When debt becomes unmanageable, two options for a consumer debtor in Canada are: (1) enlisting the services of a bankruptcy trustee, and (2) becoming a client of a not-for-profit credit counselling agency. Each of these options is regulated differently and has public and private dimensions. At first glance, these two options might seem to illustrate the potential of multiple legal orders to better serve the public. In this paper, however, we argue, based on empirical research on the credit counselling industry, that while this pluralism has potential to facilitate debt relief in Canada, it has failed to do so. The lines between public and private options have been blurred to the point where they are difficult to discern, and the consumer debtor is ultimately disadvantaged.

This article addresses the teaching of legal research methods and doctrinal analysis within a legal studies program. I argue that learning about legal research and doctrinal analysis is an important element of legal education outside professional law schools. I start by considering the ongoing debate concerning the role of legal education both inside and outside professional law schools. I then describe the way in which the research methods courses offered by the Department of Law and Legal Studies at Carleton University attempt to reconcile the tension between “law” and legal studies. In particular, I focus on how the second-year research methods course introduces students to “traditional” legal research and doctrinal analysis within a legal studies context by deploying a number of pedagogical strategies. In so doing, the course provides students with an important foundation that allows them to embrace the multiple roles of legal education outside professional law schools.

The Truth and Reconciliation Commission (TRC) of Canada on Indian Residential Schools provides us with the opportunity to observe the process through which victims reconsider their place in the history of the state. The statements offered in this context put into relief the suffering and memories of assault and torture of children, to the detriment of a more complete and varied view of the origins, modes of operation, and consequences of these residential schools. By favoring the expression of a certain type of testimony, Canada’s TRC shapes many narratives of trauma, institutional crime, and national history. This essentialization of testimony leads us to question the ability of the TRC to effectively reveal the diversity and dynamics of the residential schools, the reasons for their establishment, the causes of the corruption of their goals, and the common features they might have with ongoing, enduring forms of abuse and institutional power.

For the past four years, two instructors and approximately one hundred students have participated in a novel experiment in liberal arts legal education. Legal Inquiry, an upper-year course in the Arts & Science Program at McMaster University, seeks to “demystify legal knowledge for the curious student of the world.” It brings together two kindred yet previously isolated academic traditions: an open-ended inquiry approach to knowledge and a critical pluralist understanding of law.

To explore the compatibility of “law” and “inquiry,” the instructors wanted students to gain confidence and skills in engaging with formal legal sources, apply critical thinking to law, and appreciate informal and everyday law. These objectives were met with surprising success given the brevity of the course. Students achieved a basic understanding of formal law and legal reasoning, generated a vocabulary of what it means to think critically about law, and began to identify the continuity of formal and informal law.

To engage in the question of what it means to decolonize law, we must ask by what authority a law has the authority to be invoked and to govern. In this paper, I describe the conditions necessary for the exercise of Canadian law as being the work of jurisdiction, and I call into question Canada’s legality and legitimacy in making jurisdictional claims. Decolonizing law means deconstructing the state’s grounds to inaugurate law on lands acquired through colonial settlement. By critically examining law’s geography and scope I call into question the modern definition of territory itself. Further, I draw attention to jurisdiction as a conceptual framework for understanding the specificities of settler colonialism; illustrate jurisdiction as a historical concept, distinct from territory and sovereignty; and show some of the ways in which jurisdiction is enacted to govern across multiple scales and issues.

This article traces some of the ways in which Australian law in the post-Mabo era has functioned to discursively historicize Indigenous Australia, that is, to construct Indigenous Australia as a historical relic. I argue that despite law’s continual historicization of Indigenous Australia, there have nonetheless been “moments of decolonization,” as there have been since the colonization of Australia began, in which Indigenous Australia asserts its contemporary presence in opposition to and outside of colonial Australia. Drawing on Doreen Massey’s conceptualization of place and space and three examples, I argue that in these moments, Indigenous activists do not only resist the ongoing project that is settler Australia, they also create an elsewhere to it.

This article examines the remedies available in Ontario to families whose children are identified as having special education needs, focusing specifically on the situation of the Francophone minority, which is often neglected in the research. Policies that promote an inclusive approach to education encourage parents and school personnel to work together to provide the best learning situations for all students. However, the literature and a search of the case law show that parents’ involvement is usually post facto, when parents challenge the services their children are receiving. The article first considers the policies that promote inclusive education in Ontario, and it looks also at the situation in Manitoba and New Brunswick, which were selected as comparisons because of the large Francophone minorities in those provinces. It then identifies the appeal procedures made available to parents in very specific situations. The article concludes with an analysis of cases that have been appealed, with an emphasis on appeals made by Francophone families to the Ontario Special Education Tribunal (OSET). The results show that there have been fewer appeals to OSET by Francophone families than by Anglophone families, and that a majority of the decisions have found for the school boards rather than for the parents. In addition, despite parents’ calls for a review of educational programming, OSET has chosen to examine only those decisions that relate to identification and placement of students. In this respect, the situation in Ontario differs from that in the two provinces used for comparison. Further, the forms of the remedies in the other two provinces differ from those in Ontario, where the proceedings have a high degree of formality but do not afford parents a better opportunity to be heard. The article concludes with a discussion of the effectiveness of the remedies for achieving the objective of inclusion.

In the present article, we examine the extent to which legal norms related to family matters are in line with the diverse social representations of current conjugal life, more particularly as concerns the economic interdependence of the couple during or subsequent to their union. Two Quebec legal measures compel attention: the division of the family patrimony and the obligation of support payable to the former partner. The present analysis is based on an empirical study involving couples living together in Quebec. Whereas current legal discourse concerning unmarried cohabitation appears focused on spousal support, our survey has brought out two elements that could challenge the current legal approach. When it comes to social representations, we find that the awarding of support to the partner is highly controversial. The majority of our respondents also believe that the family patrimony should be shared equally, whether or not the couple is married, and more especially when there are children, the property of the household being deemed to be the fruit of a joint and family-oriented effort.

In this paper, I argue that Indian Residential School (IRS) litigation, and the emphasis on “cultural loss” or genocide, threatened to expose the illegitimacy of Canada’s claim to sovereignty and the settler collective’s occupancy of Indigenous lands today. When settler illegitimacy is brought into view, settler collectives typically respond with violence. In IRS case law, this violence consists of the dehumanization of the Indigenous collective as property. I trace this violence on the part of Canada (government and law) in Blackwater v Plint (1996–2005). I suggest that Canada’s “disturbing defence strategy” in Blackwater likely contributed to Canada’s signing of the 2006–2007 IRS settlement agreement that brought Baxter v Canada to a close. I conclude that settler illegitimacy, genocide, and law’s racialized violence in the present ought to trouble the settler collective’s vision of both decolonization and the role of settler law in decolonization.

As copyright is asked to perform a greater role in governing creative activity, its focus on economic values above all others raises concerns. Interviews conducted by the author with Canadian independent music labels suggest that the law and the norms governing labels’ operations are more diverse and include direct subsidies, or grants, from government and the private sector. These grants perform many of the functions expected from copyright. This study concludes that copyright law is often exotic, peripheral, and even irrelevant to those involved in the spheres of remunerative Canadian sound production considered here. This finding suggests a renewed focus on a Canadian narrative of copyright law that puts it in its place alongside other instruments regulating independent music production.

In this paper, I suggest that the concept of incitement as a way of identifying hate speech sometimes locates the harm caused by speech in the wrong sorts of places. Hate speech expressed in the form of “reasoned argument” or academic debate by persons with the relevant authority or expertise potentially causes more harm, though perhaps in less obvious ways. Literature on the concept of authority has demonstrated the way authoritative speakers or speakers with perceived expertise are able to secure uptake for their views. In this paper, I demonstrate how authority and expertise can also be manufactured, enabling speakers to secure uptake in the same sorts of ways as legitimately authoritative or expert speakers. While I am not suggesting legal penalties for speakers who manufacture authority in these ways, I am arguing that we should nevertheless be sensitive to the ways in which this can occur, how it might cause various kinds of harm, and how these harms might be mitigated.

This article examines exploitation as a policy rationale for the prohibition of paid surrogacy and egg donation in Canada, focusing on claims of exploitation in parliamentary transcripts and proposed legislation. Its main focus is challenging three assumptions long used to substantiate the prohibition of commercial egg donation and surrogacy, namely: that marginalized women are being exploited; that payment and exploitation are necessarily linked; and that prohibitions on payment are the best means to prevent exploitation in assisted human reproduction. By examining these assumptions, this article assesses the legitimacy of prohibiting payment on the basis of perceived exploitation and suggests that, though much has been done to protect surrogates and donors, little is known about their real-life experiences with reproductive technologies, that the relationship between exploitation and payment is tenuous, and that it remains unclear that prohibiting payment is not doing more harm than good.

This article examines the legal characterization of the full-face veil worn by female users of Canadian government services. Considering how various Western states perceive full-face veils, we suggest that legally defining this piece of clothing as a “religious object” is key to guaranteeing freedom of conscience and religion by the courts. By drawing on constitutional law and legal theory, we examine the legal treatment of this religious object within the analytical framework of the Supreme Court of Canada in the NS case.

How and why did Canada end up with a Truth and Reconciliation Commission (TRC) rather than a judicially based public inquiry in response to Indian Residential Schools? Using a constructivist-interpretivist approach with interview research with twenty-three key actors, this article traces the path toward the Indian Residential Schools Settlement Agreement. It examines in particular the shift from calls for public inquiry to truth and reconciliation. In sourcing the idea of a TRC, it gauges the balance between transnational influences and home-grown elements and suggests that two different approaches to a truth commission were merged during the settlement negotiations. One approach, associated with the Assembly of First Nations, focuses on accountability and public record, and the other, associated with survivor and Protestant organizations, is more grassroots and community-focused. This article looks at hybridity and gaps in the TRC’s design, suggesting that the two visions of a truth commission continue to exist in tension.

The public use of the niqab and other religious face coverings is a source of considerable debate in Western nations. The veiled Muslim woman is often constructed as “other,” reviled as backward, represented as in need of rescue, or associated with Islamic extremism. Despite widespread racist attitudes, officially, Canadians purport to support multiculturalism and the equality of all people under the law as guaranteed under section 15 of the Charter. In a recent Supreme Court of Canada decision, R v NS, the Court had to consider the right of a Muslim woman to wear her niqab while testifying in a sexual assault trial. In “balancing” the conflict between the religious rights of NS and the section 7 rights of the accused to a full and fair defense, the Court ignored the security of the person and equality rights of NS. The Court instead legitimated anti-Muslim stereotypes and reiterated rape myths that had ostensibly been overturned.

The objective of this paper is to present analytical and theoretical reflections on the interdisciplinary dialogue between law and sociology. The presentation of contradictions and shared interests between these two disciplines can contribute to interdisciplinary anthropology that focuses on the sometimes difficult “immigration” experienced by those who mobilize more than one academic field in their research. This paper is particularly addressed to those lawyers who start interdisciplinary dialogue within the discipline of sociology.

Drawing attention to the legal and psychoanalytic genealogy of reparations, this article examines the relationship between reparations and racial difference through an analysis of the Canadian Broadcasting Corporation’s documentary series 8th Fire: Aboriginal People, Canada and the Way Forward. The representational life of reparations in liberal settler colonialism is a repository for addressing the broader landscape of legality—sovereignty, self-determination and anti-colonialism—beyond the confines of international human rights mechanisms. This article considers the following questions: How do forms of testimony animate connections between reparations and racial difference? In what ways do visual and representational practices operate through racial and colonial temporalities central to reparative juridics? What is the relationship between reparations and possibilities for anti-colonialism? I argue that the social, legal, cultural, and representational life of reparations in settler colonialism is structured by racial difference.

Guaranteeing “certainty” (for governments, business development, society, etc.) is often the goal of state land rights settlements with Indigenous peoples in Canada. Certainty is also often seen as an unequivocally desirable and positive state of affairs. This paper explores how certainty and uncertainty intersect with the challenges of decolonization in North America. I explore how settler certainty and entitlement to Indigenous land has been constructed in past colonial and current national laws, land policies, and ideologies. Then, drawing on data from fieldwork among activists against land rights, I argue that their deep anger about their uncertainty regarding land and their futures helps to reveal how certainty and entitlement underpin “settler states of feeling” (Rifkin). If one persistent characteristic of settler colonialism is settler certainty and entitlement, then decolonization, both for settlers and for jurisprudence, may therefore mean embracing uncertainty. I conclude by discussing the relationship between certainty, uncertainty, and decolonization.