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Richard Moon, Howard Kislowicz, Asha Kaushal, 2022 CanLIIDocs 1392

In the article that follows, "The Legacy of Cheques on the Evolution of a Bank Customer's Duties: Enduring Principles regarding Risk Allocation," Sandra Booysen focusses on cheques and the underlying mandate given by customers to their banks.2 Here, Booysen uses a historical perspective to examine the development of the Macmillan and Greenwood duties that require bank customers to exercise care when drawing cheques so as to avoid tampering by a third party. Of particular interest to those interested in consumer protection is McCamus' analysis of the recent Supreme Court of Canada case Uber v. Heller, which pertains to the question of whether a mandatory arbitration clause included in a standard form contract constitutes an unconscionable term. After consideration of the history of payment system regulations in the EU, the paper focusses on cross-border payments and how regulations that were adopted in the late 1990s have helped to cross-border transactions by imposing contractual liabilities for the proper execution of credit transfer orders addressing the payment service value chain. [...]those of us who have worked with Professor Geva in an academic setting (including these authors) will attest to Keefe's lauding of Professor Geva's valuable mentorship, kindness and friendship which have been essential in helping us launch our own careers.

As a direct response to the extensive and ongoing police violence experienced throughout these past two years of struggle in Hong Kong, there has been an increasingly widespread understanding of the police force as structurally undemocratic, unaccountable, and subservient to the interests of elites. This has also led to the articulation by the protest movement of a “sixth demand”— to disband the Hong Kong Police Force (HKPF) altogether. The remarkable uptake of this demand sparked debate around exactly what dissolution of the HKPF would entail. Would it be reconstitution and reform? Or a more radical type of abolitionist politics? In grappling with this question, we encourage Hongkongers to engage with diverse decolonial and abolitionist struggles across the globe, along with existing and ongoing proto-abolitionist practices at home.

English Abstract: This bilingual volume of the Supreme Court Law Review dedicates itself to the legacy of the Honourable Justice Clément Gascon, who became a judge of the Supreme Court of Canada in 2014 and retired in 2019. This introduction provides an overview of his career and a summary of the papers included in the collection, written by: Rt. Hon. Richard Wagner; Hon. Marie Michelle Lavigne; Hon. Rosalie Silberman Abella; Hon. Nicole Duval Hesler; Hon. Nicholas Kasirer; Catherine Le Guerrier; Prof. Janis Sarra; Sajeda Hedaraly & Éléna Sophie Drouin; Jérémy Boulanger-Bonnelly; Alex Bogach & Ben Lerer; Brodie Noga; Hon. Louis LeBel; Brandyn Rodgerson; and Prof. Joshua Sealy-Harrington.French Abstract: Ce volume bilingue de la Supreme Court Law Review se dédie à l’héritage juridique de l’honorable Clément Gascon, lequel est devenu juge à la Cour suprême du Canada en 2014 et a pris sa retraite en 2019. Cette introduction fournit un aperçu de sa carrière et un résumé des essais inclus dans la collection, lesquels ont été rédigés par: le très hon. Richard Wagner; l'hon. Marie Michelle Lavigne; l'hon. Rosalie Silberman Abella; l'hon. Nicole Duval Hesler; l'hon. Nicholas Kasirer; Catherine Le Guerrier; Prof. Janis Sarra; Sajeda Hedaraly & Éléna Sophie Drouin; Jérémy Boulanger-Bonnelly; Alex Bogach & Ben Lerer; Brodie Noga; l'hon. Louis LeBel; Brandyn Rodgerson; et Prof. Joshua Sealy-Harrington.

In the beginning (of bibliometrics), citation counts of academic research were generated to be used in annual calculations to express a research journal’s impact. Now those same citation counts make up a social graph of scholarly communication that is used to measure the research strengths of authors, the hotness of their papers, the topic prominence of their disciplines, and assess the strength of the institutions where they are employed. More troubling, the publishers of this emerging social graph are in the process of enclosing scholarship by trying to exclude the infrastructure of libraries and other independent, non-profit organizations invested in research. This paper will outline efforts currently being employed by scholarly communication librarians using platforms built by organizations such as Our Research’s UnPaywall and Wikimedia’s Wikidata Project so that the commons of scholarship can remain open. Strategies will be shared so that researchers can adapt their workflows so that they might allow their work to be copied, shared, and be found by readers widely across the commons. Scholars will be asked to make good choices.

This article explores two disability justice legacies of Justice Clément Gascon. One legacy is embodied in his personal narrative of disability. Another legacy is jurisprudential and seen in his legal reasoning. On his embodied legacy, the article juxtaposes Justice Gascon’s widely publicized anxiety attack with Justice Le Dain’s private forced resignation following his hospitalization for depression thirty years earlier. This comparison reveals how, in many ways, attitudes around disability have not progressed, but rather reconfigured into more palatable forms. And on his jurisprudential legacy, this article conducts a critical disability theory analysis of Justice Gascon’s dissent in Stewart v. Elk Valley Coal Corp. In so doing, it highlights the ideological undercurrents that shape Canadian law, the link between ableism in society and ableism on the Court, and the importance of incorporating disability in contemporary discourse around judicial diversity.

English Abstract: Ottawa police sergeant Steven Desjourdy was the first officer in Canada to be prosecuted for sexual assault based upon an illegal strip search of a woman, arguably a “sexual assault by the state.”1 Sexual assault prosecutions present innumerable hurdles for all complainants, but when the accused is a police officer engaged in his duties, those hurdles are almost insurmountable. The prospect of racism loomed large in this case, given that Desjourdy was white and SB was a Black Canadian woman portrayed as volatile and dangerous. Using the transcripts of Desjourdy’s trial and drawing upon sexual assault and critical race literatures, this article explores the systemic biases that favour police officers on trial and facilitate the construction of white innocence and racialized danger.French Abstract: Le sergent Steven Desjourdy, de la police d’Ottawa, a été le premier policier au Canada à être poursuivi en justice pour agression sexuelle à la suite d’une fouille à nu illégale d’une femme, ce qui constitue sans doute une « agression sexuelle par l’État ». Les poursuites pour agression sexuelle présentent d’innombrables obstacles pour tous les plaignants, mais lorsque l’accusé est un policier dans l’exercice de ses fonctions, ces obstacles sont presque insurmontables. La perspective du racisme était très présente dans cette affaire, étant donné que Steven Desjourdy était blanc et que SB était une femme noire canadienne décrite comme volatile et dangereuse. À l’aide des transcriptions du procès de Steven Desjourdy et en s’appuyant sur les écrits en matière d’agressions sexuelles et de critiques de la race, les auteurs explorent les préjugés systémiques qui favorisent les policiers en instance de procès et facilitent la fabrication de la chimère d’une innocence blanche et d’un danger racialisé.* Assistant Professor, University of Windsor Faculty of Law; PhD candidate, Osgoode Hall Law School.**Professor Emerita, University of Ottawa Faculty of Law.1 Amanda George, “Strip searches: Sexual Assault by the State” (1993) 18:1 Alternative LJ 31.

Ottawa police sergeant Steven Desjourdy was the first officer in Canada to be prosecuted for sexual assault based upon an illegal strip search of a woman, arguably a “sexual assault by the state.”1 Sexual assault prosecutions present innumerable hurdles for all complainants, but when the accused is a police officer engaged in his duties, those hurdles are almost insurmountable. The prospect of racism loomed large in this case, given that Desjourdy was white and SB was a Black Canadian woman portrayed as volatile and dangerous. Using the transcripts of Desjourdy’s trial and drawing upon sexual assault and critical race literatures, this article explores the systemic biases that favour police officers on trial and facilitate the construction of white innocence and racialized danger.

We write as a group of experts in the legal regulation of artificial intelligence (AI), technology-facilitated violence, equality, and the use of AI systems by law enforcement in Canada. We have experience working within academia and legal practice, and are affiliated with LEAF and the Citizen Lab who support this letter. We reviewed the Toronto Police Services Board Use of New Artificial Intelligence Technologies Policy and provide comments and recommendations focused on the following key observations: 1. Police use of AI technologies must not be seen as inevitable2. A commitment to protecting equality and human rights must be integrated more thoroughly throughout the TPSB policy and its AI analysis procedures3. Inequality is embedded in AI as a system in ways that cannot be mitigated through a policy only dealing with use 4. Having more accurate AI systems does not mitigate inequality5. The TPS must not engage in unnecessary or disproportionate mass collection and analysis of data6. TPSB’s AI policy should provide concrete guidance on the proactive identification and classification of risk7. TPSB’s AI policy must ensure expertise in independent vetting, risk analysis, and human rights impact analysis8. The TPSB should be aware of assessment challenges that can arise when an AI system is developed by a private enterprise9. The TPSB must apply the draft policy to all existing AI technologies that are used by, or presently accessible to, the Toronto Police ServiceIn light of these key observations, we have made 33 specific recommendations for amendments to the draft policy.

Laverne A Jacobs, Martin Anderson, Rachel Rohr, Tom Perry, 2021 CanLIIDocs 987

This in an introduction to the special Issue "Media and Communication Theory and the Regulation of the Networked Society" published by the international peer-review journal LAWS. The collection of articles builds on the interdisciplinary dialogue that took place at the University of Windsor (Canada) symposium on the regulation of digital platforms, new media and technologies in the fall of 2019. The articles of the collection explore the various effects of media and borders, networks, amidst pandemics and environmental crises, different understandings of regulation, and the particular challenges of interdisciplinarity as it connects to law and regulation. The collection gathers the works of several academics worldwide who reflect on some of the biggest questions and challenges of our time: how do transnational digital media platforms, algorithms and big data shape commerce, politics, speech and mobilization or resistance on pressing issues such as climate change, the pandemic, elections, racial discrimination or social justice? How do transnational digital platforms redefine the role of our governments, our everyday lives, the citizenry? How do governments, private undertakings, institutions and citizens resort to, or respond to, this ultra-mediatized networked environment? To what extent have national borders become obsolete in this networked global village? Building on the scholarship of Canadian media theorist Marshall McLuhan and others, as a point of departure to explore the regulation of new media, this Special Issue tackles several of these pressing questions in a post-colonialist, posttruth environment. Various theories about media, networks and borders at the intersection of law and regulation may better inform the goals that law and policy makers should pursue (or not). This is particularly timely as governments, private corporations and citizens around the world face unprecedented challenges with flows of (dis)information about the global pandemic, hate speech and environmental crises.