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Arizona has been in the news for the past few years not only for its vituperative, anti-immigrant polices, but also for the impressive immigrant rights movement that continues to spawn new coalitions and new activisms. The large numbers of cases that were and continue to be litigated and the innovative use of law to mobilize present a paradox since it is the law that constructs the “illegality” of undocumented immigrants, providing them very limited recourse to rights claims.

The residential school legacy is one of the darkest chapters in Canadian history. From the mid-1850s to 1996, thousands of Aboriginal children were taken from their homelands and placed in residential schools. Taken against their will, many dreaded attending these schools. Some attended for as long as ten to fifteen years, only to be strangers in their own communities upon their return. In the past thirty years, survivors began disclosing the loneliness, confusion, fear, punishment and humiliation they suffered within these institutions, and also reported traumatic incidents of sexual, physical or emotional abuse. These childhood traumas still haunt them today. This dissertation examines the four compensation processes (Litigation, Alternative Dispute Resolution, Independent Assessment Process and the Common Experience Process) used by survivors to determine whether the compensation payments made to them assisted in reconciliation of their residential school experience. To complete an analysis of the processes, twenty-four residential school survivors from Ontario, Manitoba and British Columbia were interviewed about their experiences with one or more of the compensation processes. The study begins with a historical overview of the residential school legacy and continues with the residential school healing movement that initiated and finalized a negotiated settlement agreement for all living survivors. This dissertation provides a unique perspective to the residential school legacy by using a cultural framework, Anishinabe teachings and concepts to share the voices of residential school survivors. The pivotal Anishinabe teaching within this study comes from The Seventh Fire Prophecy. This prophecy states that: “If the New People will remain strong in their quest, the Waterdrum of the Midewiwin Lodge will again sound its voice”. In this dissertation the residential school survivors are the New People. As the dissertation unfolds the author utilizes various Anishinabe concepts to illustrate how the compensation processes failed to assist the New People to reconcile with their residential school experience. This study presents a medicine wheel understanding of reconciliation and the Residential School Legacy. It concludes with an important message to the second and third generation survivors to continue the reconciliatory efforts that the New People introduced. It is crucial that the children and grandchildren of the New People begin the reconciliation process not only for themselves but for the next seven generations.

This paper explores the various means by which we can overcome the universalism imbedded in international law and international institutions. It asks: How can international lawyers and international law scholars learn from the Global South? This ‘how’ question prompts another, but related question: should we learn from the Global South? There is a rich interdisciplinary body of literature that identifies the Global South, or Europe’s other, as a site of knowledge production. The eurocentrism of the social sciences can be identified by examining the various founding fathers of their respective theories (especially sociology). This paper builds on southern theory in order to learn from these diverse perspectives in theorising global governance. This paper is organised in three sections. First, it sets out the rationale for a reorientation towards the Global South by examining the current state of global governance theory. In the second section, this paper focuses on the broad theoretical foundations of the Third World Approaches to International Law [TWAIL] movement. TWAIL scholarship is a reaction against the colonial and imperial projects of international law. Its main claims are set out and then there is an examination of its proposals as a means to arrive at an answer to the second question: should we learn from the Global South? In the final section, this paper explores the question of how we can learn from the Global South. In answering this question, the author offers two insights. The first is based on the premise of international law as a field of practice. The second attempts to problematise the ethics of international legal scholarship.

This paper explores the various means by which we can overcome the universalism imbedded in international law and international institutions. It asks: How can international lawyers and international law scholars learn from the Global South? This ‘how’ question prompts another, but related question: should we learn from the Global South?       There is a rich interdisciplinary body of literature that signals to the Global South, or Europe’s other, as a site of knowledge production. The eurocentrism of the social sciences can be identified by examining the various founding fathers of their respective theories (especially sociology). This paper builds on southern theory in order to learn from these diverse perspectives in theorising global governance.      This paper is organised in three sections. First, it sets out the rationale for a reorientation towards the Global South by examining the current state of global governance theory. In the second section, this paper focus on the broad theoretical foundations of the Third World Approaches to International Law [TWAIL] movement. TWAIL scholarship is a reaction against the colonial and imperial projects of international law. Its main claims are set out and then there is an examination of its proposals as a means to arrive at an answer to the second question: should we learn from the Global South?      In the final section, this paper explores the question of how we can learn from the Global South. In answering this question, the author offers two insights. The first is based on the premise of international law as a field of practice. The second attempts to problematise the ethics of international legal scholarship.

Editors' introduction to Third World Approaches to International Law (TWAIL) special issue of the Windsor Yearbook of Access to Justice (Vol. 33:3, 2016) - Conspiring in Cairo & Canada: Placing TWAIL Scholarship and Praxis.

This special collection of articles in the Windsor Yearbook of Access to Justice [WYAJ] stems from a symposium of the same name held at the Berkeley Law School at the University of California on 5 December 2014. The Berkeley Symposium is the first conference to bring together scholars and experts from both Canada and the United States to present research and exchange ideas on equality issues affecting persons with disabilities in both countries. Writing this introduction allows me to bring together my identities as a law and disability scholar, the principal organizer and convener of the Berkeley Symposium, and editor-in-chief of the WYAJ. Each academic was invited to write about an equality issue of their choice that is of contemporary concern to persons with disabilities, and to focus on Canada, the United States, or both, at their option. The result is a set of articles that is simultaneously introspective and comparative. The symposium papers fall within the emerging field of Disability Legal Studies. Disability Legal Studies asks us to think about, and critically evaluate, how law engages with and reflects the lived experiences of persons with disabilities, how the law does and should regulate the lives of persons with disabilities, and how persons with disabilities can induce change in policy and legislation. This introduction provides a brief overview of the articles, which fall into three themes: a) social and economic rights, particularly with respect to movement across borders and the definition of capacity to consent; b) the UN Convention on the Rights of Persons with Disabilities (CRPD) as a legal instrument designed to combat disability discrimination and further the socio-economic empowerment of persons with disabilities; and c) disability advocacy, its human and monetary impacts, and how social change may be effected through procedural design.

A recent report identifies that more than half of the world’s countries exempt marital rape from criminal sanctions. The human rights violations inherent in acts of violence against women have now been well recognized. Yet somehow this particular form of gendered violence has escaped both criminal law sanctions and human rights approbation in a great number of the world’s nations.

Clinical Law: Practice, Theory, and Social Justice Advocacy is the first Canadian text of its kind to integrate the theories of clinical law and provide a set of practical tools to teach students how to effectively advocate for their clients in a legal clinic environment. This hands-on guide puts individual client advocacy at its centre with information on how to interview and counsel clients and how to manage a client file. Clinical Law is ideal for clinical law courses. The text features discussion questions, notes, and exercises to provide students with accessible information, including the varying contexts in which clinical law is practised, the practical approaches to building relationships with clients and communities, and the future of clinical legal practice.

Over 20 years have elapsed since the Supreme Court of Canada adopted the English tripartite test for interlocutory injunctions: a serious issue to be tried, proof of irreparable harm and balance of convenience. This article is written in response to those who have argued that the concept of irreparable harm should not be viewed as a threshold requirement, but that it only forms a component of the balance of convenience inquiry. In contrast, the author argues that it is a central and necessary element of an applicant’s claim for interlocutory relief. Proof of irreparable harm is a necessary justification to access equitable relief and the burden placed upon the applicant to do so is a normal part of the civil litigation process. Canadian courts have not found this an unworkable approach, although the language used to describe the standard of evidential proof by some courts, namely “clear and not speculative,” may have been unwise and was not required by the Supreme Court of Canada.

The question of whether a province can require civil marriage commissioners to perform same sex marriages, over their religious objections, has been addressed by the Canadian courts in a series of cases. In each of these cases the issue is framed by the courts as a contest between religious freedom and sexual orientation equality that must be resolved through the balancing of these competing interests. And in each of these cases the court strikes the balance in favour of sexual orientation equality, determining that the equality rights of same-sex couples outweighs the religious freedom of marriage commissioners. Despite what they say, the courts in these cases do not balance or trade-off religious freedom and sexual orientation equality, but instead give complete priority to the latter. A refusal by a marriage commissioner to perform a same-sex civil marriage ceremony is viewed by the courts as the cause of harm or injury to the couple (an act of discrimination) and not simply as a competing claim. I will argue that there is no balancing in these cases because there is no freedom of religion interest to be balanced against the right to sexual orientation equality. The marriage commissioner’s freedom of religion lacks substance not, or not simply, because the commissioner is a public official, or because the interference with his/her religious beliefs is indirect or partial. Rather the religious objection of the marriage commissioner falls outside the scope of freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms [the Charter], because it involves a belief about how others in the community should behave and be treated. A marriage commissioner has no claim to be exempted from the duties of his or her position on the basis of such a belief.

By: Joshua Sealy-Harrington and Ashton Menuz PDF Version: Keep It To Yourself: The Private Use Exception for Child Pornography Offences Case Commented On: R v Barabash, 2015 SCC 29 Last month, the …

There is a debate at the moment about whether the law societies (which regulate the legal profession in the various provinces) must accredit a law program to be offered by Trinity Western University [TWU], a private Evangelical Christian college. The Law Society of Upper Canada [LSUC], along with the law societies of British Columbia and Nova Scotia, refused to the accredit the proposed program because of the school’s discriminatory admissions policy and in particular the covenant that all students are required to sign, in which they agree, among other things, not to engage in sex outside of marriage and sex with a same-sex partner. The issue in the TWU accreditation case is whether the covenant is simply an internal matter (a rule that applies simply to the internal operations of a voluntary religious association) or whether it impacts outsiders to the religious community or the public interest, more generally. As I understand it, the law societies are not claiming that the members of a religious community need to be protected from oppressive or discriminatory internal rules. There are two ways in which it may be argued that the TWU program (and the covenant in particular) will have an impact on the public interest. The first argument is that a school that teaches its students that homosexuality is wrongful or immoral will not properly prepare lawyers for practice in the general community. Lawyers have duties to their clients, to the law, and to the institutions of justice. An accredited school must be willing to affirm basic equality rights. Second, admission to Canadian law schools is competitive. If its program is accredited, TWU will select students from a large number of applicants. Following graduation (as well as articling, and bar exams), TWU students will be eligible to practice law in a particular province. The accredited law schools are a gateway to the legal profession. The concern then is that TWU’s admissions policy will have a discriminatory impact on gays and lesbians who wish to enter the legal profession.

How much does it cost individual Canadians to seek civil justice? This article compiles empirical data about the monetary, temporal, and psychological costs confronting individual justice-seekers in this country. The article suggests that analysis of private costs can improve access to justice in two ways. First, it can help public sector policy-makers to reduce these costs. Second, it can help lawyers and entrepreneurs to identify new, affordable ways to reduce the costs that are most onerous to individuals with different types of civil legal need.