Recent research shows that monitoring and surveillance of workers in Canada is increasing. The Canadian Federal Government, at the same time, is calling for increased access to proprietary databases for lawful purposes. Employers therefore face a distinct possibility that their monitoring and surveillance data will be routinely accessed by various government and law enforcement agencies. Since in many provinces workers enjoy little legal protection of their right to a private life, and since new legal protective measures are unlikely, employers must look to their role as socially responsible members of a liberal and democratic society, and respect the rule of law by minimizing their collection of personal worker information.

The social exclusion of aboriginals is defined as a condition of non-citizenship that results from a rupture between a Nation and its “history”. This break-up process implies that certain individuals and groups have lost access to social, civil and political rights. Historically, the marginalization of aboriginals registered in the cursus of the incorporation to the Nation-State that was translated by an internal policy of reduction and segregation that contributed to the appropriation of lands that were materially and symbolically linked to them. This article intends to understand the role played by law, in such a rupture process, by examining more specifically the effects of the Indians Act. The author conceives that the imposition of law to the First Nations, has been the producer of exclusions by starting and then reinforcing the material and identity break-ups. In conclusion, the author proposes six theoretical principles permitting analysis of the complexity of relations between law and exclusion.

In this article, the authors carry out a documentary analysis of the stakes and debates surrounding the policies and practices of the recruitment of ethnicized and racialized groups within the Canadian police services. The analysis of the justifications set forth by the proponents of affirmative action in the police services as well as the identification of the questions which have prompted the debates, criticisms and hesitations regarding this policy bring the authors to conclude that the integration of minorized groups in the police services is less concerned with the redressing of inequities than with the development of a new process of racialization.

This paper closely studies Scotland v Canada to reveal the normative and substantive justice challenges facing immigration detainees across Canada. The Scotland decision at the Ontario Superior Court certified a habeas corpus writ as an individual remedy to release Mr. Ricardo Scotland from a pointless, seventeen-month incarceration. The decision frames Mr. Scotland’s detention as anomalous or divergent from an otherwise-functioning system. Against this view, this paper argues that access to habeas corpus cannot remedy the detention system’s scale of injustices. The paper contextualizes Mr. Scotland’s incarceration and the Superior Court decision against two primary claims: first, that the Canadian immigration and refugee determination system is arbitrarily biased against certain minoritized individuals, therefore transforming some people into detainable bodies; and second, that the global criminalization of migration trend has nested an arc of penal practices into Canadian policymaking and law, and this arc has seemingly normalized indefinite detention for some migrants. The paper concludes that restoration of access to habeas corpus cannot be understood as a substantive remedy to address the miscarriages of justice in the Canadian detention system.

The Islamic legal enterprise forms an inherently plural system that can appear puzzling to commentators looking for faithfulness to principle or precedent. When one looks at it, instead, as an ongoing search for correspondence between divine guidance, rooted in the foundational sources of Islam, and the singularity of concrete circumstances, Islamic law is revealed as a practice of discernment against the grain of the particular. This article unfolds this approach to understanding Islamic law by entering the conversation where it is currently most heated, namely in connection with the development of Islamic financial products. A case study of takāful regulation in the United Arab Emirates (UAE) helps substantiate the import of our proposal for attuning to the voice of Islamic jurisprudence (fiqh), in the face of contemporary questions arising from the design of financial products in correspondence with the Sharī’ah.

The Ontario Review Board (ORB) makes and reviews dispositions that limit the freedoms of individuals found not criminally responsible (NCR) due to a “mental disorder.” Their dispositions must be responsive to the risk NCR individuals pose to the public. To assess how risk is measured, the authors studied twenty-six publicly accessible court files pertaining to the appeal of ORB dispositions. The authors studied hospital reports, the ORB’s dispositions, and transcripts of ORB hearings found in the court files. In this paper, the authors draw on institutional ethnography and critical legal theories of jurisdiction to analyze how certain citational practices—namely citation of closely related statutes and the ORB’s procedures—participate in structuring the ORB’s analysis of risk. The authors argue that risk becomes legible to participants in the NCR process through the intertextual mediation of these citations, which legitimize and naturalize the NCR individuals’ dependence on forensic institutions.

Parliament recognized the fundamental importance of protecting access to government information when it enacted the federal Access to Information Act. When the Act came into force on Canada Day 1983, Canada was just one of a handful of countries to have legislative protection of access to government information. Now, 27 years later, over 80 countries across the globe have enacted some form of access to information legislation.

Although the world has followed Canada's lead in recognizing the importance of protecting access to government information, Canada has “fallen behind” (to borrow the descriptor used by journalist and author Stanley Tromp) and may even be “backsliding” (in the words of Laura Neuman of the Carter Center). What has gone wrong with the federal access regime? Why should legal studies scholars care? I address these questions in this article. I start by outlining the symbiotic role between academics and access to government information. I then identify three key factors that have contributed to the decline of the federal access regime: administrative resistance, legislative degeneration, and political indifference. Finally, I close by briefly discussing three ways in which scholars can continue to work to protect and promote access to information in Canada.

Academics and Access

Academics took the lead in advocating for access to government information in the 1960s and 1970s in Canada. One of the earliest advocates was Donald C. Rowat, a professor of Political Science at Carleton University. In a 1965 article entitled “How Much Administrative Secrecy?”, he summarized the key arguments in favour of protecting access to government information, writing

Recent historical scholarship has stressed the importance of dominant political and economic interest groups in shaping the organization and role of nineteenth-century police institutions. While acknowledging the necessity of developing macro-structural interpretations of police development, this paper argues that a comprehensive understanding of policing requires greater attention to organizational concerns with legitimation, self-maintenance and self-determination as intervening variables in the evolution of urban police forces. Using data on policing in nineteenth-century Toronto, emphasis is placed on delineating the process by which police administrators sought to achieve insulation from external sources of control and to act as independent agents of change and innovation in the structure and functions of policing.

In the present article, we examine the extent to which legal norms related tofamily matters are in line with the diverse social representations of currentconjugal life, more particularly as concerns the economic interdependence of thecouple during or subsequent to their union. Two Quebec legal measures compelattention: the division of the family patrimony and the obligation of supportpayable to the former partner. The present analysis is based on an empiricalstudy involving couples living together in Quebec. Whereas current legaldiscourse concerning unmarried cohabitation appears focused on spousal support,our survey has brought out two elements that could challenge the current legalapproach. When it comes to social representations, we find that the awarding ofsupport to the partner is highly controversial. The majority of our respondentsalso believe that the family patrimony should be shared equally, whether or notthe couple is married, and more especially when there are children, the propertyof the household being deemed to be the fruit of a joint and family-orientedeffort.

This article uncovers and investigates the vision of the world behind Max Weber's sociology of law. Taking a stand against Weber's epistemological nominalism, ethical relativism and political decisionism, the author critically analyses Weber's vision of science as a vocation and shows that his defense of axiological neutrality is not axiologically neutral. It represents rather a particular position within ethics, which affects his account of the disenchantment of the world, his vision of the rationalization of law and his decisionistic appeal for a strong political leader.

Life in industrial societies is governed by different kinds of “time”: mathematical or monochronic time predominates in the workplace but sociocultural or polychronic time prevails at home, particularly where young children are present. Many women report high levels of “time crunch” as they move between these two spheres and these effects are heightened for women in the professions. In this study, I test four hypotheses: women lawyers have higher time crunch levels than women in the general population. Time crunch is heightened among women who take primary responsibility for the care of young children and those who work in large law firms. As women grow older and shed some of the demands of child care, their time crunch levels drop. This study incorporates both quantitative and qualitative approaches: a regression analysis of “time crunch stress” is used to test the major hypotheses and excerpts from unstructured interviews deal with time management problems in the lives of these women. Findings from the regression analysis reveal heightened time crunch stress for the women in this study, particularly if they assume major responsibility for child care. Neither firm size nor age has a statistically significant effect on time crunch stress. Women lawyers are caught between two kinds of time and, over the long term, their careers assume shapes that differ from those of their male counterparts. These divergent career patterns suggest that current career theories are in need of reassessment and revision.

Le tournant sensoriel en droit nous invite à vivre différemment le droit en reconnaissant la centralité de tous nos sens dans l’étude et la pratique d’une vocation qui nous appelle à la quête de sens. Il vise à renverser l’anesthésie générale qui afflige les études en droit, et en droit et société : la juridicité elle-même, c’est-à-dire l’essence du droit – les sens du droit – est une question sensorielle et sensuelle.

This article advocates for the inclusion of intercultural dispute-resolution principles in Canadian courts to resolve conflicts between Indigenous communities and the Canadian state. These principles include judges' opening themselves up to discomfort, emotion, and unsettling in listening to Indigenous testimonies; facilitating ongoing processes for negotiation; and engaging the moral imagination to make court procedures more culturally appropriate for Indigenous testimonies. The author argues that by implementing these principles, courts can contribute to the creation of more respectful relationships between Indigenous and non-Indigenous people.

Between 1930 and 1945, Georges Gurvitch devoted several books to the exposition of his “theory of social law.” Since 1968, Ian R. Macneil has extensively developed his “relational theory of contract.” Their common ambition was to overcome the dominant legal doctrine by showing how and why it arbitrarily ignores some fundamental aspects of the social reality of law and contract. Despite their exceptional merits, both theories have failed to exert any significant influence among contemporary jurists. Two fundamental reasons account for that failure. First, Gurvitch and Macneil give an uncompromising priority to the objective of knowledge over the objective of action by trying to reflect systematically the complexity of the social reality of law and contract. On the contrary, the dominant legal theory submits itself to political and professional pragmatism and its needs of logical simplification. Secondly, Gurvitch and Macneil's failure has much to do with their commitment to the ideals of solidarity and autonomy while most of the contemporary jurists espouse an authoritarian conception of law and society.

A social activity is characterized and understood, this paper argues, only after one has found a place to put it among one's more general understandings and a frame to put around it to render it discrete and prevent its escape into chaos. Framing and reframing are the concomitants of social struggles for and against closure and exclusion. The paper sees critique as a form of practical and scholarly struggle against disciplinary closure, doubting question posed to disciplines. Law school education in Australia, because it offers guaranteed universal knowledge about its object, law, is unsympathetic to critique.

This paper examines the role of official inquiry in the context of controversial deaths at a mine explosion in Canada. It documents how medical science and law contributed to the social production of official knowledge about lost lives in the Westray disaster and analyzes the significance of this public truth-telling on the registration of other truth accounts. The paper concludes by considering the counter-memories to official accounts and the role that a formal public inquiry into the disaster played in further transforming the fields of enunciation about the truth of death at Westray.

The Inuit of Nunavik were recently granted the power to determine themselves, according to their “traditions and customs,” who is an Inuk according to the benefits granted by the James Bay and Northern Quebec Agreement. This appeal to the indigenous legal order may seem quite intriguing, as the Canadian state normally keeps a tighter rein on rules pertaining to membership in the Indigenous Peoples. From the point of view of legal pluralism, this article seeks to discern the potential sources of such Inuit “traditions and customs” and the reasons why the Canadian legal order is now willing to defer to the Inuit legal order, but also to bring to light the subtle limits of such deference.

This article examines the effect of two recent constitutional decisions that have altered the course of assisted-reproduction policy in Canada: Reference re Assisted Human Reproduction Act (2010) and Pratten v British Columbia (2011). Together, the cases link a socially liberal conception of morality in federalism cases with an interventionist view of the state in Canadian Charter of Rights and Freedoms cases. This could result in a trend toward judicially mandated provincial, as opposed to federal, government action. These cases also provide further evidence of the judicialization of politics in Canada, whereby controversial moral and public-policy issues are increasingly determined in the courtroom.