Cet article analyse un jugement de la Cour suprême du Canada rendu en 2017, en le comparant à un cas semblable survenu en 2002 en Nouvelle-Zélande. La première cause visait à accorder une protection juridique à « l’esprit de l’ours Grizzly » habitant un mont de Colombie-Britannique sur lequel des promoteurs voulaient construire une station de ski et la seconde visait à protéger une créature spirituelle vivant dans les eaux du ruisseau. Dans les deux cas, la question posée aux juges revient à statuer sur l’existence de créatures métaphysiques, et donc à trancher un conflit ontologique. Les juges canadiens et néo-zélandais vont refuser d’étendre le domaine d’application du droit à la protection des objets de ces croyances. Leur conclusion peut se comprendre à la lumière du fait que le mode d’argumentation juridique, de par sa nature rationaliste et naturaliste, n’est pas en mesure de penser les entités métaphysiques à partir du cadre conceptuel que lui a légué la révolution scientifique du XVIIe siècle.

In the past decade there has been a distinct increase in literature on Indigenous laws. Calls to teach about Indigenous laws in postsecondary institutions in Canada have also intensified. This growth and these calls are significant, yet as with all fields of inquiry and teaching, there are also gaps. Gender continues to be under-addressed in work on Indigenous legal education. Drawing on interviews with twenty-three professors who teach about Indigenous law at postsecondary institutions in Canada, I examine the challenges in gendering Indigenous legal education. The professors all expressed that it is important to engage with gender when teaching, but the majority were experiencing significant challenges in actually doing so in practice. It is essential to understand how these challenges are entangled with gendered power dynamics and broader structural barriers, as they will continue to limit Indigenous legal education if not directly deconstructed and changed. Overall, the interviews signal the need for increased institutional support and change, more educational resources, eliminating discrimination, and ongoing discussion about gender and Indigenous law.

The 1983 case Racine v Woods is the leading child protection case from the Supreme Court of Canada, distinguishing bonding and/or attachment as a more important determinant of best interest for an Indigenous child than cultural connection. Using this case, courts are upholding the permanent placement of Indigenous children in non-Indigenous homes as opposed to placement within their culture. Racine v Woods reflected knowledge of attachment and family at that time but runs counter to current knowledge. Reconsideration of the factors to decide cross-cultural adoption is needed. The essential point is that attachment assessment draws from a dyadic relational theory and is being applied to communal family systems, such as Indigenous systems. Such a review is consistent with the calls to action of the Truth and Reconciliation Commission (TRC) as well as its predecessor, the Royal Commission on Aboriginal Peoples (RCAP), and recent Canadian Human Rights Tribunal (CHRT) decisions.

Though described as the first milestone towards securing Canada’s critical infrastructure (CI), the 2009 National Strategy for Critical Infrastructure is the most recent effort in decades of federal engagement with the problem of how to secure the material elements that underpin state, economy, and society. In this article, we show how a little-known civil defence program initiated after WWII to protect important industrial facilities from military enemies has transformed in the contemporary period into the monitoring of a range of political and social movements as perceived dangers to what is understood today as CI. We view these changes as indicative of transformations in the exercise of police power through which the contemporary colonial-liberal order is enacted.

Wagnerism has been at the centre of Canadian labour relations since the end of World War II. Wagnerism rests on a so-called balance between workers and employers. Between 2007 and 2015, the Supreme Court of Canada has ruled that the constitution includes protections for good faith collective bargaining and to strike. In these cases, the Court stated that it is not constitutionally enshrining Wagnerism, yet it also leaned heavily on Wagner principles in arriving at its decisions. Building on interviews with national union leaders, I argue that the ambiguity between the Court’s decisions and Wagnerism has left workers uncertain about how these rights alter the material conditions of unions. I conclude that the court’s embrace of labour freedoms will only have material benefit if workers are willing to use these newfound freedoms to build working class capacities to directly confront ongoing attacks by governments and employers on core union freedoms.

In this article I explore judicial interpretations of the relationship between digital technology and non-consensual intimate image distribution (NCIID) (i.e., “revenge porn”). Drawing on my analysis of forty-nine Canadian cases of NCIID, I show that judicial interpretations of digital technology have important influences on how NCIID is understood and responded to in the law. I find that the majority of judges perceive digital technology as making NCIID easier to commit—with the simple “click of a mouse”—and as increasing the amount of harm caused by this act—as digital nude/sexual photos are seen as lasting “forever” and thus as resulting in ongoing and immeasurable harm to victims. These perceptions have substantive impacts on legal rationales and sentencing decisions, with the affordances of digital technology regularly being treated as justifying harsher sentences to denounce and deter this act.

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.