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For the Encouragement of Learning addresses the contested history of copyright law in Canada, where the economic and reputational interests of authors and th...

Review of Michael Trebilcock, Paradoxes of Professional Regulation: In Search of Regulatory Principles. Canadian Business Law Journal, Vol. 67, page 247. This review considers the regulation of professions through an examination of Michael Trebilcock's new book. The key themes include risk arising from service-provision, alternatives such as licensing and registration, and the political economy of occupational regulation. Trebilcock's book combines the virtues of "thinking like a lawyer" and "thinking like an economist."

This essay explores the idea of “safety” in artificial intelligence (AI) and robot governance in Canada. Regulating robotic and AI-based systems through a lens of safety is a vital, but elusive, task. In Canada, much governance of robotic and AI systems occurs through public bodies and structures. While various laws and policies aim to ensure that AI and robotic systems are used “safely,” the meaning and scope of “safety” are seldom, if ever, explicitly considered. Safety is not a neutral concept and determining what kinds of technologies and applications are “safe” requires normative choices that often go unexpressed in the law and policy-making process. Broad appeals to the policy goal of “safety” can bring conduct or regulation into conflict with the actual safety of individuals and communities. Expanded thinking about “safety” and governance in relation to automated technologies is needed, along with greater precision in law and policy goals. Scholars and activists, particularly those advocating for the abolition of state policing and the prison industrial complex, have robustly critiqued and re-theorized the concept of “safety” in law and policy, particularly in ways that are cognizant of equitable and collectively beneficial outcomes. To imagine a society without policing and prisons, abolitionist thinkers engage in a systemic critique of how society, communities, and the state understand and seek to attain “public safety.” Thus, abolitionist writers engage in a deep rethinking of the concept of “safety” and methods for creating safety, generating a richness that would benefit current discussions about AI and robotics governance. This paper explores some of this scholarship and relates it back to how we might understand and critique the use of “safety” in AI and robotics governance in Canada.

This article centers on the profound discrepancy between efforts by First Nations to obtain injunctions against industry and the state versus the far more successful record of corporations and governments seeking to obtain injunctions against First Nations. We examine how the common law test for injunctions in struggles over lands and resources leads to these results. We begin with the history of injunctions in the Aboriginal law context, especially the development of s. 35(1) jurisprudence which ironically deprived First Nations of access to injunctions, despite an earlier period of successful defence of Indigenous land rights using this legal tool. We then focus on the doctrinal and political function of the “public interest” consideration in injunction cases, locating this concept within a broader political economy framework. Finally, we turn to the origins of the injunction as an equitable remedy and argue that the current imbalance in injunction success rates ought to be understood though a re-examination of equity within a broader historical trajectory of settler-colonial legality. We conclude that the heavy lifting done by notions of ‘public interest’ both relies on and obscures the circumvention and exclusion of Aboriginal treaty and constitutional rights from the law of injunctions and constitutes a de facto resolution of Aboriginal land rights in Canada. Finally, we ask what place, if any, exists in injunction jurisprudence for Indigenous law and governance.

Recent global financial crises have resurrected debates over money and its provision, not only in economics but in law and history. This presents an opportunity to revisit past moments when money and banks were viscerally political and considered central to our legal order. This paper looks at one such moment: the conflict between Upper Canada’s Conservatives and Reformers leading to rebellion in 1837. While little mentioned in the literature, the legal architecture of money and banks played a central role in the Reform movement. The British had previously flooded the colony with publicly issued notes to fund the war of 1812. By the 1830s, this government monetary issue was fully redeemed and replaced with notes issued by the colony’s first three chartered banks. The reformers saw those banks as public agents, playing a public role, but without democratic accountability. After several failed attempts to reform that system, they turned to establishing their own institution, named the Bank of the People. In doing so, they saw themselves not as merely engaging in private commerce, but as directly contesting this fundamental public provision. This article provides a legal-political history of that early contest over Canadian money and sovereignty, and explores the way in which Upper Canada’s Reformers put forth a critique of bank-issued money that remains relevant today.

This article explains how the Supreme Court’s decision in R. v. Chouhan concerning jury impartiality is an illustrative example of “baselines”, or how implicit political positions held by judges govern their legal analysis. It begins with a summary of the background in Chouhan: the issue before the Court (the abolition of peremptory challenges) and how the judgment resolved that issue by constitutionally vindicating the impartiality of systemically white juries (an unfortunate continuation of the Court’s widely critiqued judgment in Kokopenace). Then, the article analyzes Chouhan through the lens of baselines. First, the article uses Chouhan to describe what baselines are—that is, by examining both the judgment and hearing, the article reveals how implicit political positions significantly drove the legal analysis in the case. And, given the political character of that baseline reasoning, the article briefly critiques the Court in two ways: (1) it critiques Justices Moldaver and Brown for relying on weak baseline positions, like juries already being diverse (they are not) or Canada not having intractable racial inequality (it does); and (2) it critiques the Court’s recent notice limiting intervention submissions to “legal” issues insofar as that limitation can, perversely, prevent interveners from challenging those weak baselines from which the Court may conduct its analysis. Second, the article uses Chouhan to describe what baselines do—that is, by examining Justices Moldaver and Brown’s opinion in Chouhan, the article demonstrates how judges’ baseline commitments can motivate their reasoning and lead them to make analytical errors. In their opinion, Justices Moldaver and Brown purport to defer to Parliament while nakedly legislating from the bench—indeed, they rule that their policy preference of ignoring race in jury selection should, “as a matter of law”, take precedence over Parliament’s preference for race-conscious processes. Further, Justices Moldaver and Brown strawman both jury diversity and peremptory challenges to bolster their position. Specifically, when jurists argue for more jury diversity, Justices Moldaver and Brown simply respond that no jury can be perfectly diverse, a fallacious response because doing something for jury diversity need not require doing everything. The article concludes by noting how the continuing relevance of baselines in constitutional interpretation demands ongoing and critical reflection on how Canadian jurisprudence is routinely produced from a baseline of “silly anecdotes”: white subjectivity masquerading as universal objectivity, which institutionalizes white supremacy in law.

Equality rights for LGBTQ+ peoples have a politically vexed relationship with substantive equality around the world. Critiques of the structural limitations and harmful, unintended consequences of rights claims have abounded in critical legal theory for decades. This chapter intervenes in these debates by mapping the structure and rhetoric of equality rights for LGBTQ+ peoples. Applying a legal analytical framework that originates in Eve Kosofsky Sedgwick’s writing, the chapter focuses on the text of the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, released in 2007 and supplemented in 2017. The rhetoric of the Yogyakarta Principles is trapped in what Sedgwick calls a “radical and irreducible incoherence” between conflicting conceptions of gender and sexuality that has constrained the mission of substantive equality worldwide, yet which may be fundamental to the praxis of rights claiming in the international human rights system. Equality rights talk is “queer” in this sense – irresolvable in theory, powerfully productive for LGBTQ+ peoples in certain legal contexts, and profoundly harmful to LGBTQ+ peoples and other equality-seeking groups in other legal contexts. Considering this fact, the chapter concludes by arguing that LGBTQ+ activists should think about how we might negotiate the conflicts of equality rights rhetoric more strategically and responsibly by operating, paradoxically, both within and without the constraints of international human rights system to promote gender and sexual diversity on the global stage.