The Nuremberg Trials provide the foundation for contemporary international criminal law. Yet these trials are rarely explored in their broader ideational and social context. This article examines the context and role of the concept of “civilization” as used in U.S. v Altstoetter, the 1947 trial of Nazi judges and judicial administrators at Nuremberg. I place the reference to civilization in Altstoetter within a tradition of international law that understood law and civilization as co-constitutive. The Altstoetter Court conceptualized Germany as an essentially civilized country that lapsed into barbaric and therefore lawless violence. This account helped the Court to establish the blameworthiness of the defendants' conduct, blame the Nazi violence on lawlessness, and establish its own authority.

This article examines what happens when non-normative genders and sexualities collide with the complicated world of criminal procedure. Grounded in a close reading of Forrester v. Peel (Regional Municipality) Police Services Board, a recent decision in which a trans detainee alleged discrimination in services on the basis of “sex,” the article connects strip searches to a larger system of corporeal power. Trans bodies are targeted not merely because they are perceived as different but also because of what that difference symbolizes: a failure of the regimes that regulate bodies into a sharp, essentialist gender binary. As such, trans bodies become a key site for simultaneous observation, normalization, and examination not only by the police but also by society at large.

The black community of Africville, in Halifax, Nova Scotia, was forcibly dismantled in the 1960s under a program of ‘urban renewal’. Residents had long fought to have their claims to this space legally recognized, as well as to improve the community with minimal services and safety measures, such as water lines, sewage and police protection. This article examines how the space of Africville was denied these services, constituted as a ‘slum’, and in turn how this status was seen to justify its removal. The land on which Africville stood, now a public park, remains a site of contestation and commemoration. As yet, the city of Halifax has declined demands for compensation and has legally maneuvered to silence resistance. This essay's central aim is to demonstrate not only how the law, through the City of Halifax, functioned as a regulatory measure to ensure a series of evictions, but also the way in which these practices and consequences can be remembered. In particular, it argues for a contextualized legal consideration of Africville's story which recognizes the complex interplay of histories of poverty and racism with narratives of justice.

The criminal court is supposed to be a place of adversarial justice; however, these formal legal values do not appear to translate into practice. The courtroom workgroup, though made up of formal adversaries with widely divergent roles and objectives, is a community of workers whose shared interests include getting through the day as quickly and efficiently as possible. Using data from 142 days of bail court observation in Ontario the author argues that a “culture of adjournment” has taken over the bail process. Rather than the court being run by an efficient adversarial group of people processing criminal cases through the system, the courtroom has developed a culture that emphasizes the importance of expeditiously disposing of the daily docket over distributing justice.

Community trust in law enforcement and confidence in the administration of justice is put to the ultimate test when police officers act outside the limits prescribed by the criminal law. External and civilian oversight of the police can be essential to investigate and respond to allegations of police criminality and impropriety. However, little is known about the investigations completed by civilian oversight agencies and the prosecution of police officers. In this paper, we analyze 159 investigations by the Ontario Special Investigations Unit over a fifteen-year period. We examine each case from the laying of charges to prosecution through to sentencing. We provide an empirical analysis of how the justice system responds to police officers charged with a criminal offence. We situate these findings within the context of the broader justice system and police oversight. At the same time, we observe certain differences between the Canadian and American approaches to dealing with police offenders accused and convicted of criminal offences.

In the spring of 2001, statistics concerning criminality in France, - on the decline over the preceding five years, - showed an increase. The principal measure recommended by a Conference on Interior Security held in January 2001 was the adoption of legislative changes to combat the offences responsible for this increase in criminal activity, which the opposition was using to advantage in anticipation of the coming elections (legislative and presidential elections were slated for the spring of 2002). Thus in March 2001 the French Parliament approved first reading of a new “interior security law.” By the time of second reading in October 2001 the issue had become highly emotionally charged because of the events of September 11 in the United States, which resulted in the bill being “fortified” with a chapter “with a view to strengthening the war against terrorism.” Thus a link was made in the framework of a legislative text between daily security issues and international terrorism, - petty crime irritants to public order and epic conflicts affecting the entire planet. This link persisted, notably in polemics on security issues launched during the election campaigns, and subsequently in the measures instituted by the new government in May 2002. This paper exposes and criticizes this conflation.

When we talk about truth and reconciliation commissions, we are accustomed to speaking of “transitional justice” mechanisms used in emerging democracies addressing histories of grave injustices. Public inquiries are usually the state response to past injustice in the Canadian context. The Canadian Truth and Reconciliation Commission (TRC) is the result of a legal settlement agreement involving the government, representatives of indigenous peoples who attended residential schools for a period lasting more than a century, and the churches that operated those schools. Residential schools have been addressed in a series of public inquiries in Canada, culminating in the TRC. I argue that some of Canada's previous public inquiries, particularly with respect to indigenous issues, have strongly resembled truth commissions, yet this is the first time that an established democracy has called a body investigating past human-rights violations a “truth commission.” This article considers some of the reasons for seeking a truth commission in an established democracy and looks to a previous public inquiry led by Thomas Berger, the Mackenzie Valley Pipeline Inquiry, for some useful strategies for the TRC as it pursues its mandate. In particular, I suggest that a commission can perform a social function by using its process to educate the broader public about the issue before it.

This article interrogates the laws that govern safety crimes, harmful but typically unintentional acts of negligence that occur in the production of goods and services. Acts that injure employees at work are commonly depicted in legal discourses as accidents and penalized through administrative laws, although other negligent acts such as driving offences causing injury or death are treated as potentially criminal events. Through a discourse analysis of legal and regulatory texts and documents, the authors argue that the constitution of workplace safety crime is rooted in complex historical factors that shape state responses to corporate wrongdoing. This article documents the roots of this “common sense” view of workplace crime, empirically focusing on Canadian corporate negligence law, and concludes with tentative strategies of resistance and change.

This paper examines legal, political, and social processes culminating in the decriminalization of homosexuality in Canada in 1969. While it explores gay activism, international developments, liberalizing social attitudes, and the problem of long-standing anomalies in the Criminal Code, the paper's primary focus is on the re-conceptualization of homosexuality from a legal-criminal paradigm to a medical-scientific one and its impact on eventual decriminalization. In this vein, Foucaultian theory is used to illustrate how advancing psychiatric discourse on homosexuality affected social and legal understandings of same-sex attraction from World War II until the 1970s. As psychiatric and psychological professionals broadened their authority into wider areas of sexual practices and identities, they provided reformers and parliamentarians with an interpretative framework to disassociate homosexuality from criminality. While partially legalized in 1969, homosexuality remained firmly “pathological,” thus entailing a continued, if reconfigured, “governing” presence in some of the nation's bedrooms for years afterwards.

Following decades of criticism, the federal government amended the Divorce Act in 1997 to include guidelines and support tables for the determination of child-support orders. The guidelines were meant to replace a child-support system that relied heavily on judicial discretion, which was blamed for the inconsistency between awards, the inadequacy of the amounts awarded, and inequity in the system. Normative messages about parental responsibility and good behaviour were reinforced in the new child-support regime. Through an analyses of case law, government documents, and interviews with lawyers, unique insight is gained in expanding our understanding of what is happening “on the ground,” beyond the “black letter of the law,” pursuant to the child-support law reforms. This article outlines the dominant message about responsibility that parents receive when they encounter child-support law. Further, it is necessary to consider the socio-economic context in which these reforms have occurred, as they have significant implications for the family in today's society. In the current climate of neo-liberalism, the reformed child-support legislation might be seen as one strategy in the state's reconfiguration of responsibility for the welfare of children. This research demonstrates that while the rationalization of child support has achieved some key objectives, it will fail as an anti-poverty measure.

This article traces some of the ways in which Australian law in the post-Mabo era has functioned to discursively historicize Indigenous Australia, that is, to construct Indigenous Australia as a historical relic. I argue that despite law’s continual historicization of Indigenous Australia, there have nonetheless been “moments of decolonization,” as there have been since the colonization of Australia began, in which Indigenous Australia asserts its contemporary presence in opposition to and outside of colonial Australia. Drawing on Doreen Massey’s conceptualization of place and space and three examples, I argue that in these moments, Indigenous activists do not only resist the ongoing project that is settler Australia, they also create an elsewhere to it.

The largest survey to date of people living with HIV regarding attitudes toward criminalization of HIV non-disclosure, this study investigates: sources of legal information available to HIV-positive people; perceptions of how criminal prosecutions and media coverage affect understanding of rights and responsibilities of self and others; and where HIV-positive people themselves stand on the role the criminal justice system should play. While mainstream media constructions of criminal iconography do affect PHA views, those who have higher levels of formal education, are active in the dating scene, and have been living longer with HIV hold less punitive views than those who do not. While the overall pattern of agreement on where to draw the line in criminal prosecution holds regardless of demographic characteristics, there is some statistically significant variation in degree of punitiveness according to sexual orientation and gender as well.

The administration of the justice system within Native communities went through several transformations in Canada. Under the pressures of First Nations' claims, the model of imposition has left room for others based on adapation of practices, participation, consultation and partial power transfers towards Native communities. Such processes of power transfers within the justice field, which started in the 1990's, are part of a more general movement of communitarisation of the penal system or diversion of some conflicts. They are not specific to native communities and limited by several factors, particularly by the founding premisses of the relations between the State and the First Nations, meaning the principle of incorporation of Native Peoples into the law of the State and the socio-economic conditions of Native communities.

Members of the Chasidic Jewish communities of Montreal lead what appear to be insular lives, sharply defined by physical, cultural and religious boundaries. In describing and questioning the interface between Chasidic and non-Chasidic life and law, the author draws on the theoretical insights of legal pluralism, feminism and what has been labelled “everyday life.” These insights, combined in a critical way, provide the framework and justification for a focus on family relations and education, two crucial aspects of Chasidic experience and identity. Both family relations and education demarcate Chasidic space and communities; they also serve to show how the boundaries are transgressed, blurred, and complicated. Rather than searching for the clearly marked lines that divide Chasidim and non-Chasidim, then, the more fruitful project is one that acknowledges patterns of interaction and constantly changing meanings and practices. It is by recognizing and working with moving boundaries and messy intersections that a picture of life and law—both inside and outside a particular community—can emerge.

Human rights instruments are but one of many legal advocacy tools used by trans people. Recent legal scholarship emphasizes that human rights laws are not sufficient to address legal challenges facing trans people, particularly intersectional and systemic barriers. This article looks to Canadian trans case law outside of human rights law to reveal the many instances in which trans people’s fight for legal recognition and redress occur outside of the human rights arena. It focuses on trans case law in three areas: family law, the use of name and gender in court, and access to social benefits. Canadian trans jurisprudence illustrates that not only are trans legal strategies outside of human rights plentiful and effective, they are also imperative. An agile and pragmatic approach to trans rights is necessary, particularly when minority rights are under threat, and for trans people on the margins of trans law reforms.

In 75 years of cannabis prohibition in Canada, the latter third have been marked by considerable debate as to the propriety of invoking a criminal response to behaviour that is so prevalent and widely tolerated. The movement for reform of the laws prohibiting simple possession and use of the drug has intensified in recent years. Pragmatic adaptations on the part of Canadian legal institutions, aimed at mitigating the social and personal consequences of enforcing these sanctions, are applied routinely though selectively today. Nonetheless, actual policy reform seems far from inevitable, despite the increasing endorsement of factual evidence and widespread support for decriminalization. Given the legal-political impasse characterizing the cannabis controversy today, this paper examines the grounds on which prohibition may be viably opposed on the basis of respect for human rights. These moral grounds and remaining obstacles to legal reform are developed in view of the key contested arguments in R. v. Clay (1997), a landmark constitutional challenge as to the designation of cannabis as a prohibited substance in Canada.

Section 3 of the Charter of Rights and Freedoms sets out the democratic rights of Canadian citizens.

Donald Smiley has written that “some of the rights contained in the Charter are stated so explicitly that there is little doubt about their meaning and effect,” and that section 3 is one of the best examples of such clarity. But Smiley was wrong. The “meaning and effect” of section 3 has been thrown into doubt by the question whether its guarantee of the right to vote extends to imprisoned criminals. Newfoundland obviously thinks that it does, for in The Charter of Rights Amendment Act 1985, it repealed the traditional prohibition of prisoner voting. Other jurisdictions have chosen to retain the legal prohibition and to defend it against constitutional challenges mounted by inmates of Canadian prisons. The issue is probably headed for the Supreme Court, which will have to decide whether prisoners are full “citizens” within the meaning of section 3, and, if they are, whether a limit on their right to vote can be justified under section 1 as a “reasonable limit, demonstrably justifiable in a free and democratic society.”

This paper analyses policy documents and interviews conducted in federal prisons to trace the emergence and early effects of Canada’s recent wave of groundbreaking trans correctional reforms. I show that prison authorities were forced to adopt more inclusive policies due to the legal, financial, and reputational risks generated by new trans rights protections. Yet, by examining what rights both enabled and foreclosed once they materialized in the everyday of prison life, I argue that reform’s implementation was fraught with ambivalence. Namely, this ambivalence was felt by the correctional administrators tasked with translating nebulous policy principles into concrete guidelines; by staff, whose front-line duty involved weighing rights against risks; and by trans prisoners, who grappled with how to balance their new entitlements with risks and uncertainties. What trans correctional reforms reveal, then, is that rights and risks are caught in an ambivalent and co-constitutive relationship in Canada’s regime of prison governance.

This article relies on reported judicial decisions to examine how individual plaintiffs have fared in tort actions arising from alleged sexual abuse perpetrated in Aboriginal residential schools. It concentrates on three distinct issues: credibility, damage assessment, and vicarious liability. It concludes that tort law has failed the residential school plaintiffs. Their stories are seldom believed in contested litigation. The law fails to take into account the totality of the residential school experience in assessing damages. Indeed, damages are reduced to reflect uncompensated harm from residential schooling. The government is not held vicariously liable for all abuse perpetrated within the residential schools. These problems are similar to those experienced by other plaintiffs seeking redress for sexual abuse. However, residential school survivors have faced additional challenges in tort litigation for sexual abuse, over and beyond the formidable challenges faced by others. We could have and should have done better.

In this paper, recent feminist analyses of the feminization of poverty thesis and proposals for a particular kind of child custody determination—the primary caregiver presumption—will be examined. The question of women's subordination in the context of child custody outcomes is of fundamental importance to the issue of financial support for raising children, and women's economic position in general. Yet the complexity and dialectical nature of this relationship is not fully appreciated in most analyses. As a result, recent progress in the area of family law reform may inadvertently entrench traditional assumptions about the role of women and men, perpetuating the myth of the male breadwinner, family-wage model.