Alex Macfarlane, Volume 83 Senior Editor

Human rights considerations were notably absent in Canada’s recent Artificial Intelligence and Data Act (AIDA)—a gap that raised significant concerns not just for human rights protection, but also for Canada’s economic interests. Without addressing human rights directly, AIDA as drafted jeopardized Canada’s economic and regulatory alignment with the European Union. This article explores the economic risks of this legislative gap, highlighting that AIDA’s failure to meet the EU’s data protection and human rights standards, if carried over to future legislation, could undermine Canada’s valuable adequacy status for transatlantic data flows.

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Alex Horbal, 3L, University of Toronto Faculty of Law

This article explores the rationales for a doctrine of deference under section 1 of the Canadian Charter of Rights and Freedoms, and suggests that the Supreme Court of Canada's messy approach to this problem may provide necessary flexibility. The argument for deference to the legislature's reasoning in some section 1 analyses is supported by both institutional distinctions and the challenges associated with proportionality analysis. While the current approach to deference exhibits considerable vagueness, its flexibility is consonant with the legislature's boundless policymaking responsibility.

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Jason Ruggeberg, 3L, University of Toronto Faculty of Law

This paper explores difficulties in evaluating remorse in the courtroom and its implications for criminal sentencing. Although offenders' remorse is commonly treated as a mitigating factor in sentencing, research indicates that many of the cues commonly used by judges to assess remorse are ambiguous and may be perceived differently based on offenders' personal characteristics such as race, culture, and socioeconomic status. Judges should be conscious of these difficulties in assessing remorse when applying it in the courtroom.

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Sian Shin, 3L, University of Toronto Faculty of Law

In a short period of time, Ontario family courts went through a significant technological modernization in response to the COVID-19 pandemic, from in-person services and paper filings to Zoom courts and an electronic filing system. This article provides an overview of this digital shift in the Ontario family justice system – highlighting the benefits as well as critically examining the resulting, perhaps unforeseeable, barriers that may exacerbate the access to justice crisis. This analysis is done through a review of existing literature coupled with original interviews conducted with family law professionals.

Keywords: family law; access to justice; COVID-19; virtual court; access to technology; family justice system

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Isaac P. Sahota, JD Candidate at UBC Allard School of Law

This paper critically examines the British Columbia Treaty Commission (“BCTC”) as a mechanism that perpetuates colonial frameworks, undermining Indigenous sovereignty and cultural ties to land. Through an analysis of BCTC treaties, this paper highlights how the BCTC process commodifies land, imposes settler-state authority, and erases Indigenous legal traditions. The language and structure of these agreements reinforce the colonial project by categorizing land and natural entities as exploitable resources rather than recognizing their relational significance in Indigenous worldviews. Drawing on the Haida Nation’s direct negotiations with the Crown, culminating in the “Rising Tide” Haida Title Lands Agreement, this paper argues for a treaty-making paradigm that prioritizes Indigenous worldviews and legal orders. The “Rising Tide” Haida Title Lands Agreement provides a model for an alternative approach—one that acknowledges Indigenous title, affirms self-determination, and moves beyond the constraints of the BCTC framework. By centering Indigenous legal orders, Canada can begin to dismantle colonial treaty processes and advance meaningful reconciliation.

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Haydn Bechthold, JD Candidate at Toronto Metropolitan University Lincoln Alexander School of Law

The doctrine of search incident to arrest is a vital yet contentious area of Canadian criminal law, balancing the extraordinary police authority to conduct warrantless searches with privacy rights under section 8 of the CanadianCharter of Rights and Freedoms. This article critiques the recent decision by the Supreme Court of Canada in R v Stairsand proposes a revised standard for searches incident to arrest aimed at preventing the destruction of evidence. By incorporating a temporal “but-for” test, the proposed framework ensures searches are limited to necessary situations, upholding Charter rights while offering practical guidance to law enforcement.

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Joshua Schwartz, University of Toronto Faculty of Law, Volume 82 Associate Publications Editor

Law regulating natural resources entrenches a human-centred bias that governs how and when human beings can extract benefit from the Earth. Given the constitutional mandate of reconciliation, this essay argues that the law must incorporate Indigenous perspectives on natural entities, treating them not only as sites of benefit but also as entities possessing interests and even rights. Accordingly, decisions affecting natural entities must be procedurally fair, ensuring they (or those representing their interests) have the right to participate in the decision-making process.

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Anna Welch, University of Toronto Faculty of Law, Class of 2024, Volume 82 Forum Editor

This blog critiques the reliance on unstructured interviews, such as the “Pittsburgh airport test,” in law firm recruitment processes. While these informal methods are thought to gauge candidates' likeability and personality, research shows they introduce biases like the “similar-to-me” effect, overconfidence, and dilution of useful information, undermining their reliability in predicting job performance. Unstructured interviews may conflict with firms' goals of hiring diverse and high-performing candidates, despite their appeal for subjective evaluations and socialization. Integrating structured behavioral interviews and eliminating outdated practices like cocktail hours may foster fairness and improve outcomes for both firms and candidates.

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Mees Brenninkmeijer, Doctor of Civil Law Candidate, McGill University Faculty of Law

In its decision of Wastech Services Ltd v Greater Vancouver Sewerage and Drainage District, the Supreme Court of Canada ruled on the limits of the duty to exercise contractual discretion in good faith – that is, in a manner connected to the purpose for which it was granted. The majority and minority disagreed on what the “loyalty to that venture” meant. A close reading of the Wastech decision thus provides us with two different understandings: one based on textual certainty of ordinary meaning, and one on normative certainty of good order. This blogpost aims to show that a third reading, based on an analogy of playing games, allows us to think about law and contractual discretion in a more dynamic way. It draws comparisons between the Court’s decision and the well-known debate between HLA Hart and Lon Fuller on why the law deserves our loyalty. It argues that there is something magical and playful about the law that neither of these readings capture. Ultimately, this paper encourages us to think differently about whywe exercise contractual discretion in good faith, whylaw deserves our loyalty, and whyit is we play games.

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Anna Welch, University of Toronto Faculty of Law, Class of 2024, Volume 82 Forum Editor

This article explores connections between parenting techniques and effective litigation strategies. By drawing on lessons from No-Drama Discipline: The Whole-Brain Way to Calm the Chaos and Nurture Your Child’s Developing Mind, a popular parenting guide, author Anna Welch highlights three parenting principles that offer valuable insights for litigators. This article reminds us that in both parenting and litigation, communication that employs equal parts education and persuasion can achieve impactful results.

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