Socio-Legal Studies

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Open Access
A Socio-Legal Analysis of Foreign Credentials Assessments and Recognition in Canada in Law and the Media: Logic, Legitimation and Limitations Regarding Foreign Trained Professionals (FTPS)
(2018-05-28) Zandnia, Shekoufeh-Farrah; Visano, Livy A.
Given that the struggles of foreign trained professionals (FTPs) in Canada are largely attributable to social and structural barriers relating to their accreditation, the objective of this dissertation is to identify recommendations and policy options geared at improving foreign credentials assessments and recognition in Canada. To achieve this end, a variety of sources including, doctrinal legal materials (i.e. human rights tribunal and court cases), policies, news media reports as well as secondary literature in law and socio-legal studies will be qualitatively analyzed and synthesized. The argument will be made that more work needs to be done in relation to: a) the reassessment/improvement of accreditation and employment requirements for FTPs; b) the revision of immigration policies to ensure that they are in tune with labour market demands as well as regulatory requirements and processes; and c) the provision of more expansive legal interpretations/decisions by human rights tribunals and courts, in the realm of regulatory policies and human rights protections, which demonstrate more sensitivity to the social and structural challenges experienced by FTPs. Although regulatory bodies, employers, governments, and legal arbitrators within the justice system have already taken steps towards addressing the predicament of FTPs, a prominent concern for many stakeholders has to do with how best to balance as well as maintain public safety and regulatory standards, while making space for the effective integration of FTPs in the Canadian workforce.
Open Access
A Socio-Legal Investigation of 'Get' Jewish Divorce Refusal in New York and Toronto: Agunot Unstitching the Ties that Bind
(2018-05-28) Machtinger, Yael Chaya Bracha; Bunting, Annie
This study, focusing on religion, law, and socio-legal storytelling, is a comprehensive, qualitative study of Jewish divorce (get) refusal and the first comparative study between Toronto and New York, cities with the largest and most diverse Jewish populations in their respective countries. Since the 1980s and early 1990s, there have been slow socio-legal developments around get refusal in New York and Canada as well as heightened awareness and advocacy in New York, coupled with denial of the persistence of the phenomenon in Toronto. Sally Falk Moore noted of a different legal pluralist context, Innovative legislation and other attempts to direct change often fail to achieve their intended purposesnew laws are thrust upon going social arrangements in which there are complexes of binding obligations... (Moore, 744). Despite the increased visibility of get refusal in the media, much of the work being done, both social and legal, continues to perpetuate a gap between legal and social realities within Jewish communities as well as silences, particularly in Toronto. At least in part, this is due to unforeseen forces, specifically the power of normative cultural practices. Drawing on interviews inspired by oral history and ethnography, and archival sources to get a thick description, this dissertation contributes to womens historiography of marriage and examines the overlapping legal norms of Jewish and civil laws, making some key contributions. I incorporate socio-legal literatures dealing with religion, law, and multiculturalism, as well as gender and storytelling (by talking to broad and diverse stakeholders) and thus I bring literatures of social theory, religious feminism and legal pluralism together in an innovative way to examine womens narratives of being chained to a marriage. I shift the parameters of studying get refusal by placing womens narratives and experiences of being refused a get by their recalcitrant spouses at the centre of this analysis, developing a critical legal pluralist approach. With empirical support from interviews I illustrate that get refusal is not necessarily a function of ones piety. It may impact all types of women, and religious observance is not in and of itself the cause (thus abandoning religious observance is not the solution). Furthermore, I demonstrate the deep connection between domestic abuse and get refusal.
Open Access
Conjunctures in Law and Development: Assemblages for Progress in Indian Agricultural Futures
(2022-03-03) Malik, Sajjad Ali; Coombe, Rosemary
This dissertation asks: how are the legal, political, and social legacies of the Green Revolution and India's incorporation into the global knowledge economy shaping or undermining the emergent discourses, practices, and regulatory rationalities of India's current Climate Smart Agriculture development initiatives? To answer this question, I construct a theoretical/methodological framework that brings together conjunctural analysis, assemblage theory, Foucaultian governmentality, and transnational legal pluralism. I identify two previous historical eras of significant agricultural and developmental change in India: the Green Revolution (1950s-early 1970s) and the liberalization of Indian agriculture as part of India's broader incorporation into the global knowledge economy (1991-mid 2000s). I study the historical relationship between the modern Indian state and Indian farmers across these eras of agricultural and developmental transformation to investigate how they are informing current Climate Smart Agriculture programs, how these contemporary programs work, and the extent to which these programs and the political struggles they incite represent a new historical phase of state power in India. I argue that Climate Smart Agriculture programs and the accompanying introduction of Big Data technology in Indian agriculture should not be understood as a singular event or a unique and novel initiative, but as the most recent project of governmentality mediating the relationship between the Indian state and Indian farmers. This dissertation further shows how relationships between states in the Global South and farmers are shaped by the interplay of technologies (understood both conventionally and in the Foucaultian sense) that are constructed and regulated through the law. I simultaneously demonstrate how the entwined processes of postcolonial state- and subject-making in the domains of agriculture and development always invokes forms of resistance that often result in contradictory regulatory outcomes, which continue to establish the conditions for future political contestation. This dissertation contributes to the field of Socio-legal Studies at large, and the subfields of Law and Development, Law and Globalization/TWAIL, and Green Criminology.
Open Access
Customary Law and Indigenous Rights in South Africa: From Transformative Constitutionalism to Living Law in Struggles for Rural Land Rights
(2019-11-22) Huizenga, Daniel Luke; Coombe, Rosemary
South Africa is well known for the countrys model of racialized territorial government called apartheid and the successful transition to constitutional democracy in April 1994. The South African Constitution provides a framework for the progressive realization of human rights as a measure of transitional justice. The Constitution guarantees land reform to account for histories of racialized dispossession. However, critics argue that land remains insecure for millions of racialized peoples living in rural areas who remain subject to forms of undemocratic chiefly authority. Existing scholarship argues that rural land insecurity is due in part to a failure to legislate an appropriate post-colonial and emancipatory version of customary law as a basis for collective land rights. A common line of argument is that there are two ways of interpreting customary law as either codified in law, as it was during colonialism, or as living customary law, referring to an imagined historical evolution of custom in response to a democratic transition and changing social and economic conditions. For example, literature often focuses on traditional leadership in South Africa and argues that this model of governance, while based on cultural rights as protected in the Constitution, relies on ethnic and territorial control reminiscent of the Bantustan reserves under apartheid. In this dissertation I demonstrate that a dichotomous view of customary law, as either codified or living, is inaccurate in contemporary conditions of neoliberalism wherein forms of authority and subjectivity and claims to territorial control are characterized by multiple actors engaged in networked and horizontal relationships of power. In these conditions, I show, an ethic of transformative constitutionalism paired with forms of government characteristic of neoliberalism have opened opportunities for new articulations of human rights, custom and property, that contribute to the emergence of living law and new forms of territorialisation. Moreover, I demonstrate that the transnational indigenous rights movement, and the vernacularization of indigenous rights in South Africa, are unsettling colonial and post-colonial assumptions about customary law in the contemporary period.
Open Access
Deciding To Deport: Considering Collateral Immigration Consequences in Ontario Based Courts
(2023-12-08) Templeman, Jessica Emily Christine; Murdocca, Carmela
This dissertation unpacks how migrants with criminal convictions are governed across the immigration and criminal punishment systems in Canada. The analysis traces processes that span these two domains and contribute to the program of removal for criminality. I draw from debates on immigration law to provide a historical review of legislation governing deportation from 1869 to 2002, when the current Immigration and Refugee Protection Act was enacted. I trace the rationalizations for amendments to this legislation introduced by the Faster Removal of Foreign Criminals Act (FRFCA) in 2013. The analysis then shifts to consider how knowledge of deportation for conviction and sentence impacts processes in the criminal system. I review how knowledge of the program of removal is accessed and deployed by court actors. I also examine the effects of the consideration of immigration consequences on sentencing outcomes. I reviewed 188 cases and conducted 13 interviews with judges, defence counsel and immigration lawyers in support of this effort. This research reveals the complex exchange of knowledges, actors, and technologies across the assemblages of the immigration and criminal punishment systems. I demonstrate the clear reliance of government officials on racialized ideas of citizenship in legislating deportation. I establish the repetition of racist logics over time, including in support of the FRFCA. I then demonstrate the interweaving of logics of race with knowledges of court processes. I reveal that amendments to the program of removal introduced via the FRFCA were justified as delimiting the authority of court actors to consider deportation. I also show that judges continue to contemplate the collateral immigration consequences of sentencing post-passage of the FRFCA. I argue that judicial discretion is shaped by a myriad of factors, including knowledge of legal principles, information specific to the geographical location of the court, and the background of the judge. The interweaving of this information is shown to have varied effects for the program of removal, with some migrants being protected from deportation by court actors through sentencing. Opportunities for resistance to removal are thus argued to exist in the points of tension in implementation of the program of removal across the immigration and criminal systems in Canada. This work also reveals that racialized knowledge guides judicial decision making on migrant sentence. Racialized migrants are produced through these processes as outside of the citizenry of Canada. The work thus confirms that the immigration and criminal punishment systems in Canada function in tandem to support racial governance.
Open Access
Governing Data Packets and the Web: A Socio-Legal Narratology of Net Neutrality Debates in the U.S., 2017–2020
(2024-07-18) Taylor, Palmer James Charles; Krikorian, Jacqueline D.
This dissertation analyzes debates on net neutrality (i.e., principles that encourage Internet Service Providers to refrain from blocking, throttling, and prioritizing data packets) in light of the 2017 Restoring Internet Freedom Order over the period 2017–2020. The proposal to repeal net neutrality was considered an abrupt shift in policy from efforts by previous FCCs to sustain net neutrality principles. I conduct a qualitative content analysis by collecting, coding, categorizing, and thematizing five data sources in NVivo (qualitative data analysis software) to draw out socio-legal narratives and stories. The five data sources include the 2017 Order, the FCC’s Electronic Comment Filing System (ECFS) attachment files, videos from YouTube, media reports, and law documents. The thematic findings organized by economics, technology, politics, and law and regulation are explored through a narrative framework comprised of multiple narrative and story threads to help make sense of the debates. The first research aim identifies and describes net neutrality in light of socio-legal narratives and stories through the construction and representation of ideas, concepts, issues, and arguments related to the governance of data packets and the Web. The second research aim examines how formal law and regulation frameworks (i.e., empirical and normative – ‘according to law and regulation as they are and ought to be’) and non-normative frameworks (i.e., technological management and solutions – ‘according to what law and regulation can and cannot do’) govern data packets and the Web. The third research aim explores how formal law and regulation and non-normative frameworks reflect U.S. norms, values, and rights that support the expansion of U.S. economic power. The dissertation contributes to the scholarship on socio-legal narratives, law and regulation, and the substantive issue of net neutrality in the U.S.
Open Access
"Justice Must be Done": Legal Engagements and Gendered Harms Following Peacekeeper Perpetrated Sexual Exploitation and Abuse in the Democratic Republic of Congo
(2023-08-04) Tasker, Heather Christine; Bunting, Annie
Attention to peacekeeper-perpetrated sexual exploitation and abuse (SEA) has developed importantly in recent years. However, there remains a dearth of empirical research bringing forward perspectives of those directly affected by this form of sexual violence. This dissertation uncovers the experiences and needs of survivors of SEA in the Democratic Republic of the Congo, contributing to improved understanding of how women experienced gendered harms, represent their needs, and explain their conceptions of justice following SEA. I compared these priorities to official UN accountability approaches and supports, contextualizing both within a highly militarized and legally plural context complicated by ongoing conflict and deep structural violence. Sexual exploitation and abuse perpetrated by peacekeepers complicates distinctions between atrocity, and ‘everyday’ injustices. My research has uncovered instances of ‘SEA’ that do not neatly distinguish it from conflict-related sexual violence in perpetration or impact. Community participants insisted on linkages between structural violence, sexual violence by state and non-state armed groups, and sexual abuses perpetrated by peacekeepers. ‘SEA’ is, however, typically relegated to a low rung on international actors’ hierarchies of harm that prioritize weaponized rape by state and non-state armed groups. ‘SEA’ operates in a liminal zone between war and peace, with jurisdictional challenges often preventing legal accountability. Analysis of survey and interview data, collected from six communities in eastern DRC, revealed high material needs of SEA survivors, barriers to effective reporting, and a lack of systematic support or investigations into SEA. No woman in this research achieved a formal legal response and legal mechanisms are made inaccessible in cases of SEA. This represents a recession of law and reveals a serious SEA accountability gap. Beyond technical issues of implementation, my analysis further revealed an important disconnect between what survivors of SEA want and need and what the UN currently offers. Their experiences reveal deeply gendered conceptions of harm that are not legible within current UN approaches to SEA. I argue for contextualization of SEA as perpetrated in structurally violent contexts and for understanding SEA as occurring on a continuum of sexual violence within conflict. Serious revision of current approaches to redressing SEA are necessary to achieve a rights-based response that meets survivors’ needs and secure justice following peacekeeper perpetrated SEA.
Open Access
Navigating Intimate Image Sharing: Youth Experiences with Technology-Mediated Sexuality in a New Legal Landscape
(2024-03-16) Lockhart, Emily Mallary; Bunting, Annie
Cyberbullying and intimate image sharing have become topics of grave concern for policy makers in several jurisdictions, including Canada. Intimate image–sharing controversies have aroused debates between policy approaches that primarily seek to protect young people from potential harms in digital spaces and those that endeavour to recognize, legitimize, and support young peoples’ legal and ethical rights to sexual self-expression in digital spaces—what might be termed, their rights to sexual citizenship. This dissertation aims to do the latter, to give space to youth voices to understand how they negotiate risk, well-being, and sexual pleasure in digital contexts and cultures. This dissertation illustrates the processes involved in creating a new legal landscape around intimate image sharing in Nova Scotia against the backdrop of the Rehtaeh Parsons case and the impacts that the landscape has had on both young peoples’ legal consciousness and their sexual citizenship. The legal response following Parsons’ death reveals that anxieties about youth sex and technology prompted swift state action that was more focused on responding to the “problem” of teenage technology-mediated sexuality than to sexual violence itself. My study examines the navigational work that youth do and the choices that they make, and how these are sometimes shaped by this legal landscape. I employ sexual citizenship as a conceptual framing in that it opens space to challenge a long history of technopanics and fears about child and youth sexuality that have informed policy that impacts young people. Analysis of art workshops and face-to-face semi-structured interviews with Nova Scotian youth ages 13–18, which I conducted in 2017, revealed new findings that start to fill a gap in Non-Consensual Distribution of Intimate Images (NCDII) work by exploring questions about legal consciousness and sexual citizenship. I found that youth participants’ offer nuanced understandings about NCDII that vary from the dominant narratives that they receive, and while the adult world might consider a criminal justice response the most appropriate in cases of NCDII among teens, young people do not believe that they or their peers would mobilize legal redress and are instead more likely to employ extra-legal approaches in these cases. This study uncovers a variety of reasons that teenagers are unlikely to mobilize criminal law in these cases including: perceptions of the law’s failures to support victims/survivors of sexualized violence; fear of sexual shaming and blaming; negative perceptions of police; and fear of personal criminalization and/or the criminalization of their peers. I argue for youth-centred approaches to policy and curriculum development around digital sexuality and image sharing that include consultations with young people themselves. Further, these approaches need to move toward a positive sexual rights framing that would recognize and legitimize young people as sexual citizens.
Open Access
Race, Diversity, and the Politics of Hate Crime: An Analysis of Police Response to Racially Motivated Hate Crimes in the Greater Toronto Area
(2019-11-22) Bryan, Timothy; Murdocca, Carmela
This dissertation examines police responses to racially motivated hate crimes in the Greater Toronto Area. In the mid-1990s, police services in Canada developed procedures to respond to suspected hate/bias motivated crimes. Hate crime procedures and training programs developed around two central foci: 1) traditional policing concerns involving proper investigative techniques, evidence collection, and documentation; and 2) emerging concerns regarding victim care, community consultation, and respect for racial and cultural diversity. Two sets of empirical data ground this study: 1) texts, including documents obtained through Access to Information requests and publicly accessible documents pertaining to hate crime policy and training; and 2) 34 semi-structured interviews with uniform and civilian police personnel. Central to my project is an examination of key government documents, including formal police protocols, working group documents, internal police job descriptions, statistical reports, officer handbooks, and training materials that outline the official police protocols, guidelines, and rationales relating to hate crime. By examining officer accounts of their on-the-ground practices, the training regimes involved in hate crime response, and investigative strategies employed by officers, I trace the way institutional mandates, personal experiences, and notions of Canadian multiculturalism coordinate and legitimize particular forms of intervention. I argue that hate as a primary object of police attention is often obscured by concerns police officers see as more important, such as protecting the credibility of law enforcement organizations, preventing non-criminal disputes from becoming criminal matters, police victimization at the hands of the public, and perceptions of the fundamental unfairness of hate crime laws. In this way, I show how the policing of hate crime is organized by a system of racial governance that obscures race and racism even as it claims to confront them.
Open Access
The Human Trafficking Matrix: Law, Policy and Anti-Trafficking Practices in the Canadian Criminal Justice System
(2018-11-21) Roots, Katrin; Pratt, Anna C.
International and domestic anti-trafficking agendas received an enormous boost in 2002 from the re-definition of human trafficking as a major and pressing transnational organized crime threat through the enactment of the UN Trafficking Protocol. This dissertation traces the way in which the definition of human trafficking and subsequent efforts to combat it are shaped in local context-specific ways through the crime-security nexus (Pratt, 2005) and, what I call, the human trafficking matrix. While the issue of trafficking has received wide-ranging, interdisciplinary scholarly attention, there is to date only three empirical Canadian studies that examine frontline anti-trafficking policing and prosecution efforts with a focus on migrant worker justice (Millar and ODoherty 2015), on international trafficking cases (Ferguson 2012) and on Indigenous communities (Kaye 2017), as well as a handful of European (Meshkovska et al. 2016; Lester et al. 2017) and American studies (Farrell et al., 2015, 2016). This doctoral dissertation combines detailed analysis of relevant national and international laws and policies, case law, court documents, transcripts, and interviews with legal and criminal justice actors to provide an empirically grounded study of front line anti-trafficking policing and prosecution in Canada, with a particular focus on the province of Ontario. This dissertation asks two main questions: 1) How have international discourses around organized crime threats to national security and corollary concerns with victims and human rights come to shape international and domestic legal regimes and domestic criminal justice responses to criminal activity defined as trafficking? and 2) What are the varied local effects of these developments on the culture, organization and decision-making of frontline of anti-trafficking criminal justice enforcement and prosecution? The local empirical research of this dissertation displays that the international and national anti-trafficking regimes, which are embedded within the human trafficking matrix and are, at least in part, fueled by the crime-security nexus, have entailed a variety of practical effects on the frontline. These not only show the continuation of the historically longstanding criminalization of various activities associated with the sex trade and certain marginalized groups, but also reveal some interesting and novel effects relating to, for example, the infusion of resources, the development of various modes of policing and prosecution, the production and deployment of forms of knowledge and expertise, as well as the use of well-documented legal tactics in new ways that not only reshape trafficking victims and offenders but that also continually work to reshape and reproduce the problem of trafficking on the frontline.

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