seated and longstanding common-language meanings, such as liberty, freedom, dignity, and certainly privacy. If one wishes to determine what words like these actually mean to people, definition is the wrong tool …

Inalienable Properties: The Political Economy Of Indigenous Land Reform By Jamie Baxter, Liam Carson

Osgoode Hall Law Journal

In June of 2021, the federal government passed legislation that affirmed the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and began the process of formalizing its provisions in Canadian law. Among other things, UNDRIP states that Indigenous peoples have rights of self-government and rights of ownership, use, and development of traditionally-held lands and resources.

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.

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.

“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 …

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.

Law & Leviathan: Redeeming The Administrative State By Cass R. Sunstein And Adrian Vermeule, Luke Devine

Osgoode Hall Law Journal

As the argument goes: Over the last hundred years or so, Congress has steadily delegated away its law-making responsibility through broad grants of rule-making and discretionary authority to an unelected and unaccountable federal bureaucracy. And the US Court, in decisions such as Chevron and Auer v Robbins, has similarly relinquished any right it once asserted to oversee the interpretation and performance of that delegated authority. On this reading, the sprawling federal administrative apparatus, which touches on virtually every aspect of American life, exists in contravention of the proper division of powers under the Constitution and is, therefore, not legitimate. In …

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 …

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.

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 …

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 …

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 …