COVID-19 Pandemic and Structural Barriers for Migrant Agricultural Workers in Ontario

COVID-19 has exposed and exacerbated many longstanding barriers and shortcomings in labour protections for migrant workers in Canada. This paper focuses on the situation of workers under the Seasonal Agricultural Workers Program (SAWP) in Ontario, demonstrating how the COVID-19 pandemic has exposed and greatly aggravated the already precarious conditions of migrant workers. It explores the employment, labour and immigration law frameworks that render SAWP workers particularly vulnerable to exploitation and harm, both during pandemic and non-pandemic times. While some government policy and legislative responses have sought to respond to the increased vulnerability of migrant agricultural workers to the virus, fundamental changes in both the immigration and labour spheres are necessary to fix the structural causes of migrant agricultural workers’ vulnerability. This paper suggest that the pandemic has created not only an unprecedented urgency for systemic change, but also an unprecedented opportunity. Given the current broad shifts in public ideas about employment, health, and vulnerability, as well as mainstream public attention to the plight of migrant farm workers, I suggest that there is now an unprecedented space in Canadian public policy discourse to advance the urgently needed structural changes to protect the rights of migrant farm workers.

Status Quo Sorrows: The Failures of Energy Project Consultations and Reconciliatory Paths Forward

Canada’s prevailing Aboriginal consultation regime for major energy projects is not working. Indeed, Indigenous peoples, industry proponents, and the Crown have all expressed increasing frustration and dismay at the uncertainty and acrimony that a legal regime intended to facilitate reconciliation between Canada and Indigenous peoples has counterproductively generated. In this paper, I describe the underlying principles of a process-oriented reconciliation that animate the Court’s jurisprudence on section 35 of the Constitution Act, 1982. I then identify the failures in effectively translating these principles to the major energy context, focusing in particular on the harms generated by the lack of accountability and transparency of the National Energy Board/Canada Energy Regulator administrative scheme. I finally consider two alternatives or additions to contemporary resource project consultations – namely, Impact and Benefit Agreements (IBAs) and a proposed Indigenous veto – finding that an Indigenous veto may be an especially effective means of introducing greater equity, fairness, and certainty to major energy project development in Canada, to the benefit of all relevant stakeholders.

Nihkitimahkinawow ekwa Nihkitimahkisin: Pity and Compassion in Cree Law

In Nêhiyawêwin (Plains Cree language), kitimahkinawaw translates as “to takepity on someone”. Kitimahkinawaw describes the quality of a person’s actions when theyshow kindness, pity, and compassion towards others. Cree law includes a responsibilityto treat others with kitimahkinawaw, which encompasses a duty to care for the elderly,poor, homeless, and sick. Further, it requires us to treat people who are harmful withfairness and compassion. The purpose of kitimahkinawaw is to mitigate suffering,especially the struggles experienced by marginalized people. Kitimahkisin means “apitiful person”. Kitimahkisin includes a recognition that we are dependent uponpakwataskamik (the land), Kisemanito (Creator), and each other for our sustenance.Each person has a gift and we have a responsibility to use these gifts to benefit society,for we are all kitimahkisin. The author argues that kitimahkinawaw and kitimahkisin arelegal principles within the Cree legal order which guide relationships between the manyanimate beings within Cree epistemology. The author draws upon âtayôhkêwin (stories),Nêhiyawêwin, and Indigenous legal theory to illustrate the complexities and nuanceswithin the principles of kitimahkinawow and kitimahkisin. Kitimahkinawow andkitimahkisin are living laws which obtain meaning through the practice of caring for thepoor and marginalized.

Galambos v Perez, its Critics, and the Equity-Certainty Paradox in Fiduciary Law

This paper examines the merits of the current approach to identifying ad hoc fiduciary duties in Canada, which was exposited by the Supreme Court of Canada in its 2009 Galambos v Perez decision. The indicia of fiduciary relationships expressed in Galambos, I argue, are sufficiently comprehensive and certain to overcome popular academic criticisms of the indicia-based ad hoc approach. Specifically, I will challenge the arguments of the contractarian scholar Anthony Duggan and the equity-focused scholar Leonard Rotman -- both of which argue, albeit from different ends of the academic spectrum, that ad hoc fiduciary duties should not be identified using indicia.

Rethinking Post-Rana Plaza Transnational Labour Governance

This Article critically analyzes a number of innovative initiatives that had been taken to ensure the safety of ready-made garment (RMG) factory workers in Bangladesh and proposes ideas about transnational labour governance. After the collapse of the Rana Plaza factory in Dhaka, Bangladesh, these transnational safety initiatives (TSIs) offered a promising way to address some of the adverse distributional effects of the globalized forms of production by engaging a myriad of forces, such as the International Labour Organization (ILO), the national government, corporate brands/retailers, and international and national trade unions. Despite broad commitments to address an urgent regulatory issue like labour safety, this Article shows how these governance mechanisms, which attempted to link labour governance with trade/economic arrangements, uphold the existing narrow conceptualizations of labour right and labour issues. Utilizing insights from different disciplines, i.e. labour law, human rights and international development, this Article examines how context-based attention to labour’s capability enhancement objective would produce a much more compelling governance mechanism at a transnational level. The proposed governance model would accommodate a wider conceptualizations of labour and labour rights, require a stronger form of corporate responsibility, and emphasize labourers’ political empowerment. The Article does not discard the necessity of state-based actions and regulations. However, realizing the globalized nature of production and its influence on workers and work conditions, this Article calls for re-thinking the ways labour governance mechanisms are designed in transnational settings. Analyzing the interaction of diverse rules, governance processes and mechanisms with the demands of marginalized forces, i.e. the labourers, this Article attempts to outline a possible alternative to the global hegemony of capital.

On Sexual Consent in Canada

Consent is an extremely important principle within the law—so important it is defined twice within the Criminal Code: first in s. 265, the assault provision which also governs the law of sexual assault, and again in s. 273.1, where the Code provides additional definition specifically within the context of sexual assault. The limits of consent have been further defined through case law, especially in R v Ewanchuk. Canadians would be surprised to discover that Ewanchuk determined it is illegal to initiate sexual activity via sexual touching, or to kiss a sleeping spouse. To keep people safe from inappropriate sexual touching, we have outlawed activities most intimate partners would not object to: this creates a dilemma about when protection exceeds its necessity and becomes inappropriate control of sexual autonomy. It is this dilemma this article addresses. Ultimately, this article argues that Canada’s sexual assault laws must change for two reasons: first, by criminalizing behaviour that is not morally wrong, the criminal law is overbroad and doesn’t fulfil its expressive function, and; while enacted with the noble goal of protecting the sexual autonomy of women, our consent laws serve to restrict the sexual autonomy of women in ways that are objectionable.

Retreating to Justiciability

This paper examines Canadian case law to assess how judges determine whether morally charged questions are justiciable. The author applies Robert Cover’s philosophical concept of “responsibility mitigation mechanisms” to argue that judges may define justiciability narrowly to avoid complex moral questions. Using Charter litigation as a case study, the author explores whether the justiciability of moral or political questions can be subjective and how that subjectivity may have significant implications for the scope and limits of rights, the separation of powers and the rule of law in Canada.

Immigration Detention and Habeas Corpus

In Canada (Public Safety and Emergency Preparedness) v Chhina (“Chhina”), a majority of the Supreme Court of Canada found that immigration detainees in detention of lengthy and uncertain duration may access habeas corpus relief at provincial superior courts. The majority held that the detention review scheme under the governing statute did not accord as broad and advantageous protection as that provided by habeas corpus. The author argues that Chhina is a positive development with missed opportunities. The Supreme Court laudably clarified the case law and narrowed the exception that previously barred immigration detainees from seeking any form of habeas corpus relief. Further, in finding that the governing detention review scheme is not as broad and advantageous as habeas corpus, the majority adopted a pragmatic approach and focused on how detention reviews are conducted, not on how they ought to be performed. Notwithstanding these strengths, the majority missed an opportunity to resolve the conflicting case law on three common issues that arise when detainees in lengthy immigration detention file habeas corpus petitions: (i) determining when a detention becomes unduly lengthy such that it is unlawful; (ii) developing a singular approach to calculating the duration of detention; and (iii) establishing the proper weight that should be ascribed to detainee cooperation in habeas corpus applications. Moreover, in omitting substantive discussions of the broader context surrounding immigration detention, the majority missed a valuable opportunity to fully shine the light on the shortcomings of immigration detention and in the process potentially usher in systemic changes.

That Most Canadian of Virtues

In this paper, I argue that the use of comity by the Supreme Court in its Charter jurisprduence, particularly its Section 7 jurisprduence, has lacked any conceptual clarity or fidelity to international law. This paper aims to advance the scholarly literature in three ways: first, by developing a taxonomy of s.7 extraterritorial cases and second: by showing how comity has been developed in four key areas of the law I identify it as playing a role in: extradition cases, the use of foreign-obtained evidence, civil cases in Canada where Canadians may be exposed to foreign criminal prosecution, and in the so-called 'war on terror'. I conclude the paper by arguing, third, that the SCC has employed comity as an interpretive principle to produce a conceptual muddle wholly incompatible with the traditional rules of international law.

The Evolution of the Duty to Consult

The duty to consult has been the subject of many trials and headlines, yet many still feel as though the consultation process is faulty. Relying on recent caselaw from the Supreme Court of Canada and the Federal Court of Appeal, I trace the evolution of the duty to consult from its inception to the latest major cases. I suggest that the current process can be improved to better engage all parties, (i.e. Crown, regulatory agency, industry proponent, Indigenous peoples), with a stronger emphasis on efficiency and reconciliation. I rely on the work of Matthew Hodgson to further solidify my consultation framework by advancing the idea of a specialized tribunal charged with reviewing the adequacy of consultations.