Law Commons^™

The Criticism Of Eurocentrism And International Law: Countering And Pluralizing The Research, Teaching, And Practice Of Eurocentric International Law, Makane Moïse Mbengue, Olabisi D. Akinkugbe

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This Chapter draws on Third World Approaches to International Law (TWAIL) in examining the question: how does the research and teaching of international law in the Global South challenge Eurocentrism in international law. The Chapter focuses on the emergent activities within Global South that pluralize Eurocentric international law’s dominance in the research production, teaching, and practice arenas. The Chapter pushes against the unfair over-representation of European countries in the scholarly production and institutions of international law. To illustrate the often-underexplored regional diversity of international law outside Europe, the Chapter reflects on the contemporary roles of critical Global South scholars and …

Regulation Of Health-Related Artificial Intelligence In Medical Devices: The Canadian Story, Michael Da Silva, Colleen M. M. Flood, Matthew Herder

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Artificial Intelligence (AI) may transform Canadian healthcare. The hope is that AI will enable more accurate and efficient care, thereby solving many access, quality, and safety problems. Yet, despite this tantalizing prospect, there are risks of unsafe AI harming patients, algorithmic bias, and threats to privacy. This work begins analysis of whether applicable Canadian laws are up to the task of ensuring Canadians can benefit from effective health-related AI while minimizing AI-related risks. It focuses on Health Canada’s regulation of medical devices, a ‘first line of defence’ that decides which devices are safe, effective, and thus permitted for trade in …

Protecting Expert Advice For The Public: Promoting Safety And Improved Communications, Julia M. Wright, Wendy Hui Kyong Chun, Amanda Clarke, Matthew Herder, Howard Ramos

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The drivers of the harassment and intimidation of researchers are complex, widespread, and global in their reach and were being studied across many disciplines even before COVID-19. This policy briefing reviews some of the scholarship on this wide-ranging problem but focuses on what can be done to help ensure that Canadians fully benefit from the work of Canada’s researchers while also preserving the security and safety of those researchers. It identifies policies and actions that can be implemented in the near term to gather information on the problem, better frame public research communications, and ensure that mechanisms are readily available …

The Unfccc Regime At A Crossroads: Can You Trust Anyone Over 30?, Meinhard Doelle

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The UN Framework Convention on Climate Change (UNFCCC) was adopted in 1992 and it was opened for signature at Rio de Janeiro in June of that year. The 30th anniversary of its adoption offers an opportunity to reflect on more than a quarter of a century of UN climate diplomacy, and to consider the path ahead. This contribution takes a look back at the choices made that have led the regime to its current state. It then takes a look forward and considers the prospects of the regime meeting its ultimate aim of avoiding dangerous human interference with the climate …

Aboriginal Rights, Legislative Reconciliation And Constitutionalism, Naiomi Metallic

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This paper sketches out the idea of ‘legislative reconciliation’ – governments in Canada using their legislative powers to recognize and protect the inherent rights of Indigenous peoples. Legislative reconciliation is needed because the existing approaches to the implementation of inherent rights—negotiation and constitutional litigation—have been insufficient on their own to bring about a mutually respectful relationship between Indigenous and non-Indigenous peoples. Despite the entrenchment of s 35, state governments have not seen themselves as having a role in its implementation in the same way they do for Charter rights. In particular, Canadian governments have not felt compelled to legislate to …

A Law And Politics Contextualization Of Corporate Activism In Nigeria’S 2020 Anti-Police Brutality Campaign, Okanga Ogbu Okanga

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Corporate activism – the progressive pursuit of social justice causes by corporations – is a growing global phenomenon. There are increasing expectations and, in many cases, demands that corporations pull off their gloves to actively confront sociopolitical issues bedevilling their communities. Emerging scholarship suggests that corporate activism is influenced by various factors, including the ethical, political, and commercial orientations of corporate minds and the relative political and legal landscape within which corporations operate. Adopting a qualitative research mechanism that reflects on open-source information about relevant actors, collected from blogs, Twitter, and news sites, as complemented by a broad variety of …

Human Rights At The Ocean-Climate Nexus: Opening Doors For The Participation Of Indigenous Peoples, Children And Youth, And Gender Diversity, Unwana Udo, Tahnee Prior, Sara L. Seck

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No abstract provided.

Gender And Intersectionality In Business And Human Rights Scholarship, Melisa N. Handl, Sara L. Seck, Penelope Simons

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In this article, we explore what intersectionality, as an analytic tool, can contribute to business and human rights (BHR) scholarship. To date, few BHR scholars have explicitly engaged in intersectional analysis. While gender analysis of BHR issues remains crucial to expose inequality in business activity, we argue that engagement with intersectionality can enrich and support this and other BHR scholarship. Intersectional approaches allow us to move beyond single-axis analysis, contest simplistic representations about gender issues and expose the complexity of human relations. It draws our attention to structures that sustain disadvantage such as racism, colonialism, social and economic marginalization and …

Indigenous Rights And Interests In A Changing Arctic Ocean: Canadian And Russian Experiences And Challenges, Anna Sharapova, Sara L. Seck, Sarah L. Macleod, Olga Koubrak

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The Arctic has been home to Indigenous peoples since long before the international legal system of sovereign states came into existence. International law has increasingly recognized the rights of Indigenous peoples, who also have status as Permanent Participants in the Arctic Council. In northern Canada, the majority of those who live in the Arctic are recognized as Indigenous. However, in northern Russia, a much smaller percentage of the population is identified as Indigenous, as legal recognition is only accorded to groups with a small population size. This article will compare Russian and Canadian approaches to recognition of Indigenous peoples and …

Breathing Life Into Our Living Tree And Strengthening Our Constitutional Roots: The Promise Of The United Nations Declaration On The Rights Of Indigenous Peoples Act, Naiomi Metallic

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In 2015, the Truth and Reconciliation Commission of Canada (“TRC”) suggested that, despite over 30 years of interpretation in the courts, section 35 of the Constitution Act, 1982, which “recognizes and affirms” the Aboriginal and treaty rights of the Aboriginal peoples of Canada, is not achieving meaningful reconciliation. The TRC defined reconciliation as being about “establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country.” According to the TRC, the “reconciliation vision that lies behind Section 35 should not be seen as a means to subjugate Aboriginal peoples to an absolute sovereign Crown,” implying this …

“No Skateboarding Allowed”: Municipal Bylaws, Urban Common And Public Property, And The Regulation Of “Undesirable” Or “Disruptive Use", Sara Gwendolyn Ross

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The mechanics of daily local inequality and marginalization can be readily observed within the language of local bylaws that govern urban spaces and places and their use — whether these govern the hours and types of use that can be made of local “public” parks, spaces where loitering is identified as unwelcome, or how and where certain activities can take place. While affinity spaces can be, on the one hand, welcomed and celebrated for the mentorship of youth, extracurricular activity, environmentally friendly transportation, or as a skill-building goal-oriented endeavour, the language of bylaws creates an ecosystem equally predisposed to prohibiting …

The Legal Regulation Of Sadomasochism And The So-Called “Rough Sex Defence”, Elaine Craig

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The focus of this article is on the judicial application of Canada’s sexual assault doctrine in the context of the so called ‘rough sex defence’. Canadian criminal courts have seen an increased prevalence of legal narratives about S/M in recent years. In particular, courts are increasingly confronted with individuals who defend themselves against allegations of sexual assault by claiming that the impugned acts constituted consensual S/M or ‘rough sex’. The analysis is aimed at illustrating the way in which courts may fail to properly apply legal doctrine because of a problematic approach to the S/M context in which allegations arose. …

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

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Forthcoming in the Osgoode Hall Law Journal (2022).

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

Doing Business Guidance, Legal Origins Theory, And The Politics Of Governance By Knowledge, Liam Mchugh-Russell

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This article uses the World Bank’s Doing Business project to illuminate the politics of “governance by knowledge.” It synthesizes scholarship critiquing the project’s legitimacy and contributes to research challenging the instrumental benefits of improved Doing Business performance. The article’s major contribution is an immanent critique of Legal Origins Theory, which was developed largely to provide ex post validation for the project’s core claims, but whose premises, when taken seriously, lead to conclusions that contradict its “one-size-fits-all” logic. The article demonstrates much can be learned about the politics of development by engaging rationalizations of power on their own terms.

A Gender-Based Approach To Historical Child Support: Comment On Colucci V Colucci, Jodi Lazare, Kelsey Warr

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In June 2021 the Supreme Court of Canada (the “Court”) released Colucci v Colucci, its second decision in twelve months dealing with the complex subject of historical (commonly referred to as retroactive) child support. The case worked a significant shift in the law, arguably the first major revision to the law since the Court’s initial consideration of historical child support in DBS, in 2006. This comment suggests that Colucci represents a new understanding of the way that claims for historical child support should be considered in Canadian family law. The comment argues that in changing the applicable framework, …

Legal Ethics For Government Lawyers: Confronting Doctrinal Gaps, Andrew Martin

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Despite the recent growth in the Canadian literature on legal ethics for government lawyers, the leading conceptual models have yet to be applied to resolve many of the most important legal questions facing government lawyers. In this article, I identify four key situations where the obligations of government lawyers as lawyers appear to clash with their obligations as public servants. I provide both a doctrinal analysis of how the current law applies in those situations and proposals for how the law can be clarified and improved. This analysis both provides much needed guidance to government lawyers and promotes a greater …

Navigating The Structural Coherence Of Sea Life, Aldo Chircop, Philip Steinberg, Greta Ferloni, Claudio Aporta, Gavin Bridge, Kate Coddington, Stuart Elden, Stephanie C. Kane, Timo Koivurova, Jessica Shadian, Anna Stammler-Gossmann

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Ice breaking by ships can cause irreparable harm to the ecologies and cultures of northern regions. This chapter revolves around a central question: what are the barriers preventing the development of a legal mechanism to limit this act of environmental violence? The chapter suggests that the central barrier is not so much legal as it is ontological: foundational conceptions of space that underpin Western legal institutions are unable to value the form of water, reducing it instead to an ed space that is used for movement or resource extraction. This chapter demonstrates how a consideration of the environmental violence of …

How Icebreaking Governance Interacts With Inuit Rights And Livelihoods In Nunavut: A Policy Review, Breanna Bishop, Jade Owen, Lisette Wilson, Tagalik Eccles, Aldo Chircop, Lucia Fanning

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Sea ice is a contested space when it comes to navigation in ice-covered regions. For Inuit in Nunavut, Canada, sea ice is an integral platform of coastal connectivity, allowing access to areas of subsistence and cultural value. For vessels transiting Arctic waters, sea ice poses potential risks to vessel, crew, and passenger safety consequently, icebreaking is considered an essential service. Yet, many communities in Nunavut have described icebreaking as having, or potentially having significant negative impacts on community and ecological wellbeing. Several policies regulate and provide guidance to icebreakers operating in ice-covered waters. With anticipated increases to icebreaking demand in …