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“Whose Best Interests?” compares the law of custody and access disputes with the procedure used to resolve them, and argues that there is a fundamental contradiction between these two things. The former focuses on the interests of the children involved to the exclusion of all else. The latter, however, is essentially designed to protect the best interests of the adult parties to the dispute. The article concludes by considering two alternative reforms which might resolve this contradiction.

The study of the law of remedies has found a place in the curriculum of many common law law schools. This has generated debate on whether the law of remedies exists as a distinct body of law governed by its own systematic structures and principles, and which can comfortably take its place beside other substantive private law subjects. The author argues that it can, and then suggests a number of important areas of law in which debate on appropriate remedial response is central to the articulation of the particular interest which has been violated. The author suggests that there is much useful work to engage the energies of scholars of the law of remedies.

There has been very little critical and feminist commentary in Canada on the admissibility of prior sexual misconduct evidence as similar fact evidence in sexual assault cases. The lack of critical attention to this area of evidence law is surprising given that the similar fact evidence rule, like other rules of evidence, serves as a site for gender, race, and sexual orientation bias.

The regulations in Alberta dealing with driver’s licenses were amended in 2003 to require that all license holders be photographed. The license holder’s photo would appear on his or her license and be included in a facial recognition data bank maintained by the province. Prior to this change, the regulations had permitted the Registrar of Motor Vehicles to grant an exemption to an individual who, for religious reasons, objected to having her or his photo taken. Members of the Hutterian Brethren of Wilson Colony, who believe that the Second Commandment prohibits the making of photographic images, had been exempted from the photo requirement under old regulations, but were required under the new law to be photographed before a license would be issued.

In June 2008, I was asked by the Canadian Human Rights Commission (CHRC) to write a report about the regulation of hate speech on the internet, focusing specifically on s. 13 of the Canadian Human Rights Act (CHRA). Section 13 prohibits the repeated communication on the phone system or the internet of any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination such as race, gender, or religion.

During the last few years there has been a disinformation campaign against human rights commissions. While it is not surprising that Internet blogs post things about HRCs that are false and malicious, these claims have seeped into mainstream discourse. This paper sets out some of the claims made about the CHRC and describes how they are misleading or just plain false and it considers how these deceptive and invented claims have entered mainstream discourse. This will involve some general observations about the state of public discourse in Canada.

This paper summarizes the recommendations made in the report I prepared for the Canadian Human Rights Commission concerning s.13 of the CHRA. In the report I recommended the repeal of the section so that the CHRC and the Canadian Human Rights Tribunal would no longer deal with hate speech, and in particular hate speech on the Internet. I took the position that state censorship of hate speech should be confined to narrow category of extreme expression – that which explicitly or implicitly threatens, advocates or justifies violence against the members of an identifiable group, even if the violence advocated in not imminent – and that the restriction of this narrow category of expression should be dealt with under the Criminal Code rather than the CHRA.

Research paper prepared for the Law Commission of Ontario.

This article examines two key administrative law decisions of the 2008-2009 Supreme Court of Canada term. Canada (Citizenship and Immigration) v. Khosa 2009 SCC 12 [Khosa] and Canada (Privacy Commissioner) v. Blood Tribe Department of Health 2008 SCC 44 [Blood Tribe]. Following on the footsteps of Dunsmuir, the landmark decision of 2008 that eliminated the patent unreasonableness standard, members of the Supreme Court of Canada in Khosa debated the proper interpretation of judicial review legislation. Specifically, the central issue in Khosa was whether subsection 18.1 (4)(d) of the Federal Courts Act provides a legislated standard of review that is equivalent to patent unreasonableness. While on one level, the debate of the Court focused on how to recognize and interpret legislated standards of review, its underlying theoretical premise engaged fundamental questions about deference, expertise, rule of law and how judicial review of administrative action may be appropriately placed within the broader spectrum of curial oversight.

There are two possible forms of evidence in a custody or access (visitation) case which is determined through adjudication. First, the judge may hear from the adult parties and the witnesses whom they choose to call. Second, the judge may hear "children's evidence," which comes either directly from the child, or from a neutral professional with child-related expertise. To determine the prevalence of children's evidence in Canadian custody and access litigation, the author conducted a quantitative survey of 181 reported decisions from 2009. The central finding was that only 45% mentioned any form of children's evidence. Among the various varieties of children's evidence, assessments (also known as child custody evaluations) were much more common than legal representation of children or direct evidence from children. The paper concludes by contrasting the primacy of the child in custody and access doctrine with the reality that the children involved appear to be effectively silent in the majority of the adjudicated cases.

In this paper, the aim is to assess the procedure of the recent Sri Lankan Presidential Commission of Inquiry and to provide a substantive legal critique of the conflict of interest that troubled the Commission. Divided in four sections, the article provides a general introduction on the recent Commission of Inquiry and its observing body, the act in which it is grounded, the Presidential Warrant that created it, the visible conflict of interests regarding the Attorney General’s Office in serious violations of human rights and the alleged bias in the proceedings of the Commission, especially in the case about the killing of 17 aid workers of an international non-governmental organization and the killing of five students. In conclusion, a case for the existence of the apparent bias will be made, not because of the ‘actual and legal’ role of the Sri Lankan Attorney General, but because of the practical realities of Sri Lanka.

Among the casualties in the ‘war on terror’ is the presumption of innocence. It is now known that four Canadians who were the subject of investigation by the RCMP and CSIS were detained and tortured in Syria on the basis of information that originated in and was shared by Canada. None has ever been charged with a crime. On their return home, all four men called for a process that would expose the truth about the role of Canadian agencies in what happened to them, and ultimately help them clear their names and rebuild their lives. To date, in varying degrees, all four men continue to wait for that 'process'. In this paper, I examine the access to justice mechanisms available to persons who are wrongfully accused of being involved in terrorist activities. Utilizing the case study of one of the four men, Abdullah Almalki, I explore the various processes available to him: (i) a complaint to the relevant domestic complaints bodies, the Security Intelligence Review Committee and the Commission for Public Complaints Against the RCMP; (ii) a commission of inquiry; and (iii) a civil tort claim. Due in large part to the role national security confidentiality plays in these mechanisms, all three models are found to be ineffective for those seeking accountability in the national security context.

This paper is based on my LL.M thesis, which I successfully defended on June 10, 2009.

This chapter is an excerpt from a study in which an ethnographic methodology was used to explore the concept of "tribunal independence" within access to information and privacy commissions in Canada. This chapter sets out the theory behind the ethnographic method and discusses how it was applied. As not much qualitative empirical research has been done in Canadian administrative law, the paper offers a contribution to the literature and methodologies in the field.

Even if they did not procure or otherwise contribute to the torture of nationals abroad, Canadian officials owe Canadian nationals a positive duty to prevent torture overseas. This duty is non-delegable in nature.

Tort law can only deliver justice if decision-makers exercise cultural competence; one cannot see the true suffering of the other by looking through a uni-cultural lens. A uni-cultural lens blurs the differences between people’s lived experiences and obscures the decision-maker’s capacity to understand the suffering of others, thereby silencing that suffering. This silencing in turn undermines the aims of tort law. This paper emphasizes the importance of cultural competence for tort law by analyzing the Federal Court’s 2007 decision in Haj Khalil v. Canada. The Federal Court held that immigration officials did not owe a duty of care to Haj Khalil and could not be held accountable for the unreasonable delay in processing her application for permanent residency. It also ruled that the delay could not have caused her losses. I conclude that an examination of the facts that framed Haj Khalil`s claim against immigration officials through a culturally competent lens would open the possibility of a different understanding of causation as it arises on the facts of the case.

This paper emphasizes the importance of cultural competence for tort law by analyzing the Federal Court’s decision in Haj Khalil v. Canada. Given that this symposium in honour of Rose Voyvodic’s life and work is entitled "Re-Imagining Access to Justice," this paper asks "how do the principles of cultural competence allow us to think about the facts of the Haj Khalil differently. In particular, what would a cause in fact analysis look like if it were informed by the principles of cultural competence?" My analysis proceeds by "reading the silences" or focusing on the unstated assumptions and unexplored elements of Haj Khalil’s story to bring into focus factors relevant to factual causation which remain largely unexplored or undervalued by the Federal Court. An examination of the facts that framed Haj Khalil`s claim against immigration officials through a culturally competent lens would open the possibility of a different understanding of causation as it arises on the facts of the case. While Canadian courts have emphasized the importance of social context for fair judgment, they have not fully come to grips with the implications of social context for judicial decision-making. This is particularly the case within negligence law which remains vexed by the need to maintain an objective standard while simultaneously recognizing the importance of context and circumstance to particular claims.

It is just a little over thirty years since the Supreme Court of Canada took Canada’s assessment of personal injury damages on a different tack in the trilogy. In hindsight, the view then taken on damages for non-pecuniary loss was prescient, for it foreshadowed movements now taken legislatively in the United States and Australia, and has parallels in the English Court of Appeal decision in Heil v. Rankin. The Supreme Court did not tackle the issue of lump sum verses periodic payment/reassessment in the trilogy, although it did express its views on this issue many years later. For obvious constitutional and jurisprudential reasons touching on the appropriate limits of judicial activism, and, one suspects, out of personal belief, the Supreme Court did not question the underlying premise of providing compensation for personal injury as a result of tortious conduct. The success of the Supreme Court’s intervention is perhaps best revealed by the fact that apart from some minor skirmishes over automobile insurance, there has never been any real clamour in Canada for tort reform, or an insurance crisis similar to the experience in the United States and Australia.

Freedom of expression protects the individual's freedom to communicate with others. The right of the individual is to participate in an activity that is deeply social in character. The value of freedom of expression rests on the social nature of individuals and the constitutive character of public discourse. This understanding of the freedom, however, has been inhibited by the individualism that dominates contemporary thinking about rights its assumptions about the pre-social individual and the instrumental value of community life. While the social character of human agency is seldom mentioned in the different accounts of the freedom value, it is the unstated premise of each. Once we recognize that individual agency and identity emerge in the social relationship of communication, the traditional split between intrinsic and instrumental accounts (and between speaker and listener -based accounts) of the value of freedom of expression dissolves.

Professor Voyvodic’s call for cultural competence as an ethical requirement challenges perceptions of the legal profession as inherently and necessarily morally neutral. While lawyers wrestle with the boundaries of ethical mandates, alternative dispute resolution practitioners have adopted their own codes of ethics following very much in the path of the law. Although expanding dispute resolution options for disputants, many theorists have warned of the potential of informalism to undermine natural justice principals. I will argue that the choice to omit any explicit commitment to a "social justice ethic" leaves the practice of ADR vulnerable to these decades-old arguments that informalism erodes protections for marginalized populations. As such, I will argue that mediators must call for an explicit social justice mandate in their codes of conduct, training and practices to cement the place of informal processes as equitable – not just efficient – options for settlement. In doing so, informal processes, particularly mediation, may increase discourse in civil society about human rights, thus strengthening their congruence with lived realities of citizens.