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Legal Pluralism in Canada and the Vitality of Indigenous Law
Full text linkState law in Canada consists of the civil law in private law matters in Quebec and the common law in public law matters there and generally in the rest of the country, supplemented by legislation. Legislative authority is divided by the Constitution Act, 1867,1 between the federal government and the ten provinces. In addition, the three territories – Yukon, Northwest Territories, and Nunavut – have legislative authority that has been delegated to them by the Parliament of Canada. This federal division of powers means that there is federal law that is generally uniform throughout Canada (e.g. criminal law) and provincial and territorial law that varies from province to province and territory to territory. Quebec law varies the most because it is based on Quebec’s Civil Code and supplementary legislation
The Enduring Relevance of the Right to Strike: Arguments for Further Legal Protection and Regulatory Reform
No full textIn this thematic issue, the contributors demonstrate the past and contemporary relevance of a right to strike. Some authors do so with reference to the long-standing role that such an entitlement plays in protecting dignity, democracy, and other vital public interests. Attention is also paid to emerging contemporary issues, whereby the right to strike offers important leverage that would otherwise be absent, for example countering abusive treatment of those at work in global supply chain practices and the environmental degradation of the planet. They all conclude that, while it is possible to utilise existing legal protections of a right to strike that operate nationally, regionally, and internationally, it is also important to contemplate enhancement of existing legal and associated regulatory mechanisms. They address why this should be done and, accordingly, how this may be done
Reply to Review of Assisted Suicide in Canada
No full textI AM VERY GRATEFUL to the editors of the Osgoode Hall Law Journal for their invitation to submit a response to the journal’s review of my book, Assisted Suicide in Canada: Moral, Legal, and Policy Considerations. That review appeared in its spring 2023 issue
Shari’a, InshAllah: Finding God in Somali Legal Politics by Mark Fathi Massoud
No full textShari’a, InshAllah: Finding God in Somali Legal Politics (“Shari’a InshAllah”), written by Mark Fathi Massoud, professor of politics and legal studies at the University of California, Santa Cruz, is a compelling and fascinating work chronicling the relationship between law, religion, and politics in the context of Somalia’s recent history. In this book, Massoud explores the inextricability of religion from Somali legal politics as the country grapples with its colonial and post-colonial legacies and relationships to power in a society where God serves as a conduit for both faith and aspirations of self-determination. In a region where distrust of Western institutions and fears of authoritarian rule dominate state and capacity-building exercises, Massoud demonstrates how activists, lawyers, lawmakers, dictators, rebel groups, militants, and international aid organizations contend with competing sources of law, power, and politics in a fractured state. He further demonstrates the potential of Shari’a (i.e., Islamic law) to bridge divides across the most diverse of actors in order to produce a common logic of deference, submission, and adherence to the Rule of Law. Perhaps most critically, Massoud investigates the position of Shari’a in global discourse and how Western conceptions of Shari’a (seemingly influenced by orientalist tropes, imperialism, and Western hegemony and exceptionalism) give rise to misapprehensions of its utility, flexibility, necessity, and effectiveness in societies where Islam transcends political disagreements, clan affiliation, and personal identity
Does Lady Justice Need a Sword? Indictment: The Criminal Justice System on Trial by Benjamin Perrin
No full textLADY JUSTICE CAN OFTEN BE FOUND, in statue form, in or near courthouses. This symbol of the Western justice system is blindfolded to show neutrality. She carries a scale to weigh facts and arguments fairly. Sometimes, she also holds an olive leaf to symbolize mercy and healing. A sword is the other accessory that Lady Justice invariably carries. The sword is a ubiquitous part of this symbol because most people believe that justice in general, and criminal justice in particular, necessarily involves inflicting pain upon wrongdoers
Canada\u27s new GAAR Preamble: Pivoting Toward Fairness and Parliamentary Contemplation
No full textThis paper examines the role of the new preamble in the GAAR provision and argues that fairness is a legal concept that can be applied in GAAR cases
Canadian GAAR and Statutory Interpretation
No full textThe Canadian GAAR is an anti-abuse rule that denies the tax benefit resulted from abusive avoidance transactions. This paper examines the history, technical design, policy objectives and judicial interpretation of the GAAR. It explains the role of the new preamble and economic substance in applying the GAAR
Indigenous Spirituality and Religious Freedom
No full textThis collection explores Indigenous spiritual practices, their suppression by the Canadian state, and the intersection of Indigenous legal orders with Canadian law.
Indigenous Spiritualities and Religious Freedom investigates the complex relationship between Indigenous legal orders and Canadian law, emphasizing the richness of Indigenous spiritual practices alongside their historical and ongoing suppression by the Canadian state. It critically examines the role and limitations of the Canadian Charter of Right’s section 2(a), which guarantees freedom of religion, in protecting the spiritual lives of Indigenous communities. The book highlights the holistic nature of Indigenous spiritual beliefs, which view the spiritual as immanent and closely tied to land and specific locations. The book reveals how, by contrast, the Anglo-American conception of religious freedom often separates spiritual and religious matters from civic and political concerns, and so fails to provide meaningful protection for Indigenous cultural and spiritual practices. Many essays in this collection propose alternative approaches to the relationship between Canadian law and Indigenous legal orders, particularly regarding Indigenous spiritual practices. Ultimately, Indigenous Spiritualities and Religious Freedom reveals the challenges – and perhaps the futility – of seeking significant protection for Indigenous spiritual practices within the existing framework of religious freedom.https://digitalcommons.osgoode.yorku.ca/faculty_books/1439/thumbnail.jp
AI at Work, Algorithmic Bosses, and the Ambivalence of Automation
No full textThis chapter revisits a foundational question (“what do bosses do?”) to explore how artificial intelligence (AI) is reshaping power dynamics in the workplace. Far from neutral tools of optimisation, algorithmic systems increasingly amplify managerial prerogatives, embedding them into automated processes that are difficult to scrutinise or contest. These developments give rise to a paradox: managers and workers are simultaneously augmented and disempowered, caught in systems that intensify control while eroding autonomy. Drawing on legal, organisational, and regulatory perspectives, we argue that existing safeguards, ranging from data protection rights to information and consultation, are ill-equipped to confront this shift. The chapter critiques the illusion of procedural compliance and calls for a structural rethinking of workplace technology governance. We also emphasize a missed opportunity: rather than reinforcing top-down hierarchies, AI could be leveraged to democratise the workplace, enhance agency, and enable new models of participation. Doing so, however, requires confronting the socio-legal assumptions that sustain current forms of digital control—and imagining alternative futures where technology serves workers, not just those who manage them
Recruitment
No full textIn the migration context, recruitment refers to the process by which migration intermediaries match employers in one country with job seekers and migrant workers from another country. International labour and human rights norms prescribe that employers must bear all costs related to transnational labour recruitment. The primary concern at the level of migration governance is developing practices that securely establish and enforce ethical recruitment practices. In a global economy marked by structural inequality and a profound imbalance of information, wealth, mobility, and power between recruitment agencies and migrant workers, reaching this objective remains a challenge. Globally, migrant workers who migrate transnationally to low-wage jobs are commonly subjected to predatory charges and recruitment practices that, at their worst, result in debt bondage, labour trafficking, and forced labour. Recruitment agencies are increasingly involved in brokering the placement of international post-secondary students, and predatory recruitment practices can similarly occur in this context