This thesis examines the world of solitary confinement within the prison system. My research was inspired by Ashley Smith, a 19-year old segregated inmate who died in isolation while seven guards watched. This outrageous occurrence prompted me to question the practice of solitary confinement and a prison system in which such an event could occur. Studying the history of solitary confinement left me surprised to learn that it was originally intended as a therapeutic and merciful alternative to the punishments of the day. This revelation was one of a series of inversions that led me to conclude that solitary confinement is a world apart, not just physically, but also socially, temporally and legally. I have concluded that improving the lives of those segregated within our prisons requires the world of solitary confinement to become anchored within the broader legal and social context.

Most mobile phones in Canada contain software that prevents the consumer from using the phone on multiple networks. This is known as a ‘software lock’, and is installed prior to the point of sale by the mobile service providers. As of 2011, all three large Canadian service providers have adopted a similar practice to charge a fee to remove the software lock from phones. This fee applies even after the consumer’s service contract with the provider ends. This thesis examines whether the practice of charging consumer a fee for removing the software lock after the contract expires is anti-competitive in Canada. Through examining economic theory and undergoing legal analysis, this thesis will argue that while the practice is clearly anti-competitive, it does not substantially lessen competition enough to be prevented under competition law. This thesis suggests that this industry practice should be prohibited through the passing of consumer protection legislation.

This historical study focuses on the multilateral regulation of sugar to provide a broader institutional history of trade law. I argue that theories of development and tensions between the global North and South have always been central to the formation, function, and transformation of international trade institutions. Sugar consistently appears as a commodity throughout the history of modern trade law. The sugar trade provides an immediate way for us to work through larger questions of development, free trade, and economic world order. I examine the 1902 Brussels Sugar Convention, the 1937 International Sugar Agreement (ISA), and the 1977 ISA. These international agreements provide a narrative of the development ideas and concerns that were a central feature of the trade institutions that preceded the World Trade Organization. In the context of the sugar trade over the last century, very few challenged the idea of free trade. Instead, they debated over what free trade meant. The justification for free trade and the function of those international institutions charged to implement trade agreements has changed throughout history. Yet, despite multiple historical and doctrinal definitions of free trade, two dynamics remain consistent: trade law has always been configured by the relationship between policies of tariff reduction and market stabilization and has been defined by the tension between industrial and agricultural interests.

Over the last decade, Supreme Court copyright jurisprudence has undergone dramatic changes, concurrent with governmental copyright reform initiatives. Both the Supreme Court and the government have used the popular but unhelpful language of “balance” to explain and justify their initiatives. Unfortunately, there is no consensus as to what constitutes an appropriate balance or how to facilitate this and the two initiatives have been moving in opposite directions. The changes in the Supreme Court have altered the purpose and application of copyright law in a way that favours user access to works. Conversely, had they passed, government amendments would have increased owner rights and incentives, moving in a protectionist direction and restricting access and use. This would have the potential to impede future innovation. This thesis suggests that balance is an inadequate metaphor, examines the differences between the Supreme Court and governmental conception of “balance” and proposes reasons for these differences.

This thesis examines the role of the legal profession in Upper Canada from 1791 to 1867. In particular it focuses on whether or not the legal profession became the elite that they were set up to be. It examines the reasons behind choosing the legal profession as the elite. Between the creation of Upper Canada and Confederation there were several political and economic changes and I examine how these changes impacted the legal profession and the role that they had to play in the legal profession. I argue that while the legal profession failed to become the aristocratic elite that the early Upper Canadian leaders hoped for, it did become distinctively Upper Canadian.

Although many nations have recognized the need to protect the Earth’s climate, human activities are continuing to result in a change in greenhouse gas levels that threaten to result in a detrimental change in the Earth’s climate in terms of ongoing human life. The EU ETS has been developed and implemented in Europe as a key tool to meet the goals set by the Kyoto Protocol. Much political debate has arisen in recent years regarding the implementation of a carbon-trading regime in the United States. Many commentators have recognized that the success of any proposed carbon regime will be determined by how well it is tailored to fit certain economic realities in the United States. However, the adequacy of proposed carbon trading frameworks with regard to potential linkage to existing systems, namely the EU ETS, raises additional considerations. My study seeks to expose these considerations for debate and determine whether existing political considerations in the United States are adequate for the establishment of future linkages or whether further measures are required.

Judges and lawyers have embraced class proceedings as fulfilling an access to justice objective. In the more than fifteen years since the introduction of class proceedings legislation in Ontario, however, few have sought to evaluate whether or to what extent class actions have improved access to justice. The author begins to fill that void by first exploring various meanings of access to justice, and then examining in detail the initiation and settlement of class actions, and the controversial issue of counsel fees, using both doctrinal analysis and empirical data representing the class action practices of more than 75 plaintiff-side lawyers. She concludes that there are several aspects of class action practice and jurisprudence that fall short of advancing access to justice to its fullest extent, and calls for further socio-legal analysis to measure the impact, and evaluate the success, of class actions.

This thesis argues that the current Canadian approach to freedom of religion is inconsistent with Canada’s approach to multiculturalism. It begins by placing Canada’s multiculturalism legislation into the broader intellectual context of the leading political theories on the governance of diverse populations. It then examines the Canadian case law regarding freedom of religion, arguing that the prevailing rights-based approach produces consequences inconsistent with Canada’s legislated commitments to multiculturalism. It posits that the individualism of rights-based analysis, the pressure to frame religion in pre-defined ways, and the tendency of courts to speak in the language of tolerance are all troublesome. Further, it argues that when disputes are framed in terms of rights, meaningful dialogue is less likely and compromises are difficult to achieve. It then proposes an alternative, “difference-based” approach to disputes involving religion, which provides a framework more consistent with Canada’s multicultural ideals.

In response to terrorism as one of the major challenges of our time, developments in anti-terrorism law have led to laws that infringe on democratic rights. The author addresses two key questions in relation to such legislation, namely how the development of such laws is influenced by rights instruments, and whether such laws can be justified as a proportionate response to the terrorist threat. The examination focuses on the key rights of expression and association. It takes place within a comparative jurisprudence structure, considering the treatment of these rights in the UK, Canada, Australia and the USA. The assessment is undertaken in the context of the definition of terrorism and in particular reflects on the thought/act distinction, and whether the motive element of the definition leads to a normative response that is justified or is particularly severe to these democratic rights.

This thesis examines the evolution of digital copyright protection in response to the digital challenges, specifically unauthorized file-sharing, in the context of the music industry. It reviews the different strategies used to fight the peer-to-peer technology and its users so as to assess whether the direction which has been taken is in agreement with the ultimate goal of copyright and with other fundamental values of our modern society. It posits that the effort to strengthen the rights of copyright holders and thus maintain an old system of distribution in the face of new technology not only runs afoul the expectations of the public but also prevents the artists and the public from fully taking advantage of the new opportunities of the digital era. This thesis ultimately suggests that policy makers tackling the digital copyright reform should seriously consider legitimizing the use of file-sharing services as a possible way to better achieve the goals of copyright.