Dr. Jula Hughes

Urban Aboriginal People and the Honour of the Crown - A Discussion Paper

Published by University of New Brunswick Law Journal

2015 Aboriginal people in Canada are urbanizing along with other Canadians and, in fact, the global human population. Empirical research suggests that Aboriginal people thrive in the urban environment. Despite this, a strong mythology persists that imagines the Aboriginal person as residing in rural settings, usually on a remote reserve. By contrast, the urban landscape is described as hostile and fundamentally unsuited to Aboriginal living. The mythology persists because there is a lack of awareness about the needs, aspirations, contributions and social structures of urban Aboriginal populations in Canada. In this paper, we explore whether governmental mechanisms developed in the context of the constitutional duty to consult with Aboriginal peoples should be mobilized to improve awareness about urban Aboriginal populations and governmental responsiveness to their needs and aspirations. We discuss the legal framework of the duty to consult, the conceptual and practical challenges in making the duty to consult work for urban Aboriginal people and we point to areas where further research is required.

URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2626493

Social Science Evidence in Constitutional Rights Cases in Germany and Canada: Some Comparative Observations

Published by National Journal of Constitutional Law

2013 In this paper we compare Canadian courts’ approach to social science evidence with that of the German Constitutional Court. After describing the Canadian approach in constitutional rights cases, we provide some background on the German Constitutional Court and its use of social science evidence. We then undertake two German case studies. We examine the First and Second Abortion decisions, which show the difference in approach to constitutional review occurring at the time that legislation is first introduced versus when a law has been in place for some time, as well as a series of decisions challenging various aspects of the Transsexual Law, which deal with evolving social scientific knowledge. We go on to consider whether the Supreme Court of Canada’s current approach to social science evidence could be improved upon by engaging with the German comparator in three areas: the process for receiving and evaluating social science evidence; dealing with changes in the state of the science or the emergence of new bodies of scientific knowledge; and the role of deference as it relates to social science evidence. We conclude that some guidance on these issues might be found in the German jurisprudence.

URL: https://ssrn.com/abstract=2544469

Like Oil on Troubled Water: A Labour Perspective on the Charter Labour Jurisprudence of Justice Louis Lebel

Published by 70 Supreme Court Law Review

2015 Justice LeBel has made highly significant and positive contributions to the development of the Supreme Court’s Charter labour jurisprudence. During his tenure, the Labour Trilogy of the 1980s was overturned and the constitutionalization of important labour rights under section 2(d) of the Charter emerged. Justice LeBel led the way towards infusing the jurisprudence with international, comparative and labour history methodologies and alerting it to the implications of globalization. These contributions have fundamentally altered the Court’s views on the basic function of labour law, one that accords with the broad, purposive and liberal construction of other Charter rights as protective of vulnerable interests. He put to rest a very troubled common law history, and overcame an incoherent and narrow early Charter labour jurisprudence. His version of freedom of association can afford to be broad and liberal because its articulated purpose will prevent an application to associational activities that should not be protected while protecting those that advance the legitimate interests of disadvantaged groups. These momentous changes are welcome as they enhance the legitimacy of the Court and the Charter for working people, but they have created some uncertainty about the circumstances in which the Court will depart from constitutional precedent.

URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2660143

Judicial Education as a Forum for Identifying and Meeting Research Needs

Published by International Organization for Judicial Training

2015 Judicial independence and impartiality are core values of all justice systems in liberal democracies. The need to maintain independence and, importantly, an appearance of independence can, however, lead to judicial isolation. Judicial isolation sometimes makes it difficult for both judges and scholars to identify areas of research where the judiciary could benefit from academic investigation. Formalized venues of judicial education not only provide opportunities for continued judicial education, but also have the potential to promote exchanges among judges and between judges and legal scholars. Given appropriate framework conditions of confidentiality and open discourse, these exchanges can lead to the articulation of research needs and suggested avenues of meeting these needs. In this paper, we reflect on both the opportunities and the challenges associated with judicial education seminars as a venue for academics and judges to identify research needs and work collaboratively to pursue research that meets those needs. We begin by describing our own experience with participation in judicial education seminars on the topic of judicial disqualification. We then discuss the ethical and practical considerations we had to take into account in doing this work. Finally, we suggest why we believe that, with some important limitations, participation in judicial education can provide mutually beneficial opportunities for scholars and judges to identify useful research projects and collaborate in the conduct of that research.

URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2614702

From Abortions to Sex Work: What Decriminalization Can Teach Us About Stigma in Criminal Law

Published by Social Science Research Network

2013 In this paper we compare Canadian courts’ approach to social science evidence with that of the German Constitutional Court. After describing the Canadian approach in constitutional rights cases, we provide some background on the German Constitutional Court and its use of social science evidence. We then undertake two German case studies. We examine the First and Second Abortion decisions, which show the difference in approach to constitutional review occurring at the time that legislation is first introduced versus when a law has been in place for some time, as well as a series of decisions challenging various aspects of the Transsexual Law, which deal with evolving social scientific knowledge. We go on to consider whether the Supreme Court of Canada’s current approach to social science evidence could be improved upon by engaging with the German comparator in three areas: the process for receiving and evaluating social science evidence; dealing with changes in the state of the science or the emergence of new bodies of scientific knowledge; and the role of deference as it relates to social science evidence. We conclude that some guidance on these issues might be found in the German jurisprudence.

URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2544469

From Principles to Rules: The Case for Statutory Rules Governing Aspects of Judicial Disqualification

Published by Osgoode Hall Law Journal

2016 The common law “reasonable apprehension of bias” test for judicial disqualification is highly fact and context specific. While there are good reasons for this approach as a general proposition, it also gives rise to considerable uncertainty for both judges and litigants in considering whether or not it is appropriate for the judge to sit in a marginal case. This article explores rule-based judicial disqualification regimes in the United States, Germany and the Quebec Code of Civil Procedure to gain insights into how rules can be employed to provide greater clarity to judges and litigants who are addressing situations that have the potential to give rise to judicial disqualification. Using these insights, the authors then propose the use of rules to address problem areas with respect to professional relationships with former colleagues and clients, prior judicial involvement with litigants, extra-judicial writings, and procedural rules for making determinations concerning judicial disqualification.

URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2791528

Bargaining for Contract Academic Staff at English Canadian Universities

Published by Working USA

2015 Successful unionization of, and conclusion of collective agreements for, contract academic staff in English Canada challenges the received wisdom that the Wagner Act model is an insurmountable obstacle to the unionization of contingent labor. It provides an example that might prove instructive for other contingent workers. This paper describes the process of unionization of contract academic staff in English Canada and seeks to explain its relative success. The exceptional situation of contract academic staff as non-unionized workers in an otherwise unionized environment, access to the expertise and resources of large, national unions or associations and a sophisticated national strategy were contributing factors to successful unionization. The paper also considers the degree to which contract academic staff collective agreements fulfill the promise of unionization. We analyze sample collective agreements, noting the variety and strength of various contractual models. We conclude by suggesting that contract academic staff have benefited considerably from unionization. Despite these successes, the experience of contract academic staff supports critiques of the Wagner Act model as applied to contingent labor.

URL: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2626562