Theses (Law)

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Taxing the digital economy: Options available for African countries
(2024) Oluwatuyi, Oluwasikemi; Loomer, Geoffrey
Tax authorities have always assessed and enforced taxes based on the physical address of businesses over the years. Nevertheless, the idea of tax jurisdiction has taken on a new meaning with the development of information and communication technology, and its profound impact on every facet of human existence – including but not restricted to trade and business. This development has undoubtedly increased capital mobility, especially in corporate form, and exposed more the weaknesses in national tax laws by enabling the artificial relocation of important economic components and potential exemption from taxes. Since it is getting harder to separate the digital economy from the rest of the economy for taxation reasons, the process of digitalization has emerged as one of the primary growth drivers. This expansion, together with aggressive tax planning strategies used by multinational enterprises (MNEs) to move revenues to low-tax jurisdictions and the development of business models requiring less physical presence, has increased the workload for tax administrators; furthermore, it has reduced governments’ capacity to raise funds in the traditional manner. In this regard, I assess how “adequate” the selected African countries’ frameworks are vis-à-vis the ongoing OECD and UN negotiations. Beyond the consultations, I call for a more inclusive and Africanised approach and the need for African countries to improve their tax administration mechanisms.
Aboriginal rights : Canada's specific claims policy, and the case of Lax Kw'alaams
(1995) Shaw, Dominique (Nikki) Maria
Non-Recognition of Unlawful Situations as Customary International Law: A Case-based Approach
(2024) Trung, Nguyen Quoc Tan; Breau , Susan Carolyn
Non-recognition, resembling the ancient legal principle ex injuria jus non oritur (Rights shall not derive from an illegal act), is supposedly an organic and inherent concept of public international law, if not the intuition of law in general. The objective of non-recognition is simple: it amounts to a refusal of recognition of any attempts to create a title of rights or consolidate a situation as a legal reality because what leads to it is contrary to international law. In the words of the late ICJ judge Hersch Lauterpacht, non-recognition is to “prevent the validation of what is a legal nullity”. In practice, non-recognition can include actions such as declarations, the exclusion from an organisation, and non-cooperation with the perpetrator in certain aspects of international life that might imply the acquiescence of such unlawful situations and even severance in other multilateral and bilateral ties with the perpetrator. Non-recognition indeed has manifested its utilities and powers in some instances, including the non-recognition campaigns against South Africa’s apartheid regime and their attempts to internationalise the system and Israel’s occupation of Palestinian territories. However, many scholars and statespeople also argue against non-recognition, citing its empirical inconsistency and operational incoherence. Others insist that ex jactis jus oritur (effectiveness), a principle emphasising accepting the law-creating influence of facts, would overshadow non-recognition in a corporeal practice of international politics. The cases of Ethiopia, Tibet, Goa, Afghanistan and especially the infamous contemporary cases of Kosovo and Crimea, to name a few, are major talking points of this argument. This dissertation is a systematic investigation of non-recognition. From exploring the possible theoretical roots of non-recognition in East-West international philosophicalisation to its historical development and then forming a tangible idea of non-recognition through the case studies database, I argue that not only is non-recognition already a custom in international law, but its behavioural foundation has been more relevant in the history of Confucious international order rather than the often-assumed Westphalian international order.
New Data for Access to Justice: An Assessment of the value of Reddit data
(2024) Gower, Katherine; Webber, Jeremy H. A.; Lapper, Robert
Canada has an “access to justice” problem. Research shows that most Canadians will experience a legal problem in a three-year period, and less than half of them will resolve their problem in that time. The justice system wants to improve this situation, but it needs evidence and data regarding what problems people have, and the impact of any changes made, in order to do so. In this thesis, I assess the empirical data available, introduce a new form of data, and provide an assessment of both. The new data comes from the social media platform Reddit, and it was uncovered and collected by the interdisciplinary team at a new incubator lab - the Justice Data and Design Lab (the JDD Lab), which I directed. The JDD Lab used machine learning and artificial intelligence to locate, collect and analyze Reddit data from a public “subreddit” regarding legal advice for Canadians. The data are first-person posts which represent a unique opportunity to hear descriptions from real people who find themselves facing what they either know or suspect is a legal problem and reach out online for help. Analysis shows Reddit data clusters into some of the same topic areas used in Everyday Legal Needs surveys, but also generates new clusters which represent real-time concerns that the public are experiencing. This thesis juxtaposes Everyday Legal Needs data and Reddit data to assess their strengths and weaknesses. It concludes that if the justice system is serious about taking a person-centred approach to improving access to justice, then Reddit data is an essential complement to Everyday Legal Needs survey work.
Sexism and Ts'msyen Law: A Critical Analysis of the Gendered Exclusion in Holding the Name of Chief in Ts'msyen Society
(2024) Gray, Christina; Napoleon, Val; Pérez Piñán, Astrid
Sexism exists in relation to women holding the highest-ranking name of chief within Ts’msyen society (also spelled Tsimshian and Tsimpsean). There are limited historic examples of Ts’msyen women holding the chief names. Some of these examples occurred with colonialism at a time when there was greater church influence in Ts’msyen communities. Today, the sexist pattern persists within Ts’msyen society, including within legal and governance systems where women are excluded based on their gender from holding the highest-ranking names. Despite the sexist pattern, women have legal agency, and they are at the centre of the Ts’msyen matrilineal society. My legal research demonstrates that these exclusionary patterns do not result from legitimate legal reasoning and do not constitute valid Ts’msyen law. First, I engage with Indigenous theories on sources of law. Second, I suggest a path forward based on Jennifer Nedelsky’s four-step relational approach to creating transformative change which I apply to the Ts’msyen legal principle of equality for application to gender equality of chiefs’ names.
Legal borderlines: Theorising rupture in the realm of interlegality - The potential for radical legal change in the face of ecological collapse
(2024) Llorca, Katherine; Johnson, Rebecca
The IPCC has issued increasingly stark warnings that climate breakdown and ecological collapse are inevitable if radical action is not taken in the coming decade. To date, the legal academy seems dangerously impervious to this warning. And yet, any “radical action” will also demand radical legal change. Is it possible for law to do more than simply edge forward with piecemeal legal reform? Is radical legal change possible in a legal order that values stability above all else? And if it is, what might it look like? I start by considering radical change in the form of ruptural events and the ways in which such events question the foundations on which our legal systems are built (Chapter 1). I then consider the origins of ruptural events. It seems that they emerge in the spaces of friction between legal orders, understood in the broadest, pluralist sense. But when the meaning of legal order is understood so broadly – as it is among legal pluralists – it is easy to lose one’s footing: what distinguishes one legal order from another (Chapter 2)? what is specifically legal about each order (Chapter 3)? and, crucially, what does it mean for legal orders to overlap (Chapter 4)? These detours through legal theory are not accessory; we cannot begin to envisage radical legal change without clarifying law’s potential. Together these chapters provide one possible understanding of the “distinctness”, “legalness”, and “intersectingness” of legal orders. With these theoretical tools in hand, I then consider how they help us grapple more constructively with the potential for change in the form of ruptural events (Chapter 5). The result is an experiment in legal theorising: How might we think about law’s role in times of ecological crisis? And what are the consequences of this thinking for our understanding of what the law can do? My conclusion is that ecological collapse changes the way we should be thinking about law. Indeed, it may not be the only modern development that will push us to reconsider the potential for change in the context of law...
A right-based approach to labour migration of People Living with HIV from India to the United Arab Emirates: Proposing an alternative legal and policy framework
(2023-12-15) Kaul, Abishek; Routh, Supriya
The emergence of the HIV epidemic marked a pivotal moment in the late twentieth century, akin to other global health crises, exposing significant tensions between civil liberties and public health on a global scale. Throughout history, human mobility has consistently been identified as a key factor in the spread of infectious diseases. Despite over seven decades passing since the establishment of the Universal Declaration of Human Rights (UDHR), People living with HIV (PLHIV) still confront discrimination in their cross-border movements and migration for employment. These impediments manifest in various forms, including discriminatory practices, the erosion of human rights through quarantine measures, and constraints on the mobility of low-literate, blue-collar foreign laborers. In response to the epidemic, countries like the United Arab Emirates (UAE) have implemented laws such as Federal Law 14 of 2014, outlining a policy framework that mandates HIV testing for migrant workers. This legislation has significantly influenced the recruitment of foreign workers to the UAE, particularly those originating from India, which constitutes the largest migrant workforce in the country. Persistent issues such as temporary employment contracts, safety concerns, and the violation of socioeconomic rights for foreign workers within the host nation, coupled with discriminatory immigration laws, have consistently been spotlighted by both local and international media. The objective of this thesis is to establish a connection between migration governance, regulations, healthcare accessibility, equity, and human rights. The aim is to formulate an actionable framework that can serve as a basis for safeguarding the rights of Indian workers with communicable disease in the UAE.
Lifeworlds of Administrative Law
(2023-12-15) Jensen, Leif; Promislow, Janna
Administrative law is largely missing in conversations about the legal context of ‘reconciliation’ in Canada. To the extent that those conversations consider administrative law, the discussion tends to revolve around the relationship between federal courts and self-governing nations. While this is important, this does not address the role, and responsibility, of Canadian administrative agencies. This is unfortunate because these agencies have a significant impact on the day-to-day lives of those who live in Canada. This thesis argues that the culture of justification, now central to Canadian administrative law, requires that administrative agencies take a different approach to matters involving Indigenous parties. This approach must be centered on a recognition of – and appreciation for – the Indigenous lifeworlds, and the distinctions between those lifeworlds and the lifeworld of Canadian constitutional liberalism.
Homophobia is Un-African: Critical Discussions on the Legacy of Imported Homophobia in Nigeria
(2023-08-29) Esin, Joseph; Cochran, Patricia; Yap, Audrey
The criminalization of homosexuality in Nigeria has led to a hostile climate for queer Nigerians exposing them to all sorts of discrimination and human right abuses. Nigeria, through its country leaders, state actors and scholars has expressed its homophobic stances from a cultural and moral standpoint, arguing that homosexuality is culturally foreign to its communal moral and religious beliefs. These persons have argued the call for the acceptance of homosexuality is a Western propaganda which will result in the erosion of their beliefs and the ultimate destruction of society. In this regard, I assess the exclusive heterosexual culture claims made by Nigerian homophobes to determine whether the claims arise from a precolonial understanding of culture as Africans or a postcolonial construction of culture as a result of influences. I conclude by arguing that based on the existence of non-heterosexual practices and institutions, the claim of Africans being exclusively heterosexual is a post colonial conception derived from the independent and collaborative colonial influences on African culture. Based on my findings, I make recommendations, if implemented would contribute to a climate of tolerance for sexual differences and diversity in Nigeria.
Creating Rights from the Bottom Up: Public Interest Environmental Lawyers in Thailand
(2023-08-09) Pongboonjun, Songkrant; Curran, Deborah
This research is about the interaction between various stakeholders in environmental movements in Thailand after adopting the 1997 Constitution-known as the People’s Constitution. Although academics have acclaimed this Constitution in recognizing environmental rights, few scholars have studied how it changes environmental movements afterward. This research tries to fill this gap in the literature. The study examines how citizens and public interest environmental lawyers employed new legal opportunities to protect the environment. The study examines how lawyers and communities tailor new legal rights into legal strategies and how they create changes inside state institutions, such as legal precedents and policies. This research also highlights how legal strategies bring about change outside state institutions, such as how they impact public awareness, support ongoing movements and change stakeholders’ legal consciousness. In addition, the research identifies key factors contributing to effective legal strategy. I adopt the concept of law as negotiated practices developed by law and society scholars as a theoretical framework. The main idea is that the state does not exclusively create and impose laws on citizens. In contrast, many parties, including citizens, play a crucial part in constructing law in various stages. Sometimes, some stakeholders may have a more decisive influence in drafting, passing, applying, interpreting, implementing, and challenging a given law, but no stakeholder always dominate the whole process. As a result, the law is dynamic and subject to negotiation. Perceiving the law from this perspective, the study examines how environmental rights have been transformed into practice in Thailand, where the idea of the rule of law has not yet been established. This research concludes that environmental rights and legal strategies empower environmental movements to better advocate for the environment, health and livelihood. At the same time, the empowered movements enable the Thai legal system to create significant change in advancing environmental rights. In other words, environmental rights and environmental movements empower each other to achieve what they have never achieved before, creating a cycle of empowerment.
Paradigm Shift in Investment Treaty Arbitration: Toward Stricter Control over the Qualifications and Conduct of Arbitrators
(2023-02-09) Kamalinejad, Hassan; Newcombe, Andrew Paul
There is a growing concern over the qualifications and social interactions of investment treaty arbitrators. The characteristics of this class of international adjudicators have significantly evolved over the past few decades. The contemporary arbitration panelist interacts within a broad and complex network of arbitration participants. Their patterns of social behavior both within the community of panelists and within the broader network of actors in arbitration proceedings have fundamentally reshaped the composition, dynamics and culture of the arbitration community. These new forms of relationships and patterns of conduct are new in the context of public international law. These have created unprecedented challenges to the investment treaty arbitration system. New manifestations of attributes and social behavior of panelists demonstrate inadequacies of the existing standards, rules and procedures that govern panelists. This study surveys problematic patterns of social behavior of investment treaty adjudicators and shows how certain instances of social behavior inevitably or potentially jeopardize the very foundations of the system. This research empirically examines the voting behavior of two distinct groups of party-appointed panelists, and the results reveal a relationship between appointments and the decision-making attitude of adjudicators. It further methodically maps the pool of ICSID panelists and answers the question ‘who are ICSID panelists?’ It reviews the evolution of the attributes of ICSID adjudicators, assesses the composition of the ICSID pool, and evaluates the social interactions of this group of investment treaty adjudicators. To address the challenges that investment treaty arbitration faces, a radical and multidimensional shift is occurring in the system. This transformation is directed towards greater control over the qualifications and conduct of adjudicators. These developments reconstruct the composition of the pool of adjudicators and influence how they interact with other actors in investment treaty arbitration proceedings. The ongoing reform progress indicates that the attributes and behavior of future investment treaty adjudicators would likely be different from the characteristics and conduct of the contemporary generation of panelists.
To consume or be consumed? Sexist beer advertising in Brazil: Gender and power struggles for fair representation within consumer law
(2023-02-03) Amoroso Gonsalves, Tamara; Kodar, Freya
In this dissertation I use a consumer law case related to a sexist advertisement (Skol Summer Muse campaign) to examine the effectiveness of feminist engagement with the Brazilian State and the market. Brazilian consumer law is a hybrid law, where the state oversees private relationships, imposing the observance of public principles on private social actors. It is also hybrid in the sense that it combines civil, criminal, procedure, and administrative legislation in a single code. The Brazilian Consumer Code forbids discriminatory advertising but does not define it. This complex case involved multiple social actors, political and legal processes: the market (represented by the beer company that promoted the advertisement and the market self-regulatory body that monitors advertisement in Brazil); the feminist movement; and the state (represented by state and federal prosecutors, the judiciary, and PROCONS - administrative bodies that enforce consumer law) during a time of significant social change in Brazil. Theoretically grounding my work in feminist political economy analysis and considering contestation about sexist advertising as a relevant focus for political action, I discuss how material social inequalities are produced, reflected, reproduced, and reinforced in two ways: i) visually in advertising, and ii) discursively in the legal documents that comprise the litigation around the Skol Summer Muse Campaign. This work brings into conversation: i) fields of law that are hybrid (neither private or public) namely national and international human rights law that protects women, and consumer law in Brazil; and ii) discussions of material redistribution and visual representation in advertising, and establishes advertising and consumer law as a fruitful field for political action and contestation. I also look at the limits and challenges, as well as the strengths of the feminist movement in Brazil. The dissertation bridges discussions about consumer law and human rights through feminist lenses. It supports debates about sexist advertising and its impacts on women’s lives in other jurisdictions, including Canada. Finally, the dissertation contributes to broadening perceptions of gender, justice, and law. It also proposes tools to advance gender justice through strategic litigation and engagement with consumer law processes. I conclude that the feminist movement in Brazil should engage more actively with consumer law and the regulatory bodies that enforce it. This engagement will both expand their work to enhance women’s equality and support the National Consumer System. Simultaneously, the Brazilian feminist movement, by engaging with international human rights treaties ratified by Brazil, helped to define sexist advertising as a human rights issue, a strategy that can be used by other social movements in Brazil or in other countries that have signed these treaties. Finally, this dissertation involved an extensive and thorough process of translation, and considers the challenges and politics of providing full and multi-layered translations of legal systems, concepts and cultures.
Sino-Nigeria Oil-for-Infrastructure Investment Deals: A Proposal for a New Form of Regulation
(2022-12-16) Nwoko, Ngozi S.; Ramraj, Victor Vridar
This dissertation focuses on the regulation of the Sino-Nigeria oil-for-infrastructure (OFI) arrangements. The OFI investment pacts are quid-pro-quo arrangements between China and Nigeria where the Nigerian government awards oil drilling rights to Chinese national oil companies (NOCs) in exchange for China’s undertaking to build key infrastructure projects such as refineries, railways, airports, seaports, highways, and electricity-generating plants in the host state. Although the use of the OFI, which is an atypical foreign investment model by the Chinese NOCs, fits nicely with the infrastructure gap in Nigeria, it comes with the challenges of opacity and susceptibility to bribery. First, the process of granting concession rights to the Chinese NOCs itself is fraught with opacity, bribery, and unfairness. Second, the state-to-state relations of power that are embedded in the OFI arrangements make it a blurred and unique investment model and complicate its regulation. Third, all the infrastructure projects are being handled by Chinese state-owned engineering and construction firms, some of which have been debarred, at one point or another, by multilateral development banks for fraudulent and corrupt practices in procurement. Since the discovery of oil in Nigeria, bribery of Nigerian government officials by transnational oil companies and opacity in granting oil concessions have been some of the defining features of the country’s oil industry. The existing state-based and uniaxial regulatory model has proved ineffective in regulating bribery and enabling transparency in oil mining licensing exercises. Thus, this dissertation asks: How and to what extent could state and non-state actors and regimes be used as integrated and effective co-regulatory mechanisms in regulating Sino-Nigeria OFI investment arrangements? This dissertation draws on a triad of legal pluralism, transnational regulation, and Third World approaches to international law as theoretical frameworks as well as an eclectic mix of scholarship from diverse disciplines, specifically law, political economy, and development studies. It draws on a range of data sources to identify the core limitations of existing forms of regulation and then identifies the potential of other regulatory approaches to address corruption, bribery, and other problems associated with the OFI arrangements. This policy-oriented research project posits that a decentred and co-regulatory approach that accepts and incorporates non-state actors such as anti-corruption non-governmental organizations in the regulatory arrangement of the Sino-Nigeria OFI investment deals provides a potential for improving transparency and good governance in the oil industry in Nigeria. The integrated and co-regulatory model will have the state as the preeminent but not the sole regulator of the Sino-Nigeria OFI investment deals. Nigeria’s political economy landscape and natural resource endowments offer helpful contexts to study China as a major player in economic globalization vis-à-vis its investments in the extractive industries and financing of huge infrastructure projects in Africa. My research reveals that the legal and regulatory issues concerning the Sino-Nigeria OFI deals are noted only spasmodically and tangentially in literature. Therefore, this dissertation contributes to scholarship on regulation and China-Africa studies in that whether or not Beijing’s OFI investments in Nigeria are well-intentioned, there is a strong likelihood that the adoption of the proposed new form of regulation will bring about openness, transparency, and due process in the Sino-Nigeria investment arrangements.
The Potential Implications of United Nations Declarations on the Rights of Indigenous People (UNDRIP): A Case Study of the Tsilhqot'in Nation and the Indigenous People of Biafra
(2022-08-05) Okibe, Summer Somtochukwu; Borrows, John
This thesis explores the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and its implications for resolving Indigenous issues. This thesis focuses on Aboriginal title issues in British Columbia and the self-determination issues in Nigeria to consider the application of UNDRIP in different political and geographic contexts. It is important to look at both jurisdictions because of the historical similarities they share as well as the distinctions between them. Each nation has a particular history and experience with British colonization that has shaped how they interact with Indigenous nations. Yet Canada and Nigeria have responded differently to their own colonial histories. Interestingly, in 1969, Canada sent aid to provide food for the Biafrans in Nigeria during the Nigerian Civil War of 1967 – 1970. The incident will be discussed in-depth in this thesis. Furthermore, in this thesis, I argue that the application of UNDRIP can enable for the elimination of the aboriginal title test to which Indigenous peoples in Canada are subjected in Canadian courts. I argue that the courts should apply UNDRIP principles in resolving aboriginal title claims. I also argue that Nigeria should adopt and implement UNDRIP to enable the Indigenous People of Biafra (IPOB) to exercise their right to self-determination. UNDRIP provides a form of recognition for Indigenous nations that leaves state territorial integrity in place. As such, IPOB exercise of the right to self-determination will not threaten Nigeria’s territorial integrity in accord with article 46 of UNDRIP.
‘Adequate protection’: an analysis of Nigeria’s data protection laws within an emerging global data protection framework
(2022-04-27) Adewumi, Adekunle; Cochran, Patricia; Bonner, Michelle D.
The implementation of the European Union’s General Data Protection Regulation in 2018 appeared to be the catalyst for several countries to take data protection seriously, owing to concerns about transborder data flow restrictions, and has resulted in the global expansion of data protection laws. One of such countries is Nigeria, whose National Information Technology Development Agency (NITDA) introduced the Nigerian Data Protection Regulation (NDPR) in 2019. Nigerians are becoming more aware of the need to protect their personal data, and while the NDPR fulfils the need for a data protection law, it does not automatically mean that personal data of data subjects is adequately protected within Nigeria. Due to the lack of internationally binding data protection agreements, determining what constitutes an “adequate” data protection framework is challenging. The GDPR currently maintains the highest data protection standard and provides an assessment criterion in Article 45(2) for determining whether countries outside the EU have adequate data protection frameworks. In this regard, I assess how “adequate” Nigeria's data protection framework is in terms of the GDPR assessment criteria in Article 45(2). The Nigerian case is then compared to the Canadian data protection framework, which has received an adequacy decision from the EU. Based on this comparison, I make recommendations that, if implemented, will lay the groundwork for a data protection regime that meets the needs of Nigerian data subjects.
Legal pluralism and hybridity in Mi’kma’ki and Wulstukwik, 1604-1779: a case study in legal histories, legal geographies, and common law Aboriginal rights
(2022-01-10) Hamilton, Robert; Borrows, John
This dissertation is shaped by a concern with how the doctrine of Aboriginal and treaty rights in Canada can develop to meaningfully recognize Indigenous self-determination. A number of inherited concepts (e.g. law, sovereignty, state, jurisdiction, and territory) have constrained legal and political imaginations and supported a legal apparatus that confines Indigenous peoples to a subordinate place in the constitutional order. Drawing on scholarship on common law Aboriginal rights, legal pluralism, legal geography, legal history, and political theory, this work develops a novel legal and theoretical critique by historicizing the concepts courts have relied on in mediating Crown-Indigenous relations and demonstrating that the retrospective application of these concepts, which supports the subordination of Indigenous peoples in the present day, is empirically suspect. Using Canada’s Maritime provinces as an example, this is accomplished by describing in detail the legal pluralism that characterized the 17th and 18th centuries in the region, particularly how social and legal spaces were constituted by a plurality of legal and normative orders. By analyzing the territorial reach and subject matters of eight distinct legal systems that were operative in the region during this period, this work demonstrates that absolute jurisdiction through fixed territorial boundaries has never been an accurate way to describe Crown, or later state, authority in the region. Rather, the region’s legal spaces were constituted by a plurality of overlapping, entangled, and hybrid legalities that structured territorial jurisdiction in discrete and unique ways. This challenges Aboriginal rights doctrine that too often relies on unstated presuppositions about the effect of Crown assertions of sovereignty in retroactively applying conceptions of territorial jurisdiction that are tailored to meet the requirements of the contemporary nation-state and have the effect of minimizing Indigenous claims and supporting the unilateral authority of the state. The final chapter applies this legal-historical analysis to the present-day through an analysis of recent treaty fishing rights disputes in Mi’kma’ki/Nova Scotia.
Clinical legal education and access to justice in Ghana and Canada
(2021-11-19) Frimpong, Antwi; Parsons, Joe; Lapper, Robert G. W.
Law clinics have had a late start in Ghana, compared with similar initiatives in Canada. Although there have been consistent calls for the establishment of law clinics at various faculties of law across the country, development on the ground has been slow. Unlike Canada, no law school at present in Ghana has a law clinic that engages students in actual client representation. However, a comprehensive plan is now being introduced to provide legal aid and advice to the poor, and the Ghana Legal Aid Commission is taking steps to institute law clinics across the country’s faculties of law. Nevertheless, it is yet to be seen how this will be achieved. Drawing on the Canadian experience, this thesis examines the effectiveness of the law clinic method as an innovation that could be used to advance access to justice in Ghana. In so doing, a comparative legal analysis is conducted of approaches to the clinic method in Ghana and Canada, to identify ideal practices that could support the development of clinical initiatives in these countries.
Positivist and pluralist trends in Canadian Aboriginal Law: the judicial imagination and performance of sovereignty in Indigenous-state relations
(2021-09-14) Beaton, Ryan; Borrows, John; Tully, James
This dissertation identifies institutional positivism and historically grounded pluralism as interpretive trends in the Canadian case law on Indigenous-state relations, and explores tensions between these trends. These are tensions between practices of judicial interpretation, not between theories of interpretation or legal concepts. They are practices developed case- by-case, with interpretive trends emerging over time through series of cases addressing similar issues in related contexts. Institutional positivist approaches insist that judicial recognition of Indigenous legal orders and accommodation of Indigenous interests must take place within established constitutional forms founded on state sovereignty. Historically grounded pluralist approaches show greater willingness to balance principles of state sovereignty against principles of popular sovereignty and of Indigenous priority in Canadian territory. While the two approaches overlap significantly, their differences sometimes lead to contrasting legal conclusions on key issues of, e.g., treaty interpretation, the relationship between Indigenous legal orders and the state legal system, and the jurisdictional dimension of Aboriginal title. This dissertation examines these positivist-pluralist tensions in the context of the current period of ideological transition and rapidly evolving imaginaries of Indigenous-state relations. Chapters 1 and 2 explore the case law to highlight concrete ways in which this ideological transition finds doctrinal expression in both positivist and pluralist modes. Chapters 3 and 4 offer broader reflections on philosophical debates relating to legal positivism and the role of popular sovereignty in constitutional interpretation by Canadian courts. The final chapter then considers the implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in Canadian law, with a focus on implementing legislation recently adopted by British Columbia and on two recent judgments that split the Supreme Court of Canada on the proper role of the Canadian judiciary in coordinating Canadian state law with non-state legal orders (Indigenous in one case and international in the other). This concluding chapter explains how the ongoing interplay of positivist and pluralist concerns will inevitably shape the reception of UNDRIP in Canadian law and the ongoing elaboration of Canadian Aboriginal law more generally.
Reimagining sexual assault law in Canada: a feminist, trauma-informed approach to restorative justice
(2021-09-13) Marinho Ribeiro, Maria Carolina; Calder, Gillian; Lepp, Annalee E.
Every person should have the right to live their life free of violence. However, women and girls in Canada experience sexual assault at disproportionate rates. Systemic violence against them remains commonplace. The crime of sexual assault is gendered, underreported and born disproportionately by communities who face multiple barriers to justice, such as Black, Indigenous and immigrant women, women of colour and women with disabilities. Race, ethnicity, Indigeneity, gender, social location, sexual identity, geography, age and ability, for example, are aspects of one’s identity that prevent many groups of people from accessing justice through the criminal justice system. The criminal justice system also perpetuates systemic barriers to justice and most often will further the trauma, harm and inequities among those who engage with it. For all their dimensions and their impacts on peoples lives, sexual assault cases deserve to be treated with care not only throughout the criminal justice system but beyond it. However, myths and stereotypes about women and sexual assault still play a substantive role in the criminal justice system in Canada, despite years of substantive repeals and change. Decades of law reforms did not make a real difference in how victim-survivors of sexual assault experience the criminal justice system. The criminal justice system fails and has been historically failing victim-survivors of sexual assault. Further, a justice response for victim-survivors of sexual assault does not align with carceral punitivism. Rethinking appropriate responses to sexual assault cases and alternatives to the criminal justice system has become a necessity. The appropriateness of restorative justice in cases of gendered violence, including sexual assault, is controversial. The critiques of using restorative justice in the context of sexual assault in Canada are substantial, especially from the perspective of some feminists and Indigenous-focused scholars. Through feminist and trauma-informed lenses, that are intersectional, decolonial and anti-carceral at their roots, a restorative justice theory and practice for sexual assault cases is possible and can eliminate and/or mitigate the risks associated with restorative justice processes in cases of gendered violence. A reimagined restorative justice provides a viable and transformative path to justice for those who choose this approach to justice and offers a degree of hope, particularly for victim-survivors who face multiple and intersecting barriers to justice.
The responsibility to rebuild in international law: a panacea for responsibility to protect?
(2021-08-20) Babajide, Love Stephen; Breau, Susan Carolyn
This thesis considers the issue of the Responsibility to Rebuild in International Law. It posits that the R2R must be re-elevated to significance as a conceptual, normative, and functional element of Responsibility to Protect (R2P), with its institutional homes in the United Nation’s framework and the Secretary-General’s function adequately articulated. In most instances, the 2009 three-pillar R2P framework functions effectively, but it has the flaw of burying and overlooking the critical value of the initial ICISS third pillar, the responsibility to rebuild and reconstruct war-ravaged communities’ threshold of viability and self-sufficiency. This thesis draws some crucial insight from the significant international interventions of the twenty-first century and recalling the scope in which R2P was first conceived to illustrate the unique characteristics of its contribution to global politics or international policy. This thesis addresses the question of who should rebuild after a war. The ‘Belligerents Rebuild Thesis,’ which suggests that those who have been engaged in the battle - including the victor, just belligerent, unjust aggressor, or humanitarian intervener - should be charged with the responsibility of rebuilding, is held by many leading proponents of the importance of jus post-Bellum for Just War Theory. On the other hand, this thesis argues that there is a mutual, international responsibility to rebuild that should be delegated solely based on the agent's capacity to rebuild rather than the belligerents.

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