An Act respecting First Nations, Inuit and Métis children, youth and families came into force in January 2020 with the stated objectives of affirming Indigenous jurisdiction over child and family services, reducing the overrepresentation of Indigenous children in state care, and advancing Canada’s commitments under the United Nations Declaration on the Rights of Indigenous Peoples. Central to achieving these objectives are the Act’s National Standards, which are intended to ensure Indigenous communities are meaningfully included in decision-making processes. While these standards were upheld by the Supreme Court of Canada in 2024 as constitutional, emerging jurisprudence reveals significant shortcomings in the implementation of these standards. This article examines a growing line of cases in which courts have narrowly interpreted Indigenous governing bodies’ statutory right to “make representations,” frequently denying party status and restricting the scope of participation even where Indigenous communities have expressly sought to engage. The article argues that such interpretations undermine the Act’s objectives by excluding community-based evidence. These judicial approaches risk entrenching procedural barriers that perpetuate substantive inequality. The article contends that requiring Indigenous governing bodies to navigate complex provincial rules of court to secure meaningful participation is inconsistent with the Act’s purpose and design.
Much of settler colonial theory and studies in Canada has focused on the dominant British settler colonial power, with an emerging spotlight on Quebec. Little attention has been paid to French-Canadian settler colonialism in French-Canadian minority provinces such as Ontario. This research aims to make visible this gap in attention and begin to fill in its contours by understanding how the French-Canadian settler colonial project operates in Ontario through law. Through the application of Indigenous, settler colonial, socio-legal and critical feminist and race theories to a review of narrative themes in the jurisprudence of courts and tribunals interpreting Ontario’s French Language Services Act, including the purposes of the Act, the vulnerability of Francophones and the role of Francophone institutions, the author endeavors to explore the unique ways in which settler colonial consciousness is deployed, reproduced and reinforced in law.
The Ontario Disability Support Program (ODSP) relies heavily on medical evidence when adjudicating applications. In doing so, it positions healthcare providers as the undisputed experts on applicants’ disabilities. This poses particular challenges for applicants with under-recognized or misunderstood medical conditions like Myalgic Encelphalomyelitis/Chronic Fatigue Syndrome (ME/CFS), who may struggle to obtain adequate medical care and thus adequate medical evidence for the purpose of ODSP applications. Through qualitative interviews with five individuals with ME/CFS who applied for ODSP, this paper illuminates the particular challenges faced by those with ME/CFS and other under-recognized disabilities in the ODSP application process. Drawing on literature identifying gaps between how healthcare providers and patients assess patients' symptoms, as well as on research about the influence of gender and race on physician perceptions of patient credibility, this paper criticizes the overreliance on medical evidence in adjudicating ODSP applications. Ultimately, this paper argues that a new approach is necessary - that the ODSP application process ought to recognize and value the embodied knowledge of people with disabilities themselves, rather than treating medical practitioners as the sole authority in recognizing and assessing disability.
Although women and racialized lawyers comprise significant proportions of the Canadian bar, they and other equity-deserving lawyers remain markedly underrepresented among counsel making oral submissions before the Supreme Court of Canada. This article presents findings from a five-year empirical study (2017–2021) examining who appears before the Court through an observational analysis of 273 cases and a survey of 279 counsel. The research reveals that presenting counsel are predominantly white, cis-male, and have extensive experience at the bar: e.g., women account for only 26.9% of appearing counsel, while racialized lawyers comprise 12.8%. After evaluating whether this gap can be attributed to experience deficits, the article dismisses alternative explanations, including that diversity will improve with time or that equity-deserving lawyers lack interest, and argues that discrimination within the legal profession is the most plausible explanation. The article examines how bias from clients, courts, and employers operates to exclude equity-deserving lawyers from elite litigation opportunities and proposes that senior advocates must actively sponsor diverse counsel to argue before the Supreme Court.
Contemporary societal trends indicate many young adults rely on their families for financial and other support for longer than in the past, often well into their 20s. Youth leaving the child welfare system, however, do not have similar supports to rely on when they reach the age of majority (eighteen in Ontario). In bail court, the experiences of those who have familial support differ markedly from those who do not. Qualitative interviews with youth, lawyers, and social workers illuminate the experiences of young adults (ages eighteen to twenty-four) who have exited the child welfare system and come into conflict with the law. Drawing on Douglas’ cultural theory of risk and Feeley and Simon’s theory of actuarial justice helps make sense of the ways youths’ experiences after leaving the child welfare system are framed as risk factors in bail courts and used to rationalize more restrictive conditions of release for this group, compared to their peers who have not been in care. Attention is paid to factors which render an accused “releasable;” releasability factors, such as community ties and social supports, reveal underlying normative assumptions about kinship networks wherein those lacking these connections, like youth leaving care, are uniquely disadvantaged.
Canada stands on the verge of ushering in a new criminal offence related to coercive control in the context of intimate relationships. In this paper we critically evaluate this development, drawing out lessons from past criminalization efforts and in particular, their impact on Black women and their communities. Our analysis raises significant questions about the potential of the proposed offence to deliver on the promises held out by its proponents. We argue that not only will these promises go largely unrealized, but the ongoing harms of criminalization–harms that manifest not only in the criminal law sphere but in child welfare and border control–will be intensified. Black and other marginalized women are the least likely to benefit, and the most likely to be harmed. While we argue against criminalizing coercive control, we maintain that it is essential that all legal system actors acquire a deep understanding of coercive control that attends to how multiple structures of oppression intersect to shape the tactics of coercive control, differentially distribute supports and resources, and limit the space for survivors to take action. Securing the safety of all women requires rooting out the deeply entrenched stereotypes of Black and other marginalized women and ensuring equitable access to vital supports and resources–among them, safe places to disclose the violence, affordable housing, a stable source of adequate income, and accessible transportation.
This article reports the results of an in-depth qualitative study of advice-seeking behaviours in a large Canadian city. Nine participants were recruited from neighbourhood houses in the Vancouver area to discuss their experiences in responding to one of two kinds of justiciable event: a personal injury or a government benefits problem. The paper offers a detailed discussion of nuances in how individuals experienced, characterized, and took action in response to their justiciable problem. Notably, many of the research participants spoke about the importance of social supports and the contingent nature of those supports, both in understanding what they had experienced and in deciding how to respond. This finding suggests that future research on unmet legal needs and advice-seeking behaviour should more explicitly consider the implications of individuals’ social embeddedness in responding to access to justice problems.
Achieving meaningful oversight and enforcement of prisoners’ rights has long been a challenge for those incarcerated in Canada’s prison system. This is illustrated in part by how the Correctional Service of Canada (CSC) applies the Security Threat Group (STG) classification to Black prisoners. CSC disproportionately classifies Black prisoners as being members or affiliates of STGS–even when those allegations are of unknown reliability. This paper analytically highlights how this practice impacts the liberty interests of these prisoners on the basis of unproven allegations. It also considers how a lack of procedural safeguards in this context contributes to a larger pattern of systemic anti-Black racism within Canadian prisons. This paper argues that requiring STG involvement to be proven beyond a reasonable doubt before an independent decision-maker would serve as an important reform toward addressing this issue. While such a measure would not remedy the systemic nature of anti-Black racism within CSC, it could nevertheless meaningfully reduce instances of unfounded STG classifications for all prisoners, avoid arbitrarily prolonging periods of incarceration, and serve as a basis to expand procedural safeguards in response to other forms of over-securitization.
For an accused who is not proficient in an official language, interpreter assistance is critical to ensure a basic level of understanding and participation in the criminal process. Section 14 of the Canadian Charter of Rights and Freedoms constitutionalizes the protection against linguistic prejudice in legal proceedings. The Supreme Court of Canada has given section 14 a generous interpretation in the criminal context, but the availability and quality of courtroom interpretation is often compromised in practice due to a shortage of qualified interpreters and concerns about delays. Outside the courtroom, however, neither the Charter nor any statutory right in Canada independently guards against linguistic prejudice without resort to another procedural right (e.g. arguing that the accused did not understand their right to silence as a result of language barriers). I argue that inadequate interpreter assistance is no less harmful outside the courtroom. It could prevent a meaningful exercise of the rights to silence and to counsel. While it is difficult to directly attribute wrongful convictions to inadequate interpreter assistance, this paper uses the case studies of Gene Gibson and Vicente Benavides to show it contributes to familiar causes of wrongful convictions, including false guilty pleas, tunnel vision in police investigations, and ineffective assistance of counsel. Such linguistic prejudice is exacerbated by the fact that interpretation errors and miscommunications are difficult to discover or remedy once they have occurred. Interpreter assistance should therefore be more widely available in police interviews and consultations with counsel. I also propose that a legal right to interpreter assistance be recognized in these settings. This is consistent with the principles underlying section 14 and the need to protect other procedural rights under the Charter. It broadens the basis of judicial scrutiny and helps reduce linguistic prejudice and the risk of wrongful convictions.
Workers from the Global South with temporary immigration status provide a transitory, cheap, exploitable workforce that is responsive to economic vicissitudes and supremacist anti-migration discourse. They are created as an exceptional category of persons “essential” for their work but with no right to remain and claim citizenship-type entitlement to the Global North. The programs in agriculture are rooted in the legacies of indentureship, plantation, and other forms of racialized coerced labour. These programs continue to entrench a neocolonial racial capitalist global order where “unfree labour” is sanctified by contemporary liberal laws. Caught in the vice of a hegemonic, racial, state-governed project, migrant farmworkers are caught in what Best and Hartman call a “negative relation to law”—marked by “the necessity of legal remedy” but “the impossibility of redress.” Scholars within the Black radical tradition have configured fugitivity, or the practice of refusal, as a form of liberatory resistance that subverts the politics of recognition. The concept of fugitivity has been used in recent scholarship on illegalized crossings of securitized borders; but fugitive resistance is not meant to be seen in the registers of the established scripts of liberal resistance, such as legal claims. Using empirical evidence from migrant worker organizing in Canada, this paper suggests the possibility of radical legal mobilization that centres a praxis of refusal. This approach uses the law not for statist benevolence but as a counter-pedagogy for challenging neocolonial, racial capitalist sites and reframing the movement of marginalized, racialized persons. Such a legal mobilization enables and supports ‘fugitive’ actions of migrant workers––agentic choices by workers that reject, refuse, and escape the system that creates racialized unfreedoms. I show that radical legal mobilization can be conceptualized to involve three modalities of praxis (subversive legality, relationship-building, and radical knowledge production) that map to the three themes of performance, sociality, and futurity/imagination found in Fred Moten’s work.
This article analyzes the relationship that unhoused people have to property, both public and private, in Toronto. It argues that in disputes over the use of certain city spaces by unhoused people their interests are subordinate to those of the state and the property- owning public. To advance this argument, this article uses the example of the conflict between unhoused individuals occupying a hotel leased by Toronto at the start of the COVID-19 pandemic and the surrounding residents of an affluent neighbourhood. This article concludes by showing that the presence of unhoused people in city spaces not only reveals their precarity in relation to public property but also works to destabilize the dominant private property regime.
ON AN APRIL EVENING IN 1927, a group of thirty-seven women came together for dinner in Toronto at the King Edward Hotel for the annual meeting of the Women’s Law Association of Ontario (WLAO). That night, they celebrated the 30th anniversary of Clara Brett Martin’s call to the bar and the 60th anniversary of Confederation.
Can a written instruction convince refugee status decision-makers not to rely on a claimant’s ‘appearance, presentation, and demeanour’ in judging the claimant’s credibility? How else might such an instruction affect the decision-makers’ deception judgments? This study explored the effects of an APD instruction on the judgments of lay decision-makers making credibility judgments in a simulated refugee hearing (n=275). It sought, by means of an experiment, to quantify the instruction’s effects both on decision- making outcomes and on the written reasons that the decision-makers offered to justify their conclusions. The APD instruction in our study had no significant effect on whether participants judged the claimant to be credible or deceptive, how confidently they reached either kind of conclusion, or how thoroughly they justified their reasoning. Those who received the instruction, however, cited APD factors significantly less often in supporting their judgments. Under this study’s simplified experimental conditions, the APD instruction may have caused decision-makers, consciously or otherwise, to suppress the fact that APD factors had influenced their thinking, driving these factors underground. In real life, this kind of suppression would have serious consequences for the rule of law, as it would immunize flawed reasoning from appeal or review. This study’s findings, which have implications for credibility assessment in other legal settings, call into question the received wisdom that written instructions are an effective way to dissuade decision-makers from relying on unsound deception inferences.
Very little scholarship has specifically considered the phenomenon of eviction as a colonial process, or examined the role of the eviction legal system in reproducing colonial structures and relations. Our aim in this article is to address this gap and thereby extend to the eviction legal system context the work of scholars who have theorized the colonialism of the criminal justice, child welfare, and carceral systems. This article begins with an overview of current issues relating to urban Indigenous housing in Canada. The next section introduces Indigenous concepts of home and homelessness, which are distinct from dominant understandings. We then place the discussion within the larger context of settler colonialism and critiques of this relation of power. We look specifically at Indigenous conceptions of home and homelessness, as well as how settler colonialism has shaped dominant ideas about property and ownership that underlie the right to evict in Canadian law. The paper then turns to a discussion of how the eviction legal system functions in a “classical” colonial sense to both destabilize and dispossess Indigenous families, and to reinscribe settler claims to property. Fundamentally, we believe there is a need for research and storytelling about the relationship between Indigenous peoples and eviction legal systems in Canada, and we think there is room to imagine decolonizing the eviction legal system.
This review essay challenges siloed thinking about housing precarity by bringing a sociological account of emergency shelters in Ottawa, Canada–Erin Dej’s book A Complex Exile–into conversation with recent scholarship from Canadian academics on residential tenancy law.3 One intuition underlying this essay is that we need to think about these disparate legal regimes as comprising a bigger system of housing law. Bringing these areas of law into conversation with one another allows us to identify common themes and these may inform statutory reform initiatives, changes to practice, and advocacy on related social issues. Promising innovations in one area of housing law may be relevant to the regimes that govern other shelter arrangements. Looking at housing law more holistically also enables us to identify how the different regimes leave gaps, create conflicts, and otherwise prove challenging for the individuals who navigate amongst them.
This special issue brings together a collection of papers examining the legal dimensions of housing precarity. While we originally imagined a special issue focused on homelessness and human rights, we agree with our contributors that housing precarity sits along a disparate spectrum, with homelessness at one end. People weave in and out of living situations, whether in shelters, apartments, rooming houses, and encampments. Human rights, and their violation, are engaged at all stages of this spectrum. Yet this relationship has been underexamined in Canadian legal scholarship. The pieces in this issue contribute to an important conversation about the intersection of housing, human rights, and homelessness.
Homeless encampments have become increasingly common in US and Canadian cities. Their prevalence raises a fundamental question: are encampments justifiable when individuals lack access to housing? This article argues that encampments are only partially justifiable as a response to homelessness. A complete justification implies that individuals can lawfully establish permanent encampments when they lack access to housing. A partial justification, on the other hand, forbids the establishment of permanent encampments, but permits individuals to establish temporary ones in certain circumstances. Encampments are partially justified for four principal reasons. First, they are a response to public and private law’s failure to alleviate homelessness. Second, encampments informally accommodate people experiencing homelessness within systems of mutual coercion. Third, they informally redistribute the property system’s benefits and burdens. Fourth, encampments bear some hallmarks of justificatory defences in the criminal law. The concluding parts of this article explain the implications of tent encampments’ partial justifiability. First, the concept of partial justification explains why courts have allowed unhoused persons to establish temporary encampments in limited contexts. Partial justifications thus limit State power. Second, the partial justifications for encampments illustrate the importance of housing in ways we may overlook. Furthermore, these partial justifications support a State duty to provide housing or the means to acquire it. By exploring the partial justifications for encampments, this article shows why the right to housing can also be understood as a right to be protected against the legal condition of homelessness.
For around two decades, if not longer, Canada has seen a number of cases dealing with tent encampments, typically, but not always, located in public parks. Often these decisions arise out of municipalities seeking interlocutory or interim injunctions against the tent encampments. Property and property rights have a significant role to play in these decisions as the alleged harm to property and property rights tends to be determinative of the matter. In this article I seek to explore why it is that these decisions are showing property rights more respect than the rights of those within tent encampments. I argue, that contrary to recent theoretical arguments, property does not reflect relational justice nor respect for individuals as individuals. Instead, property requires respect for property rights because of the fact that property is a communal endeavour. Thus, the question should not be whether these tent encampments are causing property rights irreparable harm but whether the legal treatment of these tent encampments and their residents reflect the broader community in which they exist.
Homelessness, as a construct, is premised on settler colonial technologies of land ownership and private property. Encampments, as one of the most visible forms of homelessness, compel us to confront how our socio-legal processes undermine human rights and perpetuate inequity and oppression. How municipalities engage in the legal governance of encampments, often through eviction, exclusion, and criminalization, is a result of interlocking colonial and classist political economies. Borrowing from Collins’ “matrix of domination” and Smith’s “ruling relations”, this article examines the management and ultimate eviction of No Place Like Home, a tent encampment in a mid-size city in Western Canada. Drawing on fifty-four interviews with people experiencing homelessness, law enforcement, and other community members, as well as legal documents that ultimately led to the eviction of the encampment, we unpack the political domination of encampments that legitimize and prioritize the desires and social position of the housed population over the human rights of encampment residents. We argue that in their efforts to retain public property as an exclusive commodity for housed people, political actors used three tactics through which to justify the displacement of unhoused people and ultimately the denial of encampment residents as rights holders: 1) the invisibilization of Indigenous Peoples, and Indigenous women specifically, experiencing homelessness; 2) the construction of fire safety in the encampment as a public concern; and, 3) the prioritization of perceptions of safety among the general public to the detriment of the safety of encampment residents. Illuminating the intersection of colonial and class-based regimes embedded in the legal governance of encampments provides an avenue through which to advocate for the human rights of encampment residents.
Two recent decisions of the Chief Justice of the BC Supreme Court, Evans (2016) and Brett (2020), introduced a dangerous new idea into homeless encampment jurisprudence: that the purportedly “private” character of encampment sites determines that defendants’ Charter rights are not engaged, and that government landowners are entitled to interlocutory injunctions evicting homeless encampments from publicly owned land. These decisions distort the established test for engaging section 2(b) of the Charter, collapsing a nuanced spectrum of government-owned property into a formalistic dichotomy in which any state-owned property that is not formally open to the public as of right is “private property” for civil and constitutional purposes. Moreover, they inappropriately extend the section 2(b) “public arena” inquiry to section 7, ignoring the established test for engagement of the right to life, liberty, and security of the person. These decisions drop the already low bar for granting interlocutory injunctions to evict homeless encampments from publicly owned land onto the ground, further tilting the homeless encampment litigation playing field against some of society’s most marginalized and vulnerable members. They should not be followed.
