Law Commons^™

Proving Intra-Racial Discrimination In The U.S. And Canada: The Room For Making The Artificial Distinction Between Genealogical Relatedness And Race, Martin Kwan

University of Miami Inter-American Law Review

This article takes the role of the Devil’s advocate in order to question the judicial willingness to distinguish “race” from comparable notions. It suggests that, depending on the exact circumstances, a defendant can make an arguable case that the alleged intra–racial discrimination is motivated by perceived genealogical relatedness, but not because of belonging to the same “race.” Factually, the defendant claims to believe in being remotely genealogically related to the plaintiff. This is not unworthy of credence, because it is academically recognized that modern genealogy and root tracing can be an imaginative, forged exercise. Legally, this argument is supportable because …

Reproductive Privacy In The World: Critical Examination Of June Medical Services, L.L.C. V. Russo And Buck V. Bell, Kumiko Kitaoka

Washington and Lee Journal of Civil Rights and Social Justice

Using insights from Professor Stephen A. Simon’s Universal Rights and the Constitution, this Article argues that national courts should continue to assume an active role in the protection of privacy rights by giving due consideration to the nature of the privacy right in combination with the merits of the universal right theory. This Article then demonstrates that both foreign national courts and domestic state courts have recognized the right to procreate and key aspects of the right to abortion as fundamental rights.

Part II introduces the universal right theory, explaining why the theory is particularly relevant to the protection …

The Constitutional Law Of Equality In Canada, Kathleen E. Mahoney

Maine Law Review

On April 17, 1982, Canada repatriated its constitution from the Parliament at Westminster, sweeping away one of the final vestiges of its colonial past. At the same time, a Canadian Charter of Rights and Freedoms was constitutionally entrenched, giving the people express constitutional rights for the first time. The equality provisions, in particular, represented a new era in Canadian constitutional law. The intense debate leading up to the entrenchment of the Charter raised profound questions about the basic nature of the country, its values, and its ability and willingness to acknowledge equality for women and other disadvantaged groups. Since the …

Cycles Of Failure: The War On Family, The War On Drugs, And The War On Schools Through Hbo’S The Wire, Zachary E. Shapiro, Elizabeth Curran, Rachel C.K. Hutchinson

Washington and Lee Journal of Civil Rights and Social Justice

Freamon, Bodie, and Zenobia’s statements cut straight to the heart of The Wire’s overarching theme: Individuals are trapped in a complex “cycle of harm” where social problems of inequality, crime, and violence are constantly reinforced. The Wire was a television drama that ran on HBO from 2002 through 2008, created by David Simon. The show focuses on the narcotics scene in Baltimore through the perspective of different stakeholders and residents of the city. The Wire highlights how self-perpetuating, interconnected, and broken social institutions act in concert to limit individual opportunity. These institutions squash attempts at reform by punishing good ideas …

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 …

The Strange Pairing: Building Alliances Between Queer Activists And Conservative Groups To Recognize New Families, Nausica Palazzo

Michigan Journal of Gender & Law

This Article explores some of the legal initiatives and reforms that opponents of same-sex marriage in Canada and the United States have pushed forward. Despite being animated by a desire to dilute the protections for same-sex couples, these reforms resulted in “queering” family law, in the sense that they functionalized the notion of family. Consequently, two cohabiting relatives or friends would be eligible for legal recognition, along with all the public and private benefits of such recognition. I term these kinds of “unions” and other nonnormative relationships to be “new families.”

The central claim of this Article is thus that …

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

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 …

Legal Barriers To Age Discrimination In Hiring Complaints, Pnina Alon-Shenker

Dalhousie Law Journal

Studies have shown that senior workers endure longer spells of unemployment than their younger counterparts. Age discrimination has been identified as one of the main obstacles to reemployment. This article critically examines how Canadian anti-age discrimination law has responded to the contemporary challenges experienced by senior job seekers. It articulates several difficulties in our existing age discrimination legal framework by analyzing and contrasting social science literature on the present labour market experience of senior job applicants with human rights tribunal and court decisions in hiring complaints. It concludes by sketching a preliminary set of workable proposals for change that derives …

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 …

Indigenous Lawyers In Canada: Identity, Professionalization, Law, Sonia Lawrence, Signa Daum Shanks

Dalhousie Law Journal

For Indigenous communities and individuals in Canada, "Canadian" law has been a mechanism of assimilation, colonial governance and dispossession, a basis for the assertion of rights, and a method of resistance. How do Indigenous lawyers in Canada make sense of these contradictory threads and their roles and responsibilities? This paper urges attention to the lives and experiences of Indigenous lawyers, noting that the number of self-identified Indigenous lawyers has been rapidly growing since the 1990s. At the same time, Indigenous scholars are focusing on the work of revitalizing Indigenous law and legal orders. Under these conditions, Indigenous lawyers occupy a …

Placing "Rights And Liberties In Pawn Until The Defeat Of Hitlerism”: Canadian Intelligence Gathering In The Second World War, Austin M H Williams

The Great Lakes Journal of Undergraduate History

Abstract:

A monograph regarding the history of Canada’s intelligence gathering apparatus has not been published, leaving a gap in modern historiography. In an attempt to partially fill this academic void, this essay examines RCMP intelligence Bulletins drafted during World War Two that have been declassified under the Access to Information Act. Analysis of the Bulletins clearly indicates the Canadian intelligence gathering apparatus underwent a massive expansion of scope during the war. The RCMP began investigating people and organizations based upon their race, religion, political affiliation or nationalist beliefs. Disregard of human rights and privacy during the period was so …

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

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

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

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 …

Learning Lessons From Multani: Considering Canada's Response To Religious Garb Issues In Public Schools, Allison N. Crawford

Georgia Journal of International & Comparative Law

No abstract provided.

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

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

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 …

Assisted Suicide: A Tough Pill To Swallow, Mary Margaret Penrose

Pepperdine Law Review

No abstract provided.

"There's No Place Like Home" Doma Deportation: The Forced Expatriation Of Bi-National Same-Sex Couples From The United States To Canada, Anh "Annie" Nguyen

San Diego International Law Journal

This comment will focus on bi-national same-sex couples who are forced to expatriate from the united states to canada because of DOMA’s detrimental effects on their relationship. more specifically, part I focuses on DOMA’s constitutionality, effects on bi-national same-sex couples, and current legal challenges. Part II provides a historical analysis of the united states’ attitude towards same-sex unions before describing current legislation regarding same-sex couples. Part III describes canada’s recognition of same-sex marriage and support of immigration equality, comparing and contrasting the canadian approach with the united states’ approach. Part IV explains the current legal and financial issues that bi-national …

Divided We Stand: The Haudenosaunee, Their Passport And Legal Implications Of Their Recognition In Canada And The United States, Nicole Terese Capton Marques

San Diego International Law Journal

There are several indigenous nations divided by the international border between the U.S. and Canada (hereinafter, border tribes). Part II will provide historical background on the Haudenosaunee and the Haudenosaunee passport, as well as on the Jay Treaty's free passage right as recognition that the international border was not to affect border tribes. Part III of this comment will examine the trust-like duty both federal governments owe to indigenous populations in general, briefly describe benefits and services offered, and then discuss the legal effects of current legislation and regulations by the American and Canadian governments on Haudenosaunee tribal members living …

The Evolution Of Same-Sex Marriage In Canada: Lessons The U.S. Can Learn From Their Northern Neighbor Regarding Same-Sex Marriage Rights, Christy M. Glass, Nancy Kubasek

Michigan Journal of Gender & Law

The broad differences between the United States and Canadian cases raise important questions about the social, political and legal factors that have promoted the extension of marriage rights in Canada while retarding similar efforts in the U.S. This article will compare the recent history of same-sex marriage laws in the United States and Canada. We argue that proponents of same-sex marriage as well as lawmakers could learn important lessons from the recent legalization of same-sex marriage in Canada. Section II develops a framework for comparing the U.S. and Canadian experience with same-sex marriage law. The next section traces Canada's recent …

I Do' Kiss And Tell: The Subversive Potential Of Non-Normative Socialsexual Expression From Within Cultural Paradigms, Elaine Craig

Dalhousie Law Journal

Using a comparative analysis of the equality movements of sexual minorities in Canada and India the author identifies a symbiosis between the subversive benefits of a deconstructionist approach to equality and the practical achievements to be gained by a rights-based model of social justice. The analysis is conducted through an examination of the role that the expression of same-sex desire plays in the legal and social positions of sexual minorities in Canada and India The author argues that the acquisition of rights can provide sexual minorities with greater access to dominant cultural rituals and that such access provides opportunities to …

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

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

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

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

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 …