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Constitutional Cases 2024 (Pt 4) | The Laskin Lecture Race, Democracy and Politics without Guarantees
No full textRace, Democracy and Politics without Guarantees with Dr. Debra Thompson, Canada Research Chair in Racial Inequality in Democratic Societies, McGill University.
The 27th iteration of the Constitutional Cases conference was held on Friday, April 12, 2024. Osgoode Hall Law School’s Annual Constitutional Cases Conference, recognized as the leading constitutional law conference in Canada, brings together many highly respected constitutional scholars, lawyers, students, and experts for an insightful and practical analysis of the Supreme Court’s significant constitutional judgments of the past year
Reconsidering the Test for Interlocutory Injunctions Affecting Homeless Encampments: A critical assessment of BC case law
Get PDFUsing a 2020 decision in which a judge granted an interlocutory injunction evicting a homeless encampment from an unused, unfenced, publicly-owned parking lot in the midst of the COVID-19 pandemic as a springboard, I present the first comprehensive survey of British Columbia homeless encampment injunction decisions, revealing a whopping 85% success rate when governments seek interlocutory injunctions against encampments. The stakes are high: Interlocutory injunction applications dominate homeless encampment litigation, exposing encampment residents to continual displacement and elevated risks of isolation, illness, violence, and death. I argue that courts hearing applications for interlocutory injunctions against homeless encampments on publicly-owned land should apply the full three-pronged RJR-MacDonald framework; apply a strong prima facie case standard to the first prong; avoid prejudging complex, contested evidential or legal issues at the interlocutory stage, on the basis of affidavit evidence alone; and raise the bar for interlocutory injunctions to a height that reflects the fundamental interests at stake in homeless encampment cases
All Is Well: Catastrophe and the Making of the Normal State by Saptarishi Bandopadhyay
Get PDFAS PUBLIC HEALTH CONCERNS REGARDING the COVID-19 pandemic have ebbed, the media and politicians portrayed this change as a “return to normal.” Indeed, the pandemic years are seen as a state of exception from the normal condition. However, Saptarishi Bandopadhyay’s monograph, All Is Well: Catastrophe and the Making of the Normal State (“All Is Well”), questions the idea that disasters are exceptional events, and examines how this narrative can strengthen the power of the state
Section 9 of the Canadian Charter & Arbitrary Laws: a Taxonomy, an Organizational Ideal, and a Path Forward
Get PDFOne of the conditions for a detention not to be arbitrary under s. 9 of the Canadian Charter of Rights and Freedom is that it must be authorized by a law that is itself not arbitrary. The Supreme Court’s pronouncements about what makes a law arbitrary have been brief, question begging and, at times, conflicting. This article takes stock and proposes a path forward.
First, it reviews the Supreme Court’s case law with the goal of developing a taxonomy of its various accounts of arbitrary laws. It identifies three: a formal account (with a procedural check), a purpose-sensitive account, and a discrimination/improper considerations account. It then evaluates these accounts in light of the purpose of s. 9, which is to ensure that detentions are adequately justified from the perspective of the ideal of the rule of law. It argues that, when properly interpreted, the Court’s three accounts correspond to different aspects of this ideal. As such, they should be applied cumulatively, and continue to be developed along that purposive axis.
Finally, the article considers the Supreme Court’s use of the ancillary powers doctrine to create new powers of detention at common law. It argues that this doctrine, which currently evades direct section 9 scrutiny, should also incorporate a distinct assessment of arbitrariness along the lines identified—especially since, properly understood, it is itself a doctrine aimed at advancing the rule of law.
Overall, the article suggests that the key parameters for a consistent and principled approach to what makes laws arbitrary are already present in the Supreme Court’s s. 9 case law (and related aspects of its ss. 7 and 15 case law). What is needed is for the Court to organize them systematically based on the purpose of s. 9, and to commit to advancing them, whenever applicable, through its evolving interpretation this section
Echoes of Reform: The Excellent Care For All Act and Psychiatric Patient Advocacy in Ontario
No full textThe passage of the Excellent Care for All Act (ECFAA) in June 2010 marked a significant juncture for healthcare reform in Ontario, aiming to enhance standards, optimize resources, and reduce costs across hospitals. One significant responsibility mandated under ECFAA was the requirement for a Patient Declarations of Values (PDoVs). This study delves into the foundational underpinnings of the PDoV development process, drawing from Mad Studies theory and the contemporary landscape of patient advocacy. I examine the integration of patient embodied knowledge in these PDoVs, while simultaneously identifying conspicuous absences by unpacking the assumptions within patient engagement and its role in shaping the medico-legal discourse surrounding patient rights within the psychiatric milieu. This study reveals challenges for advocacy within psychiatric settings and underscores the importance of revitalizing praxis for capacity building in community activism in order to shape the future landscape of mental healthcare provision and the safeguarding of patient rights
The Paradox of Visibility: Anti-Blackness, Pathologization, and the Limitations of Canadian Criminal Law
No full textThis dissertation offers a quadripartite analysis of the endemic nature of anti-Black racism within Canadian criminal law, contributing to the growing body of Canadian critical race theory (CRT) literature and advancing the field of race-conscious doctrinal work on Canadian criminal law. Each chapter engages the system along different axes: (a) the temporal, procedural axis – moving from policing to the trial process to criminal sentencing; (b) the micro to the macro axis, with chapters that range from an individual case study to an analysis of a small constellation of recent court decisions, to a more theoretical analysis of foundational theories of criminal punishment and desert; (c) an axis that considers concrete and practice-related concerns, to more theoretical, with chapters ranging from practice-oriented doctrinal and policy interventions to sustained analyses of theoretical frameworks and scholarly methodology. The chapters will demonstrate how CRT analyses can explain some of the deep pathologies within the criminal legal system, demonstrate its inadequacy, and expose the paradoxicality of tackling anti-Black racism in the system by making Blackness more or less visible. While each chapter will engage different issues, they will be directed toward the overarching question of how to navigate what I have termed as the “paradox of visibility”: that is, to some extent, a focus on Blackness is disadvantageous, though a refusal to focus on Blackness can support the white supremacist myth of colour blindness and racial neutrality in the criminal legal system. Concretely, the paradox demonstrates that at the same time and in the same context, both advantages and disadvantages are associated with focusing on Blackness and with efforts to achieve race neutrality. Further, my analysis of the paradox of visibility recognizes that for Black people, \u27denying difference\u27 is not an option: Black people are read as Black and subjected to so much explicit and implicit bias that claims about \u27colour-blindness\u27 are often disingenuous or naïve. So, in many respects, and as expressed by the theory of racial realism, there is no ‘outrunning’ one’s Blackness as racism is woven into the fabric of our institutions and frames the terms of reference for societal racial ordering
The Heteronomy of Flesh: A Minor Jurisprudence of the Use of the Human Dead and Tissues
No full textThe dissertation addresses historical and contemporary legal literatures—generally literatures that have not succeeded in becoming convention (Peter Goodrich)—that assert or rely on the human body’s “jurisgenerativity” (Robert Cover) to evaluate and determine what should be lawfully done with the human dead or tissues. These literatures demonstrate the limits of doctrinal legal methods and conventional jurisprudence which ordinarily deploy concepts of property or personhood. Instead of property or personhood, these literatures require the jurisprudent to attune to the heteronomy of flesh, a law engendered in the materiality of the body decomposing, cut into parts, or as fragments falling away from the individual. It requires the jurisprudent to reach past divisions of nomos and physis, playing with the normativity of corporeal forms. Drawing on concepts of critical legal theory including heteronomy (Stewart Motha, Jean-Luc Nancy); lawscape (Nicole Graham, Andreas Philippopoulos-Mihalopoulos); jurisgenesis and biogenesis (Robert Cover, Margaret Davies); antirrhesis and the antinomian (Peter Goodrich, Marty Slaughter); and office and technics of jurisdiction (Olivia Barr, Shaunnagh Dorsett and Shaun McVeigh, Marc Trabsky), the author suggests how these literatures and their engagement with human corporeality can be re-read to foster alternate approaches to the laws of the dead and bodily matter. This leads the author to conclude the dissertation by gesturing to the possibility of a minor jurisprudence (Peter Goodrich, Shaun McVeigh, Panu Minkkinen) where the jurisprudent writes as flesh (Gilles Deleuze and Felix Guattari), inspired by re-readings of the failed literatures he covered, so to inhabit different modes of relating with corporeality
Emancipatory policy sciences or interpretative revisionism: some thoughts on Douglas Torgerson’s The Policy Sciences of Harold Lasswell
No full textIn the Policy Sciences of Harold Lasswell, Douglas Torgerson asks an important question– whether the logic of policy sciences can inspire democratic hope for social betterment. His response is refreshing and psychoanalytically-informed optimism, whereas a jurispru-dential detour of the NHS’s legacy as the most important application of policy sciences in another discipline calls for agnosticism. Revisiting the application of policy sciences in international law suggests that the very logic of policy sciences, under the influence of a defective form of naturalism, disables its potential for inclusive democracy
Legal Infrastructure for Inclusive Tech Development: Artificial Intelligence in the Global South
No full textArtificial intelligence (AI) is impacting economic and legal orders, yet its benefits and burdens remain unevenly distributed. This paper asks whether, and under what institutional and material conditions, the Global South can secure equitable participation in the AI economy. It advances a normative claim grounded in distributive justice, drawing on Rawls, the capabilities approach, and TWAIL critiques, arguing that bridging the AI divide is not a matter of charity but a duty of international cooperation under ICESCR Articles 2(1) and 15. Methodologically, the paper combines doctrinal analysis of international human rights law with comparative assessment across six constraint domains: energy, finance, connectivity and compute, governance, climate risk, and geopolitics. Existing literature privileges principle-level commitments such as fairness, rights, and human-centric AI, yet they underspecify how legal obligations translate into operational mechanisms, standards participation, and capacity-building for low- and middle-income states. The contribution is twofold. First, the paper develops an evaluative framework that operationalizes distributive justice into four tests—benefit allocation, cost-bearance, voice in standards, and capacity building—linked to human rights duties of participation, equity, and progressive realization. Second, it presents a policy toolbox, including renewable-aligned data-centre siting, blended finance, phased compute access, open-weight model strategies, and structured engagement in standards bodies. The result is a prioritized roadmap with legal, institutional, and measurable criteria that enable the Global South to translate justice claims into implementable AI capacity