Law

Permanent URI for this collection

https://hdl.handle.net/10315/26547

Browse

Now showing 1 - 20 of 167

Open Access
The Impact Of The Indian Act On Indigenous Women's Voices: Rereading Sex-Based Discrimination Case Law Against Indigenous Feminist Theatre Movement Literature
(2025-04-10) Robinson, Carrie Margaret Marie; Buchanan, Ruth
This thesis contextualizes the landmark cases of Lovelace and McIvor within the Indigenous Feminist Theatre Movement. A “law as literature” method is built on to note how legal pluralist law reform of the Indian Act’s Indian Status rules is necessary. The two plays of Strength Of Indian Women and Women Of The Fur Trade are read alongside the cases to contrast the ways in which women's lives are represented and understood in each. This juxtaposition reveals how Indigenous women's challenges to sex-based discrimination have historically been stifled. Canada’s laws fail to include cultural norms, reflecting Indigenous legal orders, that Indigenous women voice in the theatre. The narratives envision valuable Indigenous matriarchal identities despite the Indian Act’s requisite masking of them behind non-Indigenous marital identities. The masking is revealed to be a barrier to Indigenous women’s full representation and expression informed by their cultural identities. Positive fictional roles counter stereotypes of Indigenous women in the real world thereby contributing to normative reshaping and jurisgenesis.
Open Access
Reading Law's Great Unread: Qualitative Computational Methods, Artificial Intelligence and the New Empirical Legal Research
(2025-04-10) Wallace, Simon; Rehaag, Sean
How will new computational technologies change legal research and our visions of what law is? Inspired by the work of digital humanists, Bourdieu, and sociologists of literature, this dissertation explores how the methods of “distant reading” can be used to develop new classes of critical insights about law. After situating the project theoretically, this dissertation reports on a series of new computational studies about Canadian law. Chapter 1 measures Canadian statutory and regulatory law, showing that law has grown unevenly over the past decade and a half. Chapter 2 uses new artificial intelligence to transcribe and analyze Supreme Court of Canada hearings, revealing gendered and linguistic speaking patterns among justices. Chapter 3 shows how computational methods can be deployed to detect inconsistency and discord in a jurisprudence, in this case Canada’s law of terrorism. Chapter 4 uses machine learning to study refugee law jurisprudence, particularly showing how it has developed over the past decade. Chapter 5 leverages new computational techniques to analyze Social Security Tribunal of Canada decisions regarding employment insurance appeals and suggests that new computational analyses might usefully change legal education. It concludes by considering how some visions of computational legal analysis—despite the sweep and scope of their projects—are part of old and traditional visions of what law is.
Open Access
The Scope Of The Possible: Canadian Courts, Emotion, And The Assertion Of Crown Sovereignty
(2025-04-10) Brown, Julia; White, Emily Kidd
This thesis considers emotion and the role emotion plays in judicial reasoning in three Aboriginal title decisions. The aim of this analysis is to draw to the surface emotional undercurrents and commitments that, together with other currents, impact the direction of judicial reasoning in these cases. Using methodologies and approaches from the area of law and emotion, this thesis employs close readings of the three Aboriginal title decisions to draw out lacunae in the Supreme Court of Canada’s reasoning. These lacunae reflect fixed assumptions that the Court chooses not to interrogate, such as the Crown’s acquisition of radical title to all land in Canada, and other postures and commitments that impact the Court’s reasoning. The emotions analysis posits that these lacunae give us information about where resistance, aversion, fear, and other emotions arise to reinforce certain narratives and modes of thinking and to prevent engagement with challenging questions.
Open Access
Indigenous Peoples And Environmental Justice: Recognition, Rights, And Representation Of Indigenous Peoples In Bangladesh's Environmental Regulatory Framework
(2025-04-10) Akter, Nasrin; Scott, Dayna
Using an Environmental Justice theoretical lens, this thesis explores the extent to which the environmental legislative landscape of Bangladesh has ensured environmental justice for Indigenous peoples. In doing so, the thesis concentrates on three main areas: recognition, rights of Indigenous people under the environmental legal framework as well as their representation in the environmental decision making bodies. The research evaluates Bangladesh environmental laws against standards elaborated in the environmental justice literature on each of these three areas. The research employs a combination of legal and policy analysis, as well as a critical analytical approach as part of its methodology. This thesis contends that the environmental laws of Bangladesh fall short of realizing the rights, recognition and representation of Indigenous people in the environmental legal framework. These shortcomings appear to stem from a combination of factors including the design, scope, limitations and implementation of environmental laws and Constitutional provisions by both the state and the courts.
Open Access
"They Just Looked At Me Like I Didn't Matter"- The Experiences Of Assaulted LGBTQ+ Women With The Police
(2025-04-10) Poehlmann, Katherine; Mosher, Janet
Research reveals that LGBTQ+ women are subjected to high rates of sexual and gender-based violence (SGBV). It is widely known that most victim-survivors of SGBV do not report it to the police and when they do, they usually have negative experiences, often due to the influence of myths and stereotypes on police officers’ attitudes and conduct. LGBTQ+ communities are known to be subjected to a multitude of myths and stereotypes that perpetuate violence against them, particularly in the case of highly marginalized subgroups (e.g., trans women, bisexual women). Little attention has been paid, particularly in the Canadian context, to the role of myths and stereotypes in LGBTQ+ women’s decision-making processes about whether to report SGBV to the police and experiences when it is reported. This thesis aims to address this gap and work towards practical solutions, through qualitative interviews with the frontline experts who support LGBTQ+ survivors.
Open Access
AI-based Assistive Technologies & People With Disabilities: Privacy At Risk
(2025-04-10) Madaan, Jasmine; Saberi, Hengameh
This thesis follows three research questions. First, it explores the potential privacy risks that people with disabilities (PWDs) face in the face of incorporation of artificial intelligence (AI) in assistive technologies (ATs). It then investigates reasons that exacerbate PWDs’ vulnerability to such potential privacy risks. Since legal literature in the context of AI-based ATs is limited, this thesis adopts a combination of multidisciplinary and traditional legal doctrinal research by studying legal literature and empirical research in other disciplines. Lastly, the thesis reviews the current Canadian data protection legal framework to examine if there is any provision specifically addressing PWDs or vulnerable data subjects and highlight legislative gaps impacting PWDs.
Open Access
Echoes Of Reform: The Excellent Care For All Act And Psychiatric Patient Advocacy In Ontario
(2025-04-10) De Fatima Costa, Lucia; Mykitiuk, Roxanne
The passage of the Excellent Care for All Act (ECFAA) in June 2010 marked a significant juncture for healthcare reform in Ontario, aiming to enhance standards, optimize resources, and reduce costs across hospitals. One significant responsibility mandated under ECFAA was the requirement for a Patient Declarations of Values (PDoVs). This study delves into the foundational underpinnings of the PDoV development process, drawing from Mad Studies theory and the contemporary landscape of patient advocacy. I examine the integration of patient embodied knowledge in these PDoVs, while simultaneously identifying conspicuous absences by unpacking the assumptions within "patient engagement" and its role in shaping the medico-legal discourse surrounding patient rights within the psychiatric milieu. This study reveals challenges for advocacy within psychiatric settings and underscores the importance of revitalizing praxis for capacity building in community activism in order to shape the future landscape of mental healthcare provision and the safeguarding of patient rights.
Open Access
The Paradox Of Visibility: Anti-Blackness, Pathologization, And The Limitations Of Canadian Criminal Law
(2025-04-10) Jones, Danardo Sanjay; Paciocco, Palma
This dissertation offers a quadripartite analysis of the endemic nature of anti-Black racism within Canadian criminal law, contributing to the growing body of Canadian critical race theory (CRT) literature and advancing the field of race-conscious doctrinal work on Canadian criminal law. Each chapter engages the system along different axes: (a) the temporal, procedural axis – moving from policing to the trial process to criminal sentencing; (b) the micro to the macro axis, with chapters that range from an individual case study to an analysis of a small constellation of recent court decisions, to a more theoretical analysis of foundational theories of criminal punishment and desert; (c) an axis that considers concrete and practice-related concerns, to more theoretical, with chapters ranging from practice-oriented doctrinal and policy interventions to sustained analyses of theoretical frameworks and scholarly methodology. The chapters will demonstrate how CRT analyses can explain some of the deep pathologies within the criminal legal system, demonstrate its inadequacy, and expose the paradoxicality of tackling anti-Black racism in the system by making Blackness more or less visible. While each chapter will engage different issues, they will be directed toward the overarching question of how to navigate what I have termed as the “paradox of visibility”: that is, to some extent, a focus on Blackness is disadvantageous, though a refusal to focus on Blackness can support the white supremacist myth of colour blindness and racial neutrality in the criminal legal system. Concretely, the paradox demonstrates that at the same time and in the same context, both advantages and disadvantages are associated with focusing on Blackness and with efforts to achieve race neutrality. Further, my analysis of the paradox of visibility recognizes that for Black people, 'denying difference' is not an option: Black people are read as Black and subjected to so much explicit and implicit bias that claims about 'colour-blindness' are often disingenuous or naïve. So, in many respects, and as expressed by the theory of racial realism, there is no ‘outrunning’ one’s Blackness as racism is woven into the fabric of our institutions and frames the terms of reference for societal racial ordering.
Open Access
(Un)Necessary Evils?: Ethical And Emotional Conflicts For Social Change Lawyers In Canada
(2025-04-10) McKenzie, Marina Francesca; Lawrence, Sonia
This thesis concerns an exploratory study about “social change” lawyers in Canada. Based on qualitative interviews, I aim to provide a modest but in-depth examination of the experiences and practical challenges these lawyers face in their work and how they navigate them. I find their approaches are divided between external and internal, both of which are affected by lawyers’ positionalities and experiences. “External approaches” concern how they reconcile conflicts in their values and responsibilities to different groups—namely individuals, communities and social movements—with each other, and with their obligations to the legal profession. Meanwhile, “internal approaches” concern how they navigate conflicting feelings arising out of working in contradictory and oppressive external systems. Ultimately, there is no formula or answer to how this work can be done; both approaches rely on finding a balance between conflicting parties or feelings and accepting an inherent uncertainty and unresolved nature of the work.
Open Access
Decoding Financial Inclusion in a Post-War Jurisdiction Sri Lanka: A Case Study
(2024-11-07) Senthe, Shanthi Elizabeth; Geva, Benjamin
This qualitative study examines the complex interplay between the financial regulatory landscape and financial inclusion in a post-war jurisdiction. The global debates surrounding the deployment of financial inclusion initiatives virtually center on many legal and non-legal discourses, thereby making this a significant study. This study further identified specific thematic strands which highlight how financial inclusion is regulated and administered in a post-war jurisdiction by amplifying the lived experiences of individuals that are caught between the regulatory structure of financial inclusion. In particular, this doctoral research further examines how stakeholders engaged in financial inclusion have shaped the financial regulatory landscape. By applying a local level analysis of banking practices coupled with daily lived experiences, this research aimed to explore the strengths and limitations in the delivery of financial inclusion efforts. The study employed an interdisciplinary approach, which created narratives contextualized within the jurisdiction this study was conducted. This study seeks to present theoretical and legislative developments that uncover how banking law is interlaced in policy and cultural formation using financial inclusion as an illustrative vehicle. This study is further designed to showcase theoretical and legal influences, as well as a guide in navigating this legal research project by providing original contributions of the fieldwork conducted in a post-war jurisdiction.
Open Access
Law, Language, And Authority: The Algorithmic Turn
(2024-10-28) Turnbull, Amanda; Craig, Carys
Law is formed by language and law utilizes language. Law is also like language in that it consists of social rules that aid in the structuring of society. From the time that we first put language into writing, we have been invested in the technologizing of language. There is a clear trajectory of our interest in having machines do things with language that we would otherwise do ourselves. This dissertation investigates how law’s relationship with language changes with the use of algorithmically driven technologies, and correspondingly, the consequences for the changing nature of authority since the use of language in law is closely entwined with the use of language in exercising authority. Drawing on J. L. Austin’s speech-act theory as framework, which scrutinizes language as a form of action and effects rather than as a medium for transmitting information, this dissertation is divided into three pillars that grapple with how algorithms do things with words in the context of law. The first pillar offers an analysis of generative AI and the implications for authorship. The second pillar moves from algorithms and authored words to an examination of algorithms and drafted words, specifically through an analysis of the nature of the emerging “algorithmic contract,” in which an algorithm fills in for human expertise in the contracting process. The third pillar of this dissertation investigates the consequences of executing algorithmic contracts, paying particular attention to the accelerating issue of technology-facilitated gender-based violence in the ride-hailing industry. Taken together these three pillars have implications for understanding law’s authority as we adopt increasingly sophisticated technologies in society. This final chapter on authority taps into cyberfeminism to help elucidate the changing nature of authority as we delegate authority, often unintentionally, to algorithms. The findings drawn from this investigation offer solutions to some of the legal conundrums posed by algorithmically driven technologies that do things with language. These findings also have import for the relationship between law and language and for better understanding the nature of law in the Algorithmic Turn.
Open Access
The Heteronomy of Flesh: A Minor Jurisprudence of the Use of the Human Dead and Tissues
(2024-07-18) Shaw, Joshua David Michael; Mykitiuk, Roxanne
The dissertation addresses historical and contemporary legal literatures—generally literatures that have not succeeded in becoming convention (Peter Goodrich)—that assert or rely on the human body’s “jurisgenerativity” (Robert Cover) to evaluate and determine what should be lawfully done with the human dead or tissues. These literatures demonstrate the limits of doctrinal legal methods and conventional jurisprudence which ordinarily deploy concepts of property or personhood. Instead of property or personhood, these literatures require the jurisprudent to attune to the heteronomy of flesh, a law engendered in the materiality of the body decomposing, cut into parts, or as fragments falling away from the individual. It requires the jurisprudent to reach past divisions of nomos and physis, playing with the normativity of corporeal forms. Drawing on concepts of critical legal theory including heteronomy (Stewart Motha, Jean-Luc Nancy); lawscape (Nicole Graham, Andreas Philippopoulos-Mihalopoulos); jurisgenesis and biogenesis (Robert Cover, Margaret Davies); antirrhesis and the antinomian (Peter Goodrich, Marty Slaughter); and office and technics of jurisdiction (Olivia Barr, Shaunnagh Dorsett and Shaun McVeigh, Marc Trabsky), the author suggests how these literatures and their engagement with human corporeality can be re-read to foster alternate approaches to the laws of the dead and bodily matter. This leads the author to conclude the dissertation by gesturing to the possibility of a minor jurisprudence (Peter Goodrich, Shaun McVeigh, Panu Minkkinen) where the jurisprudent writes as flesh (Gilles Deleuze and Felix Guattari), inspired by re-readings of the failed literatures he covered, so to inhabit different modes of relating with corporeality.
Open Access
Indigenous Biocentric Law Against a Legacy of Violence: Chilean Water Regulation, Free Trade with the EU, and Violations of Mapuche and Aymara Rights to Water
(2024-07-18) Simard, Joseph Jonathan Edward; Bhatia, Amar
Assertions of Mapuche and Aymara law in defence of waters are hampered by a legacy of state violence, and continued appropriation of Indigenous worldviews under commodified conceptions of nature. I interrogate and analyze the connection between Chile’s water market regime, natural resource extraction, water scarcity, and free trade and foreign investment. Chile’s Water Code facilitates water-intensive agribusiness, mineral extraction, and salmon aquaculture as part of export-oriented economy. At the same time, free trade agreements signed with EU countries knowingly encourage overextraction of water and natural resources. I argue in favour of grassroots movements toward land restitution and jurisdiction as solution. I aim to show international human rights litigation and the concept of virtual water as legal means to hold Chile and major EU importing states responsible for environmental harm, and violation of Mapuche and Aymara peoples’ right to water including ancestral and cultural uses.
Open Access
A Soft Competition Among Arbitral Institutions: The institutional oligopoly of mixed arbitration.
(2024-03-16) Schaugg, Lukas; Van Harten, Gus
Arbitral institutions play a vital role beyond merely facilitating international arbitration between private parties and states; they actively shape international legal norms and influence global governance. Despite their strategic and policy-shaping role, scholarship on arbitral institutions remains limited mostly to doctrinal analyses of their procedural functions. Addressing this gap, this thesis presents a comparative case study, exploring the influence of four dominant arbitral institutions and their leading experts on the development and evolution of mixed arbitration. The study combines insider research and work in the archives of inter- and non-governmental organizations, states, and influential individuals. It also draws on numerous leaked diplomatic cables. The thesis finds that the institutional market for treaty-based mixed arbitration constitutes an oligopoly of four institutions. Rather than from free market competition, this oligopoly emerged from a combination of factors, including brokering by international bureaucrats and arbitration experts during critical junctures, followed by subsequent path-dependent developments. This dynamic is historically embedded in the emergence of administered forms of contract-based mixed arbitration, which set the scene for the arrival of ICSID and the proliferation of treaty-based cases. While ICSID’s arrival marks a significant milestone, other institutions thrived in lesser but still vital ways, leveraging factors such as the timing of state accessions to the ICSID Convention, geopolitical dynamics during the Cold War, the introduction of the UNCITRAL Arbitration Rules, new treaty provisions offering a forum choice, and lobbying by influential experts who possessed ‘the right visibility at the right time’. The study contributes to several strands of scholarship, including on the political economy of the investment treaty regime, the growing judicialization of international law, and the role of non-state actors in international relations. It also represents the first comparative case study of non-doctrinal aspects of arbitral institutions with a focus on mixed arbitration.
Open Access
Best Laid Birth Plans: a relational analysis of the legal rights of birthing people in Canada
(2024-03-16) Stevenson, Julianne Michelle; Mykitiuk, Roxanne
While it is trite law in Canada that patients have the right to make their own medical decisions, news reports, regulatory complaints, and civil claims indicate that this right is failing to translate to delivery rooms. This thesis examines the gaps between the legal rights of birthing people in Canada as they exist “on the books” and the way those rights are experienced, using the critical theory of Law in Action. Building on feminist critiques of the traditional liberal conception of autonomy, this thesis conceptualizes childbirth as an experience deeply embedded in relations to others and concludes that to close the gaps between legal rights and lived experiences, we must craft law and policy in a manner that accounts for the broader relational context in which childbirth occurs.
Open Access
Getting Out of Debt Poverty
(2024-03-16) Lord, Philippe; Ben-Ishai, Stephanie
This dissertation advances a novel government program that could remedy inadequate access to credit for unbanked and underbanked individuals – those it defines as the “very poor.” It sets out the socioeconomic circumstances that create singular barriers for the very poor. It analyses the credit needs of the very poor, the unique institutions they interact with to meet these needs, and the ways in which these institutions intertwine extreme poverty, credit, and marginalisation. The dissertation proceeds to examine the role of the state in the provision and regulation of credit, and in the entrenchment of extreme poverty. It provides a sustained historical analysis of the role of the postal service, a public institution, in the provision of banking and credit and discusses a number of analogous programs and proposals that normalise and contextualise its novel government program. The dissertation extends a framework drawn from antitrust law to argue that state intervention in the marketplace is best understood as falling along a spectrum, from the provision of a competing product or service to the monopolisation of an entire industry. This framework elucidates how we justify state intervention with respect to certain essential, “public” products and services. The dissertation closes with a detailed proposal for a government program that would provide credit to the very poor through loans repaid through additional, progressive taxation. Individuals whose income does not reach a certain level would not need to repay the loan, whereas those with a high income would effectively repay a multiple of the loan principal amount. Repayment would depend on income, but only for a limited period of time. The program may have unique potential to alleviate persistently lower social mobility for the very poor.
Open Access
Administrative Convenience or Deliberate Reform? The Impacts of the Colonial Judicial Legacy of the Pre-Colonial Justice System in South-Western Nigeria
(2023-12-08) Adeyeye, Adewale Adekunle; Akande, Rabiat
In pre-colonial times, the ethnic groups that independently existed in the territory now called Nigeria had organized systems of government. However, the sweeping force of nineteenth-century colonialism erased most of these pre-colonial governments’ institutions and replaced them with the British system. Notably, in South-Western Nigeria (Yorubaland), historical evidence revealed the existence of a constitutional monarchy with organized branches of government. Especially, the pre-colonial judicial branch/justice system of the Yoruba monarchy was radically altered by colonialism. Using the interdisciplinary methodology, this research answered questions related to the structures and procedures of the pre-colonial justice system in South-Western Nigeria and how it is indelibly impacted by colonialism. In its systematic, and expository narration, this research found an inseparable nexus between lawfare and force as instruments of colonial distortion of the pre-colonial justice system of South-Western Nigeria. Thus, this work augments an aspect of the almost neglected field of African/Nigerian legal history.
Unknown
Canada’s Cultural Property Export Controls: An Analysis of the Colonial and Heritage Discourses that Animate the Cultural Property Export and Import Act
(2023-12-08) Davis, Madeline Anne; Buchanan, Ruth M.
This thesis critiques Canada’s Cultural Property Export and Import Act (CPEIA) and its framing as a legal instrument intended to protect and preserve Canada’s cultural heritage. It focuses on the export provisions of the Act and the related experts and administrative bodies who oversee disputes under those provisions. I argue that colonial and capitalist heritage and property discourses are the foundation that underpins the CPEIA and as a result, the legislation both expressly and implicitly privileges colonial and capitalist ideas about heritage and property ownership. The legislation, on its face and through the limited examples of available application, leaves little room for alternative ideas about the meaning of “heritage” and its association with culture. Relying on Laurajane Smith and Fiona Macmillan’s work on the Authorized Heritage Discourse, I provide an updated historical account of the CPEIA and Canada’s perceptions of cultural property as a settler state in light of new opportunities to engage with the application of the legislation following recent decision from the Federal Court of Appeal and the Canadian Cultural Property Export Review Board.
Open Access
Critically Evaluating the Role of the Judiciary in the Good Governance Paradigm: A Study of Pakistan
(2014-06) Muhammad Azeem; Ruth M Buchanan
In this dissertation, I critically evaluate the central role assigned to the judiciary in “the good governance” paradigm (as promoted by international institutions such as the World Bank), through a study of Pakistan. I argue that the paradigm’s focus on institutional arrangements/rearrangements, in order to produce a strong judiciary, judicial reforms, and to implement ‘the rule of law’, is problematic. I find, in contrast, and based on a detailed historical study of the different judicial regimes in the post-colonial era, that the judiciary is a part of the state, and has served to reproduce the state, in its democratic and military forms, as well as political and structural inequality in Pakistan. I document in detail how the judiciary increasingly gained autonomy in state power leading to result in what I term as a ‘judicial dictatorship’ by the 2000s. Through the thesis, I advance an alternative structural analysis of the state and institutional arrangements, using a class analysis and historical-contextual approach. My study argues that a strong (‘activist’) judiciary cannot be a substitute for a weak and inadequately representative legislature. The fallback position of the judiciary - in promoting a ‘rights’ discourse, or protection of minorities - is also an inadequate remedy for the lack of a deeper democracy in the society. My research in Pakistan contributes to the view that the role of the judiciary ultimately is to uphold political ends crafted elsewhere, rather than be seen as an agent to ‘cause’ political betterment. This study is based on most of the relevant case law in the post-colonial era, primary sources such as interviews, speeches, and judge’s monographs, as well as the available secondary material such as journal articles, books, and newspaper reports.
Open Access
Unfortunate But Ordinary: A Study of Federal Court Approaches to Stays of Removal
(2023-08-04) Joundi, Talia; Rehaag, Sean
Interlocutory decisions issued on stay of removal motions by the Federal Court of Canada remain under-studied. A leading reason for the limited research is that stay orders were not published or publicly accessible five years ago. Since then, changes to the Court’s policies regarding publication have increased the number of accessible stay orders. The outcome of a denied stay motion may result in the immediate deportation of a foreign national from Canada. Given the high-stakes nature of these decisions, it is imperative to critically examine stay motion procedures, laws, and trends against established human rights norms. This study presents an overview of this final legal frontier followed by a multi-method inquiry to investigate Federal Court stays. The inquiry exposes an area of law that remains extremely limited and procedurally lacking, resulting in a legal process that stands in tension with human rights protections.