Law Commons^™

The Failure Of The Canadian Human Rights Regime To Provide Remedies For Indigenous Peoples: Enough Time Has Passed, Jeffery Gordon Hewitt

LLM Theses

In 2008, Canada amended the Canadian Human Rights Act to remove s.67, which in essence precluded Indigenous Peoples from bringing complaints as against Canada and Band governments. Since the amendment took effect in 2010, a multi-fold increase has occurred in the number of complaints filed with the Human Rights Commission of Canada from dozens to hundreds. The first such significant complaint to be heard by the Canadian Human Rights Tribunal was filed by the First Nation Child and Family Caring Society along with the Assembly of First Nations (the Complaint). The Complaint alleges Canada's funding with respect to First Nation …

Indigenous Lawyers In Canada: Identity, Professionalization, Law, Sonia Lawrence, Signa A. Daum Shanks

Articles & Book Chapters

For Indigenous communities and individuals in Canada, "Canadian" law has been a mechanism of assimilation, colonial governance and dispossession, a basis for the assertion of rights, and a method of resistance. How do Indigenous lawyers in Canada make sense of these contradictory threads and their roles and responsibilities? This paper urges attention to the lives and experiences of Indigenous lawyers, noting that the number of self-identified Indigenous lawyers has been rapidly growing since the 1990s. At the same time, Indigenous scholars are focusing on the work of revitalizing Indigenous law and legal orders. Under these conditions, Indigenous lawyers occupy a …

Corruption And Development: The Need For International Investigations With A Multijurisdictional Approach Involving Multilateral Development Banks And National Authorities, Juan G. Ronderos, Michelle Ratpan, Andrea Osorio Rincon

Osgoode Hall Law Journal

We argue that while Multilateral Development Banks (“MDBs”) and national governments have mechanisms to fight corruption, the objectives and outcomes of these enforcement mechanisms diverge. MDBs are interested in the causes and effects of corruption from a development perspective and, as such, tend to sanction small and medium enterprises and individuals, while national governments are focused on a more punitive outcome, targeting larger multinational corporations. This article examines the enforcement objectives articulated in national legislation, namely the US Foreign and Corrupt Practices Act and its Canadian counterpart, the Corruption of Foreign Public Officials Act, as well as several Canadian cases, …

The Role Of Corporate Governance In Curbing Foreign Corrupt Business Practices, Poonam Puri, Andrew Nichol

Osgoode Hall Law Journal

The role of corporate and securities laws in addressing foreign corrupt business practices have, to date, received limited consideration. Departing from the substantial literature on the criminal and public law response to international corruption, the authors analyze Canada’s Corruption of Foreign Public Officials Act in comparison with British and American legislation and conclude that the Canadian regime relies too heavily on the use of criminal sanctions and fails to contemplate the role of behaviour modification in its legislative structure. Recognizing that multinational corporations are well placed to identify, expose, and prevent corrupt business practices, the authors propose a private law-based …

The Globalization Of Crime Control: The Use Of Non-Criminal Justice Responses For Countering Organized Crime, Bjarni Halldor Sigursteinsson

LLM Theses

This thesis examines domestic authorities’ use of non-criminal justice responses to counter organized crime. Examples of responses used to counter outlaw motorcycle gangs in Canada, Germany, and Iceland are provided. These responses are significantly different from most international efforts focusing on criminal norms and cooperation in criminal matters.

As harmonization of legislation, policies and practices in this field become an international focus, I examine the role currently played by the European Union in promoting these non-criminal justice 'alternative' enforcement strategies for the purpose of furthering the development of international and domestic efforts to counter organized crime.

This study concludes that …

Addressing Access To Justice Through New Legal Service Providers: Opportunities And Challenges, Alice Woolley, Trevor C. W. Farrow

Articles & Book Chapters

Most informed observers of the Canadian and American legal systems accept the existence of a significant crisis in access to justice. One possible solution is to permit paralegals, notaries or other licensed individuals with training more limited than that enjoyed by a licensed attorney to practice in certain areas of law. This paper supports these developments, arguing for a regulated and incremental introduction of new legal service providers into the legal services market. It considers the appropriate training and scope of practice for new legal service providers, and some of the associated opportunities and challenges.

Faithful Translations?: Cross-Cultural Communication In Canadian Religious Freedom Litigation, Howard Kislowicz

Osgoode Hall Law Journal

In three religious freedom cases pursued to the Supreme Court of Canada—Amselem, Multani, and Huterrian Brethren of Wilson Colony—religious freedom claimants engaged in litigation over a religious practice particular to their group. Some have argued that cases like these can be seen as cross-cultural encounters. How did the religious freedom claimants seek to make their practices—the succah, the kirpan, and the prohibition on being photographed—understood to the courts? And how did the courts respond to these claims? In this article, I draw out two central values from the literature on crosscultural communication: respect and self-awareness. I then use these values …

Losing Relevance: Quebec And The Constitutional Politics Of Language, Emmanuelle Richez

Osgoode Hall Law Journal

This article asks whether Quebec has lost relevance in the constitutional politics of language. It proposes a doctrinal analysis of the Supreme Court’s Charter jurisprudence, with an emphasis on the most recent body of case law, and an assessment of its political consequences in the area of language policy in Quebec. The article argues that constitutional review has increasingly protected individual rights over Quebec’s collective right to maintain its language and culture. This can be explained by the move towards an implacable parallel constitutionalism and a redefinition of official minority linguistic rights in the jurisprudence, as well as by the …

Justice As A Rounding Error?: Evidence Of Subconscious Bias In Second-Degree Murder Sentences In Canada, Craig E. Jones, Micah B. Rankin

Osgoode Hall Law Journal

There are few areas of law that grant judges as much discretion as the sentencing of criminal offenders. This discretion necessarily leads to concerns about the influence of biases, including those that result from subconscious processes associated with human cognition; that is to say, heuristics. In this article, the authors explore one heuristic—number preference—through an examination of all reported second degree murder parole ineligibility decisions between 1990 and 2012. Number preference leads individuals to predictably round off measurements to certain favoured numbers. The authors identify a tendency for parole ineligibility decisions to cluster around even numbers and multiples of five, …

No Refuge: Hungarian Romani Refugee Claimants In Canada, Julianna Beaudoin, Jennifer Danch, Sean Rehaag

Osgoode Legal Studies Research Paper Series

From 2008 to 2012, large numbers of Hungarian Romani refugee claimants came to Canada. Their arrival was controversial. Some political actors suggested that their claims were unfounded and amounted to abuse of Canada’s refugee processes -- abuse which could only be prevented through wide-scale reforms to the refugee determination system. Many advocates for refugees, by contrast, argued that persecution against Roma was rampant in Hungary and noted that hundreds of Hungarians had been recognized as refugees in Canada. Some went further and contended that Romani refugee claimants fled persecution in Hungary only to be confronted with similar mistreatment in Canada. …

Towards A Pedagogy Of Diversity In Legal Education, Faisal Bhabha

Osgoode Hall Law Journal

There is resounding consensus that diversity in legal education is a priority. Yet, North American law schools continue to be criticized for failing to reflect the diversity of the society that they are training lawyers to serve. This article is a project of conceptual reorientation against a backdrop of critical scholarship and empirical evidence. Parts I and II examine the past twenty years of diversity promotion in legal education, concluding that, while several advances have been made, especially in increasing numerical representation of diverse groups in law schools, the promise of meaningful diversity remains unfulfilled. Part III suggests that reforms …

Taxation And Inequality In Canada And The United States: Two Stories Or One?, Richard M. Bird, Eric M. Zolt

Osgoode Hall Law Journal

Canada and the United States have both experienced a substantial increase in income inequality over the last several decades. In this article, we examine the complex interaction of income inequality with tax and transfer systems in Canada and the United States. We begin by comparing the data on taxation and expenditure to understand the similarities and differences between the two countries. We then consider how changes to tax and transfer policies have affected the levels of inequality in both countries. The article concludes by offering some policy recommendations that each country may consider to address the increasing levels of inequality.

Touching Torture With A Ten-Foot Pole: The Legality Of Canada’S Approach To National Security Information Sharing With Human Rights-Abusing States, Craig Forcese

Osgoode Hall Law Journal

In 2011, then-Public Safety Minister Vic Toews issued “ministerial directions” to Canada’s key security and intelligence agencies on “Information Sharing with Foreign Entities.” These directions permit information sharing in exigent circumstances, even where there is substantial risk of mistreatment of an individual. After a brief chorus of condemnation, the directions sank into relative obscurity while remaining part of Canada’s national security policy framework. This article aims to reignite discussion of these policies and their controversial content, relying in large measure on documents obtained by the author directly or through journalistic researchers under access to information law. First, I examine dilemmas …

Uncovering Women In Taxation: The Gender Impact Of Detaxation, Tax Expenditures, And Joint Tax/Benefit Units, Kathleen A. Lahey

Osgoode Hall Law Journal

Women have made great progress in gaining individual civil and political rights since the 1800s. However, for nearly a century, the use of couple-based tax and benefit provisions has increased steadily, enshrouding women in new and extensive forms of fiscal coverture that run counter to democratic ideals of economic equality. While the pros and cons of joint taxation have been well-rehearsed, the reality is that between unequal distributions of new and old varieties of tax and benefit items to women and men and the continued expansion of joint tax and benefit items in recent decades, Canada’s tax and transfer system …

Tax Law Within The Larger Legal System, J. Scott Wilkie, Peter W. Hogg

Osgoode Hall Law Journal

Tax law may be viewed as occupying its own universe, even though tax funds the implementation of public policies that animate Canadian society. This article reminds us that tax law must respond to basic rule-of-law norms in spite of overarching and well-meaning policy goals. It adopts reference points featured in recent cases. One is the Charter, which limits penalties that can be imposed on non-compliant taxpayers and tax advisers without adhering to due process safeguards. Another is the impact of international arrangements among countries in a global business environment to guide consistent regulatory responses and to identify and share information. …

Intimate Partner Criminal Harassment Through A Lens Of Responsibilization, Isabel Grant

Osgoode Hall Law Journal

Feminist scholars have demonstrated the gendered nature of intimate violence and the tendency to put the responsibility on women to avoid both sexual and physical violence (“responsibilization”). This article applies these insights to the context of intimate partner criminal harassment, which is committed overwhelmingly by men against former female intimate partners. Using criminal harassment decisions over the past decade, this article argues that the elements of the offence—specifically the requirements that the accused cause the complainant to fear for her safety, that this fear be reasonable, and that he intend to harass her—feed into the tendency towards responsibilization. Women are …

Substantive Equality As Equal Recognition: A New Theory Of Section 15 Of The Charter, Anthony Robert Sangiuliano

Osgoode Hall Law Journal

This article presents a novel theory of the concept of substantive equality under section 15(1) of the Canadian Charter of Rights and Freedoms called Substantive Equality as Equal Recognition. This contribution is timely in light of the Supreme Court of Canada’s recent disagreement over the proper jurisprudential approach to interpreting section 15(1) in the 2013 case of Quebec v A. Substantive Equality as Equal Recognition holds that the purpose of section 15(1) is to ensure that the law’s application does not reflect, through its impact or effects, hierarchies of status that exist between citizens within Canadian society. The article argues …

A Road To Home: The Right To Housing In Canada And Around The World, Darcel Bullen

Journal of Law and Social Policy

Collects papers presented at the Right to Housing symposium, “A Road to Home: The Right to Housing in Canada and Around the World” held in Toronto, 24 October 2013. Contributors speak to the various interventions and strategies used to actualize housing as a fundamental human right in South Africa, France, the United States, Scotland, and Canada, ranging from litigation, to community awareness building, to protests, and to lobbying. Also speaks to the challenges of enforcement of the right to housing once that right is recognized at law.

Fighting For The Right To Housing In Canada, Tracy Heffernan, Fay Faraday, Peter Rosenthal

Journal of Law and Social Policy

This paper examines Tanudjaja v Attorney General—the “Right to Housing” case. The authors, co-counsel on the case, discuss the context of the case, the nature of the application, and the legal underpinnings of the section 7 and 15 Canadian Charter of Rights and Freedoms claims, including positive obligations under the Charter and international law, innovative procedure taking a systemic approach to challenging oppressive legislation, and innovative supervisory orders. The authors examine the procedural and substantive implications of the provincial and federal governments’ move to strike the case, parse the Ontario Superior Court of Justice and Ontario Court of Appeal decisions …

Charter Eviction: Litigating Out Of House And Home, Margot Young

Journal of Law and Social Policy

The case of Tanudjaja v Attorney General (Canada) takes up the cause of housing rights under the Canadian Charter of Rights and Freedoms in a novel and complex way. The government actions and inactions cited as constitutional breaches and the broad remedial requests reflect the “pixelated” picture of housing concerns necessary to understanding Canada’s housing security crisis. In dismissing the challenge at a preliminary stage, the Ontario Superior and Appeal Courts risk rendering the Charter irrelevant to the deep social justice concerns that cross our country. More specifically, formulaic judicial invocation of concerns about positive rights and justiciability leave the …

Do Us Proud: Poor Women Claiming Adjudicative Space At Cesr, Emily Paradis

Journal of Law and Social Policy

Claiming Our Rights was a feminist participatory action research project based at Sistering, a Toronto drop-in for women facing homelessness. At weekly meetings over the course of eighteen months, members learned about social and economic rights, gave testimony on their lived experiences, and undertook actions to claim their rights. Among other initiatives, the group—which members named FORWARD—contributed a report on women’s homelessness to the 2006 review of Canada by the United Nations Committee on Economic, Social and Cultural Rights. This paper draws upon observations of the group’s process and in-depth interviews with participants to assess this human rights education methodology. …

Canada Tracks Disability Rights: A Drpi Model Of Systemic Monitoring, Roxanne Mykitiuk, Yvonne Peters

Articles & Book Chapters

This chapter surveys laws and policies in Canada that affect the rights of persons with disabilities. It does so as part of a broader project on international disability rights monitoring and is guided by DRPI's National Law and Policy Monitoring Template (2008). The template is based on the Convention on the Rights of Persons with Disabilities (CRPD) and other international instruments. The template's purpose is "to monitor human rights for people with disabilities at the systemic level, that is, at the level of existing laws, policies, and programs," and to "identify and draw attention to the most critical gaps and …