Law Commons^™

Pardon And Parole In Prohibition-Era New York: Discretionary Justice In The Administrative State, Carolyn Strange

Osgoode Hall Law Journal

Historians of early-modern England and British colonies have productively applied Douglas Hay’s germinal study of mercy. In contrast, historians of the United States have overlooked the utility of the conceptual tools Hay provided to prize open the mitigation of punishment across time and place. In the decade that followed the First World War, disputes over the proper role of mercy and administrative discretion were as heated as they were in Hanoverian England. In Jazz Age New York, fears of gangsterism and concern over the apparent laxity of parole regulations put the proponents of Progressive penology on the defensive. This article …

“Honorary Protestants”: The Jewish School Question In Montreal, 1867-1997 By David Fraser, Jory Binder

Osgoode Hall Law Journal

In the aftermath of the 2016 US election, where new and disturbing constructions of otherness have once more become part of society’s legal and cultural discourse, Honorary Protestants finds a unique and unexpected poignancy. Fraser’s book reminds us how notions of equality, identity, citizenship, and justice reflect the attitudes of both individual communities and the broader society, and can be fully realized only through action, unity, and mutual understanding. When the British North America (BNA) Act was passed in 1867, section 93 guaranteed religious educational rights. Education was divided along religious lines, comprising of both Roman Catholic and Protestant denominational …

Freedom & Indigenous Constitutionalism, By John Borrows, Lillianne Cadieux-Shaw

Osgoode Hall Law Journal

The metaphor of Justice McEachern - the trial judge in the famous Aboriginal title case Delgamuukw—and his “tin ear” is useful in describing the disconnect between settler law and Aboriginal ways of life. We have seen this tin ear time and again in our legal system, whether it’s the inability of Canadian evidentiary laws to accept oral Indigenous evidence or the difficulty judges have in applying Gladue principles to the sentencing of Aboriginal offenders. We have seen it in the reluctance of courts to recognize Aboriginal spirituality under the Charter and in the narrow framing of section 35 of the …

Musings And Silences Of Chief Justice William Osgoode: Digest Marginalia About The Reception Of Imperial Law, G. Blaine Baker

Osgoode Hall Law Journal

This article focuses on musings and silences in the margins of Canadian Chief Justice William Osgoode’s late-eighteenth-century law library, to understand the role he assigned to Westminster-based imperial law in the transmission of British justice to the colonies. It concludes that this role was limited, mostly by Osgoode’s greater commitment of time and energy to legislative and executive branches of government than to the judiciary, and by his sometimes cavalier impatience with English courts and legal commentators.

Canada’S First Malpractice Crisis: Medical Negligence In The Late Nineteenth Century, R. Blake Brown

Osgoode Hall Law Journal

This article describes and explains the first Canadian medical malpractice crisis. While malpractice had emerged as a prominent legal issue in the United States by the mid nineteenth century, Canadian doctors first began to express concerns with a growth in malpractice litigation in the late nineteenth century. Physicians claimed that lawsuits damaged reputations and forced them to spend lavishly on defending themselves. Doctors blamed lawyers for drumming up spurious lawsuits and argued that ignorant or malicious jurors tended to side with plaintiffs. Evidence, however, points to additional factors that contributed to litigation. Medical professionals in rural areas sometimes avoided lengthy …

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 …

Let The Facts Speak For Themselves: The Empiricist Origins Of The Right To Remain Silent, Randa Helfield

Osgoode Hall Law Journal

Historians have traced the right to silence to early canon law, the political conflicts of the sixteenth and seventeenth centuries, and even The Prisoner’s Counsel Act, which effectively silenced the accused by allowing his lawyer to speak for him. This article argues that changes in philosophical notions of truth best explain how, given the importance of the accused’s testimony at the altercation trial, her silence could ever have been tolerated and ultimately enforced as a right. By the mid-eighteenth century, the rise of empiricism had shifted the trial’s reliance on testimony to a preference for facts, which seemed more immediately …

When Wage Theft Was A Crime In Canada, 1935-1955: The Challenge Of Using The Master’S Tools Against The Master, Eric Tucker

Osgoode Hall Law Journal

In recent years the term “wage theft” has been widely used to describe the phenomenon of employers not paying their workers the wages they are owed. While the term has great normative weight, it is rarely accompanied by calls for employers literally to be prosecuted under the criminal law. However, it is a little known fact that in 1935, Canada enacted a criminal wage theft law, which remained on the books until 1955. This article provides an historical account of the wage theft law, including the role of the Royal Commission on Price Spreads, the legislative debates and amendments that …

Regulating Speech In Cyberspace: Gatekeepers, Human Rights, And Corporate Responsibility, By Emily B. Laidlaw, Tanner Stanley

Osgoode Hall Law Journal

Regulating speech in cyberspace is a daring, interdisciplinary work that meets at the intersection of free speech, corporate social responsibility, and human rights law. Written by Emily B. Laidlaw, an Assistant Professor at the University of Calgary, the book successfully carves out a unique space in the literature that is relatively unexplored. Although it situates itself in legal academia by offering an in-depth analysis of regulatory frameworks used to police online speech, the work draws heavily on communication theories, international development theories, and fundamental paradigms on human rights regimes. The result is a creative read that challenges us to re-conceptualize …

Rage For Order: The British Empire And The Origins Of International Law 1800–1850 By Lauren Benton & Lisa Ford, Sam Zucchi

Osgoode Hall Law Journal

Fittingly, Rage For Order by Lauren Benton, Professor of Law and History at Vanderbilt University, and Lisa Ford, Associate Professor of History at the University of New South Wales, takes both its title and its epigraph from the last stanza of Wallace Stevens’ “The Idea of Order at Key West.” Originally written on the then-sparsely inhabited island of Key West in Florida, the poem blends the sound of a woman singing with the ocean and uses that voice to delineate the various boundaries between wave, sky, and horizon line. Beginning with the stanza quoted above, Stevens ends up identifying the …

The Brussels Peace Conference Of 1874 And The Modern Laws Of Belligerent Qualification, Tracey Leigh Dowdeswell

Osgoode Hall Law Journal

The Brussels Conference of 1874 was convened after the Franco-Prussian War (1870-71). At stake was not only the restoration of the fragile balance of power in Europe, but also the articulation of a new ideal of warfare and its role in the European state system. This article discusses the Conference in relation to the “new war” thesis put forth by Mary Kaldor in New and Old Wars (1999). It was at Brussels that the “old war” crystalized as a political ideal: war would be a tournament, fought by professional armies, organized by nation states; civilians who refrained from participation would …

From Baby-Selling To Boilerplate: Reflections On The Limits Of The Infrastructures Of The Market, Margaret Jane Radin

Osgoode Hall Law Journal

Market-inalienability has a central place in developed societies that embrace private law institutions and a traditional understanding of the role of the polity in underwriting, managing, and preserving those institutions. Market-inalienability is a form of non-commodification. Taking up the issue of what things or relationships can be treated as commodities, I first critique a mode of inquiry—a traditional view of law and economics—that finds no problem with commodification of anything whatsoever. Counter to this mode of reasoning, I review two points of view that consider some kinds of commodification wrongful. Finding neither of these anti-commodification theories satisfactory, I review in …

The Wellness Doctrines For Law Students & Young Lawyers, By Jerome Doraisamy, Thomas G. W. Telfer

Osgoode Hall Law Journal

Mental health issues are pervasive. According to the Mental Health Commission of Canada, in any year, “one in five people in Canada experiences a mental health problem or illness.” The impact of mental illness, writes Governor General David Johnston, “is felt by family, friends, and colleagues—by nearly every Canadian—in some way.” But are lawyers and law students more likely to be personally affected by mental health issues? Jerome Doraisamy’s The Wellness Doctrines tackles the subject of mental health and wellness for young lawyers and law students. The Law Society of Upper Canada’s 2017 Mental Health Strategy Task Force Final Report …

Land Regime Choice In Close-Knit Communities: The Case Of The First Nations Land Management Act, Malcolm Lavoie, Moira Lavoie

Osgoode Hall Law Journal

Land interests on Canadian First Nations reserves have long been governed by the rigid and paternalistic provisions of the federal Indian Act, which require the permission of the federal Minister of Indigenous Affairs for even relatively minor land transactions. Yet an increasing number of First Nations have taken advantage of the 1999 First Nations Land Management Act (FNLMA), which allows First Nations to adopt a custom land code that replaces most of the reserve land provisions of the Indian Act in their community. This paper seeks to examine how First Nation communities have chosen to exercise their powers under this …

Dialogue: Clarified And Reconsidered, Rainer Knopff, Rhonda Evans, Dennis Baker, Dave Snow

Osgoode Hall Law Journal

Controversies about constitutional “dialogue” often stem from disagreement over the concept itself. The metaphor’s meaning and attendant consequences differ depending on whether it reflects the assumptions of judicial interpretive supremacy or coordinate interpretation. By combining that distinction with the contrast between weak-form and strong-form rights review, this article creates an integrated framework for clarifying dialogic variation across such jurisdictions as the United States, Canada, the United Kingdom, New Zealand, and Australia. We apply this framework most intensely to the Canadian case and bring differences between several dialogic forms—especially the difference between “clarification dialogue” and “reconsideration dialogue”—into sharper relief than is …

Introduction To The Law And Markets: Regulating Controversial Exchange, Kimberly Krawiec, Poonam Puri, Mitu Gulati

Osgoode Hall Law Journal

We are pleased to share these articles, written by selected scholars who presented at a symposium held at Osgoode Hall Law School on September 15, 2015. With the support of the Pierre Genest Memorial Fund, the Nathanson Centre on Transactional Human Rights, Crime and Security, and the Institute for Feminist Legal Studies, our objective at the symposium was to address pressing contemporary issues including access to reproductive technologies, sex work, evolving notions of sovereignty, and the refugee crisis. We explored the power and limits of market forces and regulatory tools for addressing these issues, while stimulating lively and respectful discussion …

Coordination And Monitoring In Changes Of Control: The Controversial Role Of “Wolf Packs” In Capital Markets, Anita Anand, Andrew Mihalik

Osgoode Hall Law Journal

Given recent empirical work suggesting that Canada is one of two countries in which outcomes favourable to shareholder activists are more likely than in the United States, one might wonder whether shareholders in Canadian public companies have become too empowered. This concern takes on particular significance in light of controversies arising from the emergence of “wolf packs”: loose networks of parallel-minded shareholders (typically hedge funds) that act together to effect change in a given corporation without disclosing their collective interest. This article analogizes the role of wolf packs in the corporation to that of a blockholder. It isolates certain conditions …

A Market For Sovereignty? The Roles Of Other States In Self-Determination, Karen Knop

Osgoode Hall Law Journal

How can the popular sovereignty associated with international law’s regulation of self-determination (secession) be reconciled with the state’s traditional property-like prerogative to transfer (cede) territory regardless of the inhabitants’ wishes? Joseph Blocher and Mitu Gulati innovatively propose a “market” for sovereignty that would treat secession more like a sale of property, and cession, less.

Existing international law does not conceive of states as potential bidders, buyers, backers, underwriters or investors in a people’s exercise of self-determination. However, international lawyers should not overestimate the differences with Blocher and Gulati’s unconventional proposal. Compared to their idea of market-generated options for sovereignty, the …

The Philosopher And The Developer: Pluralist Moral Theory And The Law Of Condominium, Jason Leslie

Osgoode Hall Law Journal

This paper analyzes the evolving law of condominium from the perspective of the moral philosophy of property, focusing in particular on neo-Aristotelian value or pluralist ethics. By combining aspects of traditional property law, corporate law, and municipal politics, condominium provides a flexible tool for ownership and private land use planning. Condominium, however, also poses novel and unique challenges to both legal doctrine and the very meaning of private property. After describing and comparing the pluralist approach to moral philosophy of property and the approach of its main rivals—deontology and utilitarianism—the paper describes how condominium is understood by each approach and …

Copyright Beyond Law: Regulating Creativity In The Graffiti Subculture, By Marta Iljadica, James A. Hayes

Osgoode Hall Law Journal

Write letters, choose good spots, don’t “bite,” be original, don’t go over, and “get up.” Those six ideas constitute the commandments according to which graffiti writers self-govern their creative output. “Graffiti breaks every rule, but within itself still has rules.” Graffiti is outside the law, but is bound by its unique creative processes’ attendant norms: a sophisticated body of de facto artistic regulation borne of a set of fundamental principles concerning works’ subject matter, placement, and creativity; communities’ prohibitions on copying; and authors’ moral rights.

The Judicial Role In A Diverse Federation: Lessons From The Supreme Court Of Canada, By Robert Schertzer, Kirandeep Mahal

Osgoode Hall Law Journal

The federal system of governance has been posited as a solution to issues of internal conflict and division within states. Over the last century the global prevalence of the federal system has increased. There are currently twenty-six states (accounting for forty per cent of the global population) that have or are in the process of adopting a federal system—including three of the so-called “BRIC” emerging global powers. While the motivating theory of the federal system is one that often seeks to pacify, contain, or eliminate conflict among subnational groups and governments, such an ideal is not as easily achieved in …

Fiduciaries Of Humanity: How International Law Constitutes Authority, By Evan J. Criddle & Evan Fox-Decent, Wudassie Tamrat

Osgoode Hall Law Journal

International legal scholars have increasingly noted that there is a fundamental tension within the international legal order. On one hand, international law represents a utopian idea that advances aspirations towards grand, yet equally hollow, goals of “peace,” “justice,” and “human rights.” We see these aspirations embodied in a number of international institutions—the United Nations Security Council strives to maintain “international peace and security” under the United Nations Charter and the United Nations Universal Declaration of Human Rights aspires to establish a “common standard” of human rights “for all peoples and all nations.” The international legal system hence calls on states …

Sovereign Debt As A Commodity: A Contract Law Perspective, Dania Thomas

Osgoode Hall Law Journal

The ad hoc institutional configurations that facilitated the resolution of sovereign insolvency for over thirty years are fragmenting. Recent court decisions interpreting the pari passu clause in sovereign debt contracts reveal the dangers of pressuring common law courts to enforce contracts and mediate structural flaws in the market. The courts have dismantled sovereign protections in international law and common law checks and balances. They have gone beyond precedent to innovate remedies justified by interpreting a clause whose meaning and function were not clearly understood by the contracting parties themselves. They have also opened up a possible inter-creditor obligation that circumvents …

Markets And Sovereignty, Joseph Blocher, Mitu Gulati

Osgoode Hall Law Journal

The past few decades have witnessed the growth of an exciting debate in the legal academy about the tensions between economic pressures to commodify and philosophical commitments to the market inalienability of certain items. Sex, organs, babies, and college athletics are among the many topics that have received attention. The debates often have proceeded, however, as if they involve markets on one side and the state on the other, with the relevant question being the ways in which the latter can or should try to facilitate, restrict, or rely on the former. In this article, we approach the relationship between …

The Refined Approach To Punishment In Section 11 Of The Charter, Stacey D. Young

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

In R. v. K.R.J. (“K.R.J.”) the Supreme Court acknowledged what is intuitive but was not explicit in section 11(i) Canadian Charter of Rights and Freedoms (“Charter”) jurisprudence: determining if something is punishment requires consideration of the impact it has on an offender. The critical question in K.R.J. was whether a section 161 Criminal Code (“Code”) prohibition order constituted punishment within the meaning of section 11(i) of the Charter. Section 161(1) orders restrict the liberty interest of convicted sexual offenders who pose an ongoing risk of committing a sexual offence against a child. These orders restrict the ability of offenders to …

Keeping The Scale Of Justice Balanced – Québec Justices Of The Peace And Judicial Independence, Josh Hunter, Sarah Kraicer

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

Protecting judicial independence is a constitutional imperative that requires striking a careful balance between safeguarding the role of judges and courts and permitting governments to carry out their constitutional responsibilities with respect to the administration of justice. On the one hand, public confidence in the administration of justice requires robust assurances that judges are sufficiently independent from the Executive and Legislature that they need not fear reprisals or expect rewards if they judge as the law requires without fear or favour. On the other hand, the elected branches of government are responsible to the people to ensure that judicial misconduct …

Another One Bites The Dust! Bolstered Law Offices And A Blocked Taxman In Chambre Des Notaires Du Québec, Amy Salyzyn

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

In Canada (Attorney General) v. Chambre des notaires du Québec the Supreme Court once again vigorously defended a lawyer’s obligation to preserve confidential client information. The Court’s recent interest in solicitor-client privilege is significant. Since 2006, the Court has heard at least 10 cases dealing with solicitor-client privilege, about the same number it heard during that period related to each of sections 15 and 2(b) of the Canadian Charter of Rights and Freedoms (“Charter”). The Court’s language in these cases reinforces the perception that the Court views solicitor-client privilege as extraordinarily important. Among other things, the Court has described solicitor-client …

The Hours Are Long: Unreasonable Delay After Jordan, Palma Paciocco

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

In its most recent case on the section 11(b) Charter right to be tried within a reasonable time, R. v. Jordan, the Supreme Court of Canada invoked “the familiar maxim: ‘Justice delayed is justice denied.’” Marshall McLuhan once ventured a characteristically maverick rejoinder to that particular old chestnut: “Whereas convictions depend on speedups, justice requires delay.” In reality, both aphorisms hit upon important truths about our criminal justice system. Taken together, they underscore the importance of carefully calibrating the right to be tried within a reasonable time.

Constitutional Cases 2016: An Overview, Benjamin L. Berger, Sonia Lawrence, Spiros Vavougios

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

We are delighted to offer this introduction to the yearly volume of articles flowing from Osgoode Hall Law School’s annual Constitutional Cases Conference. The articles in this volume offer insightful and illuminating analysis of the constitutional jurisprudence from the Supreme Court of Canada’s 2016 term. In this introduction, we set the frame for these articles with an overview of the “constitutional year” at the Supreme Court, identifying some key patterns, themes, and issues that gave 2016 its distinctive mark. This overview is organized into three parts. As is the custom for these introductions, in Part I, we begin by offering …

The Special Joint Committee On The Constitution Of Canada, 1980-81, Peter W. Hogg, Annika Wang

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference

The patriation of the Canadian Constitution and the entrenchment of the Canadian Charter of Rights and Freedoms in 1982 are, in some ways, the story of one man and one party. The constitutional package was drafted by Prime Minister Pierre Trudeau’s Liberals and approved by two Houses both controlled by the Liberals. The project was marked by Liberal control pitted against Conservative (and sometimes NDP) resistance, political gamesmanship, and partisan acrimony. But there is at least one chapter in this story where the Liberals lost their grip on the narrative, the parties set aside petty partisanship, and the Canadian public …