Law

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Open Access
The Use of Arguments about Myths and Stereotypes to Appeal Sexual Assault Convictions in Canada
(2023-03-28) Quinn, Ryan Andrew; Dufraimont, Lisa
Canadian defence counsel have recently begun appealing sexual assault convictions by arguing that a trial judge applied myths and stereotypes (M&S) against the accused. This phenomenon is surprising because this country’s focus on M&S in sexual assault law has almost exclusively concerned improper assumptions that operate against the complainant and the Crown and risk producing perverse acquittals. This thesis reviews this new defence strategy with reference to three decades of appellate case law and scholarship. It advances definitions of M&S as well as principles for understanding the evidentiary effects of their recognition as such, and it categorizes various defence attempts to invoke M&S in conviction appeals, concluding that some have more merit than others. Emerging from this analysis is a more consistent, coherent role for the M&S doctrine in sexual assault law – one which should assist the Canadian bench, bar and academy in distinguishing legitimate M&S arguments from strained ones.
Open Access
The Elusive Pursuit of Justice: Sexual Assault Survivors' Speak About Redress in the Aftermath of Violence
(2023-03-28) Burnett, Tamera Ashley Margaret; Lawrence, Sonia
The struggle of survivors to obtain justice after they have been sexually assaulted has been a much discussed topic in recent years. Significant attention and resources are being directed towards this issue, making academic research particularly valuable at this time. However, instead of asking how legal processes can theoretically be made better, as is the case in most of the literature on this topic, my focus has been on asking why survivors want to engage in a legal process at all. What do they get from reporting their assaults and does what the legal system offers them respond to what survivors are looking for from justice? This project starts this conversation by asking survivors what they think justice should be in the aftermath of a sexual assault. Using feminist standpoint epistemology and grounded theory, I interviewed sixteen survivors and seven lawyers to explore what justice means for survivors in the aftermath of an assault. From the data, I identified four major themes including: harms and healing, accountability, punishment, and restorative justice. I found that survivors were not satisfied with the justice they could obtain under criminal law. They stated that it was difficult, financially and emotionally, to engage in criminal proceedings that were unlikely to resolve in a way that made them feel as if justice was done. While other forms of legal justice are also available, survivors often found these to be inaccessible as well, or they were unaware of the existence of these alternative options. The survivors I spoke with imagined an expansive ideal of justice. To most of the women I interviewed with, justice involved the prevention of future violence, something they did not think the legal system was currently equipped to deal with. They were curious, though conflicted, about restorative models, but appreciated their focus on attempting to reform offender behaviour. They also stressed the importance of being supported in their attempts to recover from sexual assault, highlighting that financial compensation was crucial for any survivor to heal.
Open Access
Tokenized Finance and Monetary Law: The Evolving Role of the Central Bank in the Age of Digital Currency
(2023-03-28) Olowookere, Odunayo Emmanuel; Puri, Poonam
This thesis attempts to examine the motivations of the central bank and the state in the adoption of a sovereign-backed Central Bank Digital Currency (CBDC). We sought to answer the question- of what central bank roles will be most affected by the adoption of a sovereign-backed digital currency. Since any motivations for the adoption of this new form of currency are sure to reflect in its eventual design, we argue that without the intervention of the law at this crucial design stage, any such currency is very likely to be unfavorable to the money users. We justify this by investigating the role played by the law in guiding the evolutionary trajectory of the central bank and monetary affairs generally. Our investigation revealed that money and the law evolved alongside economic development and the inherent complexities in trade and exchange.
Open Access
Regulating the Corporation from Within and Without: Corporate Governance and Workers’ Interests
(2022-12-14) Sukdeo, Vanisha Hemwatie; Puri, Poonam
This dissertation critically explores how the increased legal regulation and governance of corporations can be used to help improve the interests of workers in global supply chains. Chapter one outlines the introduction and provides background information. Chapter two is the literature review. Chapter three examines the expansion of fiduciary duties and changes to corporate governance, including Benefit Corporations, and how expanded fiduciary duties can be used to increase the interests1 of workers. Chapter four contains a case study of the Rana Plaza disaster to demonstrate how governance models can be used to help increase working conditions in Bangladesh and other parts of the Global South. Chapter five is a case study of the Hudson’s Bay Company and three different versions of its code of conduct. Chapter six concludes.
Open Access
The old people are the song, and we are their echo: resurgence of w̱ sáneć law and legal theory
(2022-12-14) Clifford, Robert Justin; Boisselle, Andree
This dissertation attends to pressing questions of strategy and tactics in relation to Indigenous law revitalization in the context of the climate crisis. Grounded in my own W̱SÁNEĆ legal order, I provide an accounting of the context in which the resurgence of W̱SÁNEĆ law is occurring, and clarity regarding what we hope to accomplish with the revitalization of W̱SÁNEĆ (and more broadly, Indigenous) law, both locally and in response to global climate crisis. Doing so prompts questioning of the very foundations of Canadian constitutionalism, and indeed, our most basic ideologies and conceptualizations of our place and relationships within the world. From a position that our theory and methodology of Indigenous law revitalization, and our diagnosis and approaches to the climate crisis must be intricately entwined and mutually reflective, the dissertation sets out to argue that nothing short of a fundamental reimagining of our relationships within the world, and thus the social, legal, political, and economic structures those relational understandings condition, is required. Approaching such encompassing questions requires the creation of conversations across fields such as Indigenous law, critical Indigenous studies, and political ecology. Guided by W̱SÁNEĆ law and the responsibilities and obligations it entails, how might we navigate ongoing dynamics of settler colonialism and climate crisis? While some form of “decolonized” relationship with Canada seems necessary but insufficient within the context of a global climate crisis, what would actually be required to meaningfully respond and reimagine healthy relationships between all beings? Will forms of state-delegated authority, such as co-management agreements, or forms of “green capitalism”, such as market measures or carbon offsets for Indigenous-led conservation, ever suffice to address our longstanding, and yet continually unfolding, predicaments of settler colonialism and climate crisis? As I argue for a more foundational re-imagining of our relationships and place within the world, my analysis also reveals that we are not left groundless in this re-imagining as we can draw upon the wisdom and practices housed within our respective Indigenous traditions.
Open Access
Safety Valves: A Band-Aid Solution to the Ills of Mandatory Minimums?
(2022-12-14) Sayed, Venus; Berger, Benjamin L.
This work examines the Supreme Court of Canada’s statutory safety valve proposal in the case of R. v. Lloyd as a solution to the problems presented by mandatory minimum sentences. The thesis develops a safety valve matrix which allows various valves to be plotted along broad-narrow and high-low discretion matrices. Following a review of the development of exemptions in Canadian jurisprudence, the paper then takes a comparative approach of analysis to look at three similarly placed jurisdictions – Australia, the United States and the United Kingdom. By examining the statutory safety valves in use in these jurisdictions, this work concludes that a broad, high-discretion safety valve may be most effective in the Canadian context.
Open Access
Hartazgo: Understanding how #YoTeCreo emerged in Venezuela
(2022-12-14) Muskus Toro, Maria Corina; Matthews, Heidi
This thesis explores how digital feminist activism sparked, using as a case study #YoTeCreo movement in Venezuela. Using the FemMesh to connect feminists knowledges, nodes and entanglements together with a transnationalized intersectionality, I discuss how this digital activism occurred locally. As this topic is novel and this thesis is exploratory, I combine the theoretical framework mentioned before together with feminist qualitative methodology by interviewing the leaders of #YoTeCreo and answer my research question. I concluded that the spark of #YoTeCreo in Venezuela is a combination of different factors and it is not a transplantation of the #MeToo movement from North to South. Even though the #MeToo was a reference to #YoTeCreo, the cross-border movements of ideas, persons, and places; the role of media and entertainment; the role of migrant women; the feeling of hartazgo, a sense of empathy, and sorority were important and entangled factors linked to the spark of this movement.
Open Access
Law and Indigenous Religion: Theorizing a Complex Relationship
(2022-12-14) Lewis, Kristen Elizabeth; Berger, Benjamin L.
This thesis asks what preconditions are necessary to think the relation between law and Indigenous religion without marginalizing perspectives, such as those germane to Indigenous religion, that fall outside law’s frame (often figured, erroneously, as ‘objective’ and ‘neutral’). The research grounds itself in the only Supreme Court of Canada case that, to date, has involved Indigenous religious freedoms and s. 2(a) of the Canadian Charter of Rights and Freedoms (Ktunaxa Nation v British Columbia 2017 SCC) and in the very few lower court decisions that have followed in its not-unproblematic wake. Inspired by several currents of both Indigenous thought and non-Indigenous critical-theoretical work, I advance an approach that imagines law and the stories it tells as deeply entangled, inevitably, with land. Applying this framework to the context of Canadian constitutional law’s encounters with Indigenous religion, I argue that for law to understand what is at stake in Indigenous religious freedoms claims, it must transcend its habit of seeing the world in ways that perpetuate a division between objects and beliefs. Law might thereby open to the perspective, prevalent across Indigenous worldviews, that selves and world are not as separable as Canadian constitutional law’s current religious freedoms framework suggests.
Open Access
A Critical Approach to the Regulation of a Public Corporation's Purchase of Its Own Shares on the Open Market: Lessons from The Transatlantic Comparison
(2022-12-14) Cohaz, Alper; Williams, Cynthia A.
Open market repurchases (OMRs)—by far the most common form of share repurchases—have reached record levels following the dramatic increase in number since the adoption of the safe harbor rule in the US. This dramatic increase has been largely attributed to purported benefits of OMRs that matter especially within the Anglo-American economic and corporate model. However, these benefits fail to fully explain such increase. This failure suggests that illegitimate purposes, which could easily be concealed beneath purported benefits, might have also contributed to the increase in the number of OMRs and resulted in their excessive use. This suggestion is supported by the ineffectiveness of the safe harbor rule applicable to OMRs in the US that paves the way for the exploitation of OMRs by corporate actors having inside or superior information. On the other hand, any and all share repurchases used to be strictly regulated in the EU. However, some EU Member States and later the EU itself relaxed legal capital rules including the rule on share repurchases and adopted a safe harbor rule on OMRs that is essentially similar to that in the US. This substantial legal convergence has also been followed by an increase in the number of OMRs in the EU. Notwithstanding that the increase in the EU has been more rapid than that in the US, the number of OMRs in the EU has been much lower than in the US. The less frequent use of OMRs supports the claim that corporations substantially persist in the Continental European model. In this model, the purported benefits of OMRs have been less significant and the potential of abuse of OMRs have been less probable than in the US. Such persistence has also been partly reflected on the OMR regulation in the EU that prescribes a less ineffective framework than that in the US through a few but crucial regulatory technical differences. Hence, this dissertation compares and contrasts rules and practices relating to OMRs on both sides of the Atlantic and comes up with a series of regulatory proposals to maintain the purported benefits while curbing the number and eliminating the potential drawbacks arising from the abuse of OMRs, particularly in the US but also in the EU and elsewhere. These proposals include two main easy-to-implement regulatory policy proposals, namely the enhancement of current disclosure requirements and the increase of oversight mechanism on OMRs, and a number of complementary proposals that include recommendations for various market actors to reduce the excessive use of OMRs.
Open Access
Understanding the Failure of Police Reform in Nigeria: A Case for Legal History Through Literature
(2022-12-07) Oni, Olaoluwa Folasade; Berger, Benjamin L.
On the 21st of October 2020, the world woke to images and video clips of the bloodied, broken bodies of Nigerians shared across social and traditional media. The night before, young Nigerians protesting police brutality were met with a government-sanctioned, combined police and military onslaught; Nigerias decades-long struggle with police dysfunction was brought to a head with the massacre of its citizens at the Lekki toll gate on the evening of October 20, 2020. This work problematizes the cycle of attempts at, and ultimate failure of, police reform in Nigeria. I argue that the colonial nature of policing is retained in attempts to reform the Nigerian police force. so reform efforts continue to produce a colonial and ultimately flawed institution. To address this problem, I offer a non-colonial vision of policing that draws from pre-colonial Igbo societies and recommend literary narratives as a critical source for this pre-colonial history.
Open Access
British Empire, Land Tenure and the Search for an Ideal Proprietor: 1868-1875
(2022-08-08) Aulakh, Preetmohinder Singh; Girard, Philip V.
Between 1868 and 1875, several land tenure laws (Punjab Tenancy Act of 1868; Landlord and Tenant (Ireland) Act of 1870; and Prince Edward Island Tenants Compensation Act, 1872 and Land Purchase Act, 1875) were enacted across the British Empire. These laws established some form of security of tenure for the actual cultivators of land by recognizing co-proprietorship of tenants and landlords and/or by transferring proprietorship from landlords to tenants. This study examines how proponents of the rights of cultivators overcame long-standing resistance to any encroachment of landlords property rights in these socio-politically diverse and geographically dispersed colonies. Comparative analyses of the historical land tenure arrangements in the three colonies and the contestations around the specific laws reveal two crucial mechanisms which facilitated the institutionalization of peasant-proprietorship. First, there was a fortuitous ideological alignment between important governing agents in the three colonies. Sympathy for the peasants of John Lawrence (Governor-General of India) and his followers in Punjab after the 1857 Rebellion, the desire of William Gladstone and his Liberal government to pacify Ireland in 1868 through a resolution of the centuries-old land question, and the singular focus of the Prince Edward Island legislature by the late 1860s to establish the rights of tenants and convert the leasehold to freehold tenures on the island, reinforced each other in promoting the rights of tenants. Second, these efforts were crucially augmented by the redirection of the debate about how far land tenures being considered across the Empire would impact the sanctity of English principles to one where these existing principles were deemed to be anomalous and thus not applicable to the colonies. The extrication of land tenure considerations in the colonies from the institutionalized practices in England allowed for inter-colony analogies and precedents to support the proprietary rights of the peasant cultivators. The use of inter-colony analogies not only overcame resistance from the influential aristocratic classes and their supporters across the Empire during the period of the current study but also became the normative tool in expanding peasant-proprietorship well into the twentieth century for successive British governments of all political stripes.
Open Access
Accepting the Unacceptable: Trinity Western University, Religious Freedom, and the Meaning of Liberal Constitutionalism
(2022-08-08) Boissonneault, Robert Stephen; Berger, Benjamin L.
This thesis proposes an answer to the question of when, and under what conditions, a state operating within the framework of liberal constitutionalism may legitimately condition receipt of public benefits on the recipient's conformity with liberal values—a question that is implicitly asked, but never directly answered, by the decision of the Supreme Court of Canada in Law Society of British Columbia v Trinity Western University. How this question is answered has significant implications for the law of religious freedom in Canada. This thesis posits a conceptual distinction between two types of public benefit: public licences and public mandates. This distinction is animated by the principles of 1) tolerance and 2) respect for individual self-actualisation, which together form the core of liberal constitutionalism. This thesis argues that only access to public mandates may be made contingent on conformity with liberal values.
Open Access
Transcending the Impasses: Towards an Indigenous Vision of Legality in Palestine
(2022-08-08) Abujbara, Juman; Nadler, Jennifer
This thesis attempts to demonstrate that the international legal impasse surrounding Palestine is animated by incommensurable visions of legality. It argues that in portraying the Palestinian struggle for liberation as a struggle for state sovereignty, international law subjects the indigenous worldview to a violent and perpetual erasure. The thesis employs Aaron Mills' theoretical framework to argue for an incommensurability between Palestine's indigenous conception of legality and the dominant conception of legality underlying international law. Further, the thesis offers a reading of Ghassan Kanafani's novel The Other Thing to explore the consequences and normative implications of an impasse characterized by incommensurability. The key finding is that cultural artefacts are important sites of the Palestinian legal memory and are capable of uncovering Palestine's silenced vision of legality. Finally, the paper concludes that acknowledging incommensurability paves a way towards a more holistic legal imagination that contains the seeds of transcending the impasse in indigenous Palestine.
Open Access
Judicial Depictions of Responsibility and Risk: The Erasure of State Accountability in Canadian Sentencing Judgments Involving Indigenous People
(2022-03-03) Nussbaum, Sarah Jane; Tanguay-Renaud,Francois
This dissertation is set within the context of Canadas mass imprisonment of Indigenous people and centres on a critical evaluation of reported sentencing judgments. In particular, the dissertation examines some of the ways in which sentencing judges both draw attention to, and obscure, state accountability. The dissertation demonstrates that sentencing judges erase the role of the state in the criminalization of Indigenous people and in the construction of Indigenous people as risky. The result is that sentencing judgments rationalize and support the re-entrenchment, rather than the redressing, of the states oppression of Indigenous people. The dissertation is theoretical and descriptive, critically examining sentencing judges portrayals of Indigenous people and the state. The case studies are disheartening: the studies illustrate a few different ways in which sentencing law, despite purportedly aiming to repair systemic harm, continues to cement such harm. Yet the theoretical tools used to dissect sentencing judgments destructive practices can also assist in thinking through possibilities for change. The dissertation draws on theories that engage with the centrality of relationships in peoples lives (including peoples relationships with the state), the role of the state in generating and sustaining inequality, the interconnections between state efforts to contextualize Indigenous people and the reinforcement of stereotypes, and the resilience, strength, and diversity of Indigenous Peoples, communities, families, and individuals. These theories all support some existing proposals (and some current practices and possible new proposals) for pursuing decarceral approaches. The decarceral approaches that this dissertation addresses recognize that any sentencing analysis (including an analysis of how to assign responsibility for past criminalized conduct and an analysis of how to protect a community in the future) requires a consideration not only of criminalized individuals experiences but also of the states actions and inactions. A sentencing analysis must see and identify the state as having contributed to the criminalization of Indigenous people and to the construction of Indigenous people as risky. Additionally, the state must take accountability for its actions in historically and contemporarily inflicting violence on Indigenous people and for its potential to instead support Indigenous peoples resilience, safety, and sovereignty.
Open Access
The Norm Life Cycle Theory and The Role of INSOL International in Shaping the Uncitral Model Law on Cross-Border Insolvency
(2022-03-03) Idigbe, Anthony Ikemefuna; Puri, Poonam
The involvement of non-state entities in global public norm evolution has been the subject of many studies, especially in international human rights law and policy. This study explains the role of a non-state entity, INSOL International, in shaping the UNCITRAL Model Law on Cross-Border Insolvency, adopted by the UN General Assembly in 1997 using the life cycle approach developed in the human rights and policy context. The study utilized a triangulation of doctrinal, empirical and legal history data to determine whether the norm life cycle theory could explain the role of INSOL in shaping the Model Law. The study found that non-state entities have influenced bankruptcy norms even before Roman Times. State involvement in setting bankruptcy norms is a reasonably recent phenomenon. The Model Law results from a complex and complicated private-public legal ordering in which non-state entities' interests intermingle with state sovereigns, providing legitimacy and accountability to multilateral normative sites. The life cycle approach enabled a look back on how INSOL manoeuvred the policy terrain to generate, cascade and ensure internalization of cooperation and coordination norms among state courts. These norms underpin the Model Law. The study found that a gap exists between the interests of non-state entities and low GDP states excluded from participation at the two earlier stages of emergence and cascade but required to diffuse the norm at the last stage of internalization. The study indicates that while the life cycle theory is helpful in our understanding of the role of INSOL in shaping the Model Law provides no solution for dealing with the gaps in normative weight of states in global lawmaking. Given the impact of non-state entities on global lawmaking, the study suggests balancing the gaps through the early involvement of members from low GDP states in the activities of non-state entities and at the early stages of the life cycle of a norm. This approach would render internalization and diffusion of such norms easier in those states later.
Open Access
Executive Power, Territorial Jurisdiction, and the (Non-)Protection of Human Rights in Canadian Extradition
(2022-03-03) De Santi, Jay; Scott, Craig Martin
This thesis grapples with the complexity of the relationship between the political executive, embodied in the Minister of Justice, and the individual. It examines the trajectory of individual rights under the current Extradition Act, in the context of extradition requests for prosecution of alleged criminal offences that occurred primarily, or entirely, within Canadas territorial jurisdiction. This project uses a mix of doctrinal and empirical methods to analyse both the law as it is, and the law as it is practised. I argue that the current state of rights protections in Canadian extradition law, at least where the person is sought for prosecution of alleged criminal offences committed within Canadas territory, fails to provide meaningful protection to individual constitutional rights. These failures appear to be the result of both design and implementation of the Act and the Canadian Charter of Rights and Freedoms, by both the Minister of Justice and by provincial appellate courts.
Open Access
Health Insurance, a False Dichotomy and a Negative Right to Abortion in Canada's Maritime Provinces
(2021-11-15) Shrybman, Clare Joanne; Mosher, Janet E.
This thesis examines the jurisdictional movement of abortion regulation resulting from R v Morgentaler and the barriers to abortion which emerged as a result of the transition in the Maritime provinces. Following decriminalization, the Maritime provinces responded by implementing health insurance barriers to clinic abortions, restricting access. While contemporary scholarship has predominantly examined the issue through a health law and positive rights lens, this thesis asserts that these barriers can most successfully be challenged as a negative rights violation of the Charters section 7 guarantee of security of the person. This is because, although the dichotomy between positive and negative rights is at times superficial, Canadian courts have taken more favourably to negative rights challenges, particularly in regard to section 7.
Open Access
Aandaakonan inaakonigewin: Considering an Anishinaabe meaning to the Canadian law on consultation and accommodation
(2021-11-15) Guido, Veronica Ann; Drake, Karen
Indigenous laws are resurging throughout Turtle Island and have vital roles to play in the creation and application of laws, governance structures, and decision-making. However, for this to happen, the understanding of the law which is predominant and dictates legal processes must change, specifically when such laws apply to Indigenous land and peoples. This will allow Indigenous legal orders – including Anishinaabe legal norms such as mutual aid, kinship, giftedness and doodem – to flourish. This thesis explores Anishinaabe law resurgence by asking: how can decision-making about land, natural resources, and Aboriginal rights through the duty to consult and accommodate be altered so to be understood and applied through Anishinaabe law? By exploring the legal principles and theories that form both the colonial and Anishinaabe legal orders, this thesis considers one way Anishinaabe legal orders could understand the duty to consult and accommodate.
Open Access
Finding a Governing Law to Resolve Conflicts of Tax Laws
(2021-11-15) McMillan, Catharine Marie; Wilkie, Scott
This thesis explores how tax treaty articles providing foreign tax recognition, distributive rules, meanings for undefined terms, and anti-treaty shopping rules implicitly employ conflict of laws "choice of law" ("COL/col") principles to derive the governing law in situations where more than one tax law and therefore more than one legal system applies to characterize a person or income. COL/col principles are implicitly acknowledged and specifically operate in tax treaties to reconcile contending tax laws and therefore legal systems. Considering tax treaty articles implore countries to ascertain the governing law through reconciliation, supranational approaches that advocate harmonization to ascertain governing law are unnecessary. Reconciliatory approaches are preferrable to harmonization approaches because the former supports countries' law-making sovereignty and the latter does not.
Open Access
Doomed to Fail: Ag-gag Laws and the Canadian Charter
(2021-11-15) Skinner, Samantha Lynne; Girard, Philip V.
In late 2019, ag-gag laws began being introduced in Canada. Ag-gag laws are named for their intended effect of gagging activists from exposing the realities of the animal agriculture industry. Animal activists seek to gather and publicly disseminate information using means of bearing witness, undercover investigations, and civil disobedience. Ag-gag laws originated in the US in the 1990s, but saw a revival in the 2010s. In the US, animal law organizations such as the Animal Legal Defense Fund have been successfully challenging the constitutionality of ag-gag laws, with courts in six states finding ag-gag laws to violate the First Amendment right to free speech. Despite the failures of ag-gag laws in US courts, various governments in Canada began introducing ag-gag laws to shield the animal agriculture industry from the growing activism in Canada. In drawing parallels between the US right to free speech and the Canadian Charters s. 2(b) freedom of expression, this thesis argues that Canadian ag-gag laws must also be found to unconstitutionally violate the Charter. To be sure, ag-gag laws suppress important activist expression in a way that cannot be justified in a free and democratic society. This thesis seeks to capture the current picture of ag-gag laws in Canada as of June 2021 in anticipation of the impending Charter challenges by Animal Justice et al.