Law and Public Policy

D05(b) - Diverse Actors and Institutions in Shaping Law and Justice

Date: Jun 3 | Time: 03:30pm to 05:00pm | Location:

Chair/Président/Présidente : Lori Hausegger (Boise State University)

Discussant/Commentateur/Commentatrice : Lori Hausegger (Boise State University)

The Influence of Indigenous Legal Mobilization at the Supreme Court of Canada, 2013-2024: Danielle McNabb (Brock University), Minh Do (University of Guelph)
Abstract: In Canada, Indigenous peoples’ rights were recognized in the constitution through section 35 of the Constitution Act, 1982. Since its passing over forty years ago, section 35 continues to be the site of intense legal battles for Indigenous nations to assert control over territory, policymaking, and governance. To better understand the legal mobilization of Indigenous peoples, and their potential to facilitate political change through the courts, we conduct an analysis of intervener participation across all section 35 decisions rendered by the Supreme Court of Canada from 2013 to 2024. We employ a mixed-methods approach to compare Indigenous and non-Indigenous intervener submissions to the Court’s written decisions using cosine similarity and qualitative content analysis. Additionally, we also compare citations between intervener factums and the Court’s decisions. These approaches measure the extent to which intervener testimony is reflected in the Court’s ruling, thus providing an empirical account of the impact of Indigenous interveners across section 35 cases. This analysis will reveal whether section 35 continues to produce “very few gains” for Indigenous peoples (Ladner 2015; Ladner and McCrossan 2009; Borrows 2016) or whether sustained Indigenous legal mobilization in recent years is shaping the Court’s decision-making in new, transformative directions.

(In)Access to Justice: The Importance of Legal Counsel in Early Dismissal Decisions of Human Rights Tribunals: David Said (University of Guelph)
Abstract: Navigating and accessing the administrative justice system is highly complex. To do so without the proper resources and legal expertise is practically impossible. This is especially true in human rights decision-making processes at the Ontario Human Rights tribunal when litigants request to have their human rights matters examined because they were not appropriately addressed in another forum. Under section 45.1 of the Ontario Human Rights Code, Human Rights adjudicators may dismiss alleged human rights claims if they are convinced that the matter has already been dealt with in another proceeding. This broad discretionary power appears to be exercised differently amongst adjudicators. Using new and original empirical data on all early dismissal cases under section 45.1 (N = 1479) from 2008-2021, this paper conducts a multivariate correlation analysis to examine the grant rate variations in early dismissal requests and the importance of legal counsel during these hearings. The findings in this paper demonstrate that litigants without legal counsel are disproportionally disadvantaged and are likely to lose their legal battle than those with proper representation. The findings further shed light on the dynamics and complexities with accessing administrative justice.

Holding Patterns: Resistance to Reform in Canada’s Immigration Division: Ryan Dorsman (McMaster University), Peter Graefe (McMaster University)
Abstract: This paper leverages two decades of newly obtained Access to Information and Privacy (ATIP) data to examine the repeated failure of adjudicative reform within Canada’s Immigration Division (ID). It investigates two trends that have persisted in the ID’s adjudication of detention review hearings despite targeted reform efforts: (1) inconsistent detention rates among ID members and (2) widespread reliance on long-term detention. Drawing parallels with failed bail reform efforts in Canada and the United States, this analysis situates ID practices within broader trends of structural and cultural inertia in adjudicative bodies. Ultimately, the paper emphasizes the impact of the ID’s adjudicative framework in insulating ID Members from meaningful change through the prioritization of risk-avoidance and adjudicative independence. More generally, the paper highlights the difficulties of enacting substantial change within adjudicative frameworks and underscores the degree to which adjudicative bodies can sustain exclusionary practices.