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R V. Turtle: Substantive Equality Touches Down In Treaty 5 Territory, Sonia Lawrence, Debra Parkes

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Court comes to Pikangikum First Nation through the air. Judges, Crown attorneys, and defence lawyers fly into this Anishinaabe community, located 229 kilometres north of Kenora, Ontario, to hear bail, trial, and sentencing matters involving members of the community. And then they fly out. Many of those provincial court proceedings involve sentencing members of the community to jail in Kenora or to a penitentiary even further away. We suspect that s. 15 of the Charter is rarely discussed in the Pikangikum courtroom (which is sometimes a room in the business development centre and sometimes the Chinese restaurant), a reality that …

Workplace Sexual Harassment And The "Unwelcome" Requirement: An Analysis Of Bc Human Rights Tribunal Decisions From 2010 To 2016, Bethany Hastie

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Legal complaints concerning workplace sexual harassment are anticipated to increase, following in the wake of the #MeToo movement and a number of high-profile cases in Canada. Yet little contemporary research has analyzed sexual harassment laws in Canada. This article contributes to further research on sexual harassment laws through a case analysis of BC Human Rights Tribunal decisions from 2010 to 2016. This article analyzes trends in assessing credibility and character in sexual harassment complaints and establishes that the requirement that a complainant prove that the conduct in question was “unwelcome” improperly shifts the focus of the legal inquiry towards her …

Workplace Sexual Harassment: Assessing The Effectiveness Of Human Rights Law In Canada, Bethany Hastie

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This report analyzes substantive decisions on the merits concerning workplace sexual harassment at each of the BC and Ontario Human Rights Tribunals from 2000-2018, with a view to identifying how the law of sexual harassment is understood, interpreted and applied by the Tribunals’ adjudicators. In particular, this report examines whether, and to what extent, gender-based stereotypes and myths known to occur in criminal justice proceedings arise in the human rights context.

This report examines substantive decisions on the merits for claims of workplace sexual harassment from 2000-2018 in BC and Ontario. The limitation to substantive decisions allows for a greater …

Gendering Islamophobia To Better Understand Immigration Laws, Catherine Dauvergne

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This paper examines two recent developments in immigration law in Western liberal democracies: security exclusions and forced marriage provisions. It aims to consider how both of these settings are influenced by a pernicious Islamophobia and by gender. And, of course, by the intersection that creates a gendered version of Islamophobia. The overarching aim of the work is to consider whether and how human rights arguments are likely to be effective in immigration law. The work proceeds by developing the ideas of ‘unknowability’ and ‘unintelligibility’ as two ways to describe how Western law responds to Islam, and in so doing, contributes …

Devalued Liberty And Undue Deference: The Tort Of False Imprisonment And The Law Of Solitary Confinement, Efrat Arbel

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Despite numerous calls for reform and restraint, solitary confinement continues to be both misused and overused in Canadian prisons. This paper charts a path through which to address such misuse, but analyzing solitary confinement through the tort of false imprisonment. This analysis is new: while some scholars have examined how other branches of tort law can address harms caused by solitary confinement, none have examined the application of this tort. I argue that the tort of false imprisonment provides segregated prisoners with an effective means through which to seek compensation for individual harm. As an intentional tort that is actionable …

Henry V. British Columbia: Still Seeking A Just Approach To Damages For Wrongful Conviction, Emma Cunliffe

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Henry v. British Columbia (Attorney General) was the first case in which a claimant sought damages under section 24(1) of the Canadian Charter of Rights and Freedoms for breaches of rights that led to a wrongful conviction and imprisonment. In its 2015 decision, the Supreme Court of Canada clarified the criteria for the award and quantum of such damages. In June 2016, Hinkson C.J.S.C. awarded $8,086,691.80 in damages to Ivan Henry in compensation, special damages and “to serve both the vindication and deterrence functions of s. 24(1) of the Charter”.

In this article, I describe the events that led to …

Complicity In Business And Human Rights, James G. Stewart

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These remarks, delivered on April 9, 2015 at the American Society of International Law’s Annual Conference, address the context of complicity discussions in public international law generally then their significance and scope in Business and Human Rights in particular. The Panel on which I delivered this talk was one of the first to discuss the topic of complicity across different fields, including International Criminal Law, the Alien Tort Statute, Business and Human Rights and the Public International Law of State Responsibility. In my comments, I offer five initial points contextualizing these discussions for the field of public international law writ …

Contesting Unmodulated Deprivation: Sauvé V Canada And The Normative Limits Of Punishment, Efrat Arbel

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Despite a pressing need for judicial guidance on the legalities of administrative segregation, Canadian courts have yet to outline clear, comprehensive principles by which to assess its deployment. While some courts have rebuked the Correctional Service of Canada for the improper use of administrative segregation in specific cases, the regulation of the practice more broadly has proven elusive. This article turns to the Supreme Court of Canada’s prisoner voting rights decision in Sauvé v Canada for guidance in this regard. Since its release in 2002, Sauvé has been applied largely in cases involving political rights, and rarely in cases involving …

Positive Obligations And Criminal Justice: Duties To Protect Or Coerce?, Liora Lazarus

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This chapter explores the relationship between criminal law, criminal process and human rights from a slightly different perspective. It demonstrates that while human rights may well be used to limit the excesses of security and law and order politics, the nature of the relationship between human rights and criminal justice cannot be captured alone by the view of rights as a limit on the coercive reach of the criminal law and criminal justice institutions. Increasingly, human rights, cast as positive rights, have resulted in claims for the extension of the criminal law, the creation of preventative duties or ‘protective policing …

Sexual Assault Cases In The Supreme Court Of Canada: Losing Sight Of Substantive Equality?, Emma Cunliffe

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The equality guarantee contained in section 15 of the Canadian Charter of Rights and Freedoms has prompted reforms that protect women as complainants in sexual assault cases. This article considers the effectiveness of these reforms. Part 2 supplies a history of the relationships between consent, trial procedure, and substantive equality in sexual assault law. The author argues that substantive equality has had a significant effect on both substance and procedure. Part 3 examines the impact of these reforms by considering the extent to which substantive equality has infused judicial reasoning and fact determination in contested sexual assault cases. Specifically, the …

From Smith To Smickle: The Charter's Minimal Impact On Mandatory Minimum Sentences, Debra Parkes

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This paper attempts to assess the impact that the Canadian Charter of Rights and Freedoms has had, and may have in the near future, on mandatory minimum sentences and their legislated proliferation. To answer those questions, the paper first briefly reviews the Supreme Court of Canada case law on the constitutionality of mandatory minimum sentences. The next two sections will outline the approach taken in the recent Smickle decision in the Ontario Superior Court of Justice before moving on to argue that courts should subject the purported goals, justifications and implications of mandatory minimum sentences to a more searching form …

Bill C-268: Minimum Sentences For Child Trafficking Needed, Benjamin Perrin

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Under-aged girls as young as 12 years old are being subjected to sexual exploitation by traffickers according to a Criminal Intelligence Service of Canada (CISC); this is a pressing national problem, as organized crime networks are actively trafficking Canadian-born women and under-age girls within and between provinces and to the United States, destined for the sex trade. Law enforcement agencies are beginning to investigate and lay human trafficking charges under Canada’s Criminal Code s. 279.01 which carries a maximum term of imprisonment of 14 years, and up to life imprisonment if the accused kidnaps the victim, subjects them to aggravated …

Faster, Higher, Stronger: Preventing Human Trafficking At The 2010 Olympics, Benjamin Perrin

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This report considers the upcoming 2010 Olympics in Vancouver in the context of Canada’s human trafficking response to date, and makes recommendations to ensure that this event showcases our best to the world – and is not a flashpoint for human trafficking.

A Prisoners' Charter? Reflections On Prisoner Litigation Under The Canadian Charter Of Rights And Freedoms, Debra Parkes

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This paper examines over twenty years of prisoner litigation under the Canadian Charter of Rights and Freedoms, beginning with a brief consideration of the social and political context for prisoners into which the Charter was entrenched in 1982, before moving on to consider a variety of successful and unsuccessful prisoners' Charter claims. The author notes some ways in which the impact of the Charter has been diminished at the prison walls, including through a lack of full and meaningful access by prisoners to courts or other means of independent review of prison decisions and conditions, as well as by the …

Security And Human Rights, Liora Lazarus, Benjamin J. Goold

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In the wake of the events of September 11th, the task of reconciling issues of security with a respect for fundamental human rights has emerged as one of the key challenges facing governments throughout the world. Although the issues raised by the rise of security have been the subject of considerable academic interest, to date much of the debate surrounding the impact of security on human rights has taken place within particular disciplinary confines. In contrast, this collection of essays from leading academics and practitioners in the fields of criminal justice, public law, international law, international relations and legal philosophy …

Public Protection, Proportionality, And The Search For Balance, Benjamin J. Goold, Liora Lazarus, Gabriel Swiney

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This report examines how courts in the UK and Europe respond when human rights and security appear to conflict. It compares cases from the United Kingdom, France, Germany, Spain, and the European Court of Human Rights (ECtHR). It examines how rights are applied and how courts use the concept of proportionality to mediate conflicts between rights and security. The report concludes that British courts are less consistent in their application of proportionality than countries with constitutional rights protections which tend to be more rigorous in their protections of rights than are countries, like the UK, that rely instead on the …

Ballot Boxes Behind Bars: Toward The Repeal Of Prisoner Disenfranchisement Laws, Debra Parkes

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This paper takes seriously the objection that allowing prisoners to vote may have an impact on the outcome of elections or on the development of law and policy, given the extraordinarily high incarceration rate currently a reality in the United States. The reality that prisoners may have an impact on the outcome of elections is an argument in favour of allowing them to vote rather than against it. A progressive critique or constitutional challenge of prisoner disenfranchisement should call attention to the instrumental, as well as symbolic and constitutive functions of voting, and must defend the importance of having the …