Law Commons^™

Analytic Jurisprudence In Time, Dan Priel

Articles & Book Chapters

Friedrich Nietzsche had this to say about philosophers:

"You ask me which of the philosophers’ traits are really idiosyncrasies? For example, their lack of historical sense, their hatred of the very idea of becoming, their Egypticism. They think that they show their respect for a subject when they de-historicize it, sub specie aeterni – when they turn it into a mummy. All that philosophers have handled for thousands of years have been concept-mummies; nothing real escaped their grasp alive. When these honorable idolators of concept worship something, they kill it and stuff it; they threaten the life of everything they …

“Help Is The Sunny Side Of Control”: The Medical Model Of Gambling And Social Context Evidence In Canadian Personal Bankruptcy Law, Anna J. Lund

Osgoode Hall Law Journal

At the start of the twentieth century, people who gambled excessively were viewed as morally deviant. Now, they are viewed as suffering from a medical disorder. Legal actors incorporate this medical approach to gamblers into how they apply the law. This shift from a moral to a medical model reorients actors from punishing gamblers to helping them, and thus can be characterized as a positive, humane development. Yet the medical model has drawbacks too. The medical model can be used to justify paternalistic and potentially harmful interventions in the lives of individuals, and it obscures the social context in which …

Judicial Influence On The Duty To Consult And Accommodate, Andrew Green

Osgoode Hall Law Journal

The duty to consult and accommodate has increasingly become front and centre in a wide range of resource and development projects and the related litigation. The Supreme Court of Canada has stated that it seeks to foster negotiation and limit litigation through its approach to the duty. This article examines, from a theoretical perspective, whether the Court is furthering this objective. It builds on a simple model of How the legislature and courts interact in the administrative law context and discusses how the relationship changes with the addition of Indigenous peoples seeking enforcing the government’s constitutional duty to consult and …

Humans As A Service: The Promise And Perils Of Work In The Gig Economy, By Jeremias Prassl, Ara Dungca

Osgoode Hall Law Journal

The gig economy is “the collection of markets that match providers to consumers on a gig basis in support of on-demand commerce.” Some of the most recognizable examples in Canada are Lyft and Uber. In a September 2017 report by the Bank of Montreal on the gig economy, it was estimated that 2.18 million Canadians were categorized as temporary workers, which include people who take on term, contract, or temporary employment, such as freelancers. This report defines a gig as “any job, especially one of short or uncertain duration.” A recent Ontario Court of Appeal Case, Heller v Uber Technologies …

Race On The Brain, By Jonathan Kahn, Shruti Ramesh

Osgoode Hall Law Journal

Canadians and Americans alike are often reluctant to honestly confront our respective nations’ histories of racism and discrimination. Unflinchingly describing a legacy of colonialism, genocide of Indigenous peoples, and multigenerational slavery, is a great deal more uncomfortable than the academically “safe” analyses advanced by critical race theory. Simply put, academic conversations around “racism” are increasingly being replaced with conversations about “bias.” This is what legal scholar Jonathan Kahn addresses in his book Race on the Brain: What Implicit Bias Gets Wrong about the Struggle for Racial Justice. Kahn’s book is a response to a trend toward scientism within the interdisciplinary …

Family Status Discrimination: Caregiving And The Prima Facie Case, Melanie Vipond, Benjamin Oliphant

Osgoode Hall Law Journal

The growing number of dual-income families with young children and ageing parents has led to a corresponding increase in the number of accommodation requests relating to childcare and eldercare. Determining whether an employer’s denial of such a request constitutes prima facie discrimination on the basis of family status has bedeviled adjudicators, resulting in various “tests” being enunciated across Canada. While some scholars and adjudicators have suggested that these “tests” are inconsistent with the test set out by the Supreme Court of Canada in Moore v. British Columbia and place a uniquely high burden on claimants to establish prima facie discrimination, …

Paradises Lost? The Constitutional Politics Of “Indian” Enfranchisement In Canada, 1857–1900, Coel Kirkby

Osgoode Hall Law Journal

Enfranchisement was the legal process for an individual or community to end their legal status as “Indians” under the Indian Act. The Canadian government hoped it would break up bands before assimilating them into settler society. This article aims to excavate the untold story of this attempt to extinguish special “Indian” status in the nineteenth century. It first traces enfranchisement as part of a Victorian discourse of civilization and as a specific Canadian legal process for the assimilation of “Indian” subjects. It then uses new archival sources to tell the untold story of the politics of enfranchisement over the second …

Whipping Up A Storm: Trying To Make Sense Of Constitutional Law, Allan C. Hutchinson

Osgoode Hall Law Journal

The effort to make sense out of what the judges of any Supreme Court do is all the more pressing and acute in times of political turbulence. Lawrence Lessig’s Fidelity and Constraint offers itself as one such effort to distinguish constitutional decision-making from “the ad hoc in politics” by its reliance upon principled and neutral reasons; it is the judges’ detached and professional nature that underwrites their democratic legitimacy and institutional commitment. This review challenges those claims and demonstrates how Lessig’s analysis does more to undermine that project than achieve it.

Industry Of Anonymity: Inside The Business Of Cybercrime, By Jonathan Lusthaus, Robert Van De Mark

Osgoode Hall Law Journal

In Industry of Anonymity: Inside the Business of Cybercrime, Jonathan Lusthaus attempts to demystify the increasingly sophisticated business of cybercrime and examine how it has matured into a large, profit-driven industry. Through interviews with hundreds of subjects involved in the cybercrime industry in varying capacities, Lusthaus has sought to draw a map that, by showing how seemingly disparate elements in the industry relate to one another, can better explain how the cybercrime industry functions. In particular, Lusthaus strives to produce a better understanding of the people behind cybercrime and the contexts in which they operate. By doing so, the book …

Ethical Testing In The Real World: Evaluating Physical Testing Of Adversarial Machine Learning, Kendra Albert, Maggie Delano, Jonathon W. Penney, Afsaneh Rigot, Ram Shankar Siva Kumar

Articles & Book Chapters

This paper critically assesses the adequacy and representativeness of physical domain testing for various adversarial machine learning (ML) attacks against computer vision systems involving human subjects. Many papers that deploy such attacks characterize themselves as “real world.” Despite this framing, however, we found the physical or real-world testing conducted was minimal, provided few details about testing subjects and was often conducted as an afterthought or demonstration. Adversarial ML research without representative trials or testing is an ethical, scientific, and health/safety issue that can cause real harms. We introduce the problem and our methodology, and then critique the physical domain testing …

4 Questions For: Professor Dayna Scott On Environmental Racism In Canada, Osgoode Hall Law School Of York University

"4 Questions For" the Osgoode podcast

Dayna Scott, Associate Professor at Osgoode and York Research Chair in Environmental Law & Justice in the Green Economy, talks with Priyanka Vittal, counsel at Greenpeace and an adjunct professor at Osgoode, about the impacts of environmental racism in Canada and what can be done about it. Run time: 19:50

My Covid Pause, Jennifer Nedelsky

Articles & Book Chapters

No abstract provided.

Liquid Laws: Extractivism And Unstable Authority, Caitlin Rose Sargeant Murphy

LLM Theses

This thesis concerns the co-constitution of extractivism and claims to authority, particularly in contexts where the legal narrative hides the ways that extractivism is facilitated. I examine how law implicitly structures extractivism, as well as how states use extractivism to generate authority. I look at this relationship in the context of international legal debates over the Antarctic Treaty, and a history of extractive interventions by the settler colonial state towards the Murray-Darling River Basin in south-eastern Australia. The way I read claims to authority engages both the violence and instability of these claims. The specific ways in which the relationship …

Procedural Discretionary Decisions And Access To Justice Before Administrative Tribunals, Rachel Elizabeth Weiner

LLM Theses

This thesis considers procedural discretionary decision-making by administrative tribunals and access to justice for marginalized and low-income individuals. I begin by reviewing literature regarding discretionary decision-making, access to justice, procedural justice, and ideal theories focusing on transparent and respectful engagement and dialogue between decision-makers and litigants. I then analyze three case studies regarding procedural discretionary decision-making and accommodations in the hearing process, addressing primarily disability and language barriers experienced by litigants before the Social Benefits Tribunal, Human Rights Tribunal of Ontario, and Landlord and Tenant Board. I then compare theories of discretionary decision-making with actual decision-making practices employed by tribunal …

Sex Workers And The Best Interests Of Their Children: Identifying Issues Faced By Sex Workers Involved In Custody And Access Legal Proceedings, Julie Eleanor Dewolf

LLM Theses

Sex worker parents often lose custody of their children. The purpose of this research was to determine what impact the status of a parent as a past or present sex worker has had on judicial decision-making in custody and access disputes. Through doctrinal legal research, I explored judicial treatment of sex worker parents in custody and access disputes in Ontario Child Protection and Family Law case law. Parental involvement in sex work was often presented as an unfavourable aspect of the parent, or otherwise had a negative influence on their claim. Sex work was treated as a negative quality in …

Towards Implementing The Truth And Reconciliation Commission's Calls To Action In Law Schools: A Settler Harm Reduction Approach To Racial Stereotyping And Prejudice Against Indigenous Peoples And Indigenous Legal Orders In Canadian Legal Education, Scott James Franks

LLM Theses

Many Canadian law schools are in the process of implementing the Truth and Reconciliation Commissions Call to Actions #28 and #50. Promising initiatives include mandatory courses, Indigenous cultural competency, and Indigenous law intensives. However, processes of social categorization and racialization subordinate Indigenous peoples and their legal orders in Canadian legal education. These processes present a barrier to the implementation of the Calls. To ethically and respectfully implement these Calls, faculty and administration must reduce racial stereotyping and prejudice against Indigenous peoples and Indigenous legal orders in legal education. I propose that social psychology on racial prejudice and stereotyping may offer …

Towards Development Justice: Re-Visiting The Accountability Of The World Bank And The Imf From A Right To Development Perspective, Maxwel Owuor Miyawa

PhD Dissertations

This dissertation investigates how development justice can be realized through an international accountability praxis that is grounded on the core principles of the United Nations Declaration on the Right to Development, one that recognizes the imperative of direct and distinct accountability of the World Bank and the IMF for their development practices. Empirically, amid the intensification of human rights deprivations and mounting development injustices in the Global South, the dominant development praxis has been typified by the marked absence of direct and distinct accountability of international financial institutions. The normative frameworks of international accountability in the realm of development are …

The Transnational Mining Justice Social Movement: Indigenous Right To Consultation & Right To Remedy Law Reform Activism In Canada And Latin America From 1999-2019, Charis Kamphuis

PhD Dissertations

This portfolio dissertation studies the activism of the transnational mining justice social movement in Canada and Latin America from the late 1990s to 2019. It focuses on two of the movements most significant human rights projects in that period: Indigenous right to consultation in Latin American (company host states), and the right to remedy in Canada (company home state). Chapter One undertakes an in-depth study of the Peruvian Campesino Community San Andres de Negritos long battle in search of a legal remedy for its dispossession in favor of Yanacocha Mine in the early 1990s. The Communitys turn to the law …

Concluding Remarks: Miyo-Wîcêhtowin, R V Stanley, And Our Future As Lawyers, Signa A. Daum Shanks

Articles & Book Chapters

Miyo-wîcêhtowin. It is a term I have learned to express the idea of good behaviour; responsibility to others; and not forgetting those who are the most forgotten, the most in need of help, those whose ways we most benefit from. It is Cree, but its nature and scope is not necessarily unique to Cree circles. It is reinforced by religious references, standards for professional certification and volunteer groups, and personal choices. It is also woven into Canada’s legal system, whether in judicial decisions or in academic or professional discussions. So while we can see it when appreciating cultural tenets or …

Supporting Indigenous And Non-Indigenous Research Partnerships, Rosalind Edwards, Helen Moewaka Barnes, Deborah Mcgregor, Tula Brannelly

Articles & Book Chapters

This commentary discusses the framing of the production of a series of online text-based and visual resources aimed at researchers embarking on Indigenous and non-Indigenous research partnerships, and in particular supporting non-Indigenous researchers to think about our/their methods, assumptions and behaviour. We identify the tension in mainstream funding for such partnerships, and discuss the implications of Northern epistemological claims to agendas and universality as against Southern epistemologies acknowledging diversity and challenging oppressions. We note the distinct bases for Indigenous methodologies. Our commentary outlines and illustrates the online downloadable resources produced by our own Indigenous and non-Indigenous research partnership, including a …

Let’S Pick Up Where We Left Off 25 Years Ago To Expand Access To Civil Justice In Canada, Ab Currie

Canadian Forum on Civil Justice

The 2020 World Justice Project (WJP) Rule of Law Index ranks Canada 9th overall out of 128 countries on a composite rule of law index made up of 8 factors. In this latest version of the WJP Rule of Law Index Canada ranks 9th on constraints on government powers, 9th on absence of corruption, 9th on open government, 9th on respect for fundamental rights, 9th on order and security, 11th on regulatory enforcement, 10th on criminal justice and, much lower than the other rule of law indicators, 19th globally on civil justice. Canada’s overall score is 0.81 out of 1.00. …

What We Owe Workers As A Matter Of Common Humanity: Sickness And Caregiving Leaves And Pay In The Age Of Pandemics, Eric Tucker, Leah F. Vosko, Sarah Marsden

Articles & Book Chapters

No abstract provided.

Shared Indigenous And Crown Sovereignty: Modifying The State Model, Kent Mcneil

Articles & Book Chapters

When European nations colonized North America, their dealings with one another were based on the state model of territorial sovereignty. At the same time, they acknowledged the independence of the Indigenous nations and entered into nation-to-nation treaties with them, whereby sovereignty was to be shared. Consequently, the Westphalian concept of absolute state sovereignty has never applied in North America. While the European nations acquired sovereignty vis-à-vis one another in the international law system that they created, the Indigenous nations retained internal sovereignty and the right to continue governing themselves. This modified concept of state sovereignty has been acknowledged by the …

Extractivism: Socio-Legal Approaches To Relations With Lands And Resources, Dayna Nadine Scott

Articles & Book Chapters

No abstract provided.

Never Letting A Good Crisis Go To Waste: Canadian Interdiction Of Asylum Seekers, Sean Rehaag, Janet Song, Alexander Toope

Articles & Book Chapters

This article examines two moments of crisis at Canada’s border with the United States: the aftermath of September 11th, 2001 (“9/11”) and the COVID-19 pandemic. The Canadian government leveraged both crises to offshore responsibilities for asylum seekers onto the United States. In the first case, Canada took advantage of U.S. preoccupations with border security shortly after 9/11 to persuade the United States to sign the Canada-U.S. Safe Third Country Agreement (“STCA”)—an agreement that allows Canada to direct back asylum seekers who present themselves at land ports of entry on the Canada-U.S. border. In the second case, Canada used heightened anxieties …

Reimagining Disability: The Screening Of Donor Gametes And Embryos In Ivf, Isabel Karpin, Roxanne Mykitiuk

Articles & Book Chapters

In this article,we examine how disability is figured in the imaginaries that are given shape by the reproductive projects and parental desires facilitated by the bio-medical techniques and practices of assisted reproductive technologies (ARTs) that involve selection and screening for disability. We investigate how some users of ARTs understand and deploy these imaginaries in ways that are both concordant with and resistant to the understanding of disability embedded within the broader sociotechnical and social imaginaries. It is through users’ deliberations, choices, responses, and expectations that we come to understand how these imaginaries are perpetuated and resisted, and how maintaining them …

Exposing The Myths Of Household Water Insecurity In The Global North: A Critical Review, Katie Meehan, Wendy Jepson, Leila M. Harris, Amber Wutich, Melissa Beresford, Amanda Fencl, Jonathan London, Gregory Pierce, Lucero Radonic, Christian Wells, Nicole J. Wilson, Ellis Adjei Adams, Rachel Arsenault, Alexandra Brewis, Victoria Harrington, Yanna Lambrinidou, Deborah Mcgregor

Articles & Book Chapters

Safe and secure water is a cornerstone of modern life in the global North. This article critically examines a set of prevalent myths about household water in high-income countries, with a focus on Canada and the United States. Taking a relational approach, we argue that household water insecurity is a product of institutionalized structures and power, manifests unevenly through space and time, and is reproduced in places we tend to assume are the most water-secure in the world. We first briefly introduce “modern water” and the modern infrastructural ideal, a highly influential set of ideas that have shaped household water …

Litigation Is “Just One Tool”: An Annotated Interview With Karin Baqi, Counsel For The End Immigration Detention Network In Brown V Canada, Kristen Lloyd

Journal of Law and Social Policy

The End Immigration Detention Network (EIDN) was formed as a coalition of migrant detainees, their family members, and allies, who organized to bring an end to indefinite immigration detention in Canada. In October 2016, EIDN was granted third party public interest standing in a constitutional challenge to Canada’s immigration detention regime. This granted an unprecedented legitimacy to EIDN, and to the rights and lives of immigration detainees, and should in itself be considered a victory. That said, it was a moment that would not have arrived without the three years of intensive political organizing that came before it. This article …

The Jail Accountability & Information Line: Early Reflections On Praxis, Souheil Benslimane, Sarah Speight, Justin Piché, Aaron Doyle

Journal of Law and Social Policy

Poor conditions of confinement and human rights violations have been commonplace at the Ottawa-Carleton Detention Centre (OCDC) since it opened in the early 1970s. Recently, the deplorable treatment of provincial prisoners at OCDC has been documented in reports by the Ontario Ombudsperson, the Ontario Human Rights Commission, the Independent Review of Ontario Corrections, the Community Advisory Board (established in 2014), the OCDC Task Force (established in 2016) and coronial inquests. Despite the avalanche of recommendations flowing from these reform-oriented interventions, pressing human rights issues persist at the facility—ranging from inedible food to inadequate health care that has contributed to preventable …

Out Of Sight, Out Of Mind: Bill C-83, Solitary Confinement, And Mental Health, Lydia Dobson

Journal of Law and Social Policy

This article investigates the recently passed Bill C-83, which aims to reduce harms caused by segregating people with mental health issues. In order to assess the capacity of the Bill to support meaningful change, the history of mental health institutions and correctional facilities in Ontario is first explored, followed by an analysis of recent cases on segregation and mental health in the province. Next, legislative oversight for federal prisons and provincial jails is described, followed by an overview of ongoing reforms. Here, a distinction between federal prisons and provincial jails is made in order to explore the different legislation governing …