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Articles 1 - 30 of 67
Full-Text Articles in Law
Canada’S Cultural Property Export Controls: An Analysis Of The Colonial And Heritage Discourses That Animate The Cultural Property Export And Import Act, Madeline Anne Davis
Canada’S Cultural Property Export Controls: An Analysis Of The Colonial And Heritage Discourses That Animate The Cultural Property Export And Import Act, Madeline Anne Davis
LLM Theses
This thesis critiques Canada’s Cultural Property Export and Import Act (CPEIA) and its framing as a legal instrument intended to protect and preserve Canada’s cultural heritage. It focuses on the export provisions of the Act and the related experts and administrative bodies who oversee disputes under those provisions. I argue that colonial and capitalist heritage and property discourses are the foundation that underpins the CPEIA and as a result, the legislation both expressly and implicitly privileges colonial and capitalist ideas about heritage and property ownership. The legislation, on its face and through the limited examples of available application, leaves little …
Administrative Convenience Or Deliberate Reform? The Impacts Of The Colonial Judicial Legacy Of The Pre-Colonial Justice System In South-Western Nigeria, Adewale Adekunle Adeyeye
Administrative Convenience Or Deliberate Reform? The Impacts Of The Colonial Judicial Legacy Of The Pre-Colonial Justice System In South-Western Nigeria, Adewale Adekunle Adeyeye
LLM Theses
In pre-colonial times, the ethnic groups that independently existed in the territory now called Nigeria had organized systems of government. However, the sweeping force of nineteenth-century colonialism erased most of these pre-colonial governments’ institutions and replaced them with the British system. Notably, in South-Western Nigeria (Yorubaland), historical evidence revealed the existence of a constitutional monarchy with organized branches of government. Especially, the pre-colonial judicial branch/justice system of the Yoruba monarchy was radically altered by colonialism. Using the interdisciplinary methodology, this research answered questions related to the structures and procedures of the pre-colonial justice system in South-Western Nigeria and how it …
Unfortunate But Ordinary: A Study Of Federal Court Approaches To Stays Of Removal, Talia Joundi
Unfortunate But Ordinary: A Study Of Federal Court Approaches To Stays Of Removal, Talia Joundi
LLM Theses
Interlocutory decisions issued on stay of removal motions by the Federal Court of Canada remain under-studied. A leading reason for the limited research is that stay orders were not published or publicly accessible five years ago. Since then, changes to the Court’s policies regarding publication have increased the number of accessible stay orders. The outcome of a denied stay motion may result in the immediate deportation of a foreign national from Canada. Given the high-stakes nature of these decisions, it is imperative to critically examine stay motion procedures, laws, and trends against established human rights norms. This study presents an …
Remedies In Canadian Parental Alienation Cases: Turning To Tort Law For Support, Zechariah Weicker Martin
Remedies In Canadian Parental Alienation Cases: Turning To Tort Law For Support, Zechariah Weicker Martin
LLM Theses
This thesis provides an avenue to remedy some of the harms associated with parental alienation for rejected parents – an issue that is inadequately addressed by Canadian family law cases. One of the major functions of the legal system is to allow injured parties the opportunity to seek recourse. This thesis questions whether the prevailing approach to parental alienation is capable of providing justice to rejected parents. Family law centres on the best interests of children, a vulnerable group whose needs should be prioritized and protected. Parental alienation disputes destroy meaningful relationships between children and capable parents, but family law …
The Use Of Arguments About Myths And Stereotypes To Appeal Sexual Assault Convictions In Canada, Ryan Andrew Quinn
The Use Of Arguments About Myths And Stereotypes To Appeal Sexual Assault Convictions In Canada, Ryan Andrew Quinn
LLM Theses
Canadian defence counsel have recently begun appealing sexual assault convictions by arguing that a trial judge applied myths and stereotypes (M&S) against the accused. This phenomenon is surprising because this country’s focus on M&S in sexual assault law has almost exclusively concerned improper assumptions that operate against the complainant and the Crown and risk producing perverse acquittals. This thesis reviews this new defence strategy with reference to three decades of appellate case law and scholarship. It advances definitions of M&S as well as principles for understanding the evidentiary effects of their recognition as such, and it categorizes various defence attempts …
Tokenized Finance And Monetary Law: The Evolving Role Of The Central Bank In The Age Of Digital Currency, Odunayo Emmanuel Olowookere
Tokenized Finance And Monetary Law: The Evolving Role Of The Central Bank In The Age Of Digital Currency, Odunayo Emmanuel Olowookere
LLM Theses
This thesis attempts to examine the motivations of the central bank and the state in the adoption of a sovereign-backed Central Bank Digital Currency (CBDC). We sought to answer the question- of what central bank roles will be most affected by the adoption of a sovereign-backed digital currency. Since any motivations for the adoption of this new form of currency are sure to reflect in its eventual design, we argue that without the intervention of the law at this crucial design stage, any such currency is very likely to be unfavorable to the money users. We justify this by investigating …
Safety Valves: A Band-Aid Solution To The Ills Of Mandatory Minimums?, Venus Sayed
Safety Valves: A Band-Aid Solution To The Ills Of Mandatory Minimums?, Venus Sayed
LLM Theses
This work examines the Supreme Court of Canada’s statutory safety valve proposal in the case of R. v. Lloyd as a solution to the problems presented by mandatory minimum sentences. The thesis develops a safety valve matrix which allows various valves to be plotted along broad-narrow and high-low discretion matrices. Following a review of the development of exemptions in Canadian jurisprudence, the paper then takes a comparative approach of analysis to look at three similarly placed jurisdictions – Australia, the United States and the United Kingdom. By examining the statutory safety valves in use in these jurisdictions, this work concludes …
Hartazgo: Understanding How #Yotecreo Emerged In Venezuela, Maria Corina Muskus Toro
Hartazgo: Understanding How #Yotecreo Emerged In Venezuela, Maria Corina Muskus Toro
LLM Theses
This thesis explores how digital feminist activism sparked, using as a case study #YoTeCreo movement in Venezuela. Using the FemMesh to connect feminists knowledges, nodes and entanglements together with a transnationalized intersectionality, I discuss how this digital activism occurred locally. As this topic is novel and this thesis is exploratory, I combine the theoretical framework mentioned before together with feminist qualitative methodology by interviewing the leaders of #YoTeCreo and answer my research question. I concluded that the spark of #YoTeCreo in Venezuela is a combination of different factors and it is not a transplantation of the #MeToo movement from North …
Law And Indigenous Religion: Theorizing A Complex Relationship, Kristen Elizabeth Lewis
Law And Indigenous Religion: Theorizing A Complex Relationship, Kristen Elizabeth Lewis
LLM Theses
This thesis asks what preconditions are necessary to think the relation between law and Indigenous religion without marginalizing perspectives, such as those germane to Indigenous religion, that fall outside law’s frame (often figured, erroneously, as ‘objective’ and ‘neutral’). The research grounds itself in the only Supreme Court of Canada case that, to date, has involved Indigenous religious freedoms and s. 2(a) of the Canadian Charter of Rights and Freedoms (Ktunaxa Nation v British Columbia 2017 SCC) and in the very few lower court decisions that have followed in its not-unproblematic wake. Inspired by several currents of both Indigenous thought and …
Understanding The Failure Of Police Reform In Nigeria: A Case For Legal History Through Literature, Olaoluwa Folasade Oni
Understanding The Failure Of Police Reform In Nigeria: A Case For Legal History Through Literature, Olaoluwa Folasade Oni
LLM Theses
On the 21st of October 2020, the world woke to images and video clips of the bloodied, broken bodies of Nigerians shared across social and traditional media. The night before, young Nigerians protesting police brutality were met with a government-sanctioned, combined police and military onslaught; Nigerias decades-long struggle with police dysfunction was brought to a head with the massacre of its citizens at the Lekki toll gate on the evening of October 20, 2020. This work problematizes the cycle of attempts at, and ultimate failure of, police reform in Nigeria. I argue that the colonial nature of policing is retained …
Accepting The Unacceptable: Trinity Western University, Religious Freedom, And The Meaning Of Liberal Constitutionalism, Robert Stephen Boissonneault
Accepting The Unacceptable: Trinity Western University, Religious Freedom, And The Meaning Of Liberal Constitutionalism, Robert Stephen Boissonneault
LLM Theses
This thesis proposes an answer to the question of when, and under what conditions, a state operating within the framework of liberal constitutionalism may legitimately condition receipt of public benefits on the recipient's conformity with liberal values—a question that is implicitly asked, but never directly answered, by the decision of the Supreme Court of Canada in Law Society of British Columbia v Trinity Western University. How this question is answered has significant implications for the law of religious freedom in Canada. This thesis posits a conceptual distinction between two types of public benefit: public licences and public mandates. This distinction …
Transcending The Impasse: Towards An Indigenous Vision Of Legality In Palestine, Juman Abujbara
Transcending The Impasse: Towards An Indigenous Vision Of Legality In Palestine, Juman Abujbara
LLM Theses
This thesis attempts to demonstrate that the international legal impasse surrounding Palestine is animated by incommensurable visions of legality. It argues that in portraying the Palestinian struggle for liberation as a struggle for state sovereignty, international law subjects the indigenous worldview to a violent and perpetual erasure. The thesis employs Aaron Mills' theoretical framework to argue for an incommensurability between Palestine's indigenous conception of legality and the dominant conception of legality underlying international law. Further, the thesis offers a reading of Ghassan Kanafani's novel The Other Thing to explore the consequences and normative implications of an impasse characterized by incommensurability. …
Executive Power, Territorial Jurisdiction, And The (Non-)Protection Of Human Rights In Canadian Extradition, Jay De Santi
Executive Power, Territorial Jurisdiction, And The (Non-)Protection Of Human Rights In Canadian Extradition, Jay De Santi
LLM Theses
This thesis grapples with the complexity of the relationship between the political executive, embodied in the Minister of Justice, and the individual. It examines the trajectory of individual rights under the current Extradition Act, in the context of extradition requests for prosecution of alleged criminal offences that occurred primarily, or entirely, within Canadas territorial jurisdiction. This project uses a mix of doctrinal and empirical methods to analyse both the law as it is, and the law as it is practised. I argue that the current state of rights protections in Canadian extradition law, at least where the person is sought …
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 …
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 …
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 …
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 …
Fighting Climate Change With The Charter: An Inquiry Into The Effects Of Litigating The Right To A Healthy Environment, Kevin Patrick Berk
Fighting Climate Change With The Charter: An Inquiry Into The Effects Of Litigating The Right To A Healthy Environment, Kevin Patrick Berk
LLM Theses
This thesis examines whether the litigation of the legal right to a healthy environment can adequately advance the values of its supporters. This question is answered through examining scholarly arguments in favour of the right, promotional material from Environmental Non-Governmental Organizations (ENGOs) litigating the right, court documents, as well as the results of a select number of interviews with senior members of Canadian ENGOs. It is ultimately argued that the intervention of lawyers and the interpretation of judges will narrow the intended scope of the right. Additionally, it is argued that the act of choosing to litigate implicitly affirms the …
Access To Environmental Justice: Ngo Environmental Advocacy On Mining-Related Environmental Issues In Mongolia, Ulziilkham Enkhbaatar
Access To Environmental Justice: Ngo Environmental Advocacy On Mining-Related Environmental Issues In Mongolia, Ulziilkham Enkhbaatar
LLM Theses
In this thesis, I apply the theory of environmental justice to determine how NGOs use substantive and procedural environmental rights to advocate for mining-affected nomadic communities in Mongolia. Environmental NGOs often possess legal and scientific expertise pertinent to resolving and mitigating environmental risks and demanding justice for environmental damages on behalf of the mining-affected local communities. Based on the environmental justice theories, I have constructed a theoretical framework to examine how NGOs access and implement environmental justice tools, both domestically and internationally. Using a multi-methods research approach, including documentary analysis and qualitative interviews with NGO experts and lawyers, I was …
Self-Determination As Resistance To Legal Violence: Jurisdiction, Property, And The Geographies Of Conflict In Unistoten And Xolobeni, Daniel Luke Huizenga
Self-Determination As Resistance To Legal Violence: Jurisdiction, Property, And The Geographies Of Conflict In Unistoten And Xolobeni, Daniel Luke Huizenga
LLM Theses
Indigenous peoples struggles of the right to self-determination are often framed as claims against a unified state. However, explanation of the forces inhibiting the expression of Indigenous self-determination should not settle with an understanding of the imposing power of the state. As I show, the realization of self-determination is undermined by the cumulative effects of legal practices and knowledges that contribute to the division of collective autonomies and disruption of their governance practices. In this transnational and comparative work on the emerging right to consent to resource extraction in South Africa and Canada, I argue that we might understand these …
Liquid Laws: Extractivism And Unstable Authority, Caitlin Rose Sargeant Murphy
Liquid Laws: Extractivism And Unstable Authority, Caitlin Rose Sargeant Murphy
LLM Theses
This thesis concerns the co-constitution of extractivism and claims to authority, particularly in contexts where the legal narrative hides the ways that extractivism is facilitated. I examine how law implicitly structures extractivism, as well as how states use extractivism to generate authority. I look at this relationship in the context of international legal debates over the Antarctic Treaty, and a history of extractive interventions by the settler colonial state towards the Murray-Darling River Basin in south-eastern Australia. The way I read claims to authority engages both the violence and instability of these claims. The specific ways in which the relationship …
Procedural Discretionary Decisions And Access To Justice Before Administrative Tribunals, Rachel Elizabeth Weiner
Procedural Discretionary Decisions And Access To Justice Before Administrative Tribunals, Rachel Elizabeth Weiner
LLM Theses
This thesis considers procedural discretionary decision-making by administrative tribunals and access to justice for marginalized and low-income individuals. I begin by reviewing literature regarding discretionary decision-making, access to justice, procedural justice, and ideal theories focusing on transparent and respectful engagement and dialogue between decision-makers and litigants. I then analyze three case studies regarding procedural discretionary decision-making and accommodations in the hearing process, addressing primarily disability and language barriers experienced by litigants before the Social Benefits Tribunal, Human Rights Tribunal of Ontario, and Landlord and Tenant Board. I then compare theories of discretionary decision-making with actual decision-making practices employed by tribunal …
Sex Workers And The Best Interests Of Their Children: Identifying Issues Faced By Sex Workers Involved In Custody And Access Legal Proceedings, Julie Eleanor Dewolf
Sex Workers And The Best Interests Of Their Children: Identifying Issues Faced By Sex Workers Involved In Custody And Access Legal Proceedings, Julie Eleanor Dewolf
LLM Theses
Sex worker parents often lose custody of their children. The purpose of this research was to determine what impact the status of a parent as a past or present sex worker has had on judicial decision-making in custody and access disputes. Through doctrinal legal research, I explored judicial treatment of sex worker parents in custody and access disputes in Ontario Child Protection and Family Law case law. Parental involvement in sex work was often presented as an unfavourable aspect of the parent, or otherwise had a negative influence on their claim. Sex work was treated as a negative quality in …
Towards Implementing The Truth And Reconciliation Commission's Calls To Action In Law Schools: A Settler Harm Reduction Approach To Racial Stereotyping And Prejudice Against Indigenous Peoples And Indigenous Legal Orders In Canadian Legal Education, Scott James Franks
LLM Theses
Many Canadian law schools are in the process of implementing the Truth and Reconciliation Commissions Call to Actions #28 and #50. Promising initiatives include mandatory courses, Indigenous cultural competency, and Indigenous law intensives. However, processes of social categorization and racialization subordinate Indigenous peoples and their legal orders in Canadian legal education. These processes present a barrier to the implementation of the Calls. To ethically and respectfully implement these Calls, faculty and administration must reduce racial stereotyping and prejudice against Indigenous peoples and Indigenous legal orders in legal education. I propose that social psychology on racial prejudice and stereotyping may offer …
Using Charter Damages To Provide Meaningful Redress And Promote State Accountability: A Re-Examination Of The Omar Khadr Case, Katharine June Fisher
Using Charter Damages To Provide Meaningful Redress And Promote State Accountability: A Re-Examination Of The Omar Khadr Case, Katharine June Fisher
LLM Theses
In July 2017, the Government of Canada reportedly paid Omar Khadr $10.5 million to settle his civil suit. Khadr sought damages under the Canadian Charter of Rights and Freedoms resulting from Canada’s active participation in human rights breaches during his imprisonment at Guantánamo Bay. Although the Charter damages remedy serves critically important public law functions, it is not achieving its full potential in many cases. Using Khadr as a case study, I apply the framework developed in Vancouver (City) v Ward to analyze what Khadr’s entitlement to Charter damages might have been if his civil claim had not settled. The …
Punishing Black Bodies In Canada: Making Blackness Visible In Criminal Sentencing, Danardo Sanjay Jones
Punishing Black Bodies In Canada: Making Blackness Visible In Criminal Sentencing, Danardo Sanjay Jones
LLM Theses
This thesis explores whether and how criminal sentencing may provide an effective platform to address and remedy some of the structural violence that contribute to Black mass incarceration. Introducing race at sentencing represents an attempt to promote, at the back end of the criminal process, a discussion that is generally obscured at earlier stages. In critically assessing the merits of an explicit discussion about race, this thesis considers the “paradox of visibility”: in some contexts, a focus on Blackness operates to disadvantage African Canadians interfacing with the criminal justice system; while in other contexts, a refusal to focus on Blackness …
Girls, Who Run The World? Not Yet: An Analysis Of The Underrepresentation Of Women On Boards In Canada And The Underlying Theory Of The Regulation Thereof, Diana Christine Nicholls
Girls, Who Run The World? Not Yet: An Analysis Of The Underrepresentation Of Women On Boards In Canada And The Underlying Theory Of The Regulation Thereof, Diana Christine Nicholls
LLM Theses
This thesis provides an in-depth analysis of the underlying theories of the regulation of the underrepresentation of women on boards. In particular, it focuses on the Canadian board gender diversity policy found in National Instrument 58-101F1. The theories justifying regulation of this issue are typically categorized into business case rationales and normative rationales. Through an analysis of the regulatory journey of the Canadian policy, it is argued that while securities regulators claim that the policy contained in NI 58-101F1 was rooted in business case rationales, it in fact arose from normative concerns. Not only that, but because of the policy’s …
With Great Advantage Should Come Responsibility: How The Territorialist Approach In Private International Law Maybe Overcome To Ensure Justice Is Done For Those Left In The Wake Of Canadian Business Abroad, Michele Dominique Lemieux Charles
With Great Advantage Should Come Responsibility: How The Territorialist Approach In Private International Law Maybe Overcome To Ensure Justice Is Done For Those Left In The Wake Of Canadian Business Abroad, Michele Dominique Lemieux Charles
LLM Theses
Conflict of laws rules in Canada bias toward taking jurisdiction over matters involving human rights or environmental abuse inflicted abroad, particularly when inflicted by Canadian corporations. Contrary to enumerated tests for jurisdiction, many Canadian courts have instead preferred a regressive state-centric/hyper-comity anchor in applying such tests to putative foreign plaintiffs. This Thesis argues this preference can be effectively understood using the lens and language of Pierre Bourdieu’s field theory as representing a habitus of the Canadian judiciary. In light of the habitus of the Canadian judicial field, and in order to encourage an interpretation of conflict of laws rules in …