Law Commons^™

Let’S Talk About Sexual Assault: Survivor Stories And The Law In The Jian Ghomeshi Media Discourse, Dana Phillips

Osgoode Hall Law Journal

The recent allegations against former Canadian radio host Jian Ghomeshi catalyzed an exceptional moment of public discourse on sexual assault in Canada. Following public revelations from several women who described being attacked by Ghomeshi, many others came forward with accounts of sexual violence in their own lives. Affirming feminist critiques of sexual assault law reform, many survivors drew on their experiences to expose the criminal justice system’s ongoing flaws in processing sexual assault cases. While some held out hope for the criminal law’s role in addressing sexual violence, most rejected its individualizing and retributive aspects. Instead, survivors emphasized the need …

Introduction To Creating Opportunities: A Vision For The Future, Jamil Jivani, Joseph Mcdonald, Michael Thorburn

Osgoode Hall Law Journal

We are pleased to present the Creating Opportunities: A Vision for the Future Special Issue of the Osgoode Hall Law Journal. The topics that make up this Special Issue were originally presented at the Creating Opportunities Summit held at Osgoode Hall Law School on 26-27 January 2017. The Summit explored challenges and opportunities regarding local, regional, and national economic development in Canada. Participants learned about strategies, initiatives, and policies that create the conditions for economic success as well as the indirect effects on a range of communities, with a particular focus on those that are disadvantaged and underserved.

The Shifting Frontiers Of Law: Access To Justice And Underemployment In The Legal Profession, Nandini Ramanujam, Alexander Agnello

Osgoode Hall Law Journal

The article examines two interrelated issues attracting attention from the legal academy, the profession, and policy makers: i) the crisis of access to justice among ordinary Canadians, and ii) the increasing number of qualified and underemployed lawyers. This article sets out to understand the interrelated factors underlying these two trends, and explores long-term, accessible solutions to address the misalignment between the supply of underemployed law graduates and a demand for affordable legal services. In response to these twin problems, we examine how legislative reform, open source networks, and the automation of legal work can allow lawyers to create more cost-effective …

Unreasonable Disagreement?: Judicial–Executive Exchanges About Charter Reasonableness In The Harper Era, Matthew A. Hennigar

Osgoode Hall Law Journal

Assessments of “reasonableness” are central to adjudicating claims under several Charter rights and the section 1 “reasonable limits” clause. By comparing Supreme Court of Canada rulings to facta submitted by the Attorney General of Canada to the Court, this article examines the federal government’s success under Prime Minister Harper at persuading the Supreme Court of Canada that its Charter infringements in the area of criminal justice policy are reasonable, and when they fail to do so, on what grounds. The evidence reveals that the Conservative government adopted a consistently defensive posture in court, never conceding that a law was unreasonable, …

The Wastelander Life: Living Before And After The Release Of Daniels V Canada, Signa A. Daum Shanks

Osgoode Hall Law Journal

The difficulties of entering the Canadian legal system for Indigenous peoples often includes the challenge of using the tools that have a history of harming those same peoples in the first place. Such a reality means the pursuit of recognition in Canadian law will not always be a positive experience—even when a decision supposedly represents a ‘win.’ Here, the author considers some of the effects that have developed from the release of Daniels v Canada. As with other Supreme Court of Canada releases, it inspires observations about colonialism, the modern plight of Indigenous peoples, and the rule of law.

A Legal History Of Adoption In Ontario, 1921-2015, By Lori Chambers, Adam Giancola

Osgoode Hall Law Journal

During the period of the Great War—when the rest of the world had its eyes turned towards Europe—the province of Ontario found itself in the midst of a domestic crisis. Only two decades earlier, the provincial government had enacted legislation giving the newly-founded Children’s Aid Society (CAS) the authority to identify and protect neglected and maltreated children. This legislation emerged out of a concern over juvenile delinquency, but its range was limited: services for children were given little financial backing, and CAS workers were only locally regulated. By the end of the Great War, then, concerns about rising rates of …

Keynote Address: Meaningful Inclusion Creates Opportunity, Gillian Smith

Osgoode Hall Law Journal

There is no city in North America that has a greater opportunity to create economic prosperity for many in the way Toronto does. If we don’t keep our eye on how to take advantage of the benefits, we risk squandering that opportunity. Let’s take stock of Toronto. We’re booming. Toronto is one of the top cities in North America in the number of construction projects on the go. People are choosing to move to our city in staggering numbers—roughly 120,000 people per year make Toronto their home. We have a financial sector that is one of the most sophisticated in …

Social Enterprise, Law & Legal Education, Lorne Sossin, Devon Kapoor

Osgoode Hall Law Journal

This article examines the relationship between law and social enterprise. More specifically, it explores ways in which the law and the law school can serve to refine and promote the development of social enterprise. The article begins by canvassing the existing conceptions of social enterprise to provide a basis for understanding and to identify points of access for legal intervention. At the end of this analysis, we arrive at a working definition of social enterprise: A legal entity engaged in socially responsible economic activity for the purpose of generating revenue that is to be used to advance a social mission. …

Millennials In Crisis: Myth-Busting Millennial Debt Narratives, Stephanie Ben-Ishai, Tanner Stanley

Osgoode Hall Law Journal

Intense pop-cultural commentary on millennial finances and indebtedness perpetuates two conflicting narratives. One suggests that millennials are doomed and face higher debt levels than earlier generations, compounded by rising tuition costs, a lack of affordable housing, high costs of living, and an increasingly competitive job market. The contrary “millennial bootstrapping” narrative denies that millennials are more financially challenged than previous generations and argues that millennials need to pull themselves up their proverbial bootstraps and improve their work ethic to secure financial success. This article fact-checks these two narratives and fills a significant gap in the Canadian academic literature on the …

Tension And Reconciliation In Canadian Contract Law Casebooks, David Sandomierski

Osgoode Hall Law Journal

Canadian common law contract law casebooks are beset with a tension. On the one hand, they all reveal a sustained commitment to the “wholesale assault on the jurisprudence of forms, concepts, and rules” that typifies American Legal Realism and its intellectual descendants. Concern with underlying values, functional reasoning, social realities, and policy thinking pervades the explicit messages of Canadian contract law casebooks and their editors’ related writings. On the other hand, the two casebooks most frequently assigned embody an allegiance to rules and courts that has a close kinship with the classical attitudes purportedly rejected. They convey a monolithic image …

Effecting A Culture Shift—An Empirical Review Of Ontario’S Summary Judgment Reforms, Brooke Mackenzie

Osgoode Hall Law Journal

Lawyers and policymakers in Canada frequently discuss the need for reforms to increase access to civil justice, but concrete efforts to improve the efficiency and cost-effectiveness of our justice system are few and far between. Unfortunately, even when reforms are implemented, measures are rarely put in place to assess whether the reforms were effective. Ontario’s Civil Justice Reform Project inspired a package of amendments to Rules of Civil Procedure in 2010 but, aside from anecdotal reports, little is known about whether they achieved their desired effects. This paper presents an empirical analysis of all reported summary judgment decisions in Ontario …

Renewing Human Rights Law In Canada, Dominique Clément

Osgoode Hall Law Journal

Human rights law was one of the great legal innovations of the twentieth century. And yet human rights agencies and practitioners face a backlash that has resulted in regressive legislative reforms in recent years. These reforms have only succeeded in undermining some of the key pillars of the Canadian model for human rights law. The following article places the current backlash within historical context. The author argues that many recent reforms have replicated the deficiencies of past anti-discrimination laws. Commissions and policy-makers must respond by building on the strengths of the original Canadian model by improving public education, engaging with …

Breakdown: The Inside Story Of The Rise And Fall Of Heenan Blaikie By Norman Bacal, Daniel Del Gobbo

Osgoode Hall Law Journal

The Canadian legal landscape is changing. Data over the last three decades show a trend toward larger law firms. Many of the country’s most storied ‘big law’ corporate firms have exploded in size and reach. Almost all of these firms maintain offices across the country and satellite offices in key international markets. Other large firms have been subsumed into foreign conglomerates pursuing expansion into the Canadian legal market. These developments have led to an increase in revenues and business opportunities for senior partners at these firms. It has also led to unprecedented challenges for the management of big law firms …

Lawyering With Heart: A Warrior Ethos For Modern Lawyers Reviewing Allan C. Hutchinson, Fighting Fair: Legal Ethics For An Adversarial Age, W. Bradley Wendel

Osgoode Hall Law Journal

Prolific legal theorist Allan C. Hutchinson offers a provocative critical perspective on the relationship between law, the public interest, and lawyers’ practices. His recent book, Fighting Fair, seeks to ground legal ethics in the principles regulating one of the most universal and characteristic of all human activities—warfare. Readers of Candide, All Quiet on the Western Front, or Catch-22, or viewers of Gallipoli, Apocalypse Now, or Hacksaw Ridge may be excused for thinking that all we have learned about war is that it is senseless, brutal, dehumanizing, and in all ways an unmitigated ethical catastrophe. Hutchinson, however, is perfectly serious about …

Economic Approaches To Intellectual Property, By Nicola Searle And Martin Brassell, Alexandria Chun

Osgoode Hall Law Journal

Intellectual property (IP) is well recognized as an important economic asset. Many companies rely heavily on their IP to contribute value to their enterprise: Apple has built an empire on its trademarked logo and branding, Coca-Cola on its secret soft drink formula, and Pfizer on its pharmaceutical patents (to name just a few). The economic value of IP and its strong relationship to business is even reflected in IP legislation. For example, trademark statutes in various jurisdictions share an underlying policy of promoting free and fair competition in trade.

Introduction To Law, Authority & History: A Tribute To Douglas Hay, Philip Girard, Jim Phillips

Osgoode Hall Law Journal

On 5 and 6 May 2016, Osgoode Hall Law School and the York University History Department sponsored a symposium entitled “Law/Authority/History: A Tribute to Douglas Hay” to mark the recent retirement of Professor Douglas Hay. The call for papers circulated to legal historians in Canada and elsewhere, and a particular attempt was made to contact Professor Hay’s former graduate students. Twenty papers were presented at the symposium, of which eight appear in this issue of the Osgoode Hall Law Journal.

It seemed self-evidently appropriate to us to recognize this milestone in Douglas Hay’s career, in his home town, and at …

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 …

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 …

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 …

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 …

Promises Of Law: The Unlawful Dispossession Of Japanese Canadians, Eric M. Adams, Jordan Stanger-Ross

Osgoode Hall Law Journal

This article is about the origins, betrayal, and litigation of a promise of law. In 1942, while it ordered the internment of over twenty-one thousand Canadians of Japanese descent, the Canadian government enacted orders in council authorizing the Custodian of Enemy Property to seize all real and personal property owned by Japanese Canadians living within coastal British Columbia. Demands from the Japanese-Canadian community and concern from within the corridors of government resulted in amendments to those orders stipulating that the Custodian held that property as a “protective” trust and would return it to Japanese Canadians at the conclusion of the …

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 …

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.

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 …

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 …

“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 …

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 …

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 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 …