Law Commons^™

Checking Our Attachment To The Charter And Respecting Indigenous Legal Orders: A Framework For Charter Application To Indigenous Governments, Naiomi Metallic

Articles, Book Chapters, & Popular Press

The Canadian Charter of Rights and Freedom looms large in our national identity. As a constitutional law professor at a Canadian law school, my experience is that most students and lawyers see the Charter as intrinsically tied to fundamental notions of justice and fairness in our country. Because of this, Canadian lawyers and judges, who believe the Charter to be inherently good, may find it hard to understand why Indigenous peoples resist application of the Charter to their own institutions. But Canadian jurists’ attachment to the Charter, if not kept in check, can easily lead to dismissing important objections …

Mapping Human Rights-Based Climate Litigation In Canada, Lisa Benjamin, Sara L. Seck

Articles, Book Chapters, & Popular Press

In line with global trends, there has been an increase in human rights-based climate litigation brought in Canadian courts in recent years. Some litigants invoke human rights as found in the Canadian Charter of Rights and Freedoms to push federal and provincial governments to take seriously the implementation of their climate obligations. Other litigants invoke procedural environmental human rights to engage in free speech and peaceful protest in the face of government action supporting fossil fuel consumption or expansion. At the same time, the Supreme Court of Canada has recognized that Canadian courts could develop civil remedies for corporate violations …

Wrongful Extradition: Reforming The Committal Phase Of Canada’S Extradition Law, Robert Currie

Articles, Book Chapters, & Popular Press

There has recently been an upswing in interest around extradition in Canada, particularly in light of the high-profile and troubling case of Hassan Diab who was extradited to France on the basis of what turned out to be an ill-founded case. Diab’s case highlights some of the problems with Canada’s Extradition Act and proceedings thereunder. This paper argues that the “committal stage” of extradition proceedings, involving a judicial hearing into the basis of the requesting state’s case, is unfair and may not be compliant with the Charter and that the manner in which the Crown conducts these proceedings contributes to …

Debating Rights Inflation In Canada: A Sociology Of Human Rights, Hannah Steeves

Articles, Book Chapters, & Popular Press

Dominique Clément’s Debating Rights Inflation in Canada is intended to augment a report he co-authored, “The Evolution of Human Rights in Canada,” published by the Canadian Human Rights Commission in 2012. The book’s goal is to stimulate discussion on the effects that rights inflation has had and could continue to have in Canada.

R. V. K.R.J.: Shifting The Balance Of The Oakes Test From Minimal Impairment To Proportionality Of Effects, Marcus Moore

All Faculty Publications

The judgment of the Supreme Court in R. v. K.R.J. reflects an important potential change in the way proportionality analysis is conducted in the review of constitutional rights limitations under Canada’s Oakes test. Previously, most cases came down to the “Minimal Impairment” stage of Oakes. Its dominant role is challenged by KRJ, which places new weight on the subsequent and final “Proportionality of Effects” step. A permanent shift in the focus of the test to the Proportionality of Effects inquiry would be a landmark change in the thirty-year history of proportionality in Canada. The shift does not appear crafted to …

R. V. Safarzadeh-Markhali: Elements And Implications Of The Supreme Court's New Rigorous Approach To Construction Of Statutory Purpose, Marcus Moore

All Faculty Publications

The Supreme Court of Canada’s decision in Safarzadeh-Markhali holds great significance, beyond Criminal Law, in the area of Statutory Interpretation: in Markhali, the Court decisively endorses a new rigorous approach to construing legislative purpose. Previously, while legislation itself was long-interpreted utilizing rigorous approaches, legislative purpose was typically construed ad hoc while providing only summary justification. Markhali’s new framework is distinct from prior approaches in at least four ways: (1) It expressly acknowledges the critical importance of purpose construction in many cases; (2) It is conscious of how a less-than-rigorous approach risks being self-defeating of larger legal analyses in which the …

Draft Provincial/Territorial Legislation To Implement A Regulatory Framework For Medically-Assisted Dying Consistent With Carter V. Canada (Attorney General) 2015 Scc 5 And The Final Report Of The Provincial-Territorial Expert Advisory Group On Physician-Assisted Dying, Jocelyn Downie

Reports & Public Policy Documents

On February 6, 2015, the Supreme Court of Canada unanimously declared that the Criminal Code prohibitions on physician-assisted dying (both assisted suicide and voluntary euthanasia) violate the Canadian Charter of Rights and Freedoms. They immediately suspended the declaration for 12 months thus allowing the government time to craft new legislation. This paper is a contribution to the project of meeting that deadline -- it presents draft provincial/territorial legislation. This draft legislation is based on: 1) a thorough review of existing legislation in all permissive regimes throughout the world (reviewed through a "lessons learned" lens); 2) the requirements for constitutional validity …

Report As To Proposed Pilot Project On The Electronic Monitoring Of Forensic Mental Health Patients, Elaine Gibson, Leah Hutt, Sheila Wildeman, Constance Macintosh

Reports & Public Policy Documents

This report was undertaken in response to a request from the Nova Scotia government for assistance in identifying and analyzing legal issues related to the potential establishment of a pilot project. The project would involve the use of electronic monitoring (EM) of forensic mental health patients (patients) detained at the East Coast Forensic Hospital (ECFH) who are exercising indirectly supervised and unescorted community access (community access). The purpose of our analysis is not to determine if an EM policy or its application violates any laws. Rather, the purpose is to consider whether there are factors that may support legal challenges …

Language Rights Remedies In The Supreme Court Of Canada: Invisible, Gentle, Or Stern Hand?, Dianne Pothier

Dianne Pothier Collection

The Supreme Court of Canada has used the context of language rights to establish significant contours of constitutional remedies. Language rights cases, both pre and post Charter, have engaged the full range of judicial intervention, from an invisible to a stern hand. Initially, the Supreme Court of Canada took a very passive stance in the context of bilingual language obligations of legislatures and courts. Despite lack express remedial direction from the Court, Quebec pulled out all the stops in its efforts to comply with the ruling with breakneck speed. In contrast, Manitoba adopted a leisurely pace in a half-hearted …

Extending Charter Benefits To Canada’S Poor, A. Wayne Mackay

Articles, Book Chapters, & Popular Press

While the Canadian Charter of Rights and Freedoms has had a major impact on Canada’s political landscape in its first 25 years, its impact on social and economic rights has been minimal. The courts should assume a larger role in advancing the rights of the many Canadians living in poverty and despair.

Judges have traditionally regarded matters of social and economic policy as falling within the expertise of the legislative and executive branches of the state. The Charter has done little to dispel that view. The elected branches of the state must continue to play a major role, but the …

Arbitrary Detention: Whither - Or Wither? - Section 9, Stephen Coughlan

Articles, Book Chapters, & Popular Press

It is a remarkable fact that more than 25 years after the Canadian Charter of Rights and Freedoms came into effect, we still have no section 9 jurisprudence. It is not that there have been no decisions at all concerning the right not to be arbitrarily detained, of course, but taken in total they do not come anywhere near setting out an analytical framework. This stands in contrast to most other legal rights in the Charter. Section 7 jurisprudence has established the two-step approach to take in assessing claims under that section, including a three-step test for determining whether a …

Arbitrary Detention: Whither - Or Wither? - Section 9, Steve Coughlan

Articles, Book Chapters, & Popular Press

It is a remarkable fact that more than 25 years after the Canadian Charter of Rights and Freedoms came into effect, we still have no section 9 jurisprudence. It is not that there have been no decisions at all concerning the right not to be arbitrarily detained, of course, but taken in total they do not come anywhere near setting out an analytical framework. This stands in contrast to most other legal rights in the Charter. Section 7 jurisprudence has established the two-step approach to take in assessing claims under that section, including a three-step test for determining whether a …

Rodriguez Redux, Jocelyn Downie, Simone Bern

Articles, Book Chapters, & Popular Press

Assisted suicide has once again surfaced as an issue of public attention. Just in the past year, four cases have been in the news. In addition the results of a major study on the attitudes of cancer patients in palliative care towards euthanasia and physician-assisted suicide and the results of an Ipsos Reid public opinion poll on assisted suicide were released. Vigorous calls both for and against the decriminalization of assisted suicide followed. Given that it has been fifteen years since the release of the most famous assisted suicide case in Canada, and given this recent spate of attention, we …

Judicial Reasoning About Pregnancy And Choice, Jocelyn Downie, Chris Kaposy

Articles, Book Chapters, & Popular Press

Women in Canada are at risk of abortion becoming increasingly difficult to access. In its landmark 1988 ruling, R. v. Morgentaler, the Supreme Court of Canada struck down the prohibition of abortion in section 251 of the Criminal Code on the grounds that it violated a section of the Charter of Rights and Freedoms which guarantees, among other things, "security of the person". However, all of the justices who ruled that section 25 unconstitutional nonetheless claimed that protecting the fetus is a valid objective of federal legislation, leaving open the possibility that a different and carefully crafted law against abortion …

Connecting Grounds Of Discrimination To Real People's Real Experiences, Dianne Pothier

Dianne Pothier Collection

From the outset, the prevailing approach to human rights statutes in Canada has been predicated on a closed list of prohibited grounds of discrimination. The early drafts of s. 15 of the Canadian Charter of Rights and Freedoms likewise had a closed list of enumerated grounds, but the final version qualifies those grounds as "in particular", opening the door for a broader application of s. 15. Nonetheless, the Supreme Court of Canada, with the exception of Justice L'Heureux-Dube, has insisted that establishing a prohibited ground, either enumerated or analogous, is a requisite condition to a s. 15 breach. In the …

The Sounds Of Silence: Charter Application When The Legislature Declines To Speak, Dianne Pothier

Dianne Pothier Collection

On first impression, the title of the Simon and Garfunkle hit classic hit "The Sounds of Silence" may seem like an oxymoron. But it does not take too much reflection to realize that silence can indeed be very expressive and therefore quite telling. While that can be true in any number of contexts, for the specific purpose of this article, I will examine only one: legislative silence. What is the legal significance of the legislature declining to speak on one particular aspect of a legal issue otherwise addressed in the legislation? More specifically, can the Charter be engaged to challenge …

Municipal Issues And The Charter Of Rights: The Impact At The Grass Roots, A. Wayne Mackay, Kathryn Heckaman

Articles, Book Chapters, & Popular Press

Municipal institutions are the forgotten partners in the Canadian confederation. This is true in both political and legal terms. In political terms the agencies of local government are often under-valued. With respect to the law, the municipal level of government has too often been ignored. Both municipal councils and their related boards and tribunals have an important impact on the lives of citizens at the grass roots level. In carrying out their duties, municipal authorities exercise a wide range of discretionary powers and it is becoming increasingly important that they recognize the legal limits on their powers. The first and …

Developments In Constitutional Law: The 1988-89 Term, A. Wayne Mackay, Dianne Pothier

Articles, Book Chapters, & Popular Press

This article canvasses the major developments from the 1988-89 term of the Supreme Court of Canada.

In terms of Charter jurisprudence there were major developments concerning equality rights, mobility rights, freedom of expression, and section 7.

More generally, there were also important developments in the federal trade and commerce power and broad hints as to the Supreme Court's leanings in relation to the federal spending power. There is clarification on how both federal and provincial laws affect federal undertakings, and re-affirmation of the ancillary nature of powers in relation to language. The Court reassesses the tests of when a provincial …

Freedom Of Expression: Is It All Just Talk?, A. Wayne Mackay

Articles, Book Chapters, & Popular Press

In this article Wayne MacKay argues that effective interpretation of section 2 of the Charter of Rights and Freedoms requires the weighing of real world impacts beyond the traditional liberal parameter of judicial decisions. The usual judicial unwillingness to acknowledge "freedoms" as opposed to "rights" limits governmental legal action while not recognizing political and economic barriers to freedom of expression. The trend toward limiting protected expression both at the definitional stage and through section 1 reasonable limits reflects this cautious approach.This article examines who the early beneficiaries of freedom of expression have been: those affected by criminal sanctions and those …

Canada's Roe: The Canadian Abortion Decision And Its Implications For American Constitutional Law And Theory, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

The Extradition Of Canadian Citizens And Sections I And 6(I) Of The Canadian Charter Of Rights And Freedoms, Jean-Gabriel Castel, Sharon A. Williams

Articles & Book Chapters

This article is devoted to the question of whether the extradition from Canada of a fugitive Canadian citizen charged with having committed an act that constitutes a criminal offence for which he or she may be prosecuted both in Canada and in the requesting state is a violation of his or her right as a citizen of Canada to remain in Canada, that is guaranteed by section 6( I ) of the Canadian Charter of Rights and Freedoms.' In analysing this question we shall ( i ) give a brief history of and rationale for extradition, with emphasis on the …

Constructive Murder And The Charter: In Search Of Principle, A. Wayne Mackay, Isabel Grant

Articles, Book Chapters, & Popular Press

This article explores the principle of "constructive" murder and how it interacts with the sentencing and the parties sections of the Criminal Code. The authors re-examine these issues in light of the Charter. They conclude that constructive murder has no place in a post-Charter Canada.

The Elwood Case: Vindicating The Educational Rights Of The Disabled, A. Wayne Mackay

Articles, Book Chapters, & Popular Press

The guarantees of the Charter of Rights affect the definition of education for the disabled. The case of Elwood v. Halifax County - Bedford District School Board, a landmark case in educational rights of disabled children in Canada, has major implications for educational practice.

One of the earliest and most controversial Charter of Rights challenges to the existing educational structure has come from parents of disabled children. Disabled children and their parents are blazing a trail to define educational rights in Canada, and the process is giving some shape to the the elusive concept of equality enshrined in the …

Fairness After The Charter: A Rose By Any Other Name?, A. Wayne Mackay

Articles, Book Chapters, & Popular Press

On at least a short term basis the Charter of Rights and Freedoms has made a significant dent in the Canadian legal landscape. Not only has it produced a veritable cottage industry for practising lawyers and legal academics - it has raised some of the most fundamental questions about which institutions should shape public policy in Canada. The courts have a bold new mandate to measure the acts of the legislative and executive branches of the government against the new standards of the Charter. When these agencies are found wanting, they are to be checked and their illegal actions invalidated. …