The Past, Present, and Future of Law Reform in Canada

The story of institutional law reform in Canada has been described by one veteran as ‘somewhat troubling.’ It is a story not without significant successes: In Québec civil law, the codifications were remarkable achievements which realised sweeping and highly-esteemed reforms. Among Canadian common law provinces, Ontario founded the Commonwealth’s first law reform commission in 1964, and as early as 1967 Alberta innovated the now internationally-influential joint venture design of its commission. Further, Canada’s original national commission was notable for its ambitious pursuit of social issues, and the second national commission challenged conventional legal paradigms at unparalleled depth. Across the country, many law commissions were established. Yet, what is ‘troubling’ is how many, including long-established and prominent commissions, were since closed or constrained, impeded from accomplishing what they might have. Meanwhile, in Québec civil law, the codifiers’ repeated calls for a permanent commission have gone unheeded. What does the future hold for institutional law reform in Canada? In Québec civil law, there are some signs of movement towards reform continuity. An important question will be whether processes of continuous incremental reform can be developed and managed to alleviate reliance on overwhelming legal overhauls. Elsewhere in Canada, a few Canadian provinces that shuttered commissions have since re-established them in altered forms. The common themes of austerity, ideology, and alleged redundancy in the downfall of past Canadian commissions remain an ever present concern to the survivors, as they simultaneously confront newly emerging challenges. Time will tell whether, because of their experience in reforming themselves in response to their troubling story to date, Canada’s law commissions may be best-positioned to meet institutional law reform’s challenges of the future

Canada’s Legal Pasts

An introduction to Canadian legal history featuring new approaches to legal scholarship. Essential reading for all those interested in Canadian legal methodologies, especially new and beginning scholars. Canada’s Legal Pasts presents new essays on a range of topics and episodes in Canadian legal history, provides an introduction to legal methodologies, shows researchers new to the field how to locate and use a variety of sources, and includes a combined bibliography arranged to demonstrate best practices in gathering and listing primary sources. It is an essential welcome for scholars who wish to learn about Canada’s legal pasts—and why we study them. Telling new stories—about a fishing vessel that became the subject of an extraordinarily long diplomatic dispute, young Northwest Mounted Police constables subject to an odd mixture of police discipline and criminal procedure, and more—this book presents the vibrant evolution of Canada’s legal tradition. Explorations of primary sources, including provincial archival records that suggest how Quebec courts have been used in interfamilial conflict, newspaper records that disclose the details of bigamy cases, and penitentiary records that reveal the details of the lives and legal entanglements of Canada’s most marginalized people, show the many different ways of researching and understanding legal history. This is Canadian legal history as you’ve never seen it before. Canada’s Legal Pasts dives into new topics in Canada’s fascinating history and presents practical approaches to legal scholarship, bringing together established and emerging scholars in collection essential for researchers at all levels

Hryniak, the 2010 Amendments, and the First Stages of a Culture Shift?: The Evolution of Ontario Civil Procedure in the 2010s

This dissertation investigates the effects of amendments to Ontarios Rules of Civil Procedure that came into effect on January 1, 2010 (the 2010 Amendments) and were subject to interpretation by the Supreme Court of Canada in a 2014 decision (Hryniak). Hryniak concerned summary judgment. However, the dissertation largely concentrates on the effects of Hryniak and the 2010 Amendments outside the summary judgment context, inquiring into whether Hryniaks call for a culture shift and the 2010 Amendments enshrinement of the principle of proportionality have had noticeable effects. It does this by analyzing three aspects of Canadian procedural law that were not amended in 2010 but were amended (or enacted) shortly thereafter and can facilitate or hinder access to justice depending on how they are used: 1) jurisdiction motions; 2) dismissals without an oral hearing, potentially sua sponte; and 3) interlocutory appeals. This more quantitative analysis of case law was complemented by results of qualitative surveys of lawyers about their experiences with Hryniak and the 2010 Amendments. With regard to the three procedural rules analyzed, the dissertation makes suggestions for their re-interpretation to minimize unnecessary interlocutory wrangling. At a broader level, the dissertation concludes that there have been positive effects of Hryniak and the 2010 Amendments, but they have been limited, and tend to have been greatest in areas where tailored amendments in procedural law have occurred rather than in response to broader statements that a culture shift is required in the conduct of litigation. In any event, more work is required outside the realm of civil procedure reform to effectively improve access to civil justice in Canada

Hryniak, the 2010 Amendments, and the First Stages of a Culture Shift?: The Evolution of Ontario Civil Procedure in the 2010s

This dissertation investigates the effects of amendments to Ontarios Rules of Civil Procedure that came into effect on January 1, 2010 (the 2010 Amendments) and were subject to interpretation by the Supreme Court of Canada in a 2014 decision (Hryniak). Hryniak concerned summary judgment. However, the dissertation largely concentrates on the effects of Hryniak and the 2010 Amendments outside the summary judgment context, inquiring into whether Hryniaks call for a culture shift and the 2010 Amendments enshrinement of the principle of proportionality have had noticeable effects. It does this by analyzing three aspects of Canadian procedural law that were not amended in 2010 but were amended (or enacted) shortly thereafter and can facilitate or hinder access to justice depending on how they are used: 1) jurisdiction motions; 2) dismissals without an oral hearing, potentially sua sponte; and 3) interlocutory appeals. This more quantitative analysis of case law was complemented by results of qualitative surveys of lawyers about their experiences with Hryniak and the 2010 Amendments. With regard to the three procedural rules analyzed, the dissertation makes suggestions for their re-interpretation to minimize unnecessary interlocutory wrangling. At a broader level, the dissertation concludes that there have been positive effects of Hryniak and the 2010 Amendments, but they have been limited, and tend to have been greatest in areas where tailored amendments in procedural law have occurred rather than in response to broader statements that a culture shift is required in the conduct of litigation. In any event, more work is required outside the realm of civil procedure reform to effectively improve access to civil justice in Canada

Was Stephen Harper Really Tough on Crime? A Systems and Symbolic Action Analysis

In 2006, the Hon. Stephen Harper, PC became the Prime Minister of Canada after winning an election campaign in which his Conservative Party of Canada promised to get tough on crime. Over the terms of the three Harper administrations, 81 of the 399 government bills introduced in Parliament contained measures explicitly intended to increase the severity in the punishment of criminal acts. Using both descriptive and multiple regression techniques, this dissertation analyses Statistics Canada incarceration and court sentencing data to assess the substantive effect of the Harper administrations’ legislative changes. It is concluded that there was some toughening of criminal sanctions in Canada during this period, particularly for the offences of drug trafficking, production and importation. However, the toughening of sanctions was modest and left Canada’s incarceration rates stable. Judged against both government and opposition rhetoric, the carceral experience in the United States and a constructed ideal type of a tough on crime government, the substantive toughening of Canada’s criminal justice system during the Harper administrations was muted. The systems theory developed by Niklas Luhmann informs an analysis of judicial decisions and provincial government prosecution policies that concludes a federal political regime has limitations on its ability to impose substantive changes in the outcomes of Canada’s criminal justice system. The theories of symbolic action developed by Murray Edelman informs an analysis of the legislative and fiscal record of the Harper administrations to argue that much of the criminal justice program of the Harper administrations was symbolic. It appeared to be designed to generate acquiescence to the Conservative government rather than to effect a substantive toughening in the outcomes of the criminal justice system. The muted substantive effect of the Harper administration’s tough on crime program resulted from both systemic limitations on the federal government’s powers and a lack of serious intent by government actors

Promoting Proportionate Justice: A Study of Case Management and Proportionality

This work examines the principles of proportionality and active case management that were introduced by the Civil Procedure Rules 1998 (the ‘CPR’). The aim is to consider precisely what ‘proportionality’ means in a case management context, how it has been applied to date, and whether there is any need or scope for improvement. Consideration is given to proportionality as a general principle of law. This establishes a conceptual background against which to consider the principle in an English procedural context. After reviewing the introduction and development of both proportionality and active case management in English civil procedure, case management proportionality is placed against that background. In doing so, and in identifying similarities and differences, the principle is given greater definition. The heart of this work is a review of case law dealing with case management issues. This identifies inconsistencies in both how proportionality has been applied and the extent to which courts have taken on the management role required of them by the CPR. It also highlights the fact that litigants and their legal representatives retain a crucial role in ensuring that litigation proceeds in a proportionate manner, but that in many instances that role is not fulfilled. The review also provides a wealth of information that may assist in tackling these issues and inconsistencies. That information, together with points drawn from a review of management techniques in other common law jurisdictions, is taken forward into some proposals for the improvement of case management proportionality. Those proposals fall into two general categories: the publication of guidance and amendments to the CPR. The aim is to provide practical suggestions that may have a tangible impact on improving the consistency with which case management proportionality is applied, and thus improving the provision of access to proportionate justice

Justified Outbreak: Bringing Together Law, Public Health, and Ethics During an Infectious Disease Emergency

Infectious diseases have recently found renewed significance in Canadian scholarship, with a corresponding increased interest in Canada\u27s overall preparedness, including legal preparedness, to combat infectious disease emergencies. Nearly every Canadian province has emergency legislation containing a basket clause - a provision which, for the duration of an emergency, authorizes a decision maker to take \u27all necessary measures\u27 to defeat it. Public health legal preparedness scholarship has not yet examined what criteria the decision maker must consider before deciding to deploy measures that could seriously impact the rights of individuals, including those under the Canadian Charter of Rights and Freedoms. This thesis proposes that decision makers ought to have legislative guidance on how to use these special powers. The incorporation of public health, ethics, and legal principles into reformed legislation could provide for increased accountability, transparency, efficiency and effectiveness, while allowing for more focused judicial review

Not Your Business: Pedagogical Lessons Of Activist Resistance To Neoliberalism In Canadian Higher Education

The growing power and permeation of neoliberal ideology across all facets of social life has been instrumental in promoting and orchestrating a shift among Canadian post-secondary institutions towards a reductive view of schooling at the expense of a more liberatory vision of education. The aim of this study was to examine the connections between power, education, and democracy in relation to the neoliberal restructuring of higher education in Canada, while simultaneously exploring discourses of resistance to neoliberal hegemony. Using critical discourse analysis, this study begins by establishing the promotion and naturalization of neoliberal ideology within the policy landscape of Canadian higher education via four discursive manifestations: the reduction of education to a market function by emphasizing job training and curricular compatibility with labor market needs; the construction of students as economic entities or customers who are in the business of purchasing an education for their own personal, material gain; the commercialization of knowledge and research achieved via the establishment of formal linkages between post-secondary education and the private sector; and the trend to compensate for decreased public funding for post-secondary education by promoting “internationalization” which positions international students as a source of revenue generation and human capital. This study then documented the successes, challenges, and teachings of the largest and most recent student-led, grassroots-based movement in Canadian history--the Maple Spring of 2012--which launched a powerful counter-story to the prevailing doctrine of neoliberalism in Canadian educational and social policy. In unprecedented collective action--and despite vilification by the state and media who variably pathologized student protesters as disengaged and lazy or violent and extreme--students used a local policy proposal to illuminate a global ideological shift threatening to transform and obliterate public spaces and services, while interrupting the dominant neoliberal discourse. By presenting a vision for education as a form of cultural politics and vehicle for social justice, this student movement defended institutions of higher education as public resources that serve the common good as opposed to profit-driven entities subservient to the market economy. Considered together, the findings from this study aim to contribute to the ongoing conversation regarding the role of higher education in democratic life and the link, however fractured and tenuous it currently may be, between activism and social policy

WHO PAYS FOR ROAD VIOLENCE? RETHINKING ROADS, CYCLING, AND TORT LAW

Road violence is now commonplace in North American cities. However, it has not always been like this. During the advent of the automobile, every road death was a source of outrage. It was concerted action from the motor industry, organized into the self-named “motordom,” that managed to shift the blame of the deaths. With the new perception that cars had the right to the roads, victims of road violence would start sharing that blame with drivers in the popular opinion. This shift affected law, including tort law. Before the advent of the motor vehicle, cycling law was an area of legal studies, called the “law of wheelmen.” It was put aside after the automobile, with the creation of road traffic laws clearly centred on motorized vehicles. Common law courts, facing tort claims arising from road violence, remained loyal to the negligence principle. This thesis explores alternatives to the classical car-centred understanding of tort law in Ontario. With an advocacy-oriented approach, it focuses on collisions involving bicycles and motor vehicles, with the intent of providing solutions that result in better distribution of the burden caused by automobiles on road safety. A comparative lens was used in order to find and analyze better options in other jurisdictions