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The Accessibility for Manitobans Act (AMA) was enacted in December, 2013. Manitoba is the second Canadian province to enact accessibility standards legislation. The first province was Ontario which enacted the Ontarians with Disabilities Act in 2001 and later a more fortified and enforceable Accessibility for Ontarians with Disabilities Act, 2005. In this article, we provide an overview of the Accessibility for Manitobans Act highlighting its purpose, philosophical and social goals; the standards to be developed and the process for developing the standards; information on the compliance and enforcement of the statute (including penalties and appeal mechanisms) and statutory review of the statute and standards.

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.

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.

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.

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.

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.

The presence of a physical object (a book, DVD, CD) plays a determinant role in how information products (e.g., commercial copies of computer programs, books, musical recordings, video games, and virtual worlds) are regulated, in contrast with copies of similar information products with no physical embodiment. The presence of a physical object influences how law makers distinguish goods from services, to define a contract of sale or license, to apply the first sale doctrine in copyright law, and to determine which acts reserved to copyright holders are involved in a commercial transaction. In this article, I argue that the emphasis on a physical object is to a large extent arbitrary, leads to double standards, legal and normative incoherence, and ultimately that it is detrimental to recipients of information products and copyright user rights.

In Mouvement laique v Saguenay the Supreme Court of Canada held that the recitation of a prayer at the opening of a municipal council’s public meeting breached ‘the state’s duty of neutrality’ in matters of religion. The comment discusses some of the difficulties or challenges raised by the Court's commitment to religious neutrality.

English Abstract: This volume of the Oñati Socio-legal Series consists of revised versions of 15 of the 20 papers presented at a workshop hosted by the Oñati International Institute for the Sociology of Law (IISL) in May 2013. The workshop took its theme from Stéphane Hessel’s cri de coeur, Indignez-vous! and the protest movements it inspired, which we saw as protests against the social inequality that necessarily follows from economic inequality and other power imbalances. This message continues to resonate. In 2015, for example, Oxfam International’s research paper entitled “Wealth: Having it all and wanting more” concludes that by 2016, the world’s richest 1% will have more of the world’s wealth than all of the remaining 99% of people. And a Canadian observer decries the effect of this – which he labels “trickle-down meanness” – on the socio-political fabric of a country.

English Abstract: Expropriation – the non-consensual taking of privately-owned property by the state in exchange for the payment of compensation – is a widely-used tool of land use planning in Canada as it is in many other states. While in principle all privately-held properties are equally susceptible to expropriation in Canada, legal frameworks on expropriation fail to guard against the possibility that less-wealthy neighbourhoods become more susceptible to expropriation than more wealthy ones (the 99% versus the 1% to put it in the terms used by the Occupy movement of the early part of this decade). The paper examines existing legal frameworks as well as a number of historical expropriation projects in Canada to depict how and why this may come to pass. It does so with a comparative eye turned towards the United States. The paper concludes with several recommendations for strengthening expropriation law frameworks in Canada to ensure that the property of the less-wealthy is as well protected as those properties in higher-income neighbourhoods.

I use the United Nations Panel of Experts on Accountability in Sri Lanka’s recommendation to create an international mechanism and recent demands for justice as a springboard to argue that the creation of a new ad hoc international or hybrid criminal tribunal for Sri Lanka may not produce the expected results of prosecuting those responsible for mass human rights violations. I argue that such an initiative will not heal the ruptures and cleavages among the different ethnic communities in Sri Lanka. By teasing out the political nature of international criminal law and the embedded nature of the history of international law, this chapter suggests that the creation of an international institution may not bring to justice the divergent perpetrators of war crimes. Rather, the politics of international institutions and the history of international law may allow for ‘regulatory capture’ and the continuing rise of international experts as seen through the illustrative history of the International Criminal Tribunal for Rwanda.

In what follows I make five points that are potential ‘hot spots’, or are implications that flow from the Supreme Court of Canada’s decision in Bhasin v. Hrynew 2014 SCC 71 [hereafter Bhasin]. They are presented in no particular order, but, in making these comments I am reminded of the comment: “He who lives by the crystal ball soon learns to eat ground glass” (Edgar R. Fiedler in The Three Rs of Economic Forecasting-Irrational, Irrelevant and Irreverent).

The inventive concept in patent law, central to the Supreme Court’s test for whether a patent is invalid because of obviousness, lacks clarity. This article discusses that lack of clarity with reference to the vague and inconsistent treatment of the inventive concept in the jurisprudence of the Federal Court, Federal Court of Appeal and Supreme Court of Canada. In particular, this article discusses two unanswered questions: whether the inventive concept is a necessary part of the obviousness inquiry and what the inventive concept actually means. In answering the second question, this article explores three discrete stages in the evolution of the inventive concept: (1) the genesis of the inventive concept in Canadian jurisprudence in Apotex Plavix; (2) a notable dialogue regarding the interpretation of the inventive concept between the Federal Court and Federal Court of Appeal in Apotex Combigan; and (3) the persisting confusion surrounding the current meaning of the inventive concept. This article concludes by urging appellate courts to provide clearer guidance with respect to the significance and meaning of the inventive concept.

In 1988, defence lawyers in Ottawa were instructed to “whack” the complainant in sexual assault cases. These were their marching orders:

For self-defence actions to be lawful, they must be directed at military targets. The absolute prohibition on non-military targeting under the jus in bello is well known, but the jus ad bellum also limits the target selection of states conducting defensive operations. Restrictions on targeting form a key aspect of the customary international law criteria of necessity and proportionality. In most situations, the jus in bello will be the starting point for the definition of a military targeting rule. Yet it has been argued that there may be circumstances when the jus ad bellum and the jus in bello do not temporally or substantively overlap in situations of self-defence. In order to address any possible gaps in civilian protection, and to bring conceptual clarity to one particular dimension of the relationship between the two regimes, this article explores the independent sources of a military targeting rule. The aim is not to displace the jus in bello as the ‘lead’ regime on how targeting decisions must be made, or to undermine the traditional separation between the two ‘war law’ regimes. Rather, conceptual light is shed on a sometimes assumed, but generally neglected dimension of the jus ad bellum’s necessity and proportionality criteria that may, in limited circumstances, have significance for our understanding of human protection during war.

The primary goal of this article is to look at the property attributes of copyright to inform a more nuanced understanding of the nature of copyright that emphasizes its distinct character. I resort primarily to James W. Harris' theory in Property and Justice, and in particular, on the insights that his characterization of property as the twin manifestation of trespassory rules and of an ownership spectrum, bring to the understanding of copyright. While copyright holders' right to exclude has been a focal point in copyright theory, looking at copyright through trespassory rules and the ownership spectrum allows me to discern two distinct yet interrelated property interests that bring a more refined understanding of the property attributes of copyright.