Elise Mercier, Sean Rehaag, Francisco Rico-Martinez
{"title":"Canadian “Dreamers”: Access to Post-Secondary Education","authors":"Elise Mercier, Sean Rehaag, Francisco Rico-Martinez","doi":"10.60082/2817-5069.3927","DOIUrl":"https://doi.org/10.60082/2817-5069.3927","url":null,"abstract":"","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134906766","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In March 1964, the cover page of a popular German weekly magazine entitled Der Spiegel painted a frightening picture: An anthropomorphic robot with six mechanical arms commands an assembly line while a displaced human worker floats aimlessly in the foreground. Ejected from his station, the worker throws up his hands in despair next to a headline that reads, “Automation in Germany, the arrival of robots.” Over fifty years later, a cover page from the same magazine evoked similar themes: A giant robot arm yanks an office worker away from his computer under the headline, “You’re fired! How computers and robots steal our jobs – and which jobs will be safe.” The more things change, the more they stay the same.
{"title":"Your Boss Is an Algorithm: Artificial Intelligence, Platform Work and Labour by Antonio Aloisi and Valerio De Stefano","authors":"Zoé Bernicchia-Freeman","doi":"10.60082/2817-5069.3929","DOIUrl":"https://doi.org/10.60082/2817-5069.3929","url":null,"abstract":"In March 1964, the cover page of a popular German weekly magazine entitled Der Spiegel painted a frightening picture: An anthropomorphic robot with six mechanical arms commands an assembly line while a displaced human worker floats aimlessly in the foreground. Ejected from his station, the worker throws up his hands in despair next to a headline that reads, “Automation in Germany, the arrival of robots.” Over fifty years later, a cover page from the same magazine evoked similar themes: A giant robot arm yanks an office worker away from his computer under the headline, “You’re fired! How computers and robots steal our jobs – and which jobs will be safe.” The more things change, the more they stay the same.","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":"48 4","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135013359","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The 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”).
学者和法官将加拿大刑法中对胁迫的辩护描述为“复杂的混乱”，“常常令人困惑，可能带有性别色彩”，“非理性、反常、反常、不合逻辑，根本上是错误的”。加拿大最高法院最近的一个案件试图澄清陷入困境的胁迫辩护，R v Ryan(“Ryan”)，这是Nadia Verrelli和Lori Chambers的《无法律出路:R v Ryan，家庭虐待和胁迫辩护》(“无法律出路”)的重点。
{"title":"No Legal Way Out: R v Ryan, Domestic Abuse, and the Defence of Duress by Nadia Verrelli and Lori Chambers","authors":"Abigail March","doi":"10.60082/2817-5069.3928","DOIUrl":"https://doi.org/10.60082/2817-5069.3928","url":null,"abstract":"The 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”).","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":"163 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134905829","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Canada distinguishes “ordinary crime” from terrorism offences primarily by reference to whether an act meets the Criminal Code’s definition of “terrorist activity.” The most confusing and least understood element of terrorist activity is its motive requirement, that being that for a crime to constitute a terrorism offence, the actor must be motivated by politics, religion, or ideology. How do we know when such a motive exists, or even how to define these motivations? How do we differentiate ordinary crime from terrorism if we do not know what ideologies or religions “count” and which do not? Do far-right motivations picked and chosen from numerous groups count? How about someone that is motivated to act violently by a belief in QAnon, or because of their commitment to a political protest movement? In this article we explain why the motive requirement is so in need of refinement and shed light on what differentiates ordinary crime from terrorism. To do so, we offer a comprehensive study of the legislative history behind Canada’s anti-terrorism criminal regime as well as every terrorism judgment, sentencing decision, and jury instruction issued between 2001–2021. We find that neither Parliament nor the courts have defined the motive requirement, leaving others to define terrorism as something closer to “we know it when we see it.” We thus look more broadly, including inside and outside the realm of criminal law, for workable legal definitions of political, religious, and ideological; we engage in a process of statutory interpretation to narrow the definitions; and, finally, to better understand the most complex and vexing motive—that being ideology—we look outside the law entirely to terrorism studies, sociology, religious studies, and elsewhere. Drawing on these varied sources, we offer a definition for the motive requirement that is practical for the courtroom while serving to both restrict the application of Canada’s anti-terrorism regime beyond its current incarnation and also ensure that emergent extremist activity is adequately captured. Such clarity is vital to the rule of law because the motive requirement is an element of terrorism offences and, as such, must be proved by the Crown beyond a reasonable doubt; but it is also necessary to ensure that investigations, charges, and prosecutions are based on concise understandings of “terrorist activity” and not implicit understandings that tend to marginalize some (usually minority) groups while allowing others more permissive room to manoeuvre.
{"title":"The Elusive Motive Requirement in Canada’s Terrorism Offences: Defining and Distinguishing Ideology, Religion, and Politics","authors":"Michael Nesbitt, Leah West, Amarnath Amarasingam","doi":"10.60082/2817-5069.3924","DOIUrl":"https://doi.org/10.60082/2817-5069.3924","url":null,"abstract":"Canada distinguishes “ordinary crime” from terrorism offences primarily by reference to whether an act meets the Criminal Code’s definition of “terrorist activity.” The most confusing and least understood element of terrorist activity is its motive requirement, that being that for a crime to constitute a terrorism offence, the actor must be motivated by politics, religion, or ideology. How do we know when such a motive exists, or even how to define these motivations? How do we differentiate ordinary crime from terrorism if we do not know what ideologies or religions “count” and which do not? Do far-right motivations picked and chosen from numerous groups count? How about someone that is motivated to act violently by a belief in QAnon, or because of their commitment to a political protest movement? In this article we explain why the motive requirement is so in need of refinement and shed light on what differentiates ordinary crime from terrorism. To do so, we offer a comprehensive study of the legislative history behind Canada’s anti-terrorism criminal regime as well as every terrorism judgment, sentencing decision, and jury instruction issued between 2001–2021. We find that neither Parliament nor the courts have defined the motive requirement, leaving others to define terrorism as something closer to “we know it when we see it.” We thus look more broadly, including inside and outside the realm of criminal law, for workable legal definitions of political, religious, and ideological; we engage in a process of statutory interpretation to narrow the definitions; and, finally, to better understand the most complex and vexing motive—that being ideology—we look outside the law entirely to terrorism studies, sociology, religious studies, and elsewhere. Drawing on these varied sources, we offer a definition for the motive requirement that is practical for the courtroom while serving to both restrict the application of Canada’s anti-terrorism regime beyond its current incarnation and also ensure that emergent extremist activity is adequately captured. Such clarity is vital to the rule of law because the motive requirement is an element of terrorism offences and, as such, must be proved by the Crown beyond a reasonable doubt; but it is also necessary to ensure that investigations, charges, and prosecutions are based on concise understandings of “terrorist activity” and not implicit understandings that tend to marginalize some (usually minority) groups while allowing others more permissive room to manoeuvre.","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":"100 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134905688","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article critically analyzes provincial authority to unilaterally amend the Constitution of Canada. Via an assessment of the purported amendments in Quebec’s Bill 96, which would recognize Quebecers as a nation and French as the only language of the province, the article argues that provinces cannot make direct amendments altering, adding, or repealing provisions of the Constitution of Canada. This argument is reflected in the wording of the various constitutional amending procedures, the historical and contemporary constitutional practice, and the underlying purpose of, and fundamental distinction and complex relationship between, the Constitution of Canada as supreme law and the constitution of the province. Notwithstanding this argument, the article also analyzes the specific matters in the Bill 96 provisions and concludes that their addition requires recourse to an amending procedure other than section 45. Adding recognition of Quebecers’ status as a nation to the Constitution Act, 1867 exceeds the scope of provincial authority, in part because it would not reflect a statement by Quebec in its own provincial constitution, something it would be free to enact via ordinary legislation. Instead, what Quebec proposes is to confer such recognition by the entire country. The language provision requires recourse to either the bilateral procedure under section 43 or the unanimity procedure of section 41, given the express requirements of those amending procedures. Finally, the unilateral enactment of these amendments would be contrary to the constitutional architecture. The article concludes by briefly examining subsequent provincial attempts to amend the Constitution, finding them equally illegitimate.
{"title":"Provincial Constitutions, the Amending Formula, and Unilateral Amendments to the Constitution of Canada: An Analysis of Quebec’s Bill 96","authors":"Emmett Macfarlane","doi":"10.60082/2817-5069.3926","DOIUrl":"https://doi.org/10.60082/2817-5069.3926","url":null,"abstract":"This article critically analyzes provincial authority to unilaterally amend the Constitution of Canada. Via an assessment of the purported amendments in Quebec’s Bill 96, which would recognize Quebecers as a nation and French as the only language of the province, the article argues that provinces cannot make direct amendments altering, adding, or repealing provisions of the Constitution of Canada. This argument is reflected in the wording of the various constitutional amending procedures, the historical and contemporary constitutional practice, and the underlying purpose of, and fundamental distinction and complex relationship between, the Constitution of Canada as supreme law and the constitution of the province. Notwithstanding this argument, the article also analyzes the specific matters in the Bill 96 provisions and concludes that their addition requires recourse to an amending procedure other than section 45. Adding recognition of Quebecers’ status as a nation to the Constitution Act, 1867 exceeds the scope of provincial authority, in part because it would not reflect a statement by Quebec in its own provincial constitution, something it would be free to enact via ordinary legislation. Instead, what Quebec proposes is to confer such recognition by the entire country. The language provision requires recourse to either the bilateral procedure under section 43 or the unanimity procedure of section 41, given the express requirements of those amending procedures. Finally, the unilateral enactment of these amendments would be contrary to the constitutional architecture. The article concludes by briefly examining subsequent provincial attempts to amend the Constitution, finding them equally illegitimate.","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134901939","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This 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.
{"title":"Technology Mindfulness and the Future of the Tort of Privacy","authors":"Emily Laidlaw","doi":"10.60082/2817-5069.3925","DOIUrl":"https://doi.org/10.60082/2817-5069.3925","url":null,"abstract":"This 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.","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":"25 02","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135013203","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Libya, 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.
{"title":"Intervention in Civil Wars: Effectiveness, Legitimacy, and Human Rights by Chiara Redaelli","authors":"Sofya Cherkasova","doi":"10.60082/2817-5069.3930","DOIUrl":"https://doi.org/10.60082/2817-5069.3930","url":null,"abstract":"Libya, 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.","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":"38 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134905967","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Harold Johnson was a Cree lawyer, trapper, author, and storyteller from the Montreal Lake Cree Nation. He practiced as a criminal defence lawyer and then as a Crown prosecutor in my hometown of La Ronge, Saskatchewan. Peace and Good Order: The Case for Indigenous Justice in Canada (“Peace and Good Order”) is Harold’s resignation letter to the legal profession, apology for his participation in Canada’s criminal law system, and argument for Indigenous jurisdiction. It is, in part, an autobiographical account of his relationship to Canadian law as a Nehiyaw man. And it comes at a time when more and more Indigenous students are turning to Canadian law as a means to help their communities.
{"title":"Peace and Good Order: The Case for Indigenous Justice in Canada by Harold R. Johnson","authors":"Scott Franks","doi":"10.60082/2817-5069.3931","DOIUrl":"https://doi.org/10.60082/2817-5069.3931","url":null,"abstract":"Harold Johnson was a Cree lawyer, trapper, author, and storyteller from the Montreal Lake Cree Nation. He practiced as a criminal defence lawyer and then as a Crown prosecutor in my hometown of La Ronge, Saskatchewan. Peace and Good Order: The Case for Indigenous Justice in Canada (“Peace and Good Order”) is Harold’s resignation letter to the legal profession, apology for his participation in Canada’s criminal law system, and argument for Indigenous jurisdiction. It is, in part, an autobiographical account of his relationship to Canadian law as a Nehiyaw man. And it comes at a time when more and more Indigenous students are turning to Canadian law as a means to help their communities.","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":"40 4","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134905547","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Police officers often exercise their authority at the boundary of legality. Two of policing’s features contribute to this tendency: first, the scope of certain police powers is unclear; second, officers enjoy broad discretion to initiate proactive police encounters. This article argues that these interrelated features of policing result in three law enforcement phenomena: pretext, leveraging, and investigation cascades. Pretext denotes that police officers invoke lawful justifications to pursue unlawful aims. Leveraging implies that officers exploit individuals’ psychological vulnerabilities to secure compliance or to receive consent to engage in more intrusive investigatory tactics. Investigation cascades occur when officers gather information through police powers with low burdens of proof to exercise more invasive investigation tactics with stricter burdens of proof. This article demonstrates how criminal procedure fails to adequately protect individuals against pretext, leveraging, and investigation cascades. It concludes with a set of concrete proposals to address these three law enforcement phenomena.
{"title":"Policing in the Shadow of Legality: Pretext, Leveraging, and Investigation Cascades","authors":"Terry Skolnik","doi":"10.60082/2817-5069.3923","DOIUrl":"https://doi.org/10.60082/2817-5069.3923","url":null,"abstract":"Police officers often exercise their authority at the boundary of legality. Two of policing’s features contribute to this tendency: first, the scope of certain police powers is unclear; second, officers enjoy broad discretion to initiate proactive police encounters. This article argues that these interrelated features of policing result in three law enforcement phenomena: pretext, leveraging, and investigation cascades. Pretext denotes that police officers invoke lawful justifications to pursue unlawful aims. Leveraging implies that officers exploit individuals’ psychological vulnerabilities to secure compliance or to receive consent to engage in more intrusive investigatory tactics. Investigation cascades occur when officers gather information through police powers with low burdens of proof to exercise more invasive investigation tactics with stricter burdens of proof. This article demonstrates how criminal procedure fails to adequately protect individuals against pretext, leveraging, and investigation cascades. It concludes with a set of concrete proposals to address these three law enforcement phenomena.","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":"460 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134905691","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"International Status in the Shadow of Empire: Nauru and the Histories of International Law by Cait Storr","authors":"J. Crocker","doi":"10.60082/2817-5069.3899","DOIUrl":"https://doi.org/10.60082/2817-5069.3899","url":null,"abstract":"","PeriodicalId":45757,"journal":{"name":"OSGOODE HALL LAW JOURNAL","volume":" ","pages":""},"PeriodicalIF":0.7,"publicationDate":"2023-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42898570","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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