Law Commons^™

Current Complications In The Law On Myths And Stereotypes, Lisa Dufraimont

Articles & Book Chapters

Myths and stereotypes represent an ongoing problem in Canadian sexual assault trials. Often, and paradigmatically, defence lawyers and trial judges rely on discredited sexist assumptions to the prejudice of female sexual assault complainants. However, a review of the recent appellate case law reveals many cases that do not fit this paradigm. Complications that have arisen include stereotypes about men or accused persons, legitimate defence arguments misidentified as stereotypes, close cases where reasonable people disagree about whether stereotypes have been invoked, and prejudicial forms of reasoning based other axes of discrimination. This paper surveys these developments and assesses an attempt by …

User Rights In Canadian Copyright Law, David Vaver

Conference Papers

It is very kind of you to invite me to talk about User Rights at the Association’s Copyright Symposium. In ancient times, symposia were occasions to discuss and debate matters of great moment, to the accompaniment of copious food, wine, and revelry. Zoom of course limits the conduct of this symposium but I hope participants will take the ancient precedent to heart at their end of their internet connection. Sometimes a symposium would wait until the hunt for a wild boar was over before starting. I hope that was not the motive behind your organizers hunting me down for this …

Access To Justice For Refugees: How Legal Aid And Quality Of Counsel Impact Fairness And Efficiency In Canada’S Asylum System, Craig Damien Smith, Sean Rehaag, Trevor C. W. Farrow

Canadian Forum on Civil Justice

This report presents findings from a study exploring relationships between refugee legal aid, quality of counsel, the fairness and efficiency of asylum procedures, and access to justice for refugee claimants in Canada. Legal scholars, jurists and legal associations across Canada have recognized an access to justice “crisis”. The crisis extends to refugee claimants, and is exacerbated by unique vulnerabilities and barriers to justice. This report defines access to justice for refugee claimants in Canada as early and affordable access to high-quality legal representation to both prepare claims and appear before the Immigration and Refugee Board, without systemic or economic barriers; …

Rearguard Or Vanguard? A New Look At Canada’S Constitutional Act Of 1791, Philip Girard

Articles & Book Chapters

The Constitutional Act 1791, which provided representative governments to Upper and Lower Canada, has often been regarded as a reactionary document. Here, a comparison with the constitutions of the eastern colonies of British North America as well as the pre-revolutionary constitutions of the Thirteen Colonies reveals a variety of ways in which the 1791 Act was more liberal and more committed to the popular element of the constitution than its comparators. The significance of the statutory form of the 1791 Act is emphasised and contrasted with the much less secure position of the popular element under prerogative constitutions. Significant concessions …

Book Review: Is Law Computable?: Critical Perspectives On Law And Artificial Intelligence, F. Tim Knight

Librarian Publications & Presentations

No abstract provided.

Law And Empire, 1500–1812, Philip Girard, Catherine Evans

Articles & Book Chapters

When we think about law and empire, it is most accurate, if inelegant, to pluralize everything: empires, colonies, peoples, cultures, sources of law. The transnational turn has dramatic implications for the history of law in the Americas. Most obviously, especially for the period from 1500 to 1812, scholars have become increasingly sensitive to the role of European empires – including the British, French, and Spanish – in shaping America’s legal cultures. Groups of colonists from across Europe brought a multiplicity of understandings of law and social order with them, encountering Indigenous nations with their own rich legal traditions. Colonists used …

The Multimodal Electronic Transferable Transport Record (Ettr) : A Survey Of Laws And Basic Concepts, Benjamin Geva

Articles & Book Chapters

A transport document is a receipt issued by the carrier of goods upon taking possession of them under a contract for their carriage. It is a document of title when its transfer may facilitate not only the transfer of the right to claim the goods from the carrier but also the transfer of title to the goods. Particularly in relation to the carriage of goods other than by sea, and by reference to banking and commercial practices, this study surveys the current legal position of both digitization and negotiability of transport documents. This is done with a view to preparing …

Welcome Home: Aboriginal Rights Law After Desautel, Kent Mcneil, Kerry Wilkins

All Papers

In R v Desautel, decided April 23, 2021, a majority of the Supreme Court of Canada held, for the first time, that an Indigenous community located in the United States, whose members are neither citizens nor residents of Canada, can have an existing Aboriginal right, protected by section 35 of the Constitution Act, 1982, to hunt a specified area within Canada. This will be so, the Supreme Court majority held, where the community can show that it descends from (is a successor of) an Indigenous community that was present in what is now Canada at the time of …

Joint Submission Of Ip Scholars, Re. Consultation On A Modern Copyright Framework For Artificial Intelligence And The Internet Of Things, Carys Craig

Commissioned Reports, Studies and Public Policy Documents

No abstract provided.

Submission To Canadian Government Consultation On A Modern Copyright Framework For Ai And The Internet Of Things, Sean Flynn, Lucie Guibault, Christian Handke, Joan-Josep Vallbé, Michael Palmedo, Carys Craig, Michael Geist, João Pedro Quintais

Commissioned Reports, Studies and Public Policy Documents

No abstract provided.

Freedom From Things: A Defense Of The Disjunctive Obligation In Contract Law, Jennifer Nadler

Articles & Book Chapters

This article argues that the disjunctive obligation in contract law can be justified on moral grounds. It argues that from a perspective that regards human beings as free agents capable of choice and therefore independent of material objects, the contracting parties must be understood as agreeing to mutually guarantee one another's ownership of a certain value. This guarantee can be fulfilled either by handing over what was promised or by making up the difference between the market value and the contract value of what was promised. The plaintiff's contractual right is therefore a right that the defendant perform or pay. …

20 Years Later, Walkerton Inquiry Members Discuss Impact Of Recommendations With Wcwc Staff, Colin Burrowes, Gus Van Harten

Editorials and Commentaries

No abstract provided.

Digital Euro And Ecb Powers, Seraina Neva Grünewald, Corinne Zellweger-Gutknecht, Benjamin Geva

Articles & Book Chapters

The use of cash in the euro area is declining. Accordingly, the EuropeanCentral Bank is exploring options for the design of a digital euro as a form of central bank money available to the public. This article addresses the key question of whether the Eurosystem is empowered to issue a digital euro and, if so, in what form. Based on a historical, teleological, and systematic interpretation, it argues that Article 128(1) TFEU serves as both a source of competence for the Eurosystem to issue a digital euro and a limitation to that competence. The Eurosystem’s powers are necessarily exclusive and …

Climate Change As Systemic Risk, Barnali Choudhury

Articles & Book Chapters

Hindsight tells us that COVID-19, thought by former President Trump and others to have come out of nowhere, is more aptly labelled a “gray rhino” event, one that was highly probable and preventable. Indeed, despite considerable evidence of the impending threats of pandemics, for the most part, governments failed to prepare for the pandemic, resulting in wide-scale social and economic losses.

The lessons from COVID-19, however, should remind us of the perils of ignoring gray rhino risks. Nowhere is this more apparent than with climate change, a highly probable, high impact threat that has largely been ignored to date. Despite …

American Influences, Canadian Realities : How "American" Is Canadian Legal Education?, Philip Girard

Articles & Book Chapters

No abstract provided.

Indigenous Knowledge Systems In Environmental Governance In Canada, Deborah Mcgregor

Articles & Book Chapters

This contribution addresses key issues around the application of Indigenous knowledge in contexts where such knowledge is neither generated nor held (academy, industry, governments, etc.). Effective models for the ethical incorporation of Indigenous knowledge into environmental governance in Canada have remained elusive despite decades of attempts. The predominant research paradigm of “incorporating” Indigenous knowledge into environmental governance is one of extraction by the external interests who seek to include specific aspects of such knowledge in their undertakings. This approach continues to fail because Indigenous knowledge exists as an integral component of Indigenous Knowledge Systems (IKS). It is often hollow and …

Essential Jobs, Remote Work And Digital Surveillance: Addressing The Covid-19 Pandemic Panopticon, Antonio Aloisi, Valerio De Stefano

Articles & Book Chapters

COVID-19-induced digital surveillance has ballooned in an unprecedented fashion, causing a reconfiguration of power relationships in professional settings. This article critically concentrates on the interplay between technology-enabled intrusive monitoring and the managerial prerogatives augmentation in physical and digital workplaces. It portrays excessive control as the common denominator for “essential” and “remotable” activities, besides discussing the various drawbacks of the two categories of workers during the pandemic. It also assesses the adequacy of the current EU legal framework in addressing the expansion of data-driven management. Social dialogue, empowerment and digital literacy are identified as effective solutions to promote organisational flexibility, well-being …

Letter Of April 21, 2021, From Craig Scott To Canadian Judicial Council Review Panel In Justice David Spiro Proceeding (Cjc File 20-0260) Concerning The Reliability Of The University Of Toronto Cromwell Report & “For The Record”, Cover Note On Letter Of April 21, 2021, And On May 20, 2021, Canadian Judicial Council Disposition In Justice David Spiro Proceeding (Cjc File 20-0260) (April 21, 2021 & June 2, 2021), Craig M. Scott

Editorials and Commentaries

On September 20, 2020, I joined myself to a complaint filed with the Canadian Judicial Council by Professor Les Green.The complaint concerned revelations of the interference by a yet-to-be-publicly-named judge of the Tax Court of Canada into a University of Toronto Faculty of Law hiring process for a new director of its International Human Rights Program.

Research Dissemination @ Osgoode Hall Law School: An Update, Yemisi Dina

Librarian Publications & Presentations

A presentation on research dissemination metrics for Osgoode faculty with statistics derived from the Osgoode Digital Commons, SSRN, and HeinOnline.

Transforming “Total Concept And Feel”: Dialogic Creativity And Copyright’S Substantial Similarity Doctrine, Carys Craig

Articles & Book Chapters

Copyright infringement doctrine currently overprotects copyright owners against the perceived wrong of copying, failing to adequately countenance copying as an essential part of the authorial creative process. Drawing on existing infringement doctrine in the United States and Canada, this Article will offer an interpretation of “substantial similarity” that opens up (or at least better safeguards) space for creative copying—that is to say, copying that substantially transforms the original copied work and, in doing so, advances the public interest goals of the copyright system. Part I lays the groundwork by briefly presenting a dialogic vision of authorship that complicates conventional assumptions …

Repurposing Pillar One Into An Incremental Global Tax For Sustainability: A Collective Response To A Global Crisis, Jinyan Li, Sophie Chatel

Articles & Book Chapters

This article proposes to repurpose the OECD/IF Pillar One Blueprint from a taxing rights reallocation mechanism into an incremental global tax for sustainability. With a common goal and DST-like feature for simplification, the proposal aims to ease the negotiation of essential and drastic simplifications required to deliver a workable solution.

Repurposing Pillar One Into An Incremental Global Tax For Sustainability: Some Blue Sky Thinking In The Midst Of Global Crisis, Jinyan Li, Sophie Chatel

Articles & Book Chapters

In this article, the authors make a case for repurposing the OECD Pillar One from a mechanism for reallocating taxing rights to a global tax on the largest and most profitable MNEs’ market-based profits. Such global tax would have the hybrid features of a net-basis corporate income tax and a turnover-basis digital services tax through a conversion formula that ensures a low-rate DST on sales can replicate a higher rate CIT on a country’s share of the profit determined using under the formulary allocation method. More importantly, the authors instill a common purpose of the international tax consensus – to …

The Resilience Of Métis Title: Rejecting Assumptions Of Extinguishment, Karen Drake, Adam James Patrick Gaudry

Articles & Book Chapters

For many years, the Crown disputed Métis title claims by contending that any previously existing Métis rights, including title, had been extinguished. We argue, however, that this is not the case in at least some areas of the Métis homeland. In this chapter, we review the three means by which Aboriginal rights can be extinguished in Canadian law: by surrender, by legislation prior to 17 April 1982, and by constitutional amendment. This chapter builds on our previous work, in which we argue that historical Métis land use patterns can satisfy the test for Aboriginal title. The relevant case law here …

The Grounds Of Human Rights, Brian Slattery

All Papers

What is the rational foundation for the doctrine of universal human rights? Some philosophers, such as Alan Gewirth, argue that it may be discovered simply by reflection on certain essential features of the human constitution. However this approach has significant problems, achieving its ends by smuggling certain tacit premises into the argument. A better approach is one that appeals to the communal practices and traditions within which doctrines of human rights have evolved historically. It is here that Alasdair MacIntyre's work becomes relevant, because it maintains that traditions have a rationality of their own, and that all rationality is in …

“Reconciliation” In Undergraduate Education In Canada: The Application Of Indigenous Knowledge In Conservation, Danika Billie Littlechild, Chance Finegan, Deborah Mcgregor

Articles & Book Chapters

Both the Truth and Reconciliation Commission (TRC) and the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) explicitly emphasized the role of educators in “reconciliation.” Alongside this, conservation practitioners are increasingly interacting with Indigenous Peoples in various ways, such as in the creation and support of Indigenous protected areas and (or) guardian programs. This paper considers how faculty teaching aspiring conservation practitioners can respond appropriately to the TRC and MMIWG Inquiry while preparing students to engage with Indigenous Peoples in a way that affirms, rather than questions Indigenous knowledge and aspirations. Our argument is threefold: first, teaching …

The E-Banknote As A ‘Banknote’: A Monetary Law Interpreted, Benjamin Geva, Seraina Neva Grünewald, Corinne Zellweger-Gutknecht

Articles & Book Chapters

This article discusses whether electronic banknotes can properly be characterised as ‘banknotes’, their design as such and what architectural models are available for their issuance by central banks. Issues are addressed under general principles governing the interpretation of monetary laws in the context of evolving technologies and institutional arrangements. The article proposes a clear terminology to address the concepts underlying digital currencies and access to central bank money, and argues that a banknote may be ‘written’ electronically. The stance adopted in the article is critical of both account-based retail central bank digital currency and cryptocurrencies, and highlights the salient features …

Who Are The Métis? The Role Of Free, Prior And Informed Consent In Identifying A Métis Rights-Holder, Karen Drake

Articles & Book Chapters

The rise of the duty to consult and accommodate has generated an increase in Indigenous-industry agreements. For proponents tasked with carrying out the procedural aspects of the duty, Indigenous-industry agreements offer relative certainty compared to the ambiguity involved in determining whether the duty has been legally satisfied. For Indigenous peoples, although the drawbacks of Indigenous-industry agreements are well documented, these agreements can potentially instantiate the principle of free, prior and informed consent. Compared to First Nation and Inuit peoples, though, Métis rights-holders are entering into comparatively fewer Indigenous-industry agreements.One cause of this phenomenon is the supposed uncertainty surrounding the question …

A Comparison Of Gender-Based Violence Laws In Canada: A Report For The National Action Plan On Gender-Based Violence Working Group On Responsive Legal And Justice Systems, Jennifer Koshan, Janet Mosher, Wanda Wiegers

Commissioned Reports, Studies and Public Policy Documents

This report undertakes a comparison of laws related to gender-based violence across Canada with a view to identifying promising practices. We use the definition of gender-based violence from the United Nations as our frame, analyzing laws relating to “any act of gender-based violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” While the UN definition includes both intimate partner violence and sexual violence, our focus is largely on violence in the …

Weaving Indigenous Knowledge Systems And Western Sciences In Terrestrial Research, Monitoring And Management In Canada: A Protocol For A Systematic Map, Dominique A. Henri, Jennifer F. Provencher, Ella Bowles, Jessica J. Taylor, Jade Steel, Carmen Chelick, Jesse N. Popp, Steven J. Cooke, Trina Rytwinski, Deborah Mcgregor, Adam T. Ford, Steven M. Alexander

Articles & Book Chapters

Human activities and development have contributed to declines in biodiversity across the globe.Understanding and addressing biodiversity loss will require the mobilization of diverse knowledge systems. While calls for interdisciplinary practices in environmental research date back decades, there has been a more recent push for weaving multiple knowledge systems in environmental research and management, specifically Indigenous knowledge systems (IKS) and Western sciences. The use of multiple knowledge systems in environmental research can improve understanding of socio-ecological connections, build trust in research findings and help implement evidence-based action towards biodiversity conservation. Mobilizing multiple types of knowledge in environmental research and management can …

Intergenerational Environmental Justice And The Climate Crisis: Thinking With And Beyond The Charter, Dayna Scott, Garance Malivel

Articles & Book Chapters

Inspired by the analysis developed in the article “Coming of Age in a Warming World: The Charter’s Section 15 Equality Guarantee and Youth-Led Climate Litigation,” by Nathalie Chalifour, Jessica Earle, and Laura Macintyre, this commentary explores the concept of intergenerational environmental justice in the climate crisis. Our central contribution is to advance a relational conception of intergenerational environmental justice, which we argue can overcome some common objections to thinking about justice and rights in “generational” terms. This analysis supports climate litigation efforts on Charter grounds, best conceived in our view as discrimination against young and future generations. Yet it also …