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The old people are the song, and we are their echo: resurgence of w̱ sáneć law and legal theory
Get PDFThis dissertation attends to pressing questions of strategy and tactics in relation to Indigenous law revitalization in the context of the climate crisis. Grounded in my own W̱SÁNEĆ legal order, I provide an accounting of the context in which the resurgence of W̱SÁNEĆ law is occurring, and clarity regarding what we hope to accomplish with the revitalization of W̱SÁNEĆ (and more broadly, Indigenous) law, both locally and in response to global climate crisis. Doing so prompts questioning of the very foundations of Canadian constitutionalism, and indeed, our most basic ideologies and conceptualizations of our place and relationships within the world. From a position that our theory and methodology of Indigenous law revitalization, and our diagnosis and approaches to the climate crisis must be intricately entwined and mutually reflective, the dissertation sets out to argue that nothing short of a fundamental reimagining of our relationships within the world, and thus the social, legal, political, and economic structures those relational understandings condition, is required. Approaching such encompassing questions requires the creation of conversations across fields such as Indigenous law, critical Indigenous studies, and political ecology. Guided by W̱SÁNEĆ law and the responsibilities and obligations it entails, how might we navigate ongoing dynamics of settler colonialism and climate crisis? While some form of “decolonized” relationship with Canada seems necessary but insufficient within the context of a global climate crisis, what would actually be required to meaningfully respond and reimagine healthy relationships between all beings? Will forms of state-delegated authority, such as co-management agreements, or forms of “green capitalism”, such as market measures or carbon offsets for Indigenous-led conservation, ever suffice to address our longstanding, and yet continually unfolding, predicaments of settler colonialism and climate crisis? As I argue for a more foundational re-imagining of our relationships and place within the world, my analysis also reveals that we are not left groundless in this re-imagining as we can draw upon the wisdom and practices housed within our respective Indigenous traditions
Platforms, Encryption, and the CFAA: The Case of WhatsApp v NSO Group
Get PDFEnd-to-end encryption technology has gone mainstream. But this wider use has led hackers, cybercriminals, foreign governments, and other threat actors to employ creative and novel attacks to compromise or workaround these protections, raising important questions as to how the Computer Fraud and Abuse Act (CFAA), the primary federal anti-hacking statute, is best applied to these new encryption implementations. Now, after the Supreme Court recently narrowed the CFAA’s scope in Van Buren and suggested it favors a code-based approach to liability under the statute, understanding how best to theorize sophisticated code-based access barriers like end-to-end encryption, and their circumvention, is now more important than ever.
In this Article, we take up these very issues, using the recent case WhatsApp v. NSO Group as a case study to explore them. The case involves a lawsuit launched in 2019 by WhatsApp and Facebook against the cybersecurity firm NSO Group, whose spyware has been linked to surveillance of human rights activists, dissidents, journalists, and lawyers around the world, as well as the death of Washington Post journalist Jamal Khashoggi. The lawsuit, brought under the CFAA, alleged NSO Group launched a sophisticated hack that compromised countless WhatsApp users—many of which were journalists and activists abroad. Despite these broader human rights dimensions, the lawsuit’s reception among experts has been largely critical. We analyze WhatsApp’s CFAA claims to bring greater clarity to these issues and illustrate how best to theorize encrypted platforms and networks under the CFAA. In our view, the alleged attack on WhatsApp’s encrypted network is actionable under the CFAA and is best understood using what we call a network trespass theory of liability. Our theory and analysis clarifies the CFAA’s application, will lead to better human rights accountability and privacy and security outcomes, and provides guidance on critical post-Van Buren issues. This includes setting out a new approach to theorizing the scope and boundaries of computer systems, services, and information at issue, and taking the intended function of code-based access barriers into account when determining whether circumvention should trigger liability
Submission of the Citizen Lab (Munk School of Global Affairs, University of Toronto) to the United Nations Working Group on Enforced or Involuntary Disappearances
Get PDFWise practices: Indigenous-settler relations in Laurentian Great Lakes fishery governance and water protection
Get PDFOngoing tensions between Indigenous and non-Indigenous communities working in support of the protection and management of fish and water in North America have necessitated a shift from current structures towards relationships built upon and driven by respect, relevance, reciprocity, and responsibility. Similarly, the cumulative and evolving effects of climate change, industrialization, resource extraction, and displacement of Indigenous Peoples from their traditional and contemporary lands and waters requires purposeful application of decolonizing methods in aquatic systems management and protection, which in turn aids in the re-establishment of agency to Indigenous Peoples. This article endeavors to outline critical differences in ‘best practices’ and ‘wise practices’ in Laurentian Great Lakes fisheries management, water protection, and Indigenous-settler working relations through dialogue on experiences of Indigenous working relationships with colonial governmental bodies. We discuss critical misunderstandings, and the need for creating room for and profoundly respecting Indigenous ways of knowing and being. This work brings together lessons, stories, and knowledge from a panel of Indigenous and allied scholars and community members from the International Association for Great Lakes Research annual conference in May 2021, and subsequently uses a conversation-based methodology to preserve the voices and teachings of panelists. The lessons shared in this work are vital to the future of Laurentian Great Lakes fish and water health
Religion, Public Law, and the Refuge of Formalism
Get PDFIn this article we suggest that the encounter with religious legal traditions has surfaced a distinct vein of formalism in Canadian public law, discernable across the Court’s law and religion jurisprudence. This is so despite the centrality of substantive analysis in the account Canadian public law gives of itself. But there are distinct challenges and a particular anxiety that surrounds the law-religion encounter; we argue that the fraught sovereignty and pluralism problems that this encounter presents has led Canadian public law to rediscover its formalist habits and the comfort that they bring.
The Supreme Court of Canada’s decisions in Wall and Aga serve as a springboard for showing how the Court uses formalism in the law and religion jurisprudence to manage the complexity and risks raised by engagement with religious difference. Having shown that this move to reach for formalist tools is a pattern endemic in the encounter between liberal legal orders and religious pluralism, we explain both the appeal and challenges of this turn to formalism.
We do not offer this as a complete story of the law and religion jurisprudence in Canada, nor do we intend this as pure critique. Instead, we analyze the character and habits of Canadian public law by watching how it behaves in relationship with religion. We suggest that its impulse toward formalism stems from anxiety over its identity as secular, from its claims to authority, from a respect for the multiple sources of authority in people’s lives, or some combination of these. This habit may serve public law well: reinforcing legitimacy and certainty, manifesting a commitment to secular neutrality, or honouring a complicated past with religion. The formalist move, however, is always fragile. It suppresses, rather than addresses, conflict and complexity. Adhering to formalism involves detaching from forms of justice that turn on context and particularity, precisely where the meaning of much religious life is found
The Principle of Proportionality in Sentencing: A Dynamic Evolution and Multiplication of Conceptions
Get PDFThis article examines the theoretical foundations and developments of the concept of proportionality in common law sentencing. It traces its evolution within its two main underlying frameworks: desert-based and consequentialist theories of punishment. It specifically examines the Canadian context and demonstrates that this concept was primarily rooted in a desert-based framework but has increasingly been infused with consequentialist rationales. It is argued that this multiplication of underpinnings has led to a conceptual muddling of proportionality, risking voiding the concept of its meaning and usefulness to decision-makers at sentencing. The article therefore proposes a nuanced framework, similar to the one in England and Wales, rooted in a dynamic understanding of just deserts that allows for the incorporation of relevant consequentialist aims in a principled fashion
Lost in Transmission: A Constitutional Approach to Achieving a Nationwide Net Zero Electricity System
Get PDFCanada has announced plans to meet its Paris Agreement commitments on reducing greenhouse gas emissions and achieving net-zero by 2035; but standing in the way of these ambitions is an electricity crisis. The crisis is provincially balkanized electricity systems with a dearth of interprovincial transmission lines, and the impacts are three-fold. First, the country is divided into renewable have- and have-not provinces, with some jurisdictions generating more hydropower than they need while others struggle to wean themselves off coal and natural gas. Second, the lack of interprovincial transmission is a deterrent to private investment in renewable energy projects, which is holding Canada back from meeting its climate commitments in a way that could provide major economic gains. Third, much of the country is off-grid, relying on expensive, unreliable, and dangerous diesel fuel for power. An initial step towards addressing these issues would be to create a new market for interprovincial zero-emission power sales by exercising federal jurisdiction over the permitting of interprovincial transmission lines in order to encourage private companies to enter the market and remove some of the financial burden from provinces. Given the national and provincial goals of reducing power from coal-fired power plants and the urgency of energy access issues in many parts of the country, it is time for the federal government to assume at least some of its infrastructure transmission jurisdiction to ensure just transition to safe, renewable power sources, and to promote investment in renewable projects across the country. To that end, this article will lay out the constitutional basis for federal jurisdiction over interprovincial power lines, as well as the constitutional limits on that jurisdiction that will keep provincial grids under provincial control
