This paper is an analysis of the anthropological evidence used in The Nuchatlaht v British Columbia. I address how this evidence was interpreted, argued over, and ultimately understood by the court in a way that did not support a finding of Aboriginal title. I examine this evidence against the requirement of the test for Aboriginal title in Canadian law. This test focuses on exclusive ownership and sufficient use and occupation before 1846. Canadian courts have said that Aboriginal title is a unique legal concept that blends the common law and Aboriginal perspectives. The Nuchatlaht made a territorial argument. A territorial approach to Aboriginal title is based on the recognition of Indigenous jurisdiction over a territory. I argue that Canadian courts’ continuing emphasis on a site-specific use and occupancy approach shows that the test for Aboriginal title reflects common law concepts of property more than it reflects Indigenous law.

There is a lack of knowledge on deaths related to police use of force across Canada. Tracking (In)Justice is a research project that is trying to make sense of the life and death outcomes of policing through developing a collaborative, interdisciplinary, and open-source database using publicly available sources. With a collaborative data governance approach, which includes communities most impacted and families of those killed by police, we document and analyze 745 cases of police-involved deaths when intentional force is used across Canada from 2000 to 2023. The data indicate a steady rise in deaths, in particular shooting deaths, as well as that Black and Indigenous people are over-represented. We conclude with reflections on the ethical complexities of datafication, knowledge development of what we call death data and the challenges of enumerating deaths, pitfalls of official sources, the data needs of communities, and the living nature of the Tracking (In)Justice project.

Despite international calls to abolish the use of segregation in prisons, the practice has been defended by some Canadian correctional workers as a sometimes-necessary practice to preserve prisoner and staff safety. Informed through a lens of risk and the socio-legal literature on segregation, the current interview study explores perspectives on segregation from 28 correctional officers (COs) employed in provincial correctional services at a prison in Atlantic Canada. COs expressed a need to continue using segregation—albeit less often and under reformed contexts—to ensure safety for prisoners and staff and preserve prisoner accountability. Findings indicate COs recognize the structural, situational, and personal factors and complexities that shape decisions to impose segregation. They call for increased available resources to improve prisoner safety, dignity and wellness, prevent harm and self-injury, and reduce the use of segregation. We conclude with recommendations for provincial and territorial correctional institutions to consider moving forward.

Dans cet article, nous mobilisons les théories queers afin de réécrire – réimaginer – la décision Centre de lutte contre l’oppression des genres c. Procureur général du Québec. Bien que cet arrêt ait amené certains changements positifs pour les personnes trans et/ou intersexes au Québec, le Tribunal maintient l’obligation d’inscrire une désignation du sexe/genre sur le constat et la déclaration de naissance. Par la méthode de réécriture queer de jugement, nous montrons, interrogeons et déconstruisons comment cette obligation et son interprétation entre en incohérence avec les théories queers, notamment par sa reproduction des normes cishétéronormatives et des conceptions dominantes et binaires des catégories de sexe, de genre et de sexualité.

This article examines Bianca Lovado’s human rights complaints as the first trans woman transferred from a men’s to a women’s remand facility in British Columbia, Canada. Despite the initial transfer, upon re-arrest, Ms. Lovado was inconsistently placed in men’s and women’s facilities and was denied gender-affirming care between 2015 and 2019. Drawing on theories of biopolitical and queer/trans necropolitical governance, I conduct a thematic analysis of her five complaints against BC Corrections. The paper investigates how, despite human rights legislation protecting gender identity and expression, cisnormative sex-based correctional logics regulate trans prisoners. Building on Foucault’s institutions of power, I identify how cisnormative techniques of power led Ms. Lovado to face necropolitical violence via incorrect prison placement and denial of gender-affirming care. Analyzing how Ms. Lovado uses the tribunal to combat necropolitical violence, this paper illustrates the consequences of sex as an institution of power governing over gender, despite equal protections in Canadian law.

Defence lawyers working in lower criminal courts are increasingly invited to consider a variety of holistic or alternative strategies like drug treatment courts (DTC). This raises new ethical and practical questions. Scholars have been critical, showing how specialized courts circumvent the principle of the presumption of innocence, impose onerous conditions and surveillance, and lack the resources required to support participants over the long term. What is not known, however, is how defence lawyers representing marginalized clients talk about and engage with DTC programs. Our paper examines this, drawing from interviews with defence counsel working in Toronto and Montreal (n=98). We describe and discuss when and why participants report being either more supportive or more critical of drug treatment courts, and how they borrow from therapeutic justice in their “regular” practice. Our discussion engages with questions about access to health and social support resources, about interdisciplinary interventions and the ways in which people are criminalized rather than helped.

Decades before Canada abolished the death penalty, it removed infanticide from the Criminal Code’s offences punishable by death. In 1948, this form of culpable homicide became punishable by imprisonment up to a maximum of three years. Although this statutory invention has been linked to the post-war rise in the pathologization of women’s violence and tied to legislators’ concerns over jury nullification, its nexus with the death penalty’s abolition has been overlooked. If the prospect of capital punishment did not deter women from killing their newborns, could the death penalty be justified for other forms of culpable homicide? Critics who posed this question about neonaticide wedged open the consideration of other forms of homicide and categories of offenders, undermining long standing certainties over the deterrent potency of capital punishment. Rather than a step in the abolition movement, the amendment merits acknowledgment as a significant move against the death penalty.

This article presents a sociolegal study of decisions by a Canadian immigration tribunal on appeals for “humanitarian and compassionate” relief from criminal deportation. Drawing on the work of Émile Durkheim, we argue that the appeal decisions serve two legitimating functions. On the one hand, they seek to demonstrate the state’s capacity to ensure that the large-scale admission of mostly economic immigrants does not threaten the solidarity of Canadian society. On the other, the decisions address concerns about the justifiability of deportation by making vivid the moral incompetence of unsuccessful appellants, hence their unsuitability for membership.