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Does the Supreme Court of Canada Give a “Freak” About Disability Dignity?: The Inclusion Fallacy 25 Years After Eldridge
Get PDFFor almost 20 years, the Supreme Court of Canada increasingly rejected the idea of disability as an inherent impairment and progressively endorsed the social model of disability, which recognizes the disabling condition is a consequence of structural and societal factors. However, recent Supreme Court jurisprudence has resurfaced the fallacy of disability being defined by individual defects and deviance. This paper surveys the Court’s disability discrimination jurisprudence from the seminal Eldridge v. British Columbia decision to the splintered Ward v. Quebec decision, examining how the Court appears to be retreating from the social model’s understanding of disability being a product of systemic oppression and prejudicial attitudes, to a retrenchment of the antiquated notion that disabled people are freaks of nature and side-show spectacles. The paper posits that, by affırming a comedian’s freedom to ridicule and demean a child with multiple disabilities, the Court in Ward revived the so-called freak model of disability and condoned the exploitation of disability for able-bodied amusement. It concludes that Ward reveals there is still much work to do to achieve full equity and inclusion for people with disabilities in Canada
Disaster Risk in the Carceral State
Get PDFThe overlap between prisoner vulnerability and disasters in the United States is undeniable. During 2020 and 2021, the United States endured a series of natural hazards such as wildfires, floods, and hurricanes, many of which exposed the country’s 2.1 million inmates to additional risks and compounded the danger posed by COVID-19. Yet policymakers and scholars are only beginning to appreciate the centrality and magnitude of disaster risk management for the millions of people currently held in penal institutions around the country. Unsurprisingly, the production of “lessons learned” documents that follow in the aftermath of disasters overlook how prisoner vulnerability is legally produced and inequitably distributed beyond individual disasters affecting individual prisons.
In this paper, we propose that these vulnerabilities and actual harm were neither accidental nor unforeseeable; rather, we argue that inmates are victims of interwoven “normal” rules, policies, and institutions, as well as long-standing, cultural narratives surrounding natural hazards and carceral processes. Our paper is unique in that we analyze problems of law, cultural narratives, policy, and practice as problems of “risk thinking” in the United States. Specifically, we focus on the development of, and relationship between, risk thinking in U.S. criminal justice and disaster management frameworks over the last 80 years.
Using this research, we argue that: (a) in the discourses and practices of criminal justice, prisoners fall in the cracks between scattered conceptions of risk and vulnerability on the one hand and the narrow and inelastic notions of risk and vulnerability on the other; (b) disaster-risk in prisons should not be studied in isolation from conceptions of disaster-risk applicable to “free” society; (c) prisoners have special vulnerabilities that require more and distinct protections than the rest of society; and (d) this goal is frustrated by the very structure of risk management described in (a).
We attempt this feat in two ways: first, we chart how officials, experts, legislation, and cultural narratives have shaped risk thinking in relation to crime and natural hazards. Second, we show how risk thinking in these areas, and the associated governance of prisons and disasters, ignores and thereby deepens vulnerabilities to hazards for prisoners, as well as correctional staff and communities. Given the nationwide mismanagement of the COVID-19 pandemic, our paper offers timely insights into the plight of incarcerated peoples caught between these regimes. It also suggests that, despite the unique dangers of carceral life and the popular belief that prisoners exist outside of society, social vulnerability beyond prison walls often hinges on our ability to transform vulnerability within them
Legal Positivism and Naturalistic Explanation of Action
No full textIt is natural to think of legal positivism and jurisprudential naturalism as intellectually allied ideas. Legal positivism is associated with the idea that law is a matter of social fact; naturalism is a philosophical tenet that, among other things suggests the importance of scientific findings and methods to philosophy. At the very least, there seems to be a close family resemblance between the two views. In this essay, I challenge this view from a naturalistic perspective. I show that the best-known proponents of legal positivism in the twentieth century all rejected naturalism. I dedicate most of my discussion to H.L.A. Hart’s version of legal positivism, as it appears superficially friendly to naturalism. I show that throughout his career and in writings on a wide range of topics, Hart consistently argued against the applicability of the methods of science to the explanation of social phenomena. This is not a small matter: I argue that it is this anti-naturalistic stance that contributed to his descriptively faulty account of adjudication. After reviewing more briefly the work of other leading legal positivists, I argue in my conclusion that those seeking to advance a naturalistic approach to law should turn their backs of much of twentieth-century legal positivism, which in various guises has been hostile to naturalism
Class Actions in Canada: Cases, Notes, and Materials, 3rd Edition
No full textClass Actions in Canada: Cases, Notes, and Materials, 3rd Edition is the definitive resource for a comprehensive understanding of class actions in Canada. Authored by esteemed experts from across the country, this essential text examines leading-edge case law and current legislative regimes that shape the certification process, representation, and settlement approval.
From the fundamental stages of the litigation process to the complexities of specific claims, including consumer protection, product liability, privacy, environmental, securities, competition, and employment, this resource covers a range of issues that arise in class actions. The new edition sheds light on the latest trends shaping this dynamic area of law, such as the release of the Ontario Law Commission Report on Class Actions, the adoption of the CBA Protocol for the Management of MultiJurisdictional Class Actions, and the emerging influence of private third-party funders.
With its comprehensive coverage, updated information on legislative reforms, and examination of key cases, this text is an indispensable resource for law students, practitioners, and academics studying or working with class actions in Canada.
This casebook was generously sponsored by Davies Ward Philips & Vineberg, Fasken Martineau, Koskie Minsky LLP, McCarthy Tétrault, Osler Hoskin & Harcourt, Rochon Genova LLP, and Torys LLP.https://digitalcommons.osgoode.yorku.ca/faculty_books/1453/thumbnail.jp
Strengthening a One Health approach to emerging zoonoses
Get PDFGiven the enormous global impact of the COVID-19 pandemic, outbreaks of highly pathogenic avian influenza in Canada, and manifold other zoonotic pathogen activity, there is a pressing need for a deeper understanding of the human-animal-environment interface and the intersecting biological, ecological, and societal factors contributing to the emergence, spread, and impact of zoonotic diseases. We aim to apply a One Health approach to pressing issues related to emerging zoonoses, and propose a functional framework of interconnected but distinct groups of recommendations around strategy and governance, technical leadership (operations), equity, education and research for a One Health approach and Action Plan for Canada. Change is desperately needed, beginning by reorienting our approach to health and recalibrating our perspectives to restore balance with the natural world in a rapid and sustainable fashion. In Canada, a major paradigm shift in how we think about health is required. All of society must recognize the intrinsic value of all living species and the importance of the health of humans, other animals, and ecosystems to health for all
Technology Mindfulness and the Future of the Tort of Privacy
Get PDFThis article investigates how to develop the tort of privacy to better address technology-facilitated abuse. The central question explored is how explicitly the role and function of technology should be engaged in a legal test. The article argues that technology is constitutive of our society, shaping our social and cultural institutions, which in turn shape the development of technology and together define the everyday ways that our privacy is enjoyed and invaded. A privacy tort should therefore directly engage with the social significance of technology—what this article frames as technology mindfulness. To develop the concept of technology mindfulness, and with the goal of law reform, the article is structured in three parts. In the first part, the current privacy torts are critically analyzed to identify their lack of suitability to address evolving technologies and abuse. In the second part, the article grapples with how to examine technology in a tort, wrestling with the tension between the value of technology neutrality in law making and the need for a technology-mindful lens. In this part, the features of a technology-mindful law are outlined. In the final part, a new tort is sketched, drawing from constitutional principles. The goal is to illustrate how to embed technology mindfulness and overcome some of the weaknesses of current law
Intervention in Civil Wars: Effectiveness, Legitimacy, and Human Rights by Chiara Redaelli
Get PDFLibya, Mali, Yemen, Syria, Ukraine. These are just some of the countries that have been subject to armed interventions in only the past eleven years. The list of countries that were invaded in the past fifty years is exponentially longer
From Morality to Law and Back Again: A Liber Amicorum for John Gardner
No full textJohn Gardner was one of the most prolific, widely read, and influential scholars working in philosophy of law. This book celebrates, explores, and develops themes of his work during his sixteen years as Professor of Jurisprudence at University of Oxford.
Written by a team of contributors whose own work has been influenced by Gardner\u27s and with whom he has worked closely, this book engages with many of the concepts, themes, and issues that were central to his philosophical work and outlook. It expands on his arguments, offers original rebuttals to some, and draws connections with parallel and emerging fields that have been influenced by his work. This is the first book-length treatment covering the entire range of his scholarship, and will serve as a handbook of sorts, for those scholars seeking to engage Gardner\u27s work and make connections across the wide range of topics on which he has written.
In particular, the volume comprises discussions of duties to try and succeed in relation to Hume\u27s maxim that \u27ought implies can\u27; the role of continuity, conservatism, and corrective justice in private law, the interrelations between wrongdoing, blame, punishment, and the justification of criminal law, justifications, excuses, and responsibility, the distinctiveness of the wrongs of rape and discrimination, as well as general jurisprudence and how it may, or may not, illuminate the questions of normativity and the nature of constitutions. The volume also engages with further concepts and questions addressed through the prism of Gardner\u27s work, include Indigenous rights and law, Equity, corporate responsibility and the possibility of state crimes, and the nature, structure, and phenomenology of virtue.
Together, the papers collected in this volume pay homage to the breadth of John Gardner\u27s legal philosophy. The conversations begun, or continued, in this volume will continue to inform the contributors\u27 future work, and thus increase the likelihood that John\u27s body of work will have an ever greater influence on the future of legal philosophy.https://digitalcommons.osgoode.yorku.ca/faculty_books/1404/thumbnail.jp
State Crimes
No full textIs a category of state crimes theoretically sound and important?
This chapter defends the view that it is, based on some of John Gardner’s key theoretical commitments about the possibility of state agency and wrongdoing. The central contention is that the category of state crimes is useful as a means of singling out those condemnable state wrongdoings that warrant punishment. Other existing normative categories such as state injustices and violations of human rights are not sufficiently discerning to pick out this important subset of state wrongs. The category also helps focus inquiries about the justification of the more deliberately burdensome responses that may be imposed on states—be it internationally or domestically, institutionally or popularly—for their morally graver legal wrongs. Punishments of states for such wrongs must be considered, I argue, as they may be justified in terms of their deterrence effect, but also as symbolically marking these wrongs and, to a lesser (and more questionable) extent, as giving states their just desert