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Osgoode Hall Law Journal

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Full-Text Articles in Law

Canadian “Dreamers”: Access To Post-Secondary Education, Elise Mercier, Sean Rehaag, Francisco Rico-Martinez Oct 2023

Canadian “Dreamers”: Access To Post-Secondary Education, Elise Mercier, Sean Rehaag, Francisco Rico-Martinez

Osgoode Hall Law Journal

Youth with precarious legal status (PLS) in several provinces are entitled to access primary and secondary education regardless of their immigration status. However, once they graduate from high school their opportunities for post-secondary education are highly constrained. This article sets out an argument for expanding post-secondary educational opportunities for PLS students, drawing on the example of the only existing program in Canada targeting such students: York University’s “Access for Students with Precarious Immigration Status Program.” The article considers possible legal impediments to the establishment of such programs, including offences under Canadian immigration legislation, and argues that charges against post-secondary institutions …

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Policing In The Shadow Of Legality: Pretext, Leveraging, And Investigation Cascades, Terry Skolnik Oct 2023

Policing In The Shadow Of Legality: Pretext, Leveraging, And Investigation Cascades, Terry Skolnik

Osgoode Hall Law Journal

Police officers often exercise their authority at the boundary of legality. Two of policing’s features contribute to this tendency: first, the scope of certain police powers is unclear; second, officers enjoy broad discretion to initiate proactive police encounters. This article argues that these interrelated features of policing result in three law enforcement phenomena: pretext, leveraging, and investigation cascades. Pretext denotes that police officers invoke lawful justifications to pursue unlawful aims. Leveraging implies that officers exploit individuals’ psychological vulnerabilities to secure compliance or to receive consent to engage in more intrusive investigatory tactics. Investigation cascades occur when officers gather information through …

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Technology Mindfulness And The Future Of The Tort Of Privacy, Emily Laidlaw Oct 2023

Technology Mindfulness And The Future Of The Tort Of Privacy, Emily Laidlaw

Osgoode Hall Law Journal

This article investigates how to develop the tort of privacy to better address technology-facilitated abuse. The central question explored is how explicitly the role and function of technology should be engaged in a legal test. The article argues that technology is constitutive of our society, shaping our social and cultural institutions, which in turn shape the development of technology and together define the everyday ways that our privacy is enjoyed and invaded. A privacy tort should therefore directly engage with the social significance of technology—what this article frames as technology mindfulness. To develop the concept of technology mindfulness, and with …

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The Elusive Motive Requirement In Canada’S Terrorism Offences: Defining And Distinguishing Ideology, Religion, And Politics, Michael Nesbitt, Leah West, Amarnath Amarasingam Oct 2023

The Elusive Motive Requirement In Canada’S Terrorism Offences: Defining And Distinguishing Ideology, Religion, And Politics, Michael Nesbitt, Leah West, Amarnath Amarasingam

Osgoode Hall Law Journal

Canada distinguishes “ordinary crime” from terrorism offences primarily by reference to whether an act meets the Criminal Code’s definition of “terrorist activity.” The most confusing and least understood element of terrorist activity is its motive requirement, that being that for a crime to constitute a terrorism offence, the actor must be motivated by politics, religion, or ideology. How do we know when such a motive exists, or even how to define these motivations? How do we differentiate ordinary crime from terrorism if we do not know what ideologies or religions “count” and which do not? Do far-right motivations picked and …

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Peace And Good Order: The Case For Indigenous Justice In Canada By Harold R. Johnson, Scott Franks Oct 2023

Peace And Good Order: The Case For Indigenous Justice In Canada By Harold R. Johnson, Scott Franks

Osgoode Hall Law Journal

Harold Johnson was a Cree lawyer, trapper, author, and storyteller from the Montreal Lake Cree Nation. He practiced as a criminal defence lawyer and then as a Crown prosecutor in my hometown of La Ronge, Saskatchewan. Peace and Good Order: The Case for Indigenous Justice in Canada (“Peace and Good Order”) is Harold’s resignation letter to the legal profession, apology for his participation in Canada’s criminal law system, and argument for Indigenous jurisdiction. It is, in part, an autobiographical account of his relationship to Canadian law as a Nehiyaw man. And it comes at a time when more and more …

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Provincial Constitutions, The Amending Formula, And Unilateral Amendments To The Constitution Of Canada: An Analysis Of Quebec’S Bill 96, Emmett Macfarlane Oct 2023

Provincial Constitutions, The Amending Formula, And Unilateral Amendments To The Constitution Of Canada: An Analysis Of Quebec’S Bill 96, Emmett Macfarlane

Osgoode Hall Law Journal

This article critically analyzes provincial authority to unilaterally amend the Constitution of Canada. Via an assessment of the purported amendments in Quebec’s Bill 96, which would recognize Quebecers as a nation and French as the only language of the province, the article argues that provinces cannot make direct amendments altering, adding, or repealing provisions of the Constitution of Canada. This argument is reflected in the wording of the various constitutional amending procedures, the historical and contemporary constitutional practice, and the underlying purpose of, and fundamental distinction and complex relationship between, the Constitution of Canada as supreme law and the constitution …

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No Legal Way Out: R V Ryan, Domestic Abuse, And The Defence Of Duress By Nadia Verrelli And Lori Chambers, Abigail March Oct 2023

No Legal Way Out: R V Ryan, Domestic Abuse, And The Defence Of Duress By Nadia Verrelli And Lori Chambers, Abigail March

Osgoode Hall Law Journal

The defence of duress in Canadian criminal law has been described by scholars and judges as a “complicated mess,” “[o]ften confusing and potentially gendered,” and “irrational, anomalous, perverse, illogical and fundamentally wrong.” The most recent Supreme Court of Canada case to attempt to bring clarity to the embattled duress defence, R v Ryan (“Ryan”), is the focus of Nadia Verrelli and Lori Chambers’ No Legal Way Out: R v Ryan, Domestic Abuse, and the Defence of Duress (“No Legal Way Out”).

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Your Boss Is An Algorithm: Artificial Intelligence, Platform Work And Labour By Antonio Aloisi And Valerio De Stefano, Zoé Bernicchia-Freeman Oct 2023

Your Boss Is An Algorithm: Artificial Intelligence, Platform Work And Labour By Antonio Aloisi And Valerio De Stefano, Zoé Bernicchia-Freeman

Osgoode Hall Law Journal

In March 1964, the cover page of a popular German weekly magazine entitled Der Spiegel painted a frightening picture: An anthropomorphic robot with six mechanical arms commands an assembly line while a displaced human worker floats aimlessly in the foreground. Ejected from his station, the worker throws up his hands in despair next to a headline that reads, “Automation in Germany, the arrival of robots.” Over fifty years later, a cover page from the same magazine evoked similar themes: A giant robot arm yanks an office worker away from his computer under the headline, “You’re fired! How computers and robots …

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Intervention In Civil Wars: Effectiveness, Legitimacy, And Human Rights By Chiara Redaelli, Sofya Cherkasova Oct 2023

Intervention In Civil Wars: Effectiveness, Legitimacy, And Human Rights By Chiara Redaelli, Sofya Cherkasova

Osgoode Hall Law Journal

Libya, Mali, Yemen, Syria, Ukraine. These are just some of the countries that have been subject to armed interventions in only the past eleven years. The list of countries that were invaded in the past fifty years is exponentially longer.

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Social Rights And Transformative Private Law, Edward BéChard-Torres Jul 2023

Social Rights And Transformative Private Law, Edward BéChard-Torres

Osgoode Hall Law Journal

Although constitutional social rights continue to attract much scholarly attention, their role in shaping private law is often overlooked. This neglect has led some scholars to underestimate social rights’ transformative potential. This article considers social rights’ influence over contract and property law in India, Colombia, and South Africa—three leading jurisdictions of the Global South. It argues that social rights can promote redistributive outcomes and inspire important shifts in private law’s values and modes of reasoning. However, it cautions that the depth of this transformation will depend on how judges choose to cross the public– private divide. One tradition rejects any …

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Digitally Rethinking Hunter V Southam, Lisa M. Austin, Andrea Slane Jul 2023

Digitally Rethinking Hunter V Southam, Lisa M. Austin, Andrea Slane

Osgoode Hall Law Journal

Lawful access—the legal regime that authorizes various methods used by law enforcement to intercept, search, or seize information for investigatory purposes—has been subject to much debate in Canada. However, those debates need a new solution space for the digital age. This must be able to incorporate new technological solutions for minimizing rights infringements and provide new forms of accountability and safeguards against misuse. This is not simply a matter of adopting the popular framework of “privacy by design,” or even a reworked “lawful access by design.” We argue that an appreciation of the challenges of the digital world requires us …

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International Status In The Shadow Of Empire: Nauru And The Histories Of International Law By Cait Storr, Jordan Crocker Jul 2023

International Status In The Shadow Of Empire: Nauru And The Histories Of International Law By Cait Storr, Jordan Crocker

Osgoode Hall Law Journal

IN 2007, THE PARLIAMENT OF NAURU, a (formerly) phosphorus-rich island nation located in the southwest of the Pacific Ocean, was presented with a report completed by its appointed Constitutional Review Commission that sought to explain, in short, “‘[w]hat’…had gone ‘wrong’ with the Republic of Nauru.” The Commission, funded by the United Nations Development Programme, produced a scathing report, which concluded that Nauru was in dire need of constitutional reform and that the nation needed to better its institutions, laws, and training of leaders in the business of governance in order to address thefailures of the state. The government initiated a …

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Assisted Suicide In Canada: Moral, Legal, And Policy Considerations By Travis Dumsday, Anita Singh Jul 2023

Assisted Suicide In Canada: Moral, Legal, And Policy Considerations By Travis Dumsday, Anita Singh

Osgoode Hall Law Journal

THE SUPREME COURT OF CANADA’S (SCC) decision in Carter v Canada (“Carter”) was a landmark moment in Canadian jurisprudence. In Carter, the SCC declared two sections of the Criminal Code to be of no force and effect because the “prohibition on physician assisted dying…deprives a competent adult of such assistance where (1) the person affected clearly consents to the termination of life; and (2) the person has a grievous and irredeemable medical condition…that causes enduring suffering that is intolerable to the individual.” Not only did Carter overturn an earlier decision in Rodriguez v British Columbia (Attorney General) (“Rodriguez”), which had …

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How Antitrust Failed Workers By Eric A. Posner, Maria Arabella M. Robles Jul 2023

How Antitrust Failed Workers By Eric A. Posner, Maria Arabella M. Robles

Osgoode Hall Law Journal

IN RECENT YEARS, GROWING ECONOMIC INEQUALITY and anxieties about market power, monopolization, and other such concerns have rejuvenated competition and antitrust law and policy. It is well known that antitrust enhances competition by addressing issues of monopolization, price-fixing arrangements, and cartels, among other anticompetitive practices in markets. This allows dynamic competition to flourish in markets and ensures that consumers are provided with competitive prices and product choices. Although the negative impacts of market concentration are frequently recognized in the context of product markets, its impact on labour markets and the workers therein have largely been unexplored until recently. Professor Eric …

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Clamouring For Legal Protection: What The Great Books Teach Us About People Fleeing From Persecution By Robert F. Barsky, Julia Schabas Jul 2023

Clamouring For Legal Protection: What The Great Books Teach Us About People Fleeing From Persecution By Robert F. Barsky, Julia Schabas

Osgoode Hall Law Journal

THE POWER OF STORIES and storytelling is central to the refugee experience, both from a legal and social perspective. In the refugee claim context, seeking asylum after fleeing one’s home country due to a well-founded fear of persecution requires, as Anthea Vogl explains, “that refugee applicants tell a good story—that is, one that predominantly conforms to the conventions of model narratives.” This demand for narrative requires the refugee to draw on well-known genres and stories of how certain people act in the face of fear and persecution.

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Oversight Of Police Intelligence: A Complex Web, But Is It Enough?, Lyria Bennett Moses Jul 2023

Oversight Of Police Intelligence: A Complex Web, But Is It Enough?, Lyria Bennett Moses

Osgoode Hall Law Journal

This article analyzes the jurisdiction, function, powers, and expertise of oversight mechanisms with reference to capacity to oversee the legality of emerging police intelligence practices such as facial recognition, social media analytics, and predictive policing. It argues that oversight of such practices raises distinct issues ranging from the general oversight of policing, given the secrecy associated with police intelligence generally, to the use of complex software in particular. It combines doctrinal analysis with analysis of interviews with policing intelligence analysts, intelligence managers, lawyers, and IT professionals in three jurisdictions: Canada, Australia, and New Zealand. It brings together the roles of …

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Revisiting The Defence Of Diminished Responsibility, Andrew Botterell Jul 2023

Revisiting The Defence Of Diminished Responsibility, Andrew Botterell

Osgoode Hall Law Journal

My goal in this article is to revisit the defence of diminished responsibility. There are three things that, taken together, suggest to me that a defence of diminished responsibility ought to be made available to certain individuals accused of certain criminal offences. The first is that Canadian criminal law already recognizes a number of defences that reflect ideas about diminished responsibility. The second is that despite the availability of these specific defences to criminal liability, no general defence of diminished responsibility is formally recognized in Canadian criminal law. And the third is that given the Supreme Court of Canada’s ongoing …

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Transfer Theory And The Assignment Of Contractual Rights, Stéphane Sérafin Jul 2023

Transfer Theory And The Assignment Of Contractual Rights, Stéphane Sérafin

Osgoode Hall Law Journal

The possibility of assigning contractual rights to third parties has often been taken to suggest that they amount to a form of “property” or “asset.” This point has been seized upon by proponents of transfer-based accounts of contract law, which understand contract as a means of transferring existing rights instead of creating new rights and duties between its parties. In this article, I set out to critically examine the extent to which this assumed compatibility between transfer theories of contract and the assignment of contractual rights can truly be sustained. As I argue, only one version of transfer theory is …

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Litigating The Carceral Soundscape, David Howes, Simcha Walfish May 2023

Litigating The Carceral Soundscape, David Howes, Simcha Walfish

Osgoode Hall Law Journal

Sound has always been a material issue in prisons, whether it be in connection with sonic surveillance, the “silent cell,” or the insistence of sound (excessive noise, counter-carceral music making). This article asks: How and when does the carceral soundscape become a litigable issue? Our article opens with a discussion of the challenges involved in attempting to study the sonic ambiance of the penitentiary through the medium of written documents and proposes a methodology of “sensing between the lines” by way of a solution. It goes on to analyze the “moral architecture” at the foundation of the modern prison in …

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The Business Judgment Rule, The Public Interest Powers, And The “Fair And Reasonable” Test: Fellow Travellers Or Ships In The Night?, Jeffrey Macintosh May 2023

The Business Judgment Rule, The Public Interest Powers, And The “Fair And Reasonable” Test: Fellow Travellers Or Ships In The Night?, Jeffrey Macintosh

Osgoode Hall Law Journal

In the most controversial corporate transaction in Canadian history, Magna repurchased all of the Class B superior voting shares from its controlling shareholder, Frank Stronach, at a 1799 per cent premium to the otherwise identical but inferior voting Class A shares, thus ending Stronach’s long reign as de jure controller of Magna. Despite this massive and unprecedented premium, the transaction generated about three billion US dollars in aggregate value, or about 40 per cent of the pre-transaction market cap of Magna. I nonetheless argue that the transaction was massively flawed from both a procedural and substantive point of view and …

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Navigating The Free Trade—Fair Trade Fault-Lines By Michael Trebilcock, Nicholas Slagter May 2023

Navigating The Free Trade—Fair Trade Fault-Lines By Michael Trebilcock, Nicholas Slagter

Osgoode Hall Law Journal

The COVID-19 pandemic came with several revelations about our pre-pandemic lives. One of these revelations was the importance of international trade law in the lives of average individuals. Headlines about food supplies, shortages of essential medical supplies, and countries’ plans to acquire and produce vaccines dominated the media following March 2020. It was a time that spurred the public’s interest in international trade law and how it functions. Indeed, media headlines showcased the growing concern about international trade during the pandemic. This is the context in which Michael Trebilcock’s Navigating the Free Trade—Fair Trade Fault-Lines situates itself. At a time …

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A Pattern Of Violence: How The Law Classifies Crimes And What It Means For Justice By David Alan Sklansky, Ainsley Doell May 2023

A Pattern Of Violence: How The Law Classifies Crimes And What It Means For Justice By David Alan Sklansky, Ainsley Doell

Osgoode Hall Law Journal

What is violence? What may appear in its face to be a simple question does not have a simple answer, especially when we are searching for it within our legal systems. The answer is not clear, and yet it has wide-reaching and potentially life-changing implications. Professor and former Assistant United States Attorney David Alan Sklansky does not seek to answer this question, but rather suggests that there is no definition of violence “that will allow the category of violence to do the work that we have asked it to do.”3 In A Pattern of Violence, Sklansky instead turns to the …

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The Notwithstanding Clause In Canada: The First Forty Years, Tsvi Kahana May 2023

The Notwithstanding Clause In Canada: The First Forty Years, Tsvi Kahana

Osgoode Hall Law Journal

This article evaluates the use of section 33 of the Canadian Charter of Rights and Freedoms, commonly known as the notwithstanding clause (NWC), over the first forty years of its existence. It provides a comprehensive account of all uses of the NWC in this period, introduces the notion of tyrannical use of the NWC, and develops criteria to evaluate whether a particular use is tyrannical. It then demonstrates that most NWC uses have not been tyrannical; rather, the NWC was used for temporary, ameliorative, or transitional purposes. That said, in the studied period, there have been three instances of tyrannical …

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Sin Of Omission: Exploring A Key Credibility Inference In Canadian Refugee Status Rejections, Hilary Evans Cameron May 2023

Sin Of Omission: Exploring A Key Credibility Inference In Canadian Refugee Status Rejections, Hilary Evans Cameron

Osgoode Hall Law Journal

Refugee claimants in Canada must submit a “Basis of Claim” form to the Refugee Board before attending a hearing with the adjudicator who will decide their claim. On this form, they are expected to produce a written narrative that explains “everything that is important” about their experiences. At their hearing, many claimants encounter, for the first time, a key principle of Canadian refugee law: The omission of any “important information” from this narrative suggests that they have invented their claim. This study takes a close look at how this “omission from the narrative” inference is operating within a set of …

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Saving The News: Why The Constitution Calls For Government Action To Preserve Freedom Of Speech By Martha Minow, Ishaan Kapur May 2023

Saving The News: Why The Constitution Calls For Government Action To Preserve Freedom Of Speech By Martha Minow, Ishaan Kapur

Osgoode Hall Law Journal

In Saving the News, Martha Minow, former Dean of the Harvard Law School and the 300th Anniversary University Professor at Harvard University, analyzes how the rise of internet platforms and social media has led to a decline in the viability of the American press and the spread of misinformation. Arguing that a viable press is fundamental to a constitutional democracy, Minow makes a case for the need for change and outlines the legal basis and specific policy initiatives that could be instituted to remedy the failures of the contemporary ecosystem of the news. She does so while navigating the potential …

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Statutory Interpretation: Pragmatics And Argumentation By Douglas Walton, Fabrizio Macagno And Giovanni Sartor, Matthew Traister May 2023

Statutory Interpretation: Pragmatics And Argumentation By Douglas Walton, Fabrizio Macagno And Giovanni Sartor, Matthew Traister

Osgoode Hall Law Journal

Statutory Interpretation is a comprehensive and nuanced account of some of the most fundamental features of the law: legal reasoning and interpretation. The book draws on philosophy, argumentative theory, linguistics, artificial intelligence, and dialectics to develop a robust theory of argumentation and pragmatics both in and outside of the law. The work is written by Douglas Walton, former Distinguished Research Fellow at the University of Windsor’s Centre for Research in Reasoning, Argumentation and Rhetoric; Fabrizio Macagno, professor at Universidade NOVA de Lisboa; and Giovanni Sartor, professor at the University of Bologna. This work represents a balance, most of all, of …

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Concessionaires, Financiers And Communities: Implementing Indigenous Peoples’ Rights To Land In Transnational Development Projects By Kinnari I. Bhatt, Ethan Guthro Oct 2022

Concessionaires, Financiers And Communities: Implementing Indigenous Peoples’ Rights To Land In Transnational Development Projects By Kinnari I. Bhatt, Ethan Guthro

Osgoode Hall Law Journal

THE PUBLICATION OF DOCTOR KINNARI I. Bhatt’s first book, Concessionaires, Financiers and Communities: Implementing Indigenous Peoples’ Rights to Land in Transnational Development Projects (“Concessionaires”), comes at a time of uncertainty for the field of Aboriginal law in Canada and across the globe. To contextualize the key themes found throughout Concessionaires, and to provide a basis upon which my critiques shall be built, it is important to briefly detail recent developments in Aboriginal law in Canada.

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Chinese Antitrust Exceptionalism: How The Rise Of China Challenges Global Regulation By Angela Huyue Zhang, Dana Levin Oct 2022

Chinese Antitrust Exceptionalism: How The Rise Of China Challenges Global Regulation By Angela Huyue Zhang, Dana Levin

Osgoode Hall Law Journal

HOW IS CHINA DISTINCT? What are the implications of Chinese exceptionalism? Chinese Antitrust Exceptionalism: How the Rise of China Challenges Global Regulation (“Chinese Antitrust Exceptionalism”) explores these questions in the context of antitrust law and policy making. The book, authored by Angela Huyue Zhang, positions the relatively young Chinese antitrust regime in contrast to its more mature global counterparts, namely, the European Union (EU) and the United States (US). In this analysis, Chinese Antitrust Exceptionalism considers how China crafts and enforces antitrust policy, as well as how its counterparts enforce their policies against China. While it focuses on this one …

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Between The Devil And The Deep Blue Sea—Towards Access To Justice For Local Communities In Investor-State Arbitration Or Business And Human Rights Arbitration, Akinwumi Ogunranti Oct 2022

Between The Devil And The Deep Blue Sea—Towards Access To Justice For Local Communities In Investor-State Arbitration Or Business And Human Rights Arbitration, Akinwumi Ogunranti

Osgoode Hall Law Journal

This article focuses on the proposal to adapt international arbitration to business disputes involving human rights. The Business and Human Rights arbitration (BHR arbitration) proposal seeks to give local communities who are victims of multinational corporations’ human rights and environmental abuses access to justice in a specialized international BHR arbitration tribunal. Through a comparison between investor-state arbitration (ISA) and BHR arbitration, this article contends that it would be more efficient to reform ISA than to create a BHR arbitration tribunal. Reforming ISA would avoid the possible parallel arbitration systems that may arise from the duplication of international governance efforts. It …

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A Commercial Law Of Privacy And Security For The Internet Of Things By Stacy-Ann Elvy, Melissa Indome Oct 2022

A Commercial Law Of Privacy And Security For The Internet Of Things By Stacy-Ann Elvy, Melissa Indome

Osgoode Hall Law Journal

FROM SMART CARS TO SMART REFRIGERATORS, the internet of things (IoT) has revolutionized various facets of our lives. These novel developments galvanized what scholars now deem to be the Fourth Industrial Revolution. This new era is characterized by technology-driven innovation that marries aspects of the physical, digital, and biological domains, going so far as to defy preconceived notions of human capabilities and behaviour. The societal proclivity towards digitization and automated processes has spurred the proliferation of companies entering the technology arena. Corporations are leveraging emerging technologies to cater to consumers’ idiosyncratic needs more effectively. Central to this objective is the …

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