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“’Tis a rock—a crag—a cape? A cape? say rather a peninsula!” The Supreme Court of Canada’s Revisitation of the National Concern Doctrine
Get PDFAfter providing an overview of the jurisprudential context prior to the References re Greenhouse Gas Pollution Pricing Act, this paper examines how the majority in that judgment refashioned the national concern doctrine to allow both levels of government to legislate over the very same matter of carbon pricing
Operationalizing Indigenous-led Impact Assessment
Get PDFRecent years have ushered in an explosion of interest and expertise in place-based, Indigenous-led impact assessment models. Across Canada and beyond, Indigenous communities have been developing and engaging with alternative approaches to “environmental assessment” (EA) or “impact assessment” (IA) in response to proposed developments in their homelands. These efforts are borne out of deep dissatisfaction and frustration; Indigenous peoples have repeatedly pointed to the inability of settler law on EA to protect their constitutionally recognized Aboriginal and Treaty rights, and to meaningfully engage with Indigenous laws, values, and perspectives regarding the socio-ecological risks posed by resource development projects. The inability of EA under settler law to adequately consider Indigenous legal orders and jurisdictions has been well documented. As Coast Salish legal scholar Sarah Morales notes, “[m]ost Canadian Indigenous groups have not had a meaningful voice in impact assessment,” and “rarely has any Indigenous group been able to exercise consent or decision making on major resource development projects.” More often, when Indigenous groups participate in government regulatory processes, “other parties severely limit their involvement, requesting only baseline traditional knowledge and traditional use information, without any meaningful input into or control over the process or project itself.” The result is that “Indigenous culture, spirituality, laws and legal processes, rights and title have not been taken into account in the Crown-led and proponent-driven Canadian environmental assessment processes.
Prevalence of High-Cost Loans among the Debts of Canadian Insolvency Filers
No full textHigh-cost loans, including high-interest installment loans as well as small, high-cost payday loans, are common in Canada and, as we show, have become much more common than they once were. The lenders are private firms and are not required to report on the volume of their loans or on the characteristics of their borrowers. Data associated with bankruptcy filings, however, allow us to estimate how many high-cost loans appear among the liabilities of those filing for personal bankruptcy and how that number changed between 2011 and 2019. We find that the number has roughly tripled, even though the number of bankruptcies remained roughly constant. We also provide an examination of the situation in Quebec, which, alone among the provinces, does not have legislation specifically aimed at payday lenders
Canadian “Dreamers”: Access to Postsecondary Education
Get PDFYouth with precarious legal status (PLS) in Canada are entitled to access primary and secondary education regardless of their immigration status. However, once they graduate from high school their opportunities for postsecondary education are highly constrained. This article sets out an argument for expanding postsecondary educational opportunities for PLS students, drawing on the example of the only existing program in Canada targeting such students: York University’s “Access for Students with Precarious Immigration Status Program”. The article considers possible legal impediments to the establishment of such programs, including offenses under Canadian immigration legislation, and argues that charges against postsecondary institutions or their employees are unlikely. Moreover, the article contends that if such charges were pursued, courts would likely find that the relevant legislative provisions are unconstitutional due to overbreadth and because they penalize humanitarian assistance, which was not the intention of the drafters of the provisions. The article also argues that in the unlikely scenario that postsecondary institutions were found to be in breach of Canadian immigration law for admitting PLS students, this is one of the limited sets of circumstances where pushing back against the law – and even breaking the law if necessary – would be warranted. Overall, the article argues that it is time for faculty, students and administrators at Canadian colleges and universities to join the fight to create pathways for postsecondary education for PLS students
Against Integrity: A Feminist Theory of Moral Rights, Creative Agency & Attribution
Get PDFThis Chapter explores insights that feminist theories can bring to the study and development of moral rights protections in copyright law. It begins by explaining why certain facets of conventional moral rights theory are ill-suited to—indeed inconsistent with—a feminist approach in both concept and effect. In particular, to the extent that strong moral rights of integrity and association limit dialogic engagement with, and transformation of, protected works, they risk suppressing critical and counter-hegemonic expression, and support an individualized and romanticized conception of the (patriarchal) author-figure. Employing alternative feminist conceptions of situated selfhood, relationality and dialogic authorship, the Chapter then explores what it might mean to reimagine moral rights in a way that better reflects and protects the personal, social and political value of creative agency. It presents a defence of the right of attribution on these terms and concludes with a call for attribution as feminist praxis
“Silly Anecdotes”: From White Baselines to White Juries in R. v. Chouhan
Get PDFThis paper explains how the Supreme Court of Canada’s decision in R. v. Chouhan concerning jury impartiality is an illustrative example of “baselines”, or how implicit political positions held by judges govern their legal analysis. It begins with a summary of the background in Chouhan: the issue before the Court (the abolition of peremptory challenges) and how the judgment resolved that issue by constitutionally vindicating the impartiality of systemically white juries (an unfortunate continuation of the Court’s widely critiqued judgment in Kokopenace). Then, the paper analyzes Chouhan through the lens of baselines. First, the paper uses Chouhan to describe what baselines are — that is, by examining both the judgment and hearing, the paper reveals how implicit political positions significantly drove the legal analysis in the case. And, given the political character of that baseline reasoning, the paper briefly critiques the Court in two ways: (1) it critiques Moldaver and Brown JJ. for relying on weak baseline positions, like juries already being diverse (they are not) or Canada not having intractable racial inequality (it does); and (2) it critiques the Court’s recent notice limiting intervention submissions to “legal” issues insofar as that limitation can, perversely, prevent interveners from challenging those weak baselines from which the Court may conduct its analysis. Second, the paper uses Chouhan to describe what baselines do — that is, by examining Moldaver and Brown JJ.’s opinion in Chouhan, the paper demonstrates how judges’ baseline commitments can motivate their reasoning and lead them to make analytical errors. In their opinion, Moldaver and Brown JJ. purport to defer to Parliament while nakedly legislating from the bench — indeed, they rule that their policy preference of ignoring race in jury selection should, “as a matter of law,” take precedence over Parliament’s preference for race-conscious processes. Further, Moldaver and Brown JJ. strawman both jury diversity and peremptory challenges to bolster their position. Specifically, when jurists argue for more jury diversity, Moldaver and Brown JJ. simply respond that no jury can be perfectly diverse, a fallacious response because doing something for jury diversity need not require doing everything. The paper concludes by noting how the continuing relevance of baselines in constitutional interpretation demands ongoing and critical reflection on how Canadian jurisprudence is routinely produced from a baseline of “silly anecdotes”: white subjectivity masquerading as universal objectivity, which institutionalizes white supremacy in law
Political Theory and the Volunteer: Lessons from Kahn’s Ethnography of ‘Our Unhappy Politics’
Get PDFThis article offers a reading of Paul Kahn’s Democracy in Our America that places this intimate “work of local political theory” in a central position in the landscape of his political thought. The article argues that the figure of the volunteer, as it appears in the volume, holds a space for love and meaning—and for political happiness—that secures for it a critical role in the system of beliefs and practices that sustain self-government in the United States. That framing draws the volunteer into relationship with Kahn’s thinking about the family, the veteran, and law. But it also means that the erosion of the volunteer spirit that Kahn traces in his own New England town of Killingworth, Connecticut, is best understood as the loss of the site of action that reflects a reaching for political meaning beyond self-interest and, with it, the loss of the possibility of self-government. Reading the volunteer as a powerful placeholder for the erotic at the heart of the political—and then tracing eros and happiness through Plato, Freud, and Arendt—this article reconstructs Kahn’s link between our unhappy lives and our unhappy politics
An Imperial History of Race-Religion in International Law
Get PDFMore than half a century after the United Nations General Assembly’s adoption of the International Convention on the Prohibition of All Forms of Racial Discrimination (ICERD), efforts are underway to formulate a protocol to the landmark convention. Much of the momentum for that endeavor comes from sustained local and global advocacy against racism. An integral part of contemporary anti-racism efforts is a push for legal recognition of the intersectional dimensions of racial domination and subjugation to address the unique precarity of persons inhabiting marginalized axes of identities and experiences. United Nations (UN) debates over repowering the ICERD have therefore featured proposals to intersectionalize the international legal response to racism and racial discrimination. The proposals have sought to address a number of intersectional experiences, but the axis of race and religion has been particularly contentious. Emanating from the global south and sponsored by state parties to the Organization of Islamic Conference (OIC), the African bloc, and several Asian states, that proposal has called for ICERD’s recognition of religious discrimination as it intersects with racial discrimination in the experiences of persons who are simultaneously racial and religious minorities. A dimension of that proposal, however, goes beyond calling attention to the “race-religion” intersectional axis; it seeks international legal recognition of contemporary discrimination against religious minorities as a form of racism. Proponents cite the common practice of attributing homogenizing racial markers to internally diverse religious minority groups as a notable manifestation of this “racing” of “religion,” and argue that such homogenization paves the way for “race-religion” discrimination
Writing and Resisting Colonial Genocide
Get PDFCanada has pursued policies of Indigenous assimilation and annihilation, many of which continue today. Among others, these include ‘Indian residential schools’, the Indian Act, welfare-state child removals, the Sixties Scoop, the prohibition of cultural practices, forced sterilization and environmental destruction. We are scholars co-leading a large interdisciplinary programme of research studying ‘colonial genocide’. Our research seeks to understand how historic colonialism and its contemporary manifestations rely on genocidal logic for power and profit. While we begin in Turtle Island, our work has global application. The act of naming is a powerful analytical and political tool, and ‘genocide’ is one of the most compelling – and controversial – names in the business of writing international law and policy. This contribution uses personal narrative to perform how reflexivity shapes choices around both how we make meaning and what we make meaning of
No Legal Way Out: R v Ryan, Domestic Abuse, and the Defence of Duress by Nadia Verrelli and Lori Chambers
Get PDFThe defence of duress in Canadian criminal law has been described by scholars and judges as a “complicated mess,” “[o]ften confusing and potentially gendered,” and “irrational, anomalous, perverse, illogical and fundamentally wrong.” The most recent Supreme Court of Canada case to attempt to bring clarity to the embattled duress defence, R v Ryan (“Ryan”), is the focus of Nadia Verrelli and Lori Chambers’ No Legal Way Out: R v Ryan, Domestic Abuse, and the Defence of Duress (“No Legal Way Out”)