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Articles 61 - 90 of 848
Full-Text Articles in Law
The Puzzle Of Soft Law, Lorne Sossin, Chantelle Van Wiltenburg
The Puzzle Of Soft Law, Lorne Sossin, Chantelle Van Wiltenburg
Osgoode Hall Law Journal
Soft law is a puzzle. It shapes a wide range of public decision making, but its contents are said to lie beyond the rule of law. This paper explores the largely uncharted terrain of soft law in Canada. It is organized in three parts. Part I examines the existing treatment of soft law in Canadian jurisprudence, including soft law’s relationship to administrative law concepts such as the standard of reasonableness and the Constitution. Part II proposes the foundations of a new framework to characterize soft law, termed the “spectrum approach.” This approach aims to assist courts in responding to the …
Black Voices Matter Too: Counter-Narrating Smithers V The Queen, Amar Khoday
Black Voices Matter Too: Counter-Narrating Smithers V The Queen, Amar Khoday
Osgoode Hall Law Journal
This article presents a legal history and counter-narrative of the Supreme Court of Canada’s unanimous 1977 decision in Smithers v The Queen. Smithers is a criminal law case that focused largely on the issue of causation and is likely taught in most if not all Canadian law faculties annually. The case arose out of a fight following a midget league hockey game where one of the combatants died. In constructing its brief narrative of the facts, the Court drastically understated the racial dynamics that were in play during the game which prompted Paul Smithers, a Black and white biracial teenager …
Positive Charter Rights: When Can We Open The “Door?”, Michael Da Silva
Positive Charter Rights: When Can We Open The “Door?”, Michael Da Silva
Osgoode Hall Law Journal
Whether the Supreme Court of Canada can and should recognize so-called “positive” rights (viz., rights that require the performance of certain actions, possibly including the provision of goods, by the government) under the Canadian Charter of Rights and Freedoms remains contentious. Binding Supreme Court precedent states that there are no positive Charter rights—at least under sections 7, 12, and 15, under which demands for positive action are most controversially raised—but positive aspects of Charter rights could be recognized in the future. Yet the circumstances under which such recognition would be appropriate remain opaque. This work suggests that the law of …
A History Of Law In Canada, Volume One: Beginnings To 1866 By Philip Girard, Jim Phillips & R. Blake Brown, Shelley A. M. Gavigan
A History Of Law In Canada, Volume One: Beginnings To 1866 By Philip Girard, Jim Phillips & R. Blake Brown, Shelley A. M. Gavigan
Osgoode Hall Law Journal
This is a book that every student of Canadian law should read in the first month of law school, before the smoke of the Charter of Rights and Freedoms gets in their eyes and they succumb to the notion that Canadian law really began in 1982. The smoke that blurred the eyes of previous generations of law students carried the message that law arrived in Canada in whatever year English law had been deemed to be received in British North America. With this first volume, A History of Law in Canada Volume One: Beginnings to 1866, and the anticipated publication …
The Human Rights-Based Approach To Carbon Finance By Damilola S. Olawuyi, Christie Mcleod
The Human Rights-Based Approach To Carbon Finance By Damilola S. Olawuyi, Christie Mcleod
Osgoode Hall Law Journal
Rising sea levels, changing rainfall patterns, annual average temperature increases, and other impacts of climate change threaten the security and livelihood of individuals around the world today.3 Projects intended to mitigate greenhouse gas emissions and lessen future impacts of climate change (“carbon projects”), however, can also cause significant harm.
Indigenous Feminist Legal Pedagogies, Emily Snyder
Indigenous Feminist Legal Pedagogies, Emily Snyder
Osgoode Hall Law Journal
What does “Indigenous feminist legal pedagogy” mean? This article takes up this inquiry through an analysis of interviews that were done with twenty-three professors who teach in the area of Indigenous law (Indigenous peoples’ own laws) in Canada. Overwhelmingly, the professors were on board with the idea that gender matters and that it needs to be included in education about Indigenous laws, but how people were taking up gender, and the responses as they relate to Indigenous feminisms, varied. The interviews signal that there is a need for ongoing work in the area of gender and feminisms in the field …
An Unwelcome Burden: Sexual Harassment, Consent And Legal Complaints, Bethany Hastie
An Unwelcome Burden: Sexual Harassment, Consent And Legal Complaints, Bethany Hastie
Osgoode Hall Law Journal
The legal definition of sexual harassment was set down thirty years ago in the Supreme Court of Canada decision of Janzen v. Platy Enterprises as “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victim of the harassment.” Remarkably little has changed in the interpretation and application of these elements since Janzen was decided. However, both legal and social norms concerning sexual misconduct and consent have substantially developed in that time. This article unpacks the problematic consequences flowing from the treatment of consent in sexual harassment complaints under human …
The English Awakening Of Santi Romano’S Ordinamento Giuridico: A Review Of The Legal Order, Ata Kassaian
The English Awakening Of Santi Romano’S Ordinamento Giuridico: A Review Of The Legal Order, Ata Kassaian
Osgoode Hall Law Journal
MORE THAN A CENTURY after its first publication, Santi Romano’s Ordinamento Giuridico is finally available to an English-speaking audience, as The Legal Order (TLO), thanks to Mariano Croce’s efforts in translating the work.
Sanctity Of Contracts In A Secular Age: Equity, Fairness And Enrichment By Stephen Waddams, A. Christian Airhart
Sanctity Of Contracts In A Secular Age: Equity, Fairness And Enrichment By Stephen Waddams, A. Christian Airhart
Osgoode Hall Law Journal
WHAT CONDITIONS MUST BE met before the law will enforce a promise? If one asks lawyers and students from across the common law world, they will answer: an offer, an acceptance of the offer, and a mutual exchange of value. Of course, they will add, it is not as simple as that; such a formulation on its own can produce highly unfair results, and experience and the passage of time have birthed a myriad of exceptions to the rule. It is those exceptions that are the focus of Sanctity of Contracts in a Secular Age: Equity, Fairness and Enrichment.
The Waxing & Waning Of Informed Consent: Medical Assistance In Dying And The Question Of Advance Requests, Thomas B. Mcmorrow
The Waxing & Waning Of Informed Consent: Medical Assistance In Dying And The Question Of Advance Requests, Thomas B. Mcmorrow
Osgoode Hall Law Journal
This paper traces the impact of the principle of informed consent on Canadian legal developments in the area of advance directives, medical assistance in dying (MAID), and (where the two converge) advance requests in the context of MAID. I show how recognition of the principle of informed consent has not only served to justify developments in the law facilitating advance directives; it has also played an important role in justifying the legalization, under specific circumstances, of MAID. The paradigmatic case of informed consent is where a clearly competent, fully informed adult effectively communicates with their physician, contemporaneously to the administration …
A Theory Of Vicarious Liability For Autonomous-Machine-Caused Harm, Pinchas Huberman
A Theory Of Vicarious Liability For Autonomous-Machine-Caused Harm, Pinchas Huberman
Osgoode Hall Law Journal
The possibility of autonomous-machine-caused harm generates doctrinal and theoretical challenges for assigning tort liability. With emergent capabilities, autonomous machines disrupt the structure of interpersonal rights and duties in tort law, framed by conditions of foreseeability and proximate causation. Where algorithmic processes are unintelligible, self-modifying, and unpredictable, the concern goes, algorithmic harms will be untraceable to tortious human agency. As a result, their costs will simply lie where they fall—on faultless victims. This outcome would be unfair and objectionable: A failure of tort’s mechanisms of corrective justice means faultless victims would disproportionately bear the accident costs of autonomous machines. This article …
Neurointerventions, Crime, And Punishment: Ethical Considerations By Jesper Ryberg, Fiona Sarazin
Neurointerventions, Crime, And Punishment: Ethical Considerations By Jesper Ryberg, Fiona Sarazin
Osgoode Hall Law Journal
A UNIQUE HALLMARK OF CRIMINAL LAW is that it concerns itself with the moral culpability of offenders. Penal theory has long purported to align with the prevalent orthodoxies of criminology, which have been increasingly informed by cognitive science. Recent advancements in brain imaging and neuroscience have revealed a growing ability to target structural and functional impairments that predispose psychopathy and violent tendencies. Neurointerventions, Crime, and Punishment delineates the ethical objections to the use of brain interventions, or “neurointerventions” (NIs) on offenders within a criminal justice framework for the purpose of crime prevention.
First Nations, Settler Parliaments, And The Question Of Consultation: Reconciling Parliamentary Supremacy And Indigenous Peoples’ Right To Self-Determination, Harry Hobbs
Osgoode Hall Law Journal
First Nations peoples assert a right to a distinctive relationship with the state based on their pre-colonial status as self-governing sovereign communities. Ascertaining the scope of First Nations peoples’ collective right to self-determination is complex, but there is broad international agreement that it encompasses a right to be consulted on state action that will affect their interests, including in the law-making process. The problem is that the right to be consulted in the development of legislation appears to place a constraint on the power of the legislature to propose, debate, amend, and enact laws as they see fit. Does the …
Courts Without Cases: The Law And Politics Of Advisory Opinions By Carissima Mathen And Seeking The Court’S Advice: The Politics Of The Canadian Reference Power By Kate Puddister, Jennah Khaled
Osgoode Hall Law Journal
THE REFERENCE POWER HAS, suddenly, become the fascination of the legal academic community in Canada. Two books on the subject were published in 2019 from different and complementary perspectives. Together, they represent a novel inquiry into a power that is exercised differently in Canada than it is in any other country.
Law And Living: Connecting The Dots: The Life Of An Academic Lawyer By Harry W. Arthurs, David Sandomierski
Law And Living: Connecting The Dots: The Life Of An Academic Lawyer By Harry W. Arthurs, David Sandomierski
Osgoode Hall Law Journal
HOW TO REVIEW THE MEDITATION on a life’s work? Harry Arthurs’ 2019 memoir, Connecting the Dots: The Life of an Academic Lawyer, provides a detailed account of an incredible professional life, as labour arbitrator, legal scholar, law school dean, university president, and commissioner of multiple inquiries and studies.
Law And Intangible Cultural Heritage In The City By Sara Gwendolyn Ross, Halyna Chumak
Law And Intangible Cultural Heritage In The City By Sara Gwendolyn Ross, Halyna Chumak
Osgoode Hall Law Journal
In Law and Intangible Cultural Heritage in the City, Sara Gwendolyn Ross, a Killam Postdoctoral Laureate and Social Science and Humanities Research Council (SSHRC) Postdoctoral Fellow at the Peter A. Allard School of Law, illuminates urban spaces with intangible cultural value that is often overlooked and unprotected. The spaces to which Ross refers “are found on street corners, in neighbourhood haunts, in parks, in faded basement pubs, up creaky sets of stairs in live-work lofts overlooking the street, behind the doors of a repurposed factory space, in crisp and bright coffeeshops, loud music halls, pulsing nightclubs, shiny supper clubs.” She …
Voter Privacy And Big-Data Elections, Elizabeth F. Judge, Michael Pal
Voter Privacy And Big-Data Elections, Elizabeth F. Judge, Michael Pal
Osgoode Hall Law Journal
Big data and analytics have changed politics, with serious implications for the protection of personal privacy and for democracy. Political parties now hold large amounts of personal information about the individuals from whom they seek political contributions and, at election time, votes. This voter data is used for a variety of purposes, including voter contact and turnout, fundraising, honing of political messaging, and microtargeted communications designed specifically to appeal to small subsets of voters. Yet both privacy laws and election laws in Canada have failed to keep up with these developments in political campaigning and are in need of reform …
Law And Technology In Legal Education: A Systemic Approach At Ryerson, Sari Graben
Law And Technology In Legal Education: A Systemic Approach At Ryerson, Sari Graben
Osgoode Hall Law Journal
The Faculty of Law at Ryerson University has undertaken extensive curricular reforms aimed at engaging with technology as a central requirement of legal practice. These reforms reflect an undertaking to develop practice-based education and an undertaking to teach students to think critically about the impact of automating and mechanizing legal information. Teaching students to identify how to use technology, how to design it, and how to challenge its effects are key to providing a systemic approach to law and technology. This is an approach that teaches students to identify how law and legal services can be fundamentally altered by computational …
Two Stories About Shareholders, Bryce C. Tingle
Two Stories About Shareholders, Bryce C. Tingle
Osgoode Hall Law Journal
Corporate law contains two contradictory stories about the role of shareholders. In one, the shareholders are a useful countervailing force against the self-interested behaviour of corporate agents. In the other, shareholders lack the motivation, information, and proper incentives to contribute to the good governance of business corporations. Both stories are true on occasion, but is one generally more true than the other? Currently, developments in corporate and securities law are predicated on the idea that shareholders are, generally, a positive force in corporate governance. This seems to be a corollary of agency cost theory, the dominant paradigm for understanding the …
The Relevance Of Government Practice In Constitutional Decision-Making: A Review Of The Supreme Court’S Federalism Jurisprudence, Sarah Burningham
The Relevance Of Government Practice In Constitutional Decision-Making: A Review Of The Supreme Court’S Federalism Jurisprudence, Sarah Burningham
Osgoode Hall Law Journal
This article explores the role of government practice in the Supreme Court of Canada’s (“SCC”) constitutional jurisprudence. With the exception of conventions, practices of government actors are not usually thought to have constitutional force or significance. However, a systematic review of the SCC’s federalism decisions from the last five decades reveals that government practice has a gravitational pull in the Court’s decision-making. This article investigates the ways in which justices understand and attribute significance to government traditions or practices when resolving jurisdictional challenges. It also explores possible explanations for why justices might believe government practices are relevant to validity determinations.
Equity: Conscience Goes To Market By Irit Samet, Luke Devine
Equity: Conscience Goes To Market By Irit Samet, Luke Devine
Osgoode Hall Law Journal
In first-year Contract Law, I was mildly bemused to learn that from approximately the fourteenth to nineteenth century, England found itself with two separate court systems dispensing two separate bodies of law. There was the familiar, predictable Common Law, and then there was “Equity,” dishing out relief to deserving parties as a matter of good “conscience.” To the green law student who expected this profession to provide hardline rules, Equity’s doctrines appeared annoyingly vague. Further, it seemed incongruous with the rule of law (ROL) that, even after the fusion of the two court systems, Equity endured as a doctrinally distinct …
Corporate Friction: How Corporate Law Impedes American Progress And What To Do About It By David Yosifon, Cameron Teschuk
Corporate Friction: How Corporate Law Impedes American Progress And What To Do About It By David Yosifon, Cameron Teschuk
Osgoode Hall Law Journal
David Yosifon's first book, Corporate Friction: How Corporate Law Impedes American Progress and What To Do About It, provides a unique perspective on the corporate purpose debate. The corporate purpose debate can be summarized as a search for the answer to a seemingly rudimentary question: “For Whom is the Corporation Managed”? Yosifon presents a well-researched argument that U.S. corporations should be managed for the best interest of stakeholders, opposed to shareholders. This distinction is known as the shareholder-stakeholder best-interest trade-of. Yosifon supports his argument with a refned analysis of the assumptions and norms that have led to a shareholder-centric model …
Pluralism And Convergence: Judicial Standardization In Canadian Corporate Law, Camden Hutchison
Pluralism And Convergence: Judicial Standardization In Canadian Corporate Law, Camden Hutchison
Osgoode Hall Law Journal
This article uses statistical analysis of judicial decisions to address whether (and to what extent) the common law of corporations varies among the provinces. The primary findings are: (1) as measured by the number of case citations, provincial courts of appeal favour precedent from their home provinces; (2) the Supreme Court of Canada exerts a powerful standardizing influence across the provinces; and (3) on balance (and despite the “home province” bias of provincial courts of appeal), Canadian corporate law is largely homogeneous, with little variation among provincial jurisdictions. This article concludes that—for a variety of reasons—it is unlikely that any …
Drug-Impaired Driving In Canada By Nathan Baker, Keneca Pingue-Giles
Drug-Impaired Driving In Canada By Nathan Baker, Keneca Pingue-Giles
Osgoode Hall Law Journal
In anticipation of federal legalization of cannabis in Canada, Nathan Baker provides an excellent overview and a detailed account of how the federal and provincial governments propose to detect, investigate, and prosecute drug-impaired driving to ensure the safety of the public on its roads. Drug-impairment tests, such as Drug Recognition Evaluations (DRE) and Standardized Field Sobriety Testing (SFST) have been statutorily embedded in our criminal justice system for over ten years. However, the need for heightening awareness of these testing procedures, training for police officers who administer these tests, and education on the accuracy, validity, and credibility of drug detection …
Protected Concerted Activity And Non-Unionized Employee Strikes: Worker Rights In Canada In The Time Of Covid-19, Sara J. Slinn
Protected Concerted Activity And Non-Unionized Employee Strikes: Worker Rights In Canada In The Time Of Covid-19, Sara J. Slinn
Osgoode Hall Law Journal
During the pandemic employees in the US have engaged in a wave of strikes, protests, and other collective action over concerns about unsafe working conditions, and many of these involved non-unionized workers in the private sector. Similar employee protests were notably absent in Canada. This article examines the differences in labour legislation between the US and Canada, which may help to explain these diverging experiences, primarily: the National Labor Relations Act (NLRA) section 7 protection for concerted activity, and the NLRA section 502 ability for a good faith strike due to abnormally dangerous conditions for work. This article outlines and …
Covid-19, The Shadow Pandemic, And Access To Justice For Survivors Of Domestic Violence, Jennifer Koshan, Janet Mosher, Wanda Wiegers
Covid-19, The Shadow Pandemic, And Access To Justice For Survivors Of Domestic Violence, Jennifer Koshan, Janet Mosher, Wanda Wiegers
Osgoode Hall Law Journal
The COVID-19 pandemic has co-existed alongside a far less visible “shadow pandemic” of violence against women, with COVID-19 impacting the number and complexity of domestic violence cases and enabling new tactics for coercive control. This article provides a preliminary assessment of the extent to which Canada’s responses to the COVID-19 pandemic have prioritized the safety of women and children, with a focus on the courts and women’s access to justice. We examine court directives and judicial decisions triaging which cases would be heard as “urgent,” as well as courts’ decisions on the merits in cases involving domestic violence and COVID-19, …
Covid-19: Cost-Benefit Analysis And Politics, Dan Priel
Covid-19: Cost-Benefit Analysis And Politics, Dan Priel
Osgoode Hall Law Journal
The COVID-19 pandemic forced governments around the world to make tough political decisions about the cost of saving lives and the limits of doing so. One of the striking aspects of the debates over these necessary tradeoffs is the relatively little weight individual rights seemed to have carried in these discussions. At first, this might have seen the triumph of cost-benefit analysis (CBA); and in a sense, it was. However, the pandemic has also shown the limitations of CBA, especially in the face of severe uncertainty. This essay reviews some of the sources of uncertainty in the context of the …
Trial Delay Caused By Discrete Systemwide Events: The Post-Jordan Era Meets The Age Of Covid-19, Palma Paciocco
Trial Delay Caused By Discrete Systemwide Events: The Post-Jordan Era Meets The Age Of Covid-19, Palma Paciocco
Osgoode Hall Law Journal
Court closures necessitated by COVID-19 have resulted in extensive trial delay, with implications for the section 11(b) Charter right to be tried within a reasonable time. Although COVID-19 appears to be a straightforward example of an “exceptional circumstance” under the Jordan framework that governs section 11(b), careful analysis reveals that it falls within a category not contemplated by that framework—what this article calls “discrete systemwide events.” Because COVID delay impacts cases across the system, the reasonable steps that can be taken to reduce it are themselves largely systemic in nature. Crucially, the exceptional circumstances analysis stipulated by Jordan focuses exclusively …
The Court System In A Time Of Crisis: Covid-19 And Issues In Court Administration, Richard Haigh, Bruce Preston
The Court System In A Time Of Crisis: Covid-19 And Issues In Court Administration, Richard Haigh, Bruce Preston
Osgoode Hall Law Journal
Canadian courts, in many ways, are neither efficient nor effective. This has been clear for many years. This article looks broadly at how little attention has been paid to court administration in the past, especially during times of crisis, and examines the impact the current pandemic may have on the future of Canadian court administration. In this vein, we examine emergency plans in general before turning to pandemic-specific plans and how, especially in Canada, these have been found wanting during this current crisis. Like most organizations, courts have developed plans – business contingency (BCPs) in Canada and continuity of operation …
Law In The Time Of Covid, Richard Haigh, Dan Priel
Law In The Time Of Covid, Richard Haigh, Dan Priel
Osgoode Hall Law Journal
In early January of this year, newspapers started reporting on a mysterious new respiratory disease that was spreading in Wuhan, China. At the time, few paid much attention to that nameless disease. A month later, China was effectively in lockdown; most of the rest of the world was cautious but life continued largely as before. In another month, the virus spread across the globe, and with it the eerie images of deserted streets. Our university shut its doors on March 13, 2020, after a week of increasing pandemic anxiety in Toronto. As we write this in December, it is still …