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From the Landmark Cases in Canadian Law Series
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Judicial Appointments, Marc Nadon, and the Supreme Court Act Reference

The process by which Supreme Court judges are appointed is traditionally a quiet affair, but this certainly wasn’t the case when Prime Minister Stephen Harper selected Justice Marc Nadon for appointment to Canada’s highest court. Here, for the first time, is the complete story of “the Nadon Reference” – one of the strangest sagas in Canadian legal history.Following the Prime Minister's announcement, controversy swirled and debate raged: as a federal court judge, was Marc Nadon eligible for one of the three seats traditionally reserved for Quebec? Then, in March 2014, the Supreme Court of Canada broke new ground in statutory interpretation and constitutional law when it released the Reference re Supreme Court Act, ss 5 and 6.With detailed historical and legal analysis, including never-before-published interviews, The Tenth Justice explains how the Nadon Reference came to be a case at all, the issues at stake, and its legacy.

The Tenth Justice tells the complete story of one of the strangest sagas in Canadian legal history: the ill-fated appointment to the Supreme Court of Canada of Justice Marc Nadon.

The Guerin Case and Aboriginal Law

This book tells the story of a First Nation’s single-minded quest for justice. In 1958, the federal government leased a third of the small Musqueam Reserve in Vancouver to an exclusive golf club at far below market value. When the band members discovered this in 1970, they initiated legal action. Their tenacity led to the 1984 decision of the Supreme Court of Canada in Guerin v. The Queen.In Guerin, the Court held that the government has a fiduciary duty towards Indigenous peoples – an obligation to act in their best interests. This landmark decision is explored in this book, written by an Aboriginal rights lawyer who served as one of the legal counsel for the Musqueam and argued on their behalf all the way to the highest court. Jim Reynolds provides an in-depth analysis, considering the context, the case and decision, and the major impact that Guerin had on Canadian law, politics, and society.The Guerin case changed the relationship between governments and Indigenous peoples from one of wardship to one based on legal rights. It was a seismic decision with implications that resonate today, not only in Canada but also in other Commonwealth countries.

This thoughtful and engaging examination of the Guerin case shows how it changed the relationship between governments and Indigenous peoples from one of wardship to one based on legal rights.

Hunter v Southam and the Drift from Reasonable Search Protections

In 1984, the Supreme Court of Canada, in Hunter v Southam, declared warrantless searches unreasonable under section 8 of the Charter of Rights and Freedoms. Police would henceforth require authorization based on “reasonable and probable grounds.” The decision promised to protect individuals from state power, but as Richard Jochelson and David Ireland argue, post-Hunter search and seizure law took a turn away from the landmark decision. An examination of dozens of subsequent cases reveals that section 8 protections have become more difficult to obtain in the post-9/11 era. Rather than developing rigorous standards for new search and surveillance techniques and technologies, the courts have used the Charter to sanction broader police powers. Yet, even as it demonstrates that the core principles of Justice Dickson’s vision for section 8 rights have been diminished, Privacy in Peril suggests that increasing citation of Hunter in the halls of justice offers hope that some protection of civil liberties will endure in the twenty-first century.

This book, the second in the Landmark Cases in Canadian Law series, argues that in subsequent, post-Hunter v Southam decisions, the Supreme Court of Canada has strayed from the principles set out in that case, which were intended to protect the privacy of citizens from encroaching state power.

The St. Catherine’s Case and Aboriginal Title

In 1888, the Judicial Committee of the Privy Council ruled in St. Catherine’s Milling and Lumber Company v. The Queen, a case involving the Saulteaux people’s land rights in Ontario. This precedent-setting case would define the legal contours of Aboriginal title in Canada for almost a hundred years, despite the racist assumptions about Indigenous peoples at the heart of the case. In Flawed Precedent, preeminent legal scholar Kent McNeil provides a compelling account of this contentious case. He begins by delving into the historical and ideological context of the 1880s. He then examines the trial in detail, demonstrating how prejudicial attitudes towards Indigenous peoples influenced the decision. He further discusses the effects that St. Catherine’s had on law and policy until the 1970s when its authority was finally questioned in Calder, then in Delgamuukw, Marshall/Bernard, Tsilhqot’in, and other key rulings. He also provides an informative analysis of the current judicial understanding of Aboriginal title in Canada, now driven by evidence of Indigenous law and land use rather than by the discarded prejudicial assumptions of a bygone era.

This illuminating account of the St. Catherine’s case of the 1880s reveals the erroneous assumptions and racism inherent in judgments that would define the nature and character of Aboriginal title in Canadian law and policy for almost a century.

New and Recent in Law
The Cost and Value of Accessing Law

Unfulfilled legal needs are at a tipping point in many parts of the Canadian justice system and around the world. The Justice Crisis assesses what is and isn’t working in an effort to improve a fundamental right of democratic citizenship: access to civil and family justice.Meaningful access is often a question of providing pathways to resolving everyday legal issues. The availability of justice services that aren’t only tied to the courts and lawyers – such as public education on the law, alternative dispute settlement, and paralegal support – is therefore an important concern.Contributors to this wide-ranging overview of new empirical research address several key justice issues: the extent and cost of unmet legal needs; the role of public funding; connections between legal and social exclusion among vulnerable populations; the value of new legal pathways; the provision of justice services beyond the courts and lawyers; and the need for a culture change within the justice system. Their findings can inform initiatives to improve access to justice within the Canadian system and beyond.

Based on innovative recent empirical research, The Justice Crisis assesses what is and isn’t working in efforts to improve access to civil and family justice in Canada.

Community Programs for Criminalized Women

Women are the fastest growing group of incarcerated people in Canada. While feminist criminologists advocate for community alternatives to imprisonment, they often do so without offering a corresponding analysis of existing community programs. And critical criminologists rarely consider gender in their assessment of the options.This book brings these criminological strands together in a concise and carefully reasoned analysis of alternative justice programs for criminalized women. Drawing on interviews with staff and documents from alternative justice agencies, Amanda Nelund finds that alternative programs neither reproduce dominant justice system norms nor provide complete alternatives. Instead, formal and informal practices reflect the tension between neoliberal and social justice approaches. A Better Justice? calls attention to the potential that alternative programs have for both alignment with and opposition to criminal justice norms. It is in the potential points of resistance that we can find improved strategies – and ultimately, greater social justice for criminalized women in Canada.

Do community programs offer an effective alternative to imprisonment for women within the criminal justice system? A Better Justice? sets out the case.

Stories of Incarceration and Resistance from Canada’s Most Notorious Prison

Bridget Donnelly. Charlotte Reveille. Kate Slattery. Emily Boyle. Until now, these were nothing but names marked down in the admittance registers and punishment reports of Kingston Penitentiary, Canada’s most notorious prison. In this shocking and heartbreaking book, Ted McCoy tell these women’s stories of incarceration and resistance in poignant detail. The four women served sentences at different times between 1835 and 1935, but they shared experiences that illuminate how those most marginalized in society – the poor, the sick, and the disadvantaged – reckoned with poverty and crime and grappled with the constraints placed on them by shifting notions of punishment and reform.The inhumanity they suffered while locked away from male prisoners in dark basement wards – from starvation and corporal punishment to sexual abuse and neglect – stands as profoundly disturbing evidence of the hidden costs of isolation, punishment, and mass incarceration.

Filled with stories of pain, regret, and resistance, this chilling account of how four women survived their time at Kingston Penitentiary stands as an indictment of the idea that prisons and punishment are society’s answer to crime.

Youth with Autism and the Juvenile Justice Systems in Canada and the United States

Law and Neurodiversity offers invaluable guidance on how autism research can inform and improve juvenile justice policies in Canada and the United States. This perceptive work examines the history of institutionalization, the evolution of disability rights, and advances in juvenile justice that incorporate considerations of neurological difference into court practice. In Canada, the diversion of delinquent autistic youth away from formal processing has fostered community-based strategies for them under state authority in its place. US policies rely more heavily on formal responses, often employing detention in juvenile custody facilities. These differing approaches profoundly affect how services such as education are delivered to youth with autism. Building on a rigorous exploration of how assessment, rehabilitation, and community re-entry differ between the two countries, Law and Neurodiversity offers a much-needed comparative analysis of autism and juvenile justice policies on both sides of the forty-ninth parallel.

Through a comparison of juvenile justice systems in Canada and the United States, Law and Neurodiversity examines gaps of accommodation and consideration for youth with autism.

Financial Pressures, Emotional Labour, and Canadian Bankruptcy Law

Mortgages, student loans, credit cards: debt is a ubiquitous component of daily life in Canada. But our attitudes toward debt, and the people who incur it, are complex. Trustees at Work explores the role bankruptcy trustees play in determining who qualifies as a deserving debtor under Canadian personal bankruptcy law. When debt becomes unmanageable, the bankruptcy and insolvency system provides relief – though not to everyone. The architects of the system have restricted access to this benefit by developing methods to distinguish deserving from undeserving debtors. The idea of a deserving debtor is woven throughout bankruptcy law, with debt relief being reserved for those debtors deemed deserving. The legislation and case law invite trustees to assess debtors based on their pre-bankruptcy choices, but in practice, trustees evaluate debtors based on how cooperative the debtors are during bankruptcy proceedings. Using insights from the sociology of emotion, Anna Jane Samis Lund reveals how carrying out emotional labour shapes an insolvency professional’s assessments of a debtor’s deservingness. Trustees at Work also includes interviews and statistical data to explain how the financial and emotional pressures of trustees’ work shape their decision-making process. Ultimately, it shows how insolvency trustees’ conceptions of a deserving debtor are shaped by the financial, legal, and emotional contexts in which they work.

Trustees at Work explores what is means to be considered a deserving debtor in under contemporary Canadian personal bankruptcy law.

Anonymous Judgments at the Supreme Court of Canada

Any court watcher knows that the Supreme Court of Canada delivers some of its major constitutional judgments in a “By the Court” format. The abandonment of the common law tradition of attributing decisions to individual judges in favour of an anonymous and unanimous approach is unique among Western democracies. By the Court is the first major study of these unanimous and anonymous decisions and features a complete inventory, chronology, and typology of these cases. Some significant examples include the Secession of Quebec reference and the Carter decision on assisted suicide. Peter McCormick and Marc Zanoni also ask where and why the idea emerged and whether it signals a genuinely collegial authorship or simply masks the dominance of the Chief Justice. Ultimately, By the Court explores the purposes and potential future of “By the Court,” framing this practice as the most dramatic form of a modern style that highlights the institution and downplays individual contributions.

By the Court is the first major study of unanimous and anonymous legal decisions: the unique “By the Court” format used by the Supreme Court of Canada.

The Political Economy of Indigenous Land Reform

As many Indigenous communities return to self-governance and self-determination, they are taking their own approaches to property rights and community development. Based on case studies in four Indigenous communities – the Westbank, Membertou, Nisga’a, and James Bay Cree nations – Jamie Baxter traces how local leaders have set the course for land rights and development during formative periods of legal and economic upheaval. Drawing on new research about institutional change in organizational settings, Baxter explores when and how community leaders have sustained inalienable land rights without turning to either persuasion or coercive force – the two levers of power normally associated with political leadership.Inalienable Properties challenges the view that liberalized land markets are the inevitable result of legal and economic change. It shows how inalienability can result from intentional choices and is linked to structures of decision-making that have long-lasting consequences for communities.

Inalienable Properties explores the contrasting approaches taken by local leaders to property rights and development in four Indigenous communities.

Canada’s Indian Act is infamously sexist. Through many iterations of the legislation a woman’s status rights flowed from her husband, and even once it was amended to reinstate rights lost through marriage or widowhood, First Nations women could not necessarily pass status on to their descendants. That injustice has rightly been subject to much scrutiny, but what has it meant for First Nations men? Martin J. Cannon challenges the decades-long assumption of case law and politics that the act has affected Indigenous people as either “women” or “Indians” – but not both. He argues that sexism and racialization within the law must instead be understood as interlocking forms of discrimination that have also undercut the identities of Indigenous men through their female forebears. By restorying historically patriarchal legislation and Indigenous masculinity, Men, Masculinity, and the Indian Act makes a significant contribution to a transformative discussion of Indigenous nationhood, citizenship, and reconciliation.

Men, Masculinity, and the Indian Act reverses conventional thinking to argue that the sexism directed at women within the act in fact undermines the well-being of all Indigenous people, proposing that Indigenous nationhood cannot be realized or reinvigorated until this broader injustice is understood.

Illegalized Mexican Migrants in Canada

North of El Norte provides an important counterpoint to the attention given to Mexican migration to the United States by examining a lesser-known migration route: that taken by contemporary Mexican migrants to Canada.Paloma Villegas considers changing Canadian immigration policy and practice, and the implications of these changes for Mexican migrants without permanent resident status. Her analysis addresses the context in Mexico, the experience of border crossing, policies to restrict migration, and migrants' options to achieve secure status. Villegas also provides an assessment of the barriers migrants encounter once in Canada, specifically in the labour market, in their creative pursuits, and in accessing health care.Drawing on interviews, policy documents, media accounts, and literature from local social service organizations, North of El Norte concludes that migration – and by extension migrant illegalization – is assembled, produced, and negotiated. The comprehensive research in this book sheds light on how individuals and institutions work to illegalize migrants and on migrants' active resistance to these efforts.

North of El Norte examines the policies, practices, and barriers that affect the daily lives of Mexican migrants with precarious status in Canada.

Sanctuary and Security in Canada and the United States

Common wisdom suggests that the 9/11 terrorist attacks changed everything about the character of refugee law in the United States and in neighbouring Canada. But did they? If so, how do the responses of the two countries compare in terms of their negative impacts on refugee rights? Refugee Law after 9/11 undertakes a systematic examination of available legal, policy, and empirical evidence to reveal a great irony: refugee rights were already so whittled down in both countries before 9/11 that there was relatively little room for negative change after the attacks. It also shows that the Canadian refugee law regime reacted to 9/11 in much the same way as its US counterpart, and these similar reactions raise significant questions about security relativism and the cogency of Canadian and US national self-image.

The first major study to compare changes made to Canadian and US refugee law after and because of 9/11, Refugee Law after 9/11 uncovers crucial connections among refugee law, security relativism, and national self-image.

Canada’s Refugee Resettlement Program

The UN Refugee Agency considers resettlement – the selection and transfer of refugees from the state where they seek asylum to another state that volunteers to take them – a tool of refugee protection and an expression of international burden sharing. In this account of Canada’s resettlement program from the Indochinese crisis of the 1970s to the Syrian crisis of the 2010s, Shauna Labman explores how rights, responsibilities, and obligations intersect in the absence of a legal scheme for refugee resettlement. In particular, she examines the role of the law on the voluntary act of resettlement and the effect of resettlement on asylum policies. This pathbreaking book looks at the interplay between resettlement and asylum in one of the world’s most successful refugee protection programs and shows how resettlement can either complement or complicate in-country asylum claims at a time when refugee crises and fear of outsiders are causing countries to close their borders to asylum-seekers around the world.

Crossing Law’s Border offers a comprehensive account of Canada’s refugee resettlement program, from the Indochinese crisis of the 1970s to the current era of controversy and flux in refugee and asylum policy.

The Origins and Legacies of the 1969 Omnibus Bill

“There’s no place for the state in the bedrooms of the nation,” Pierre Elliott Trudeau told reporters. He was making the case for the most controversial of his proposed reforms to the Criminal Code, those concerning homosexuality, birth control, and abortion. In No Place for the State, contributors offer complex and often contrasting perspectives as they assess how the 1969 Omnibus Bill helped shape sexual and moral politics in Canada by examining the bill’s origins, social implications, and repercussions. The new legal regime had significant consequences for matters like adoption, divorce, and suicide. After the bill passed, a great many Canadians continued to challenge how sexual behaviour was governed, demanding much more exhaustive changes to the law. Fifty years later, the origins and legacies of the bill are equivocal and the state still seems interested in the bedrooms of the nation. This incisive study explains why that matters.

No Place for the State is an incisive study that offers complex and often contrasting perspectives on the Trudeau government’s 1969 Omnibus Bill and its impact on sexual and moral politics in Canada.

Fortune-Telling, Spirituality, and the Law

The growing presence in Western society of non-mainstream faiths and spiritual practices poses a dilemma for the law. For example, if a fortune teller promises to tell the future in exchange for cash, and both parties believe in the process, has a fraud been committed? Building on a thorough history of the legal regulation of fortune-telling laws in four countries, Faith or Fraud examines the impact of people who identify as “spiritual but not religious” on the future legal understanding of religious freedom. Traditional legal notions of religious freedom were conceived in the context of organized religion. Jeremy Patrick examines how the law needs to adapt to a contemporary spirituality in which individuals can select concepts drawn from multiple religions, philosophies, and folklore to develop their own idiosyncratic belief systems. Faith or Fraud exposes the law’s failure to recognize individual spirituality as part of modern religious practice, concluding that legal understanding of freedom of religion has not evolved along with religion itself.

Faith or Fraud: Fortune-Telling, Individual Spirituality, and the Law answers an emerging controversy: Should the law’s understanding of religion include the “spiritual but not religious”?

Neoliberalism is most commonly associated with free trade, the minimal state, and competitive individualism. But in this latest stage of capitalism, it is not simply national economies that are being neoliberalized – it is us. Inspired by Michel Foucault and other governmentality theorists, the contributors to this volume reveal how neoliberalism’s power to redefine “normal” is refashioning every facet of our lives, from our consumer choices and approaches to the environment – whether it be buying yoga pants or a hybrid car – to larger questions of national security and border control. By providing enlightening examples and case studies of neoliberalism in action, this thought-provoking volume not only reveals how we are being constituted as biopolitical and neoliberal subjects, it encourages us to think of the world as more than a marketplace and to open ourselves up to the possibilities of resistance.

This accessible but theoretically sophisticated volume reveals how neoliberalism – as both an economic project and a broader political approach – has come to govern our daily lives, our understanding of the world we live in, and even how we think about ourselves.

International Norms and Chinese Perspectives

Globally, isolationism and protectionism are on the rise, and resurgent authoritarian nations are reasserting the centrality of the sovereign state. And with China’s influence around the world intensifying, the dynamic interrelationship of the national and supranational in shaping norms of good governance has become increasingly relevant. Good Governance in Economic Development critically examines the ways in which transparency and accountability mechanisms are incorporated or reflected in international trade, finance, and investment regimes. It also explores the Chinese state’s engagement with these norms, shedding new light not only on how the principles of transparency, accountability, and public participation are applied within China, but also on the ability of China to affect international rules. Through close analysis of how norms are adapted locally, the contributors offer insights into the global and national implications of international good governance rules.

Good Governance in Economic Development examines what happens at the intersection of international and Chinese conceptions of transparency, accountability, and public participation.

Over the last twenty years, India has enacted legislation to turn crucial goals such as food security, primary education, and employment into legal rights for its citizens. But enacting laws is one thing and implementing them through an imperfect institutional structure is another. A Human Rights Based Approach to Development in India examines a diverse range of human development issues over a period of rapid economic growth in India. Demonstrating why institutional and economic development are synonymous, the essays in this volume detail the many obstacles that may hinder development. In addition, they show how the domestic policies required to implement laws may undermine India’s treaty obligations at the World Trade Organization or under the Agreement on Trade-Related Aspects of Intellectual Property Rights. The contributors ultimately ask whether development can be achieved by making it a legal right and whether India’s right to develop is truly at odds with its international commitments.

This book demonstrates why economic development is synonymous with institutional development for the furthering of human development issues.

Law Titles from our Publishing Partners
A Legal Rights Guide for Canadian Children and Teens

A practical guide to the law as it pertains to the young people of Canada.

There is powerful evidence that the colonization of Indigenous people was and is a crime, and that that crime is on-going.  In this book Nielsen and Robyn present an analysis of the relationship between these colonial crimes and their continuing criminal and socially injurious consequences that exist today.

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