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Development of AI tech could rely on interpretation of copyright protections: Osgoode law prof
No full textMentioned/quoted: Carys Crai
The Next Revolution? Negligence Law for the 21st Century
Get PDFDonoghue’s neighbour is still the defining concept of Canadian tort law. Indeed, the whole history of modern negligence law can be reasonably understood as a concerted judicial effort to adapt and accommodate that principle to changing social, commercial and legal conditions. Now, 90 years later, it is perhaps time to recommend another revolution in negligence law. The Donoghue-inspired doctrine has done sterling work, but it is now weighed down with a bewildering range of conditions, clarifications and complications. When the duty analysis is complemented by other related requirements of causation and remoteness, the law of negligence has become something of a dog’s breakfast. This is compounded by the fact that tort law has become the poster-child for a general shift in law away from traditional legal reasoning to a more openly acknowledged policy analysis. This is no bad thing. But the problem is that there exist multi-dimensional and multi-located doctrinal occasions for such policy work. This does not lend itself to a doctrinal product that is either readily accessible or easily understandable. As such, the time is ripe for transforming, if not revolutionizing negligence law. This essay seeks to engage in such a transformative analysis and prescription
The Colonialism of Eviction
Get PDFVery little scholarship has specifically considered the phenomenon of eviction as a colonial process, or examined the role of the eviction legal system in reproducing colonial structures and relations. Our aim in this article is to address this gap and thereby extend to the eviction legal system context the work of scholars who have theorized the colonialism of the criminal justice, child welfare, and carceral systems. This article begins with an overview of current issues relating to urban Indigenous housing in Canada. The next section introduces Indigenous concepts of home and homelessness, which are distinct from dominant understandings. We then place the discussion within the larger context of settler colonialism and critiques of this relation of power. We look specifically at Indigenous conceptions of home and homelessness, as well as how settler colonialism has shaped dominant ideas about property and ownership that underlie the right to evict in Canadian law. The paper then turns to a discussion of how the eviction legal system functions in a “classical” colonial sense to both destabilize and dispossess Indigenous families, and to reinscribe settler claims to property. Fundamentally, we believe there is a need for research and storytelling about the relationship between Indigenous peoples and eviction legal systems in Canada, and we think there is room to imagine decolonizing the eviction legal system
In Defense of Openness — Genetic Knowledge and Gamete Donation
No full textIn Conceiving People: Genetic Knowledge and the Ethics of Sperm and Egg Donation (Oxford University Press, 2021), Daniel Groll argues why people who use donated sperm or eggs to have children ought to use a known donor. His main argument for this position is that a child conceived in this way will have a foreseeable, significant interest in acquiring genetic knowledge. However, Groll addresses issues that are of interest to anyone who thinks about the nature of families and parent-child relationships. For example, what obligations or responsibilities does a parent have to their child? What makes someone a parent? And what is the significance to one\u27s identity of knowing about one\u27s genetic origins? While a claim about access to genetic knowledge lies at the heart of Groll\u27s book, he is all too aware of the social forces that influence people to care about their genetic origins. His prescriptions, ultimately, reflect this reality
The Notwithstanding Clause in Canada: The First Forty Years
Get PDFThis article evaluates the use of section 33 of the Canadian Charter of Rights and Freedoms, commonly known as the notwithstanding clause (NWC), over the first forty years of its existence. It provides a comprehensive account of all uses of the NWC in this period, introduces the notion of tyrannical use of the NWC, and develops criteria to evaluate whether a particular use is tyrannical. It then demonstrates that most NWC uses have not been tyrannical; rather, the NWC was used for temporary, ameliorative, or transitional purposes. That said, in the studied period, there have been three instances of tyrannical use of the NWC and another use that had tyrannical characteristics. Worryingly, of the three instances of tyranny, two have taken place in the past four years
Luck of the Draw III: Using AI to Examine Decision‐Making in Federal Court Stays of Removal
Get PDFThis article examines decision‐making in Federal Court of Canada immigration law applications for stays of removal, focusing on how the rates at which stays are granted depend on which judge decides the case. The article deploys a form of computational natural language processing, using a large‐language model machine learning process (GPT‐3) to extract data from online Federal Court dockets. The article reviews patterns in outcomes in thousands of stay of removal applications identified through this process and reveals a wide range in stay grant rates across many judges. The article argues that the Federal Court should take measures to encourage more consistency in stay decision‐making and cautions against relying heavily on stays of removal to ensure that deportation complies with constitutional procedural justice protections. The article is also a demonstration of how machine learning can be used to pursue empirical legal research projects that would have been cost‐prohibitive or technically challenging only a few years ago – and shows how technology that is increasingly used to enhance the power of the state at the expense of marginalized migrants can instead be used to scrutinize legal decision‐making in the immigration law field, hopefully in ways that enhance the rights of migrants. The article also contributes to the broader field of computational legal research in Canada by making available to other non‐commercial researchers the code used for the project, as well as a large dataset of Federal Court dockets
Book Review: Canadian Justice, Indigenous Injustice: The Gerald Stanley and Colten Boushie Case
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Care Work
Get PDFCare is routinely provided both as a commodity (paid care) and as unpaid care, usually by women. Virtually all care is treated as of low value, and care givers, paid and unpaid, are seen as low status. This devaluing of care and those who do it make care a major part of hierarchy and inequality. I argue that the solution is not more commodification (like wages for housework), but a norm of universal, unpaid care-giving. This would be made possible by a corresponding norm of limiting paid work to 30 hours a week. Part Time for All: A Care Manifesto (Nedelsky and Malleson, 2023) spells out a feasible proposal for restructuring work and care in high-income countries in today’s global economy and offers arguments for transformation everywhere. The new norms are summarized here along with their main contributions. PTfA would redress four pressing problems: the inequality of caregivers; family stress from incompatible demands of work and care; chronic time scarcity; and policymakers’ ignorance about the care that life requires—the care/policy divide. These solutions rest on the revaluing of care that would arise when everyone understands themselves as both a care-giver and a care receiver. This transformation would be made possible by a norm that everyone, regardless of the “importance” of their work, contributes about 22 hours a week of unpaid care to family, friends, and community. These norms transform traditional (and some aspirational) relationships of care to the market, the family, and the state
POGG Post References Re Greenhouse Gas Pollution Pricing Act GGPPA
Get PDFIn References re Greenhouse Gas Pollution Pricing Act, the Supreme Court of Canada addressed whether Parliament had the legislative competency to set and enforce minimum national standards for greenhouse gas emissions pricing. The Court held that it did, applying the national concern doctrine to establish that the Greenhouse Gas Pollution Pricing Act comes under Parliament’s “Peace, Order, and good Government” power. Below, I explore three aspects of the majority’s judgment that are likely to reappear in future division of powers cases: (1) its account of national concern doctrine’s judicial development; (2) its application of the validity test’s classification stage; and (3) its suggested operation of the double aspect doctrine