bluuebunny/crossref_metadata_2025 huggingface dataset:
TRANSNATIONAL AND COMPARATIVE ADMINISTRATIVE LAW: PAPERS FROM THE SIXTH ADMINISTRATIVE LAW DISCUSSION FORUM, QUÉBEC CITY
Authors: Weaver Russell , Lemieux Denis , Jacobs Laverne
Published: April 2017

On May 25 - 26, 2010, Université Laval, the University of Windsor Faculty of Law and the University of Louisville Brandeis School of Law, hosted the Sixth Administrative Law Discussion Forum. These discussion fora, which have become an international academic success, have been held in a variety of venues in North America and Europe since the early 1990s. They are an initiative of Russell Weaver, Professor of Law & Distinguished University Scholar at the University of Louisville. The fora provide an opportunity for thoughtful exchange among administrative law academics on contemporary issues that cut across national borders.
Politics and Policy Change in American Administrative Law
Authors: Murphy Richard
Published: April 2017

This essay uses Justice Scalia’s and Breyer’s dueling opinions in FCC v. Fox Television Stations, Inc. (2009), as a vehicle for exploring the contested relationship between politics and policy change in administrative law. In Fox, a five – justice majority led by Justice Scalia insisted that an agency’s abandonment of an old policy position in favor of a new one should survive review for arbitrariness so long as the agency explains why its new position is reasonable. A different five – justice majority (yes – that adds up to ten) led by Justice Breyer thought that Justice Scalia’s stance left too much room for politicization of policymaking. To curb such influence, Justice Breyer insisted that an agency, to justify abandoning an old policy, must explain why it was reasonable to change from its old policy to the new one. Neither of these two approaches in Fox hits quite the right note. Justice Scalia’s view unduly minimizes the problem of politicization. Justice Breyer’s solution seems formalistic and easy to evade. A better way forward may lie in combining Justice Scalia’s simpler framework with Justice Breyer’s more suspicious attitude. Taking a cue from Justice Frankfurter in Universal Camera, the courts should respond to the potential for excessive politicization of agency policymaking not with more doctrinal metaphysics but with a suspicious “mood.”
John Reilly, Bad Medicine: A Judge’s Struggle for Justice in a First Nations Community
Authors: Milward David
Published: April 2017

Judge John Reilly‟s new book, Bad Medicine, is not by conventional standards anacademic monograph. In fact, Reilly makes no pretence towards his book being ascholarly one, and this is possibly one of its greatest strengths. He has a message todeliver, not just for academics and policy makers, but for Canada and possibly theworld at large. He disavows the often mysterious and arcane jargon that academiainsists must be correct in order to make his message accessible to anyone who mayventure to read it, from the most educated to the least educated.
Of Minors and the Mentally Ill: Re-positioning Perspectives on Consent to Health Care
Authors: Pare Mona
Published: April 2017

Recognition of people’s right to consent to health care is linked to legal capacity and to respect for physical and mental integrity. Traditionally, children and persons with mental illness have been denied this right and substitute decision-making systems have been used for their protection. Today, respect for rights and freedoms forces courts and legislators to find a balance between autonomy and protection. However, domestic law lacks vision and objectives, often ending up breaching both protection and autonomy rights, or prioritizing one to the detriment of the other. One should turn to the supported decision-making model, which addresses protection concerns while respecting people’s integrity and autonomy.
Restricted Access to Justice for Canadians Mistreated Abroad: Abdelrazik v Canada (Re: Interim Costs)
Authors: Rehaag Sean
Published: April 2017

Abousfian Abdelrazik is a Canadian citizen who, after having his name added to various anti-terrorism lists, and after being tortured by Sudanese officials, found himself unable to return home from Sudan largely because of Canadian government actions.Abdelrazik sought to challenge the constitutionality of these restrictions on his ability to return to Canada. However, he had no money and no means of support, as he was unable to leave the Canadian embassy in Sudan where he had sought refuge to avoid further torture by Sudanese officials. He therefore brought a motion for interim costs in Canada’s Federal Court. If granted, this interim costs award would require the Canadian government to pay his legal fees so that his constitutional challenge could proceed.In Abdelrazik v Canada, the Federal Court denied the request for interim costs – a decision that has serious implications not only for interim cost awards jurisprudence, but also for litigation involving citizens who allege that their rights under section 6 of the Charter have been violated.

This comment critically analyzes the access to justice implications of the Federal Court decision in light of both the principle that courts may use costs awards to promote access to justice, and the unique challenges faced by Canadians mistreated abroad by the Canadian government.
THINKING PAST RIGHTS: TOWARDS FEMINIST THEORIES OF REPARATIONS
Authors: Painter Genevieve Renard
Published: April 2017

The notion of reparations encompasses debates about the relationship between individual and society, the nature of political community, the meaning of justice, and the impact of rights on social change. In international law, the dominant approach to reparations is based on individual rights. This normative framework is out of step with the understanding of reparations circulating among many women activists. I develop a theoretical approach to justice and reparations that helps to explain the gap between the international normative framework and activist discourses. Based on distributive, communitarian, and critical theories of justice, I argue that reparations can be thought of as rights, symbols, or processes. Understanding reparations as either rights or symbols is rife with problems when approached from an activist and feminist theoretical standpoint. As decisions about reparations programs are and should be determined by the political, social, economic, and cultural context, a blueprint for ‘a feminist reparations program’ is impractical and ill-advised. However, the strongest feminist approach to reparations would depart from an understanding of reparations as a process.
ESSENTIALISM MAKES FOR STRANGE BEDMATES: THE SUPREME COURT CASE OF J.A. AND THE INTERVENTION OF L.E.A.F.
Authors: Jochelson Richard , Kramar Kirsten
Published: April 2017

In the recent case of R. v J.A, the majority of the Supreme Court of Canada determined that an unconscious person could not consent in advance to sexual touching. This paper reviews the majority reasoning and questions whether the intervention of the Women’s Legal Education and Action Fund [LEAF] penetrated the reasoning. The majority couched its reasoning in the interpretive tenets of judicial conservatism. Yet this conservatism aligned with the equality-based submissions of LEAF. Moments of such converging ideologies are relatively unique in the jurisprudence. This convergence is compared with a notable historical moment of convergence in the development of indecency and obscenity law in Canada. This time, however, LEAF’s rationales are more likely to meet little in the way of academic or activist critique because of the changing nature of identity politics in Canada.
OPPORTUNITIES AND LIMITATIONS IN THE PROVISION OF SELF-HELP LEGAL RESOURCES TO CITIZENS IN NEED
Authors: Lawler Merran , Gibbings Jeff , Robertson Michael
Published: April 2017

This article considers the utility of resources designed to assist people undertaking their own legal work. Four in-depth case studies are used to explore the tensions inherent in providing coherent and user-oriented resources to legal self-helpers in environments where service providers attempt to convey complex legal information, knowledge and skills to people at the point of legal exigency. The needs of the consumer for basic process oriented and solutions focused resources do not always coincide with the objectives of providers to impart sufficient legal knowledge, information and skills to allow the consumer to work through those processes as an informed citizen.
AGGRESSION AS “ORGANIZED HYPOCRISY?” – HOW THE WAR ON TERRORISM AND HYBRID THREATS CHALLENGE THE NUREMBERG LEGACY
Authors: Bachmann Sascha-Dominik , Kemp Gerhard
Published: April 2017

Modern threats to international peace and security from so called “Hybrid Threats”, multimodal threats such as cyber war, low intensity asymmetric conflict scenarios, global terrorism etc. which involve a diverse and broad community of affected stakeholders involving both regional and international organisations/structures, also pose further questions for the existing legacy of Nuremberg. The (perhaps unsettling) question arises of whether our present concept of “war and peace”, with its legal pillars of the United Nations Charter’s Articles 2(4), 51, and the notion of the criminality of waging aggressive war based on the “legacy” of Nuremberg has now become outdated to respond to new threats arising in the 21st century. This article also serves to warn that one should not use the definition of aggression, adopted at the ICC Review Conference in Kampala in 2010, to repeat the most fundamental flaw of Nuremberg: ex post facto criminalisation of the (unlawful) use of force. A proper understanding of the “legacy of Nuremberg” and a cautious reading of the text of the ICC definition of aggression provide some markers for purposes of the debate on the impact of new threats to peace and security and the use of force in international law and politics.
STRATEGIES OF LEGAL RUPTURE: THE POLITICS OF JUDGMENT
Authors: Bhandar Brenna
Published: April 2017

In this article the author considers the meaning of a legal strategy of rupture, and the possibilities that such a strategy holds for anti-colonial and anti-capitalist political resistance. The strategy of rupture, developed by advocate Jacques Vergès, and theorised by Emilios Christodoulidis, provides the initial framework for thinking through how this mode of deploying law for political transformation could be developed into a general approach that is applicable not only in the criminal law context, but also, in other fields of law. Shifting from the strategies of advocates to the question of judgment, the author analyses a recent judgment of the Indian Supreme Court, and explores how legal judgments can affect political ruptures through re-defining concepts such as security with the interests of the most marginalised communities in mind. By re-defining concepts that are vital to protecting the rights of people to resist various forms of exploitation, and by re-investing rights with new meaning, the Indian Supreme Court in Sundar et al v State of Chattisgarh (July 5, 2011) charts a course that holds promise for the struggles of legal advocates elsewhere.
(2012) 30 Windsor Y B Access Just 103 A VIEW FROM WITHIN: RECONCEPTUALIZING MEDIATOR INTERACTIONS
Authors: De Girolamo Debbie
Published: April 2017

This paper explores mediator interactions from within the mediation process. It is difficult to obtain access to mediations due to issues of confidentiality and litigation privilege, thus restricting direct empirical research. During a yearlong ethnographic study during which the author was a participant-observer of a number of commercial mediations, the nature of mediations was explored from an independent observational perspective – separate from the process yet within the process. In this study, real life patterns of interactions are examined through case study analysis. It offers a reconceptualization of the nature of mediator interventions, one that moves beyond the accepted understanding of third party intervention. It suggests that the mediator has a fugitive identity in mediation, reflecting a traditional neutral third party intervener role, a party role and an adviser role.
(2012) 30 Windsor Y B Access Just 225 RE-EVALUATING INDEPENDENCE: THE EMERGING PROBLEM OF CROWN-POLICE ALIGNMENT
Authors: Tatum Jeremy
Published: April 2017

Attorney Generals and Crown prosecutors are endowed with a constitutionally protected role and the quasi-judicial responsibility of handling criminal prosecutions on behalf of the Crown. This includes deciding whether to bring the prosecution of a charge laid by the police, to enter a stay of proceedings, to accept a guilty plea to lesser charge, and to withdraw criminal proceedings in accordance with what the public interest dictates.While the vast majority of prosecutors are careful to separate their function from that of the police, occasionally police advocacy and the high level of police commitment can lead to accepting police information without appropriate confirmation and turning to the police for guidance in the exercise of prosecutorial functions. This article argues that recent examples of significant partisan advocacy by prosecutors warrant re-considering the limits of Crown independence from the police and re-evaluating the current effectiveness of institutional accountability in Ontario.Part II will highlight the separate roles of the police and prosecutors, as well as provide some background to the issue of Crown-police alignment. Part III will examine a number of recent cases where individual prosecutors, and occasionally offices, appear to be acting in the interests of the police, rather than the public interest, in discharging their prosecutorial functions. Finally, because the problem of Crown-police alignment is provincial as well as localized in nature, part IV will attempt to demonstrate the crucial role that Law Societies and other public offices have in monitoring prosecutorial conduct and ensuring that Attorney Generals are in fact seeing that the administration of public affairs is in accordance with the law.
THE CROWN’S FIDUCIARY DUTIES TO ABORIGINAL PEOPLES AS AN ASPECT OF CLIMATE JUSTICE
Authors: Chamberlain Erika
Published: April 2017

Rapid climate change in the arctic is threatening the life, health and cultural traditions of the Inuit. Although they are among the least responsible for climate change, they are suffering disproportionately from its negative effects. In particular, the inherent link between Inuit land and culture means that their traditional practices are being threatened along with the arctic environment. However, their efforts to obtain redress from those responsible for greenhouse gas emissions have so far been unsuccessful. Claims in common law public nuisance have been plagued by issues of standing, justiciability and causation, and claims at international law are difficult to prove and enforce. It seems that a different approach may be required.This article examines whether the Crown’s fiduciary obligation toward Canada’s Aboriginal peoples might provide a useful conceptual framework for addressing arctic climate change. Although this obligation is typically applied in situations involving Aboriginal lands or distinctive cultural practices, it can arguably be invoked to protect the traditional subsistence lifestyle of the Inuit. Both the fiduciary obligations and the honour of the Crown require a minimum level of consultation and accommodation where significant Aboriginal interests are threatened. This could translate into an obligation to, at least, assist the Inuit in adapting to the changing arctic environment and preserving cultural practices to the extent possible.
A BRIEF GENEALOGY OF STATE SECRECY
Authors: Lefebvre Stéphane
Published: April 2017

This article provides a potential explanation to the following question: With over five million government employees and contractors entrusted with state secrets in both Canada and the United States, how could the fact that the vast majority of keepers of state secrets obey the letter of the law be explained?  The deterrent effect of the law alone cannot account for this state of affairs. The reason is that subjects self-regulate (psychologically and sociologically speaking) and behave according to contingent forms of rationalities. These forms of rationalities include changing discourses on secrecy and law, and a variety of disciplinary techniques centered on surveillance, hierarchical observation and examination.
THE WOMAN WHO FELL FROM THE SKY
Authors: Williams Patricia J
Published: April 2017

Reflection Piece
WE ARE ALL HERE TO STAY? INDIGENEITY, MIGRATION, AND ‘DECOLONIZING’ THE TREATY RIGHT TO BE HERE
Authors: Bhatia Amar
Published: April 2017

This article examines issues of transnational migration in the settler-colonial context of Canada.  First, I review some of the recent debates about foregrounding Indigeneity and decolonization in anti-racist thought and work, especially in relation to critical and anti-racist approaches to migration.  The article then moves from this debate to the question of ‘our right to be here’, the relationship of this right to the treaties, and how migrant rights and treaty relations perspectives might interact in a context that must be informed by Indigenous laws and legal traditions.
‘ISLANDS OF EMPOWERMENT’: ANTI-DISCRIMINATION LAW AND THE QUESTION OF RACIAL EMANCIPATION
Authors: Bhabha Faisal
Published: April 2017

In her evocative masterpiece, The Alchemy of Race and Rights, published in 1991, Patricia Williams captured a moment in American legal thought that marked a turning point in expressions about race and power, and the implications for social equality. It contained lessons extending beyond America’s unique race history, to the general social and political dynamics in liberal democracy that create conditions of privilege and exclusion. She invited us to think about the place of law in the social and institutional practices that sustain status quo hierarchies, despite proclaimed civil rights commitments to justice. She also inspired hope that the role of the lawyer could be one of mutinous agitator—struggling from the inside, using the tools and skills of practice to support the causes of identifiable communities and social movements.
A REFLECTION ON BEING BORN BAD AND LAW’S OTHER VIOLENCES
Authors: Rego Nasser
Published: April 2017

Reflection Piece
“FICTIONAL VISIONS”: AUTOBIOGRAPHICAL REFLECTIONS ON RE-READING THE ALCHEMY OF RACE AND RIGHTS
Authors: Ceric Irina
Published: April 2017

Reflection Piece
WHEN DISCIPLINES COLLIDE: POLYGAMY AND THE SOCIAL SCIENCES ON TRIAL
Authors: Lazare Jodi
Published: April 2017

This article draws on the Supreme Court of British Columbia’s Reference re: Section 293 of the Criminal Code of Canada [the Polygamy Reference] as a concrete example of the benefits and limitations of intense judicial reliance on social science evidence in the adjudication of constitutional rights and freedoms at the trial level. By examining the evidence tendered, I suggest that the current adversarial model of adjudication is illsuited to combining the legal and the social scientific endeavours. The divergent values, methodologies and objectives of the legal and scientific enterprises severely limit the benefits that the former can yield, thus compromising the effectiveness and utility of the courts for social groups whose claims are heavily grounded in non-legal evidence. Further, I argue that the vast amounts of contradictory evidence typically tendered in rights challenges, as well as the complex and controversial nature of Charter questions and the inevitable need for judges to adjudicate values, risk resulting in undue deference to the legislator, hinder the delivery of justice and ultimately undermine the raison-d’être of Charter litigation.
THE INTERNATIONAL HUMAN RIGHT TO HOUSING & THE CANADIAN CHARTER: A CASE COMMENT ON TANUDJAJA V. CANADA (ATTORNEY GENERAL)
Authors: DesBaillets David
Published: April 2017

The case of Tanudjaja v. Attorney General, represents an unprecedented opportunity for Canadian legal scholars to examine the right to adequate housing in the Canadian human rights context. It is the only legal challenge that broaches directly the right to housing under Canadian law, basing its arguments on two key elements contained in Charter of Rights and Freedoms: sections 7 and 15. Moreover, the case represents an attempt by the claimants to bolster their Charter claim with reference to housing rights found in international human right’s law. For Canadian housing rights’ scholars, this decision, though ultimately quite negative in its conclusions, demonstrates the need for a better understanding of the intersection between international legal norms on human rights on the one hand, and the Charter, on the other. It does not, however, adequately portray the full extent of the former’s influence on the latter, as Justice Lederer of the Ontario Superior Court of Justice, failed to address the importance of international legal doctrine with respect to the interpretation of positive social and human rights in the Canadian legal context. In particular, he ignored the growing body of Charter related cases and precedents in Canadian jurisprudence that shed light on the complex relationship between fundamental human rights enshrined in various international legal documents and the recognized positive obligations they impose on the government of Canada to implement them under such long established treaties as the Covenant of Economic Social and Cultural Rights.   

In this comment, the author makes a critique of the analysis undertaken by Judge Lederer with regards to the relevance of international human rights norms in the context of Tanudaja, by comparing it with past Charter jurisprudence involving the impact of these on Canadian human rights claims.
PROCESS MATTERS - EMPIRICALLY EVALUATING ADMINISTRATIVE TRIBUNALS IN THE HEALTH SECTOR: THE QUESTIONABLE NEUTRALITY OF ADMINISTRATIVE TRIBUNAL PROCESS
Authors: Ferreira Lydia Stewart
Published: April 2017

The health tribunal process is assumed to be neutral and allow for the tribunal’s focus to be on the parties’ legal arguments. This study quantitatively examined approximately 400 decisions over a five-year period to determine whether or not health tribunal hearings are neutral or whether the hearing process itself affects the tribunal’s decision independent of the parties’ legal arguments. Certain tribunal procedures affected tribunal decisions independent of legal arguments. This novel quantitative research matrix, which analysed cases over a five year time period, identified trends which are overlooked in traditional legal analysis of judicial review.
INTRODUCTION: GRADUATE STUDENT SCHOLARSHIP
Authors: Jacobs Laverne
Published: April 2017

The Windsor Yearbook of Access to Justice is proud to publish issue 32 (1). This issue features a special section highlighting the scholarship of graduate students. While it is always a pleasure to read promising work by newer scholars in the fields of law and social justice, we are certain that this collection of articles represents some of the finest and thought-provoking scholarship stemming from current graduate students in law. The articles stem from a graduate student essay contest that WYAJ held in 2013 and for which we received many submissions.The collection of selected papers offers a view of legal and interdisciplinary research examining issues that are topically diverse but which are all of deep, long-term importance to the world of access to justice. A reader of the special section on Graduate Student Scholarship will find explorations of access to justice from the perspectives of equality rights, discretion, adjudication and methods of legal service delivery, to name a few.A prize was offered to two papers judged to be of exceptional quality. I am very pleased to announce that the winners of those two prizes are Andrew Pilliar, for his article “Exploring a Law Firm Business Model to Improve Access to Justice” and Blair A. Major, for his contribution, “Religion and Law in R v NS: Finding Space to Re-think the Balancing Analysis”.The Editorial Board thanks all those who submitted papers to the contest and to this final special issue of the Windsor Yearbook of Access to Justice.Another notable feature of this issue is the introduction of a section called Research Notes. The Yearbook will periodically publish peer-reviewed research notes that present the findings of empirical (quantitative, qualitative or mixed method) research studies. This section aims to contribute to the growing and important body of empirical scholarship within the realm of access to justice socio-legal research.We hope that you enjoy this issue.Laverne Jacobs, Co-Editor-in-Chief, Windsor Yearbook of Access to Justice, Issue 32 (1)
AN INTRODUCTION TO EXPLORING LAW, DISABILITY, AND THE CHALLENGE OF EQUALITY IN CANADA AND THE UNITED STATES: PAPERS FROM THE BERKELEY SYMPOSIUM
Authors: Jacobs Laverne
Published: April 2017

It brings me great pleasure to write this Introduction to Exploring Law, Disability, and the Challenge of Equality in Canada and the United States. This special collection of articles in the Windsor Yearbook of Access to Justice [WYAJ] stems from a symposium of the same name held at the Berkeley Law School at the University of California on 5 December 2014. Writing this introduction allows me to bring together my identities as a law and disability scholar, the principal organizer and convener of the Berkeley Symposium, and editor-in-chief of the WYAJ.In these roles, I have had the opportunity to engage with this set of articles and their authors in a distinct way – from the early versions of these articles through to the final peer-reviewed publications. The Berkeley Symposium is the first conference, of which we are aware, to bring together scholars and experts from both Canada and the United States to present research and exchange ideas on equality issues affecting persons with disabilities in both countries.1 Each academic was invited to write about an equality issue of their choice that is of contemporary concern to persons with disabilities, and to focus on Canada, the United States,or both, at their  option. The result is a set of articles that is simultaneously introspective and comparative.
THE UNITED NATIONS CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES IN CANADIAN AND AMERICAN JURISPRUDENCE
Authors: Malhotra Ravi
Published: April 2017

In this paper, I explore the still evolving jurisprudence with respect to the Convention on the Rights of Persons with Disabilities [CRPD] in Canada and the United States. I argue that the Canadian disability rights movement has always been open to insights from international law. Although the 1990 passage of the landmark Americans with Disabilities Act [ADA] has had an impact internationally as other countries enact similar legislation, the CRPD, which the United States Senate has yet to ratify, has played a marginal role to date in American courts. It remains to be seen if a more robust judicial dialogue can be fostered between the CRPD and domestic courts in both countries.
A Comparative View of Equality Under the UN Convention on the Rights of PERSONS with Disabilities and the Disability Laws of the United States and Canada
Authors: Kanter Arlene S
Published: April 2017

In 2006, the United Nations adopted the Convention on the Rights of Persons with Disabilities [CRPD], the first international treaty addressing specifically the rights of people with disabilities, including in the workplace.  The purpose of the CRPD is “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity....” The CRPD has been ratified by 160 countries, including Canada, but not yet by the United States. Article 27 of the CRPD, entitled Work and Employment, prohibits not only discrimination against people with disabilities in employment, but also the right of people with disabilities to reasonable accommodations, equal remuneration for work of equal value, safe and healthy working conditions,  assistance in finding, obtaining, maintaining and returning to employment,  rehabilitation, job retention and return-to-work programmes,  as well as affirmative action programmes, incentives and other measures to promote equal employment opportunities. As compared to the Americans with Disabilities Act and the Canadian Charter, the CRPD, therefore, goes beyond prohibiting discrimination and instead seeks to ensure greater substantive equality for people with disabilities in the workplace.  As such, the author proposes that both US and Canadian legislatures and courts should look to the CRPD to help their respective countries move beyond traditional notions of formal equality towards a new right to substantive equality in the workplace for people with disabilities.
UNE PROCÉDURE EN DIFFICULTÉ: A BLUEPRINT FOR RESOLVING “SPECIAL” EDUCATION DISPUTES THROUGH A QUASI-INQUISITORIAL ADMINISTRATIVE PROCESS
Authors: Rosenbaum Stephen A
Published: April 2017

In this essay, disability practitioner and scholar Stephen Rosenbaum proposes a radical change in the United States administrative adversarial adjudicatory process for resolution of “special” education disputes between educators and students with disabilities, looking for inspiration in part to Canada and the Commonwealth’s use of an inquisitorial approach. Typically, the dispute is over whether the students—termed “les enfants en difficulté” in French-speaking Canada—are receiving an appropriate array of instructional interventions and services. Adversarial adjudication has had many critics over the years. Asking a judge to weigh the parent (or student’s) preferred options under the U.S. Individuals with Disabilities Education Act [IDEA] against those of the school administration may not be the optimal method for designating a pupil’s educational program—nor a good use of time and money. 

The author’s blueprint calls for replacing the IDEA due process hearing with another model in instances where the family and school authorities disagree about the components of a student’s instructional program. Under current law, the hearing is typically conducted by an administrative jurist in which the parties present evidence, expert testimony and argument, if they have been unable to resolve their disagreement at a school-based team meeting, mediation or some other informal conference. In the proposal presented here, disagreements would instead be reviewed by a “special master” whose expertise is in education or disability rather than law. Through a process of problem-solving or “active adjudication,” the master (or “independent educational reviewer”) would attempt to quickly resolve the dispute over appropriate placement, instructional strategies and/or services. The master could hold a conference, conduct a hearing or brief investigation, receive more documents, consult with experts or correspond in some other mode with the parties. The master’s determination would be subject to judicial review in limited circumstances.
LEARNING FROM BEAR-WALKER: INDIGENOUS LEGAL ORDERS AND INTERCULTURAL LEGAL EDUCATION IN CANADIAN LAW SCHOOLS
Authors: Askew Hannah
Published: April 2017

This article investigates educational strategies that law schools could implement to honour Recommendation #28 of the Truth and Reconciliation Commission and foster strong intercultural interpretation and communication skills amongst new generations of legal professionals in relation to Indigenous legal viewpoints.  The paper is divided into four sections: the first draws on Indigenous legal scholarship to explore definitions of Indigenous law; the second provides a case study of one method of learning Indigenous law based on the author’s personal experiences of being taught Annishinabe law at Neyaashiinigmiing (a reserve community on Georgian Bay); the third discusses some of the initiatives, opportunities and challenges involved in integrating Indigenous legal traditions into the curriculum of Canadian law schools; and fourth and final section highlights some of the concerns being raised as these initiatives develop, and the related need for the legal profession to proceed with caution and humility.
LISTENING TO LAW
Authors: Clifford Robert YELḰÁTŦE
Published: April 2017

My journey to better understand and to live my own WSÁNEĆ legal tradition has always been both complex and incredibly rewarding.  This journey has, at times, also come with its challenges and tensions, including through law school and academia.  Through the use of story I reflect upon this path of learning, and many of my own thoughts and experiences along the way.  I have learned, and continue to learn, from many different people along this path, and I am so grateful to each of them.  While this story is primarily a self-reflection, the themes and tensions that the character of this story (Cedar) embodies may resonant with many Indigenous people.  These themes include family, community, place, identity, stories, law and culture.  Each of these themes comes together and to life in this story through lived experience and my own empowering moments of living and coming to better understand WSÁNEĆ law.  Ultimately, writing this story helped me in a moment when I needed it.  My hope is that you too can find something helpful and rewarding within this story, and that you can use that along your own path.
DECOLONIZING AND INDIGENIZING: SOME CONSIDERATIONS FOR LAW SCHOOLS
Authors: Hewitt Jeffery G.
Published: April 2017

The Truth and Reconciliation Commission of Canada [TRC] identified law schools as a site of ongoing colonization and specifically called upon law schools to change in a variety of ways – from instituting mandatory courses relating to Indigenous Peoples to reconceptualizing the institution of law schools themselves. This article considers whether “Indigenizing” curriculum is coming at the expense of addressing the need to decolonize law schools as institutions. The author argues that both Indigenizing and decolonizing are a vital coupling if full meaning is to be given to the TRC’s Calls to Action. Though the process is complicated and ripe with challenge, listening to and working with Indigenous peoples is essential if law schools really seek fundamental change.
WANISKĀ: REIMAGINING THE FUTURE WITH INDIGENOUS LEGAL TRADITIONS
Authors: Friedland Hadley
Published: April 2017

With the release of the Truth and Reconciliation Commission’s final report, which stressed the revitalization of Indigenous legal traditions is essential to reconciliation, we are potentially at the cusp of a historical turning point in Canada.  As momentum around the revitalization of Indigenous laws grows, this raises many important questions for the future. Can we collectively imagine a Canada where Indigenous law is integrated and in use? What would, or should, this respectful relationship look like? This article explores these questions through narrative. Narrative, as many Indigenous and non-Indigenous thinkers have identified, has unique capacity to create space for conversations, spark imagination, and let us contemplate the incomprehensible. This article mindfully uses narrative as a means to vulnerably re-imagine a future relationship between Indigenous and other legal traditions in Canada. It acknowledges the deep-rooted enduring power of Indigenous laws, as well as both the immensity and transitory nature of current complexities. It names aspects of learning and engagement with the Cree legal tradition the author may never fully comprehend, but still senses are important. It grapples with the enormity of hope and despair, the power of violence and the power of love. It argues, through narrative, that law is living, time is fluid, change is possible and our shared future is ours to re-imagine.
ALWAYS COMING HOME: METIS LEGAL UNDERSTANDINGS OF COMMUNITY AND TERRITORY
Authors: Sloan Kerry
Published: April 2017

Metis ideas of territory are complex, varied and often not well understood.  Metis perspectives on intersections of territory and community are likewise not appreciated by Canadian courts.  This is evident in the difficulties of Metis rights claimants in British Columbia, where misconceptions about Metis history and traditional use areas have resulted in courts questioning the existence of historic Metis communities in the province.  The leading case on Metis rights in Canada, R v Powley, requires claimants to prove there is a historic Metis community in an area where claimed rights are exercised.  In BC, courts following Powley in three cases – R v Howse, R v Nunn and R v Willison – have held there are no historic Metis communities in the Kootenays, the south Okanagan, or the Kamloops/Shuswap area.  Although these regions comprise only a portion of lands within provincial boundaries, the BC government takes the position there are no Metis communities in the province capable of meeting the Powley test, and thus asserts there can be no Metis Aboriginal rights holders in BC.

     To challenge this position, and in order to illustrate the multiplicity and richness of Metis legal understandings of territory and community, the author braids family history, narrative, legal analysis and the perspectives of 23 Metis people from the southern BC interior who were involved in or affected by the Howse, Nunn and Willison cases.  The author suggests that expansive and nuanced Metis understandings of communities and territories cannot be encompassed by the Powley/Willison definition of a Metis community as “... a group of Métis with a distinctive collective identity, living together in the same geographic area and sharing a common way of life”.  While the court’s definition posits history, territory and community as separable, Metis views suggest these concepts are interlinked and mutually constitutive.
DABAADENDIZIWIN: PRACTICES OF HUMILITY IN A MULTI-JURIDICAL LEGAL LANDSCAPE
Authors: Borrows Lindsay
Published: April 2017

Dabaadendiziwin is the Anishinaabe word which roughly translates to ‘humility’ in English. The late elder Basil Johnston said that we can talk of dabaadendiziwin/humility, but until we can look at the squirrel sitting on the branch and know we are no greater and no less than her, it is only then that we have walked with dabaadendiziwin/humility. Law places diverse peoples together in complicated situations. It challenges people to step outside of themselves and consider new ways of being. This paper advocates that humility is an important legal principle to bring people together in a good way. It considers first, what is humility and why is it an important legal principle? Second, what processes are in place in both Canadian and Anishinaabe law to actively cultivate humility? And third, how can diverse peoples use these processes when interacting with one another in ways that foster greater harmony in this multi-juridical country? The examples show that Canadian colonial law has tried to account for the need to humble oneself to a position of being teachable through Charter analyses, diversifying the bench, and through Aboriginal rights doctrines of taking into account the “aboriginal perspective”, and reconciliation. The paper also considers how Anishinaabe law fosters humility through linguistic structure, leadership structure, ceremonial practices and akinoomaage (learning from the earth). This paper is a call for people to confront the challenge of working across legal orders, and replace timidity, fear and pride with courage, gratitude and humility.
DRIVING THE GIFT HOME
Authors: Mills Aaron
Published: April 2017

In reflecting on the relationship between ongoing Canadian colonialism and sacred indigenous spaces, the author considers different conceptions of constitutionalism and of law from the location of Gaamitigomishkag, a sacred site for four Anishinaabe communities (including the author’s) in the Boundary Waters area of Treaty #3.  The inquiry is framed by the author’s relationship with his grandmother.  In the first section he recalls what it was like learning to learn Anishinaabe law from her.  He invites his readers to join him in shifting their focus from what to how they learn something (perhaps radically) new.  In the second section he shares an anecdote about learning from his grandmother on one particular summer day at Gaamitigomishkag.  In the third section, he challenges readers to deploy the interrogative shift from what to how through a narrative that begins to disclose structural differences between Canadian and Anishinaabe constitutionalisms, and thus, their respective systems of law. 

     Given the narrative form of much of this article, readers have to work for their meanings.  Each arc in the third section’s narrative begins at Gaamitigomishkag, but discloses very different ways that peoples might constitute themselves as political community in, near and through it.  A critical question the article poses is not what, but rather how should one think about community in this space?  The article ends in the present where Canadian constitutionalism has been smashed on top of Anishinaabe constitutionalism.  The author is left at Gaamitigomishkag reflecting on which community(ies) he belongs to.  He invites the reader to consider whether he decides.
STSQEY’ULÉCW RE ST'EXELCEMC (ST’EXELEMC LAWS FROM THE LAND)
Authors: Sandy Nancy
Published: April 2017

This article is a journey to uncover the foundation of the laws that kept children safe at T’exelc – the place where the salmon charge up the river.  T’exelc is one village on Secwepemculécw – land of the Secwepemc People.  The people who live at T’exelc are known as ST’exelcemc. 

     The ST’exelcemc laws are drawn from the land and unearthed in the stories of the Stet’ex7ém – the Elders reminiscing about how they were raised, the stories they heard and how they lived their lives. The Stet’ex7ém place themselves first on the land to describe the activity they are involved in and with the people who they do their work with.  This rich methodology is our legal process to define the laws that still govern our relationships to the land and its resources, with our kinship ties in our community of relations, and those of other surrounding Indigenous nations.  As the Stet’ex7ém describe these legal relationships they recognize they only speak about their laws - Stsqey'ulécw re st'exelcemc – St’exelemc Laws From The Land, and each story captures the values and legal principles that form the ctk’wenme7iple7ten – all the laws in every aspect of our lives.  Those laws, values and principles are expressed in Secwepemctsín – our language to tell us what is right and what is wrong – the heart of any legal regime.  It is important you hear these stories and transmit this knowledge for all of our kw’séltken – all our relatives so others know we like all other Indigenous Peoples had our own government and our own laws since time immemorial.   This witnessing is an important journey to reconciliation for the revival of S’texlecemc governance and nation-building.  The Stet’ex7ém stories are a healing and living testament to the power of how we utilized our laws to continually maintain our legal order in the face of colonialism.
THE IDEA OF ACCESS TO JUSTICE: REFLECTIONS ON NEW ZEALAND’S ACCIDENT COMPENSATION (OR PERSONAL INJURY) SYSTEM
Authors: Mijatov Tiho , Barraclough Tom , Forster Warren
Published: April 2017

The purpose of this article is to bring clarity in thinking about access to justice. We examine the idea of access to justice in the reform of personal injury law in New Zealand. Our findings are applicable to law reform in any area of law involving vulnerable people. After tracing the legal history of “access to justice,” we isolate four separate conceptions of access to justice: equality before the law, a hybrid of judicial and non-judicially focused conceptions that we have called the multifactorial conception, and conceptions emphasizing either judicial or non-judicial elements. We identify key features of each conception, and its strengths and weaknesses, in order to improve the quality of dialogue in law reform efforts. We conclude by considering the implications of our findings for law, which allow comparisons to be made between systems of law and law reform that aim to improve access to justice. Cet article a pour but d’apporter des éclaircissements dans la réflexion concernant l’accès à la justice. Les auteurs y étudient l’idée de l’accès à la justice dans la réforme du droit du préjudice personnel en Nouvelle-Zélande. Leurs conclusions sont applicables à la réforme du droit dans n’importe quel domaine touchant les personnes sans défense. Après avoir reconstitué l’histoire juridique de l’« accès à la justice », les auteurs isolent quatre conceptions distinctes de cette notion : l’égalité en droit, une conception hybride comportant des éléments judiciaires et non judiciaires et des conceptions privilégiant soit les éléments judiciaires, soit les éléments non judiciaires. Les auteurs cernent les principales caractéristiques de chacune de ces conceptions, leurs forces et leurs faiblesses afin d’améliorer la qualité du dialogue dans les efforts de réforme du droit. Ils concluent en évoquant les répercussions de leurs conclusions pour le droit, ce qui permet l’établissement de comparaisons utiles entre les systèmes juridiques et une réforme du droit qui prétend favoriser l’accès à la justice.
Contenido
Authors: Gómez Marín Jorge Enrique
Published: April 2017

Contenido
Factores de riesgo para el desarrollo de infección de vías urinarias por microorganismos productores de betalactamasas de espectro extendido adquiridos en la comunidad, en dos hospitales de Bogotá D.C., Colombia
Authors: Pineda-Posada Mariana , Arias Gerson , Suárez-Obando Fernando , Bastidas Alirio , Ávila-Cortés Yeisson
Published: April 2017

Objetivo: Determinar factores de riesgo para infección urinaria por microorganismos productores de betalactamasas de espectro extendido (BLEE) adquirida en la comunidad en pacientes adultos.Material y método: Estudio de casos y controles, en el período comprendido entre enero de 2012 a mayo de 2015, en dos hospitales de Bogotá D.C., Colombia. Pareo por edad, año del aislamiento, microorganismo y género. Se excluyeron pacientes con antecedente de infección por un   microorganismo productor de BLEE en el último mes e infección urinaria asociada al cuidado de la salud.Resultados: Se analizaron 555 pacientes: 185 casos y 370 controles. 462 pacientes (83,2%) de la Fundación Clínica Shaio y 93 (16,8%) del Hospital Santa Clara. Factores de riesgo identificados:Infección urinaria recurrente (OR 2,13 con IC de 1,48 a 3,07), enfermedad renal crónica (OR 1,56, IC del 95% de 1,07 a 2,27), uso previo de antibióticos (OR 3,46, IC del 95% de 2,48 a 5,35), hospitalización reciente (OR 3,0, IC del 95% de 1,96 a 2,45), diabetes mellitus (OR 1,61 con IC del 95% de 1,06 a 2,45) e infección urinaria alta (OR 2,64 con IC del 95% de 1,61 a 4,32).Conclusiones: Los factores de riesgo para microorganismos productores de BLEE adquiridos en la comunidad fueron en orden de frecuencia: antecedente de antibioticoterapia reciente, hospitalización previa, presencia de infección urinaria alta, así como los antecedentes de infección urinaria recurrente, enfermedad renal crónica y diabetes mellitus, lo que concuerda con los principales hallazgos descritos en la literatura mundial.