Is the COVID-19 pandemic truly a pivotal moment in contemporary governance? This question has sparked multifaceted responses and spurred diverse debates and perspectives. On one side of the spectrum, there are those who ardently argue that this pandemic represents an exceedingly rare and profoundly impactful historical juncture, specifically within the domain of law and governance. In contrast, a counterpoint in this debate contends that the pandemic, rather than introducing an entirely new era, has primarily functioned as an amplifier and extension of pre-existing governing paradigms. Additionally, there is a notable contention that the pandemic has invigorated and revitalized social movements with a central focus on challenging established state structures.

The Tŝilhqot’in Nation has had ample experience exercising its laws and jurisdiction to manage emergencies during record-breaking wildfires and the COVID-19 pandemic. Despite the Nation’s unique opportunity to formally describe and advance its jurisdiction through its landmark Aboriginal title declaration and beyond, in these crises, Crown actors have defaulted to well-worn patterns of colonialism. Through a detailed analysis of recent Tŝilhqot’in experiences of emergency, we argue that provincial and federal responses to these extreme events reveal constitutional habits: patterns of decision-making that emerge in the immediate response to an emergency, so as to appear automatic. Crown emergency responses assume exhaustive Crown jurisdiction and its corollary erasure and dispossession of Tŝilhqot’in jurisdiction. Fortunately, however, habits can change. We show how Tŝilhqot’in responses to emergency reveal alternate constitutional possibilities: habits of coordination, which, through their attention to responsible relationships, build capacity to respond to emergencies and, more broadly, a changing world.

Buried within the everyday deployment of business vehicles by Indigenous governments as a seemingly neutral way to pursue economic development are also legal notions of corporate personhood and representation. While it is occasionally suggested that corporate law is itself part of the problem of colonialism, the idiomatic notions of “representation,” “legal personhood,” and “business as neutral” form an opaque curtain that hides colonizing tendencies within the legal structures used by Indigenous peoples. This article explores these colonial tendencies at play in Canadian corporate law, showing how corporate law’s deployment of the “legal person” sits at odds with Indigenous juridical orders.

This article examines the phenomenon of interface governance. It uses two interface technologies—Universal Credit’s digital account (United Kingdom) and ArriveCAN (Canada)—to explore how interfaces and their predictable glitches govern relations between state officials and members of the public. Drawing on tools of government literature, it argues that interfaces do not achieve their stated goals evenly (improved efficiency, digital literacy). Instead, they generate several unintended effects, including heightened bureaucratic intensity, diffused responsibility, and even eroded public trust in state agencies. It urges socio-legal and administrative justice scholars to take interfaces seriously and calls on scholars to adopt socio-legal-technical methods to better conceptualize the effects of infrastructure governance and to imagine other possibilities for public administration.

La pandémie de COVID-19 représente-t-elle véritablement un moment charnière pour la gouvernance contemporaine? Cette question suscite de multiples réponses de même qu’une grande variété de débats et de perspectives. D’un côté se trouvent ceux qui soutiennent ardemment que cette pandémie constitue un événement historique des plus rares, aux répercussions profondes, notamment dans le domaine du droit et de la gouvernance. En revanche, d’autres prétendent que la pandémie, plutôt que de marquer le début d’une ère nouvelle, a principalement amplifié et prolongé les paradigmes préexistants de la gouvernance. Par ailleurs, d’aucuns affirment que la pandémie a revigoré et revitalisé les mouvements sociaux axés sur la remise en question des structures étatiques établies.

Taking the Canadian Ombudsperson for Responsible Enterprise (CORE) as its focus, this paper critically examines the Canadian government’s efforts to regulate the extractive industry. Using insight from ideology theory and critical discourse analysis, and drawing empirically from Canadian Parliamentary debates, official government and NGO reports, and various news items regarding the development of the CORE, we document how dominant voices prioritized the economy, downplayed the systemic violence of the industry, and redirected blame to “underdeveloped” countries, on route to a regulatory framework that is voluntary and which fails to address the underlying causes of corporate harm and violence. While the CORE represents a “logical” state response to corporate crime, we nevertheless emphasize the importance of ongoing debates about its role in combating corporate impunity. This not only reinforces the idea that (capitalist) dominance is never absolute but signals the ever-present nature of resistance and possibility for change.

With the 2016 Charity Law, Chinese legislators created a public-private hybrid model for the governance of charitable trusts. By endowing private actors with greater rights in the creation and management of charitable trusts, this hybrid model demonstrates the State’s intention of changing the functioning of the charitable trust sector from complete dependence on the State to a partnership. However, embedded in China’s particular institutional environment, the partnership relationship still bears the mark of strict government control, which is secured by granting extensive powers to regulators. This article analyzes the newly established regulatory framework for charitable trusts and outlines how regulators exercise their power in practice. The findings show that the tradition of regulators being subject to intense administrative pressures remains unchanged and that political concerns permeate every aspect of the regulation of charitable trusts.

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.

Paradigms of governance are defined in part by paradigms of contestation—stockpiles of culturally legible tactics for contesting power. This article analyzes the growing use of hard-block and mutual aid tactics in Metulia (sometimes called Victoria, B.C.) as exemplars that suggest liberal paradigms of contestation may be becoming less rigid. Drawing on Robert Cover and Charles Tilly, I argue that the present conjuncture is not, as many analyses suggest, merely a tipping point between one paradigm and the next. Rather, it is a creative moment of experimentation and indeterminacy defined by multiple crises, multiple emergences, and their unpredictable interactions.

Many Canadian Muslim couples are hesitant to resort to civil legal processes and attempt to resolve their disputes within the religious community. Islamic law’s exclusion of non-Muslim judges from holding judicial authority in certain family law matters limits the feasibility of aligning religious commands with family court orders. By extrapolating contemporary legal opinions (fatāwā, sing. fatwā) issued by institutions and narrating experiences of Canadian imams, this article documents the views of both researchers and practitioners, finding that neither holds secular court-ordered divorces contested by the husband to suffice as a form of Islamic marriage dissolution. This article concludes that both Canadian imams and fatwā-issuing bodies call for the development of extra-judicial entities that apply Islamic law’s Alternative Dispute Resolution (ADR) procedures in a manner recognized by secular authorities.

Cet article s’intéresse aux inégalités numériques qui touchent l’accès aux services publics, et plus précisément à la justice. Au Québec, les plumitifs sont des registres publics qui retracent l’historique judiciaire des justiciables, et ils sont disponibles en ligne. Dans une perspective d’accès à la justice, cet article aborde la tension existante entre les objectifs de la numérisation des services publics et les inégalités d’accès au numérique, en s’intéressant au cas des plumitifs au Québec. Nous retraçons l’évolution des approches en termes d’inégalités numériques en insistant sur la nécessité de dépasser la question de l’accès matériel aux services numériques pour nous intéresser aussi aux inégalités socio-économiques préexistantes. Nous analysons les difficultés d’accès aux plumitifs et l’usage qui en sont fait à la lumière des différentes dimensions de l’accès numérique selon Jan van Dijk (2006) afin d’envisager des pistes de solutions concrètes et efficaces pour améliorer l’accès aux plumitifs et plus largement à la justice.

This article reflects on the global uprisings in support of Black life during the early pandemic. The focus is on what the protests reveal about Black resistance to the nation-building project of Canada. Protests during this period are understood here to have included taking to the streets, practicing care, and calling for abolition. Drawing on critical race theory and Black Studies, especially Black feminism, the author claims these forms of protest condemned Black dispossession under Canadian laws, while they simultaneously exceeded Canada’s jurisdiction. In other words, the protests can be understood ambivalently, as occurring under and responding to, but not being of, domination. They refashioned the self and the collective, expressing transient freedom from domination and partial redress, even as settler colonial laws would continue to suppress Black and other subaltern peoples. The article navigates such insights through works by Dionne Brand, Saidiya Hartman, and Katherine McKittrick, among others.

Power, while fundamental to sociality, might be exercised with haphazard ferocity or more judiciously in legally constrained ways. Such constraint requires us first to understand how ruling paradigms work, and the effects of their powers, before entertaining suitable forms of legal limitation. Transposing Kuhn’s famous concept, this paper examines a ruling paradigm of biopolitical sovereignty at the Cape of Good Hope through two examples: the 1891 census’ racialized categorizations of the “population”; and a racialized segregation responding to the 1901 bubonic plague. Prefiguring apartheid, both examples indicate how colonial laws authorized discretionary biopowers and yet exempted themselves from monitoring how officials demarcated and governed racialized population groups. The paper touches on the growing maladroitness of positivist ideas about a sovereign “rule of law” in regulating arbitrary biopolitical forces. It concludes by briefly indicating the promise of legal pluralism and Indigenous legalities to check capricious biopowers while pursuing legitimate life-affirming forces.

This article analyzes the role of law in the surveillance and prevention of occupational risks within a large public bureaucracy in France, based on a comparison of three services: a listening unit, an occupational health service, and an inspection mission. Each of these services offers legal intermediation activities that frame forms of legality, ranging from the most spontaneous to the most formal normative references. These references to the law make it possible to differentiate situations in order to create an occupational risk prevention policy that favors actions within the organization rather than external recourse. Deprived of any judicial horizon to use effectively to transform working conditions, the legal intermediaries in charge of occupational health and safety are nevertheless relying, even if in a differentiated way, on the law to work towards better risk prevention.

We examine the use of forced confinement and isolation to limit the spread of COVID-19 in Ontario prisons and jails. Drawing on interview data, we illustrate how a reliance on forced confinement and isolation has exacerbated harms experienced by prisoners in relation to physical, mental, and social health. Through discourse analysis of grey literature, we then discuss the politics and governance of carceral institutions during the pandemic, focusing on how practices of isolation were legitimized during the pandemic, despite recent rulings establishing isolation and segregation as torture. We close by arguing that the case of isolation during the pandemic is one example which highlights the systemic and ongoing nature of rights violations in Canadian prisons and jails. To address these harms, we must shift focus away from reform and towards decarceration.

This article explores emotional harm in the context of the criminalization of HIV nondisclosure in Canada. With the exception of Matthew Weait in the United Kingdom, few scholars have examined what harm means in cases of HIV nondisclosure. We conceptualize the harm that follows nondisclosure as an affective response to the “HIV positive Other” and argue that law creates a legal norm about what harm is and feels like in cases of HIV nondisclosure when there is no clear consensus about how harm should be defined. Mobilizing the sociology of emotions literature, we contend that criminalizing HIV nondisclosure engages affective, moral, and criminal censure to regulate the behaviours of people living with HIV/AIDS (PLWH), thus reproducing HIV stigma and propagating emotional harm for PLWH. Canada’s response to HIV nondisclosure should instead involve a transformative justice approach that avoids the harm of criminalization and imprisonment while recognizing the emotional harm experienced by complainants.

Mining has been at the forefront of coloniality for hundreds of years in Brazil, representing one of the main threats to the integrity and health of Indigenous lands. The 1988 Brazilian Constitution recognized Indigenous peoples’ rights to the lands they occupy, and their natural resources, according to their traditions, uses, beliefs, and practices. Constitutional provisions, however, have not impeded governments and lawmakers from actively enabling extractive activities in Indigenous territories and their surroundings. Recently, the Bolsonaro government proposed a package of laws and policies to legalize mineral exploitation on Indigenous lands, using the economic uncertainties generated by the COVID-19 pandemic as a justification. However, this action must be explained through the paradigms (or philosophical frameworks) of the extractive economy and coloniality of power, operationalized by necropolitics. The article’s main argument is that the Constitution requires the government to engage in practices of decoloniality that express Indigenous legal traditions. Even though a newly elected government has been revoking many of Bolsonaro’s proposals, the paradigms of the extractive economy and the coloniality of power have a profound, structural influence on the Brazilian legal and political systems and must be challenged by a revival of decolonial ways of thinking and acting.

This article offers the first scholarly analysis of the shift from revolvers to semi-automatic handguns in Canada to contribute to our knowledge of police militarization. In the 1990s, most Canadian police handed in their venerable service revolvers and received modern semi-automatic pistols. Advocates of new weapons pointed to relatively rare but high-profile shootings of police to show the dangers of law enforcement work and the need to have better firearms. The gun industry encouraged the rearming of police through an aggressive marketing campaign emphasizing that modern police forces required more advanced weapons and the military lineage of their products. The transition to semi-automatic handguns sometimes proved controversial, as human rights advocates believed the new handguns could result in excessive use of force. Despite this concern, most police were rearmed by the beginning of the twenty-first century.

This paper rereads the tort of intrusion upon seclusion, as it was adopted by the Ontario Court of Appeal in Jones v Tsige, to include a fuller account of online privacy. It proposes that the Court’s stress on informational privacy forfeits a more dynamic and “spatialized” conception of privacy harm. This paper develops a relational account of spatial privacy using the work of Iris Marion Young, Virginia Woolf, and Jennifer Nedelsky based on three features—embodied habits, narrative, and experimentation—to supplement the informational reading of privacy in Jones. While Jones is not a case about young people, this paper nonetheless takes the Court’s emphasis on digital technology as an invitation to reflect on young people’s privacy. Using different accounts of young people’s online experience, it proposes that while privacy is certainly transformed by the online world, its basic spatial features have not changed as dramatically as the Court in Jones suggests.