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Full-Text Articles in Law
Transgender Erasure: Barriers Facing Transgender Refugees In Canada, Sean Rehaag, Alexandra Verman
Transgender Erasure: Barriers Facing Transgender Refugees In Canada, Sean Rehaag, Alexandra Verman
All Papers
This paper explores the experiences of transgender refugee claimants in Canada’s refugee status determination system, using mixed methods: quantitative analysis of data obtained from the Immigration and Refugee Board (IRB), reviews of published and unpublished decisions, country condition documentation packages and IRB guidelines, as well as interviews with refugee lawyers. Using these methods, we explore how credibility arises in transgender refugee claims, noting the impact of medicalization and country conditions materials on transgender claims, and drawing parallels between medical gatekeeping and credibility assessments in refugee claims. We identify potential explanations for low recorded numbers of transgender claims as rooted in …
Narrating Dignity: Islamophobia, Racial Profiling, And National Security Before The Supreme Court Of Canada, Reem Bahdi
Narrating Dignity: Islamophobia, Racial Profiling, And National Security Before The Supreme Court Of Canada, Reem Bahdi
Osgoode Hall Law Journal
Captain Javed Latif, a Muslim Canadian pilot from Pakistan, was denied pilot refresher training by Bombardier Aerospace Training Center in Canada based on information received from US national security officials. Almost 12 years after Captain Javed Latif’s ordeal began, the Supreme Court of Canada affirmed a decision by the Quebec Court of Appeal overturning a finding by a Quebec Human Rights Tribunal that Latif had been racially profiled. The Supreme Court of Canada’s decision ultimately exposes and perpetuates a deep unwillingness to challenge the stereotyping of Muslims as terrorists in Canada. In response, this commentary seeks to excavate Captain Latif’s …
Renewing Human Rights Law In Canada, Dominique Clément
Renewing Human Rights Law In Canada, Dominique Clément
Osgoode Hall Law Journal
Human rights law was one of the great legal innovations of the twentieth century. And yet human rights agencies and practitioners face a backlash that has resulted in regressive legislative reforms in recent years. These reforms have only succeeded in undermining some of the key pillars of the Canadian model for human rights law. The following article places the current backlash within historical context. The author argues that many recent reforms have replicated the deficiencies of past anti-discrimination laws. Commissions and policy-makers must respond by building on the strengths of the original Canadian model by improving public education, engaging with …
Sex, Race, And Motel Guests: Another Look At King V Barclay, Sarah E. Hamill
Sex, Race, And Motel Guests: Another Look At King V Barclay, Sarah E. Hamill
Osgoode Hall Law Journal
The 1961 case of King v Barclay is something of a footnote in the history of discrimination against Black Canadians. If it is cited at all, it is usually cited alongside the more famous racism cases, such as Christie v York, as proof of the widespread nature of racism in Canada. In this paper, I re-read the trial decision and examine the original case file to show that the facts of King and the racism in the case are more complex than usually realized. King emerged out of a series of errors from both King and Barclay’s Motel which resulted …
No Refuge: Hungarian Romani Refugee Claimants In Canada, Sean Rehaag, Julianna Beaudoin, Jennifer Danch
No Refuge: Hungarian Romani Refugee Claimants In Canada, Sean Rehaag, Julianna Beaudoin, Jennifer Danch
Osgoode Hall Law Journal
From 2008 to 2012, thousands of Hungarian Roma sought asylum in Canada. Some political actors suggested that their claims were unfounded and demonstrated that Canada’s refugee processes were vulnerable to abuse. In contrast, advocates for refugees argued that persecution against Roma was rampant in Hungary and noted that hundreds of Hungarian Roma were granted refugee status in Canada. Much of this debate has occurred in an evidentiary vacuum. This article fills this vacuum through a qualitative and quantitative study of Hungarian Romani refugee claims. First, the context of the study is discussed. Then, the article explores the experiences of Hungarian …
Against Circumspection: Judges, Religious Symbols, And Signs Of Moral Independence, Benjamin Berger
Against Circumspection: Judges, Religious Symbols, And Signs Of Moral Independence, Benjamin Berger
Articles & Book Chapters
This chapter questions the interpretation of religious signs and symbols— and the interpretive possibilities that emerge when we demand more from one another in thinking about such symbols— by examining the question of judges and religious dress in the particular context of the judge’s role as wielding the coercive force of the state through the exercise of criminal punishment. I advance the argument that recent debates have proceeded on a misleadingly simplistic approach to understanding the meaning of signs of religious belonging and identity in this setting and that, with this, we miss an opportunity for a deeper …
Canada Tracks Disability Rights: A Drpi Model Of Systemic Monitoring, Roxanne Mykitiuk, Yvonne Peters
Canada Tracks Disability Rights: A Drpi Model Of Systemic Monitoring, Roxanne Mykitiuk, Yvonne Peters
Articles & Book Chapters
This chapter surveys laws and policies in Canada that affect the rights of persons with disabilities. It does so as part of a broader project on international disability rights monitoring and is guided by DRPI's National Law and Policy Monitoring Template (2008). The template is based on the Convention on the Rights of Persons with Disabilities (CRPD) and other international instruments. The template's purpose is "to monitor human rights for people with disabilities at the systemic level, that is, at the level of existing laws, policies, and programs," and to "identify and draw attention to the most critical gaps and …
Losing Relevance: Quebec And The Constitutional Politics Of Language, Emmanuelle Richez
Losing Relevance: Quebec And The Constitutional Politics Of Language, Emmanuelle Richez
Osgoode Hall Law Journal
This article asks whether Quebec has lost relevance in the constitutional politics of language. It proposes a doctrinal analysis of the Supreme Court’s Charter jurisprudence, with an emphasis on the most recent body of case law, and an assessment of its political consequences in the area of language policy in Quebec. The article argues that constitutional review has increasingly protected individual rights over Quebec’s collective right to maintain its language and culture. This can be explained by the move towards an implacable parallel constitutionalism and a redefinition of official minority linguistic rights in the jurisprudence, as well as by the …
Faithful Translations?: Cross-Cultural Communication In Canadian Religious Freedom Litigation, Howard Kislowicz
Faithful Translations?: Cross-Cultural Communication In Canadian Religious Freedom Litigation, Howard Kislowicz
Osgoode Hall Law Journal
In three religious freedom cases pursued to the Supreme Court of Canada—Amselem, Multani, and Huterrian Brethren of Wilson Colony—religious freedom claimants engaged in litigation over a religious practice particular to their group. Some have argued that cases like these can be seen as cross-cultural encounters. How did the religious freedom claimants seek to make their practices—the succah, the kirpan, and the prohibition on being photographed—understood to the courts? And how did the courts respond to these claims? In this article, I draw out two central values from the literature on crosscultural communication: respect and self-awareness. I then use these values …
Uncovering Women In Taxation: The Gender Impact Of Detaxation, Tax Expenditures, And Joint Tax/Benefit Units, Kathleen A. Lahey
Uncovering Women In Taxation: The Gender Impact Of Detaxation, Tax Expenditures, And Joint Tax/Benefit Units, Kathleen A. Lahey
Osgoode Hall Law Journal
Women have made great progress in gaining individual civil and political rights since the 1800s. However, for nearly a century, the use of couple-based tax and benefit provisions has increased steadily, enshrouding women in new and extensive forms of fiscal coverture that run counter to democratic ideals of economic equality. While the pros and cons of joint taxation have been well-rehearsed, the reality is that between unequal distributions of new and old varieties of tax and benefit items to women and men and the continued expansion of joint tax and benefit items in recent decades, Canada’s tax and transfer system …
Substantive Equality As Equal Recognition: A New Theory Of Section 15 Of The Charter, Anthony Robert Sangiuliano
Substantive Equality As Equal Recognition: A New Theory Of Section 15 Of The Charter, Anthony Robert Sangiuliano
Osgoode Hall Law Journal
This article presents a novel theory of the concept of substantive equality under section 15(1) of the Canadian Charter of Rights and Freedoms called Substantive Equality as Equal Recognition. This contribution is timely in light of the Supreme Court of Canada’s recent disagreement over the proper jurisprudential approach to interpreting section 15(1) in the 2013 case of Quebec v A. Substantive Equality as Equal Recognition holds that the purpose of section 15(1) is to ensure that the law’s application does not reflect, through its impact or effects, hierarchies of status that exist between citizens within Canadian society. The article argues …
Do Bills Of Rights Matter?: An Examination Of Court Change, Judicial Ideology, And The Support Structure For Rights In Canada, Donald R. Songer, Susan W. Johnson, Jennifer Barnes Bowie
Do Bills Of Rights Matter?: An Examination Of Court Change, Judicial Ideology, And The Support Structure For Rights In Canada, Donald R. Songer, Susan W. Johnson, Jennifer Barnes Bowie
Osgoode Hall Law Journal
Competing theories regarding the development of a “rights revolution” in Canada have appeared in the judicial and constitutional literature in recent years. On the one hand, scholars argue that the profound effects often attributed to the Charter of Rights and Freedoms are substantially overstated, and conventional analyses have overlooked the more important role of changes in what is called the “support structure” for rights. Others have advanced a competing theory that the Charter created an expansion of civil liberties. We take advantage of an extensive dataset on the decisions of the Supreme Court of Canada to provide a more systematic …
Democracy And The Right To Vote: Rethinking Democratic Rights Under The Charter, Yasmin Dawood
Democracy And The Right To Vote: Rethinking Democratic Rights Under The Charter, Yasmin Dawood
Osgoode Hall Law Journal
This article addresses the Supreme Court of Canada’s theory of democracy and the right to vote. After setting forth the Court’s general approach to democracy, I develop a new conceptual framework for the Court’s approach to democratic rights. First, I argue that the Court has adopted a “bundle of democratic rights” approach to the right to vote. By this I mean that the Court has interpreted the right to vote as consisting of multiple democratic rights, each of which is concerned with a particular facet of democratic governance. Second, I claim that the democratic rights recognized by the Court are …
Inclusion, Voice, And Process-Based Constitutionalism, Colleen Sheppard
Inclusion, Voice, And Process-Based Constitutionalism, Colleen Sheppard
Osgoode Hall Law Journal
This article explores a growing emphasis on process issues in the elaboration of constitutional rights and freedoms, focusing on the Canadian Charter of Rights and Freedoms. In a diverse range of contexts, judges are framing constitutional rights and freedoms in terms of the processes and practices they require, rather than in terms of specific constitutionally mandated substantive outcomes. Thus, constitutional rights have been interpreted to require a duty to negotiate, a duty to consult, a duty to accommodate, and entitlements to participate in democratic governance. The growing emphasis on processes and practices is positive to the extent that it resonates …
Bisexuals Need Not Apply: A Comparative Appraisal Of Refugee Law And Policy In Canada, The United States, And Australia, Sean Rehaag
Articles & Book Chapters
This paper offers an analysis of refugee claims on grounds of bisexuality. After discussing the grounds on which sexual minorities may qualify for refugee status under international refugee law, the paper empirically assesses the success rates of bisexual refugee claimants in three major host states: Canada, the United States, and Australia. It concludes that bisexuals are significantly less successful than other sexual minority groups in obtaining refugee status in those countries. Through an examination of selected published decisions involving bisexual refugee claimants, the author identifies two main areas for concern that may partly account for the difficulties that bisexual refugee …
Social Resistance And The Disturbing Of The Peace, John Clarke
Social Resistance And The Disturbing Of The Peace, John Clarke
Osgoode Hall Law Journal
Argues that preserving the Peace maintains injustice, and that it is morally just and historically necessary to challenge it with acts of social resistance.
When The Law Breaks Down: Aboriginal Peoples In Canada And Governmental Defiance Of The Rule Of Law, Andrew J. Orkin
When The Law Breaks Down: Aboriginal Peoples In Canada And Governmental Defiance Of The Rule Of Law, Andrew J. Orkin
Osgoode Hall Law Journal
Comments on Aboriginal peoples, governmental defiance, and the breakdown of law and the balance between law's roles and limits.
Civil Disobedience, Civil Liberties, And Civil Resistance: Law's Role And Limits, Judy Fudge, Harry J. Glasbeek
Civil Disobedience, Civil Liberties, And Civil Resistance: Law's Role And Limits, Judy Fudge, Harry J. Glasbeek
Osgoode Hall Law Journal
Based on a two-year project launched by the Journal. Its goal was to engage students, faculty, and all members of the wider Osgoode and professional communities in an ongoing discussion about the nature and limits of law, seen through the lens of civil disobedient conduct in a legal polity that had developed mature democratic and civil liberty enhancing institutions. To this end, a variety of panels, seminars, and lectures were organized, beginning in the Fall of 2001. They were interpellated into the law school's curriculum. A culminating event was a conference in the Fall of 2002, to which a select …
Désobéissance Civile, Libertés Civiques, Et Résistance Civile: Rôle Et Limites Du Droit, Judy Fudge, Harry J. Glasbeek
Désobéissance Civile, Libertés Civiques, Et Résistance Civile: Rôle Et Limites Du Droit, Judy Fudge, Harry J. Glasbeek
Osgoode Hall Law Journal
Les contributions à cette collection proviennent des activités d’un projet de deux ans. Son but consistait à inviter les étudiants, la faculté, tous les membres de la communauté d'Osgoode et de la communauté juridique dans leur ensemble, à s'associer à un débat permanent sur la nature et les limites du droit, vues à travers le prisme de la conduite de désobéissance civile dans une politie juridique qui avait de longue date développé des institutions démocratiques et propagé les libertés civiques. À cette fin, divers panels, séminaires et conférences ont été organisés dès l'automne 2001. Ils sont évoqués dans le curriculum …
The Origins Of Political Policing In Canada: Class, Law, And The Burden Of Empire, Andrew Parnaby, Gregory S. Kealey
The Origins Of Political Policing In Canada: Class, Law, And The Burden Of Empire, Andrew Parnaby, Gregory S. Kealey
Osgoode Hall Law Journal
This essay examines the origins of the Canadian secret service from the 1860s to the Great War. During this time, the Canadian government faced political challenges from Irish republicans and South Asian radicals. Both groups sought to liberate their home countries-Ireland and India-from British rule by promoting the idea of independence and the necessity of militant tactics amongst their respective immigrant communities in North America. Faced with this subversive activity, which had both domestic and international implications, the government created a secret service to gather political intelligence. Significantly, the government's political response was shaped decisively by its status as an …
No Exit: Racial Profiling And Canada's War Against Terrorism, Reem Bahdi
No Exit: Racial Profiling And Canada's War Against Terrorism, Reem Bahdi
Osgoode Hall Law Journal
After September 11, 2001, some scholars and policy-makers promoted the racial profiling of Arabs and Muslims as a means towards greater national security. While racial profiling has not been officially sanctioned in Canada, it attracts popular support and undeniably takes place. The first part of this article identifies three different categories of racial profiling in the context of Canada's War against Terrorism. The second part identifies the problems associated with racial profiling. It argues that racial profiling undermines national security while also heightening the vulnerability and exclusion of Arabs, Muslims, and other racialized groups in Canada.
Civil Disobedience And The Law: The Role Of Legal Professionals, James Macpherson
Civil Disobedience And The Law: The Role Of Legal Professionals, James Macpherson
Osgoode Hall Law Journal
Discusses the role of judges when cases of civil disobedience are brought before the court.
Civil Disobedience And Academic Freedom, Leslie Green
Civil Disobedience And Academic Freedom, Leslie Green
Osgoode Hall Law Journal
What is the relation between the forms of principled law-breaking that we know as civil disobedience and the special rights of teachers and students that comprise academic freedom? It is argued that academic freedom does not give them a right to engage in civil disobedience, not even on campus. At the same time, however, academic freedom does protect them in studying, discussing, assessing, and even recommending civil disobedience--even when their opinions and recommendations are misguided or wrong. The subject is discussed in light of some recent cases.
The Right To Civil Disobedience, Vinit Haksar
The Right To Civil Disobedience, Vinit Haksar
Osgoode Hall Law Journal
This article compares and contrasts the way Gandhi understands the right to civil disobedience with the way this right is understood by some contemporary liberals. Some of the implications of the right to civil disobedience are also discussed. The right to civil disobedience implies that the authorities should extend some tolerance to civil disobedients not only when they are correct, but also when they are reasonably mistaken in their views. Tolerance here does not involve preventing civil disobedients from breaking the law, and implies that when civil disobedients break the law, they have a claim not to be punished or …
Bail, Global Justice, And The Limits Of Dissent, Jackie Esmonde
Bail, Global Justice, And The Limits Of Dissent, Jackie Esmonde
Osgoode Hall Law Journal
This article examines the ways in which the law of bail has been used to criminalize dissent in Canada. Three case studies are analyzed to demonstrate how the law of bail has been applied to those arrested at global justice demonstrations associated with militant civil disobedience. The first case study examines the bail conditions imposed on protesters arrested at anti-APEC demonstrations in Vancouver 1997. These bail conditions were intentionally designed to prevent those arrested from attending the protests. The second case study focuses on the Ontario Coalition Against Poverty (OCAP), with an analysis of how the bail system has been …
Civil Resistance And The Diversity Of Tactics In The Anti-Globalization Movement: Problems Of Violence, Silence, And Solidarity In Activist Politics, Janet Conway
Osgoode Hall Law Journal
This article examines the (re)emergence of large-scale civil disobedience and the accompanying debates about violence and non-violence in the contemporary anti-globalization movement. Rooted in the Canadian movement but in conversation with wider debates, the article tracks movement practices and debates from the Battle of Seattle through to the Quebec Summit. The debate took a new turn in Genoa, with massive police brutality and the killing of a protester, and again following the events of September 11, 2001. The central argument of the article is that the new forms of civil resistance embody a critique of prevailing forms of organization, participation, …
Racial And Ethnic Profiling: Statutory Discretion, Constitutional Remedies, And Democratic Accountability, Sujit Choudhry, Kent Roach
Racial And Ethnic Profiling: Statutory Discretion, Constitutional Remedies, And Democratic Accountability, Sujit Choudhry, Kent Roach
Osgoode Hall Law Journal
Given the prominence of the issue of racial, ethnic, and religious profiling in the public debate about terrorism, it is significant that Canada's two legislative responses to September 11 - the Anti-terrorism Act and the proposed Public Safety Act - are silent on the issue, neither explicitly authorizing profiling nor expressly banning it. In this article, we focus on the constitutional remedies available for profiling in the face of these statutory silences, and the implication that the choice of remedies holds for both remedial efficacy and democratic accountability. Contrary to the position held by the majority of the Supreme Court …
Lesbians, Gay Men, And The Canadian Charter Of Rights And Freedoms, Brenda Cossman
Lesbians, Gay Men, And The Canadian Charter Of Rights And Freedoms, Brenda Cossman
Osgoode Hall Law Journal
The legacy of the first twenty years of the Charter for lesbians and gay men is a contradictory one of victories and defeats. At the level of doctrine, strategy, and politics, both the victories and defeats have been precarious and contradictory. While gaining formal equality rights, lesbians and gay men have not been able to secure rights to sexual freedom. And while formal equality has displaced the heteronormativity that denied legal recognition and subjectivity to lesbians and gay men, this formal equality has come at a cost. Lesbians and gay men are being reconstituted in law: some are being newly …
Using The Charter To Stop Racial Profiling: The Development Of An Equality-Based Conception Of Arbitrary Detention, David M. Tanovich
Using The Charter To Stop Racial Profiling: The Development Of An Equality-Based Conception Of Arbitrary Detention, David M. Tanovich
Osgoode Hall Law Journal
Do the police use race as a proxy for criminality, particularly, in drug cases? If so, is this a rational discriminatory practice that is based on who the usual offender is or an offensive exercise of racial prejudice? What are the consequences for those communities targeted by the police? This article investigates these questions that have gone unanswered for too long in Canada. After offering a definition of racial profiling, evidence is presented that suggests that the practice is rampant in the United States and is likely practiced by some Canadian police forces, particularly, in cities with large visible minority …
The Nullification Of Section 718.2(E): Aggravating Aboriginal Over-Representation In Canadian Prisons, Renee Pelletier
The Nullification Of Section 718.2(E): Aggravating Aboriginal Over-Representation In Canadian Prisons, Renee Pelletier
Osgoode Hall Law Journal
This article considers the disproportionate incarceration rate of Aboriginal offenders in Canadian prisons and the effectiveness of Parliament's attempts at alleviating this problem through the enactment of section 718.2(e) of the Criminal Code. This article focuses primarily on two recent Supreme Court of Canada decisions-R. v. Gladue and R. v. Wells. It is argued that the Court's narrow view of systemic factors, the Imitation it places on section 718.2(e) through its discussion of serious offences, as well as a number of practical problems inherent in the framework provided by the Court, strip the provision of its remedial intent. The article …