Law Commons^™

Exploring The Importance Of Criminal Legal Aid: A Canadian Perspective, Trevor C. W. Farrow, Marcus Pratt

Articles & Book Chapters

There is a growing global recognition that, in order to address the current access to justice crisis, more research, together with a better understanding of data, is needed. This article, through an examination of existing legal aid research primarily in the area of criminal law, explores some of what we know and do not know about the relative benefits and costs of providing different kinds of criminal legal aid services. Although not a comprehensive review of all available research, this article identifies data strengths and gaps and the need for further research and reforms.

Understanding The Neutrals In Canadian Insolvency Proceedings, Stephanie Ben-Ishai, Meena Alnajar

Articles & Book Chapters

No abstract provided.

An Imperial History Of Race-Religion In International Law, Rabiat Akande

Articles & Book Chapters

More than half a century after the UN’s adoption of the International Convention on the Prohibition of All Forms of Racial Discrimination, a debate has emerged over whether to extend the Convention’s protections to religious discrimination. This Article uses history to intervene in the debate. It argues that racial and religious othering were mutually co-constitutive in the colonial encounter and foundational to the making of modern international law. Moreover, the contemporary proposal to address the interplay of racial and religious othering is hardly new; iterations of that demand surfaced in the earlier twentieth century, as well. By illuminating the centrality …

Writing And Resisting Colonial Genocide, Heidi Matthews, Luann Good Gingrich, Joel Ong

Articles & Book Chapters

Canada has pursued policies of Indigenous assimilation and annihilation, many of which continue today. Among others, these include ‘Indian residential schools’, the Indian Act, welfare-state child removals, the Sixties Scoop, the prohibition of cultural practices, forced sterilization and environmental destruction. We are scholars co-leading a large interdisciplinary programme of research studying ‘colonial genocide’. Our research seeks to understand how historic colonialism and its contemporary manifestations rely on genocidal logic for power and profit. While we begin in Turtle Island, our work has global application. The act of naming is a powerful analytical and political tool, and ‘genocide’ is one of …

Deeper Into The Knight: Exploring Deans Knight And Its Effects On The Canadian Gaar, Jinyan Li, Marshall Rothstein, Steve Suarez, Jeffrey Trossman

Articles & Book Chapters

This article discusses the most recent decision of the Supreme Court of Canada in Deans Knight Income Corporation v. Canada (2023) and explores its implications for the Canadian GAAR.

Does Labour Law Trust Workers? Questioning Underlying Assumptions Behind Managerial Prerogatives, Valerio De Stefano, Ilda Durri, Charalampos Stylogiannis, Mathias Wouters

Articles & Book Chapters

This article explores the relationship between modern labour law, trust-based management, and collective labour relations. It begins by examining the historical origins of labour law, which was established to give employers the means to govern their workforce, based on the assumption that workers were untrustworthy.We argue that this notion still persists, albeit in a refined form, and that advancements in technology can exacerbate the negative consequences of managerial prerogatives. The article highlights the need to re-examine the extent of managerial prerogatives and provides several examples of businesses that have adopted trust-based models of organization, leading to positive outcomes. However, the …

Corporate Law’S Threat To Human Rights: Why Human Rights Due Diligence Might Not Be Enough, Barnali Choudhury

Articles & Book Chapters

The take-up of mandatory human rights due diligence (HRDD) initiatives by states is continuously gaining momentum. There are now numerous states adopting some form of HRDD laws. While corporations being duly diligent in respecting human rights is a positive step towards addressing problems of business and human rights, these HRDD initiatives on their own may only be a form of window-dressing, that is, enabling states to put a smart spin on their efforts to address business and human rights issues without addressing some of the root causes of that predicament. As a result, HRDD laws are likely to be a …

Neutralizing Secularism: Religious Antiliberalism And The Twentieth-Century Global Ecumenical Project, Rabiat Akande

Articles & Book Chapters

A marked feature of the contemporary U.S. constitutional landscape is the campaign by an Evangelical- Catholic coalition against the idea of secularism, understood by this alliance to mean the exclusion of religion from the state and its progressive marginalization from social life. Departing from the tendency to treat this project as a national phenomenon, this article places it within a longer global genealogy of an earlier international Christian ecumenical effort to combat secularism. The triumph of that campaign culminated in the making of Article 18 of the Universal Declaration of Human Rights, now considered the paradigmatic international legal provision on …

Introduction: Domestic Violence And Access To Justice Within The Family Law And Intersecting Legal Systems, Jennifer Koshan, Wanda Wiegers, Janet Mosher, Wendy Chan, Michaela J. Keet

Articles & Book Chapters

The articles in this collection explore the access to justice issues that arise for survivors of domestic violence in their encounters with Canada’s family law system. While family law and family dispute resolution processes are the central focus of the articles, three contributions also address family law's intersections with other legal domains (civil restraining orders, child welfare, and immigration). Common across the contributions is a desire to carefully interrogate the potential of law and legal processes to enhance—or conversely to undermine—the safety and well-being of survivors and their children.

The Next Revolution? Negligence Law For The 21st Century, Allan C. Hutchinson

Articles & Book Chapters

Donoghue’s neighbour is still the defining concept of Canadian tort law. Indeed, the whole history of modern negligence law can be reasonably understood as a concerted judicial effort to adapt and accommodate that principle to changing social, commercial and legal conditions. Now, 90 years later, it is perhaps time to recommend another revolution in negligence law. The Donoghue-inspired doctrine has done sterling work, but it is now weighed down with a bewildering range of conditions, clarifications and complications. When the duty analysis is complemented by other related requirements of causation and remoteness, the law of negligence has become something of …

Disaster Risk In The Carceral State, Saptarishi Bandopadhyay, Joshua R. Coene

Articles & Book Chapters

The overlap between prisoner vulnerability and disasters in the United States is undeniable. During 2020 and 2021, the United States endured a series of natural hazards such as wildfires, floods, and hurricanes, many of which exposed the country’s 2.1 million inmates to additional risks and compounded the danger posed by COVID-19. Yet policymakers and scholars are only beginning to appreciate the centrality and magnitude of disaster risk management for the millions of people currently held in penal institutions around the country. Unsurprisingly, the production of “lessons learned” documents that follow in the aftermath of disasters overlook how prisoner vulnerability is …

Out Of Sight, Out Of Mind? Remote Work And Contractual Distancing, Nicola Countouris, Valerio De Stefano

Articles & Book Chapters

Since the Covid-19 pandemic, remote work has acquired quasi-Marmite status. It has become difficult, if not impossible, to approach the issue in a measured and dispassionate way, which is one of the reasons books such as the present one are being published. Remote work is often seen as anathema by some who associate it with laziness, low productivity and the degradation of the social fabric of firms and of their creative and collaborative potential. The notorious views of CEOs such as Tesla and Twitter’s Elon Musk or JP Morgan’s Jamie Dimon come to mind, indicative – in the view of …

Introduction To The Future Of Remote Work, Nicola Countouris, Valerio De Stefano, Agnieszka Piasna, Silvia Rainone

Articles & Book Chapters

Debates on the future of work have taken a more fundamental turn in the wake of the Covid-19 pandemic. Early in 2020, when large sections of the workforce were prevented from coming to their usual places of work, remote work became the only way for many to continue to perform their professions. What had been a piecemeal, at times truly sluggish, evolution towards a multilocation approach to work suddenly turned into an abrupt, radical and universal shift. It quickly became clear that the consequences of this shift were far more significant and far-reaching than simply changing the workplace’s address. They …

Between Risk Mitigation And Labour Rights Enforcement: Assessing The Transatlantic Race To Govern Ai-Driven Decision-Making Through A Comparative Lens, Valerio De Stefano, Antonio Aloisi

Articles & Book Chapters

In this article, we provide an overview of efforts to regulate the various phases of the artificial intelligence (AI) life cycle. In doing so, we examine whether—and, if so, to what extent—highly fragmented legal frameworks are able to provide safeguards capable of preventing the dangers that stem from AI- and algorithm-driven organisational practices. We critically analyse related developments at the European Union (EU) level, namely the General Data Protection Regulation, the draft AI Regulation, and the proposal for a Directive on improving working conditions in platform work. We also consider bills and regulations proposed or adopted in the United States …

Regulating Ai At Work: Labour Relations, Automation, And Algorithmic Management, Valerio De Stefano, Virginia Doellgast

Articles & Book Chapters

Recent innovations in artificial intelligence (AI) have been at the core of massive technological changes that are transforming work. AI is now widely used to automate business processes and replace labour-intensive tasks while changing the skill demands for those that remain. AI-based tools are also deployed to invasively monitor worker conduct and to automate HR management processes.

Through the dual lens of comparative labour law and employment relations research, the articles in this special issue of Transfer investigate the role of collective bargaining and government policy in shaping strategies to deploy new digital and AI-based technologies at work. Together, they …

Jurisgenerative Tissues: Sociotechnical Imaginaries And The Legal Secretions Of 3d Bioprinting, Roxanne Mykitiuk, Joshua Shaw

Articles & Book Chapters

Three-dimensional ‘bioprinting’ is under development, which may produce living human organs and tissues to be surgically implanted in patients. Like tissue engineering and regenerative medicine generally, the process of bioprinting potentially disrupts experience of the human body by redefining understandings of, and becoming actualised in new practices and regimes in relation to, the body. The authors consider how these novel sociotechnical imaginaries may emerge, having regard to law’s contribution to, as well as its possible transformation by, the process of 3D bioprinting. The authors draw on Gilbert Simondon and corporeal, material feminists to account for these disruptions as ‘ontogenetic,’ in …

A Call For Evidence-Based Research In Adr, Methura Sinnadurai, Benjamin Vanderwindt, Patricia Mcmahon, Trevor C. W. Farrow

Articles & Book Chapters

In any three-year period, almost half the adult population in Canada will experience at least one justiciable civil or family problem. Few, however, will have the resources to resolve their legal problems, thus highlighting longstanding barriers that make access to justice such a pressing issue in Canada. Among many global justice initiatives, a prominent call to action is Goal 16 of the 2030 United Nations Sustainable Development Goals, which commits nations to work towards ensuring equal access to justice for all by 2030. Although there is no single strategy to achieve this, evidence-based practices in all areas of civil and …

Centring The Black Muslimah: Interrogating Gendered, Anti-Black Islamophobia, Rabiat Akande

Articles & Book Chapters

No abstract provided.

Towards Meaningful Research And Engagement: Indigenous Knowledge Systems And Great Lakes Governance, Deborah Mcgregor, Nicole Latulippe, Rod Whitlow, Kristi Leora Gansworth, Lorrilee Mcgregor, Stephanie Allen

Articles & Book Chapters

For thousands of years, Indigenous peoples governed their relations in the Great Lakes region, guided by distinct political, legal, governance, and knowledge systems. Despite historic and ongoing exclusion of Indigenous peoples from Great Lakes governance in the Canadian context and other assaults on Indigenous sovereignty, authority, jurisdiction and responsibilities, Indigenous peoples have maintained their relationships with the Great Lakes. In recent years, Indigenous knowledge systems (IKS) have made inroads in Great Lakes governance, thanks primarily to First Nation political advocacy. However, it remains a challenge to include Indigenous knowledge and implement approaches that bridge Indigenous and Western ways of knowing. …

Selected Dispute Resolution Bibliography, Shannon Moldaver, Trevor C. W. Farrow

Articles & Book Chapters

Included in this bibliography is a selected set of dispute resolution and related professional responsibility and access to justice readings, primarily (although not exclusively) with a general negotiation and mediation focus. This bibliography is not comprehensive. Rather – given the breadth of dispute resolution, legal process, professional responsibility, and access to justice materials available – this bibliography includes a brief sampling of available readings that may be of interest to those studying, practicing, or thinking about dispute resolution.

Infrastructure, Jurisdiction, Extractivism: Keywords For Decolonizing Geographies, Shiri Pasternak, Deborah Cowen, Robert Clifford, Tiffany Joseph, Dayna Nadine Scott, Anne Spice, Heidi Kiiwetinepinesiik Stark

Articles & Book Chapters

No abstract provided.

Ambiguities And Absences: Occupational Health And Safety Regulation Of Platform-Mediated Work In Ontario, Canada, Eric Tucker

Articles & Book Chapters

Platform-mediated work, whether location-based, as in the case of Uber, or cloud-based, as in the case of Amazon Mechanical Turk, poses severe challenges to effective occupational health and safety (OHS) regulation. While the work performed in the platform environment is not usually very different from work performed in more traditional employment settings, the platform environment often exacerbates those risks by, for example, increasing stress and incentivizing long hours and work intensification. Regulating these hazards is impeded by ambiguities surrounding the legal relationship between platform operators and platform workers that make it uncertain whether the OHS regime even applies. As well …

The ‘Contract’ And Its Discontents: Can It Address Protection Gaps For Migrant Agricultural Workers In Canada?, Tanya Basok, Eric Tucker, Leah F. Vosko, C. Susana Caxaj, Jenna L. Hennebry, Stephanie Mayell, Janet Mclaughlin, Anelyse M. Weiler

Articles & Book Chapters

Canada's Seasonal Agricultural Worker Program has often been portrayed as a model for temporary migration programmes. It is largely governed by the Contracts negotiated between Canada and Mexico and Commonwealth Caribbean countries respectively. This article provides a critical analysis of the Contract by examining its structural context and considers the possibilities and limitations for ameliorating it. It outlines formal recommendations that the article co-authors presented during the annual Contract negotiations between Canada and sending states in 2020. The article then explains why these recommendations were not accepted, situating the negotiation process within the structural context that produces migrant workers' vulnerability, …

Book Review: Lisa Kloppenberg, The Best Beloved Thing Is Justice: The Life Of Dorothy Wright Nelson, Patricia Mcmahon

Articles & Book Chapters

No abstract provided.

Strengthening A One Health Approach To Emerging Zoonoses, Samira Mubareka, John Amuasi, Arinjay Banerjee, Hélène Carabin, Joe Copper Jack, Claire Jardine, Bogdan Jaroszewicz, Greg Keefe, Jonathon Kotwa, Susan Kutz, Deborah Mcgregor, Anne Mease, Lily Nicholson, Katarzyna Nowak, Brad Pickering, Maureen Reed, Johanne Saint-Charles, Katarzyna Simonienko, Trevor Smith, J. Scott Weese, E. Jane Parmley

Articles & Book Chapters

Given the enormous global impact of the COVID-19 pandemic, outbreaks of highly pathogenic avian influenza in Canada, and manifold other zoonotic pathogen activity, there is a pressing need for a deeper understanding of the human-animal-environment interface and the intersecting biological, ecological, and societal factors contributing to the emergence, spread, and impact of zoonotic diseases. We aim to apply a One Health approach to pressing issues related to emerging zoonoses, and propose a functional framework of interconnected but distinct groups of recommendations around strategy and governance, technical leadership (operations), equity, education and research for a One Health approach and Action Plan …

Walking The Line: The Politics Of Federalism And Environmental Change, Allan C. Hutchinson

Articles & Book Chapters

This short paper looks at the Greenhouse Gas Pollution Pricing Act decision through a wider and more critical jurisprudential lens. In so doing, I demonstrate that the courts are no less political than legislatures in making decisions about who has the constitutional capacity to decide on how the challenges of climate change should be met. This is not so much a criticism of the Supreme Court of Canada, but an inevitable feature of constitutional law. After introducing the traditional and received explanation of the differences between political decision-making and judicial decision-making, I delve deeper into the Court's opinions and show …

The Role Of Traditional Environmental Knowledge In Planetary Well-Being, Deborah Mcgregor, Danika Billie Littlechild, Mahisha Sritharan

Articles & Book Chapters

No abstract provided.

The Future Concept Of Work, Nicola Countouris, Valerio De Stefano

Articles & Book Chapters

This chapter offers a reappraisal of the idea of ‘personal work’ and a critical assessment of the concept of subordination, which shapes the traditional contract of employment and subordinate work. The authors suggest that the notion of personal work may be more useful in attempts to develop a newly conceptualised concept of human labour, one capable of incorporating certain dimensions of (unpaid) gendered labour, ‘heteromated’ labour (‘heteromation’ is the extraction of economic value from low-cost or free labour in computer-mediated networks), and other forms of socially (and ecologically) valuable labour that hitherto have been excluded from the realm of formal, …

Insulating The Church: Ethiopian Orthodox Tewahedo Church Of Canada St. Mary Cathedral V. Aga And The Suppression Of Public Law In The Construction Of Religious Communities, Rabiat Akande, Faisal Bhabha

Articles & Book Chapters

In Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, the Supreme Court of Canada undertook to grapple with the question of whether, when, and to what extent courts should get involved in the internal decisions of religious groups where there are allegations of procedural unfairness. This paper approaches Aga with an interest in the issue of state regulation of religion through law. The paper (1) reviews and assesses the Court's judgment; (2) summarizes and analyzes the 12 intervener submissions, many of which were made by religious groups likely to be affected by the Court's eventual judgment; and …

Public Order Policing: A Proposal For A Charter-Compliant Legislative Response, Jamie Cameron, Robert Diab

Articles & Book Chapters

This article offers a brief response to the Final Report of the Public Order Emergency Commission by two authors who provided expert reports to the Commission. We focus on Commissioner Rouleau’s recommendation that the provinces and the federal government create a “major event management unit” to ensure “integrated command and control” of large events, and that governments clarify the scope of police power to create exclusion zones and to impose other limits on protest and assembly. We argue that nothing short of legislation on point would suffice to address problems of coordination among police agencies and the lack of clarity …