CRIMSA Academic Symposium "Justice as Law: How Law Creates or Breaks Down 'Justice'"

This paper analyzes the legal duty of provincial governments, specifically British Columbia, to consult and accommodate Indigenous groups in decisions that drastically influence them. This paper aligns with the theme of the symposium through investigating whether a duty written in law and governing documents practically translates to justice. It suggests justice is not necessarily a product of laws; creating a law does not mean a path to justice is paved. On the contrary, laws may produce greater injustice as they serve as virtue signalling to indicate that authorities care for minorities. As this paper argues, this may not always be the case.

This paper conceptualizes justice as a result of good-faith, honest, and active efforts to communicate and coordinate with marginalized groups. It centralizes Indigenous populations in justice efforts and putting them at the forefront of these conversations in our current Western, eurocentric system. Its case studies of three Supreme Court cases outline how the legal system and its laws serve as bureaucratic barriers in achieving justice by virtue of their complications, complexities, and distractions. In other words, justice and law are far from synonymous. Laws may supplement justice but can be a tool to suppress liberation and justice-based efforts as their very existence is arguably, and questionably, evidence of governmental action.

This essay focuses on felon disenfranchisement in the American legal context, analyzing the effects of legal financial obligations (LFOs) in order to highlight the ways in which universal suffrage, as a pillar of democracy, is insidiously undermined for largely poor, racialized groups. This essay seeks to draw a historical parallel between the literacy tests of Restitution era America and the poll tax of Jim Crow era America, to contemporary LFOs, which are court appointed fines and debts that must be re-paid in order for an ex-offender to qualify for re-enfranchisement. In light of this, LFOs often pose the greatest barrier to felon re-enfranchisement and, like the poll tax and literacy tests of the past, they disproportionately affect low-income and racialized communities. Thus, by drawing on historical precedents of targeted voter suppression, this essay explores how overtly discriminatory practices have evolved into ostensibly neutral policies, or ‘facially neutral’ legal mechanisms, which continue to perpetuate racial inequality and uphold a racial caste system. As such, this essay argues that the implementation and structuring of LFOs reconstitutes a modern day poll tax, embedding fundamentally unjust and antidemocratic practices into the law and its criminal-legal systems. Furthermore, using the case study of Florida and the passage of Amendment 4, this essay investigates the way in which racial caste systems are not only entrenched within legal systems, but continuously produced and reproduced within legal contexts. Despite ostensive victories, such as court rulings against pay-to-vote systems, the adaptability of racial caste systems and the persistence of disenfranchisement underscores the resilience of racial inequality within the criminal justice system. Ultimately, this essay seeks to demonstrate that the relationship between justice and law is conditional by highlighting the ways in which seemingly progressive measures can be subverted to maintain systemic injustice, thereby threatening the very foundations of democratic conceptions of justice for marginalized communities.

For several centuries, psychiatrists have sought to gain a place for themselves in criminal proceedings. This paper employs Thomas Gieryn’s (1983) “boundary-work” framework to trace three distinct phases in psychiatrists’ professionalizing project in the nineteenth and twentieth centuries. The analysis reveals that psychiatrists, in these periods, strategically attributed selected characteristics to the institution of science and contrasted it favorably to non-scientific intellectual activities in pursuit of their professional goals. From the mid-Georgian era where psychiatrists were seen as little more than “mad doctors,” this attribution served as justification for the expansion, monopolization, and protection of their authority and their establishment of an essential presence as expert witnesses in the legal arena. The paper shows how medico-legal experts demarcate science from non-science and stigmatize legal knowledge to justify their claims to authority and professional autonomy at every stage in criminal proceedings. While the law has attempted to uphold the cognitive standard of “knowing right from wrong” as the foundation for deducing intent, over time, it has constructed and defined notions of justice and social deviance through its engagement with "scientific" knowledge, despite its inherent inaccuracies. The court’s reliance on ostensibly factual scientific evidence and the strategic positioning of scientific experts within the legal sphere has significant ramifications for determinations of criminal responsibility and, while seemingly aimed at upholding justice, may also introduce biases.

This research paper effectively addresses the symposium’s theme of how law breaks down justice, as it underscores two problematic policy endeavors enacted by the Canadian federal criminal justice system to combat global terrorism. Despite their benign intentions to restore national security, these policies have inadvertently led to the abuse of Charter rights. These encroachments include violating the rights to protest and a fair trial. Moreover, the policies have subverted prosecutorial processes essential for bringing actual terrorists to justice, involving the unlawful collection of evidence. Furthermore, the measures have led to the suspension of the rule of law, notably through the implementation of 'secret trials' that contravene the foundational principle of justice, namely, the disclosure of evidence. Although these policy enactments outwardly represent a cause to restore justice, they paradoxically undermine it. The policy brief critiques these inadequacies and proposes three strategic alternative recommendations—investing in civil society, democratic governance, and de-radicalization programs—that aim to cultivate, rather than erode, justice. Therefore, this research essay elucidates that justice is achieved through the fair and impartial application of established laws and legal principles rather than abstract ideals that constitute what Bruce Schneier describes as a security theater—adopting policies that may make people feel more secure but have minimal and counterproductive impacts on actual security.

This paper examines the impact of the R. v. Mohan (1994) decision on the admissibility of expert psychological testimony in child sexual abuse cases. The Mohan ruling marked a shift in admissibility criteria, transitioning from a standard of mere "helpfulness" to a more stringent framework encompassing requirements of relevance, necessity, absence of an exclusionary rule, and expert qualification. This piece explores how these changes have shaped the admissibility landscape for psychologists, within the context of child sexual abuse cases. Through an analysis of cases immediately following the Mohan decision, this paper elucidates the intricate relationship between legal reasoning and expert knowledge, framed by Gieryn’s concept of boundary work. It discusses three themes that affect the criterion of relevance: the “mystique of science,” the absence of concrete scientific backing, and the necessity of psychological testimonies in understanding child sexual abuse. The paper highlights a paradox in the admissibility of psychological evidence, wherein experts encounter challenges both for being overly scientific and for lacking sufficient scientific foundation. In conclusion, this piece underscores the transformative influence of Mohan on the judicial process, emphasizing the heightened scrutiny and nuanced interpretation essential for expert evidence in the continually evolving landscape of child sexual abuse litigation.

Until very recently Myanmar has been largely uncharted territory to the Western world. Beyond the occasional news of military coups, civil unrest and international sanctions, many people have limited knowledge about this southeast Asian nation. Myanmar’s geography is a significant contributing factor to this isolationism, with the Indian Ocean to the south and treacherous jungles and mountainous terrains to the north, east and west. However, hiding within these borders is a country rich in natural resources, gemstones and fertile agricultural land. It is with this land that the centre of today’s precarious political climate lies. Since its independence from Britain in 1948, the Burmese government has struggled to maintain its sovereignty, with border regions continuing to see disputes among various ethnic groups and the Burmese military, also known as the Tatmadaw. These conflict-ridden lands, legally framed as “wastelands”, aren’t named as such in any biological sense but in an economic sense, as land that is not being used for productive, government-sanctioned purposes. This paper highlights how contemporary perspectives of land and its governance stem from colonial era ideologies. Myanmar’s history offers insight into how land went from customary to commodity, with a shift that originated from the nation’s time as a British colony but has continued to be mirrored into the 21st century. From the 1839 ‘Waste and Vacant Lands’ policies to the 2012 ‘Vacant, Fallow and Virgin Lands Law’, it is evident that law has historically functioned to codify and legitimize environmental injustice against those who live on the land by denying citizens’ land rights. By acknowledging the ongoing legacy of colonialism, land laws and policy can be revised and democratized in a way that will promote the welfare of not just the nation but its people. The time is ripe to consider Myanmar on the map.

“The moment the provincial government gives us the legislation to get rid of them, we’re going to get rid of them. We are going to get them out of the City of Toronto because they are a disaster.” This statement was made by Toronto Mayor Mel Lastman in 1998 regarding local street youth who panhandled and squeegeed car windshields. Two years later, the Ontario Safe Streets Act (SSA) was passed. This legislation criminalizes panhandling, squeegeeing, and other forms of “aggressive” solicitation that cause a “reasonable person to fear for their safety and security.” 

Despite protests and legal challenges by groups such as the Fair Change Community Legal Clinic, the SSA is still in effect today. Primarily, the legislation has been challenged on the basis that it discriminates against people with mental health and addiction issues. More recently, challenges have been made on the grounds that the SSA targets and discriminates against homeless youth. While this perspective continues to gain support, Toronto—where homelessness is most prominent—remains under-researched.

Additionally, the underlying legal, social, and ethical factors that play a role in this conversation are yet to be fully understood. The purpose of this paper is precisely to bridge this gap. In doing so, three questions will be addressed: (1) does the SSA target and discriminate against homeless youth in Toronto?; (2) if so, what broader sociopolitical factors gave rise to this discrimination?; and (3) is this legal framework ethically just?

This paper will argue that the SSA targets and discriminates against homeless youth in Toronto through its enforcement, resulting in social profiling, over-surveillance, excessive use of police force, and rights violations. Furthermore, it will argue that punitive attitudes towards homeless youth, stemming from neoliberalism and conservatism, have rationalized the ineffective and ethically unjust approach of criminalization.

The prison system in Ontario has long been regarded as a closed environment that is difficult to study and scrutinize. Through the changes of political leadership and shifting values of government officials, it has been difficult for Ontario to sustain strong oversight mechanisms that effectively hold prison administration accountable for their actions. As a result of this lack of oversight and accountability, prisoners, especially those facing mental health challenges have become subjected to mistreatment and infringed upon rights.

The purpose of this report is to provide insight into Community Advisory Boards (CABs) and advocate for their reinstatement. When operational, CABs provided citizens with the opportunity to meaningfully engage with the government. These boards were granted full access to prisons, staff, and inmates, essentially defrosting the clouded glass that masked prison happenings. The were responsible for increasing the quality and accessibility of areas such as prison healthcare and educational programming.

This paper addresses the need for a focus on prisoners with mental health issues, as their conditions are exacerbated by unfair prison policies. Segregation, and other underregulated punishments within prison walls, lead to the worsening of their mental health conditions. Coupled with a desperate need for healthcare providers and appropriate care, inmates face inhumane conditions that infringe on their human rights.

Evident through their successes and failures, CABs have great potential to become an effective prison oversight mechanism. This report recommends using these past attempts at reform to build a stronger legislative foundation under which CABs remain protected, ultimately advocating for the justice of mentally ill prisoners in Ontario.