Human Rights Law Commons^™

Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …

Understanding Chilling Effects, Jonathon Penney

Articles, Book Chapters, & Popular Press

With digital surveillance and censorship on the rise, the amount of data available online unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence (AI), machine learning, and facial recognition technology (FRT) for surveillance and data analytics, concerns about “chilling effects”, that is, the capacity for these activities “chill” or deter people from exercising their rights and freedoms have taken on greater urgency and importance. Yet, there remains a clear dearth in systematic theoretical and empirical work point. This has left significant gaps in understanding. This article has attempted to fill that void, synthesizing theoretical and empirical …

Breathing Life Into Our Living Tree And Strengthening Our Constitutional Roots: The Promise Of The United Nations Declaration On The Rights Of Indigenous Peoples Act, Naiomi Metallic

Articles, Book Chapters, & Popular Press

In 2015, the Truth and Reconciliation Commission of Canada (“TRC”) suggested that, despite over 30 years of interpretation in the courts, section 35 of the Constitution Act, 1982, which “recognizes and affirms” the Aboriginal and treaty rights of the Aboriginal peoples of Canada, is not achieving meaningful reconciliation. The TRC defined reconciliation as being about “establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country.” According to the TRC, the “reconciliation vision that lies behind Section 35 should not be seen as a means to subjugate Aboriginal peoples to an absolute sovereign Crown,” implying this …

Divine Intervention, Part Ii: Narratives Of Norm Entrepreneurship In Canadian Religious Freedom Litigation, Kathryn Chan, Howard Kislowicz

Dalhousie Law Journal

Constitutional litigation has become a central arena for debate about human rights. Groups from all points on the political spectrum have turned to legal advocacy, “intervening” in judicial proceedings in an effort to advance their preferred interpretations of particular rights.

Judges and scholars remain divided on whether and how interveners are valuable. This paper evaluates a main rationale for intervention: interveners improve adjudication by enriching courts’ understandings of the issues before them. We use qualitative analysis to examine the extent to which interveners in Canada have succeeded in contributing to judicial pronouncements on the scope and meaning of religious freedom. …

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 …

Faith And/In Medicine: Religious And Conscientious Objections To Maid, Daphne Gilbert

Dalhousie Law Journal

Across Canada, health care institutions that operate under the umbrella of religious traditions refuse to offer medical assistance in dying (MAiD) on the grounds that it violates their Charter-protected rights to freedom of religion and conscience. This article analyses the Supreme Court jurisprudence on section 2(a) and concludes that it should not extend to the protection of institutional rights. While the Court has not definitively pronounced a view on this matter, its jurisprudence suggests that any institutional right to freedom of religion would not extend to decisions on publicly-funded and legal health care. MAiD is a constitutionally-protected option for individuals …

Dispute Settlement Under The African Continental Free Trade Area Agreement: A Preliminary Assessment, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The African Continental Free Trade Area Agreement (AfCFTA) will add a new dispute settlement system to the plethora of judicial mechanisms designed to resolve trade disputes in Africa. Against the discontent of Member States and limited impact the existing highly legalized trade dispute settlement mechanisms have had on regional economic integration in Africa, this paper undertakes a preliminary assessment of the AfCFTA Dispute Settlement Mechanism (DSM). In particular, the paper situates the AfCFTA-DSM in the overall discontent and unsupportive practices of African States with highly legalized dispute settlement systems and similar WTO-Styled DSMs among other shortcomings. Notwithstanding the transplantation of …

Just Care: A Relational Approach To Autonomy And Decision Making Of Parents Committed To Religious Or Indigenous Traditional Practices, Tu-Quynh Trinh

LLM Theses

Hamilton Health Sciences Corp. v. D.H. and B. (R.) v. Children’s Aid Society of Metropolitan Toronto tell important stories about people and relationships—and about parenthood; autonomy; religious believers and cultural communities; and the role of the state in family, culture, and religion. Their narratives were influenced by liberalism and emphasize a degree of individualism that is incongruous given the subject matter of parent child relationships and their place within communities and the law. This thesis explores the application of relational theory and the integrated principles of justice and care to these issues. Ultimately, the stories these judicial opinions tell help …

Can Cyber Harassment Laws Encourage Online Speech?, Jonathon Penney

Articles, Book Chapters, & Popular Press

Do laws criminalizing online harassment and cyberbullying "chill" online speech? Critics often argue that they do. However, this article discusses findings from a new empirical legal study that suggests, counter-intuitively, that while such legal interventions likely have some dampening effect, they may also facilitate and encourage more speech, expression, and sharing by those who are most often the targets of online harassment: women. Relevant findings on this point from this first-of-its-kind study are set out and discussed along with their implications.

Template Policy Re: Access To Medical Assistance In Dying In Publicly-Funded Institutions, Jocelyn Downie

Articles, Book Chapters, & Popular Press

Patients are being denied access to assessments for, and provision of, medical assistance in dying (MAiD) in publicly-funded institutions in Canada. Health authorities should implement policies that prohibit forced transfer for MAiD (assessments and provision) unless it can be achieved without undue delay or harm to the patient (as determined by the MAiD Program, not the institution). This is a template policy that health authorities could adopt to ensure access to a legal health service in all publicly-funded institutions (including faith-based institutions) under their authority.

Advancing Human Rights-By-Design In The Dual-Use Technology Industry, Jonathon Penney, Sarah Mckune, Lex Gill, Ronald Deibert

Articles, Book Chapters, & Popular Press

It is no secret that technology companies have greased the wheels for human rights abuses around the world — backed by a global web of private sector support and investment that has yielded significant financial returns. For example, the University of Toronto's Citizen Lab recently published research analyzing the use of Internet filtering technology developed by Canadian company Netsweeper in ten countries globally — Afghanistan, Bahrain, India, Kuwait, Pakistan, Qatar, Somalia, Sudan, United Arab Emirates, and Yemen — and concluded these uses likely violated international human rights law. Products like Netsweeper’s Internet filtering systems are often referred to as "dual …

Nova Scotia Home For Colored Children Restorative Inquiry: Council Of Parties Third Public Report, Jennifer Llewellyn, Jean Flynn, Chief Judge Pam Williams, Deborah Emmerson, Michael Dull, Dean Smith, Wayn Hamilton, George Gray, Tony Smith, Gerald Morrison, Joan Jones

Reports & Public Policy Documents

The Nova Scotia Home for Colored Children Restorative Inquiry was established following a 17-year journey for justice by former residents of the Nova Scotia Home for Colored Children (NSHCC, or the Home). It was established under the authority of the Public Inquiries Act following a collaborative design process involving former residents, Government, and community members.

This public inquiry was the first of its kind in Canada to take a restorative approach. The Inquiry was a part of the Government of Nova Scotia’s commitment to respond to the institutional abuse and other failures of care experienced by former residents of the …

Nova Scotia Home For Colored Children Restorative Inquiry: Council Of Parties Second Public Report, Jennifer Llewellyn, Jean Flynn, Chief Judge Pam Williams, Deborah Emmerson, Michael Dull, Dean Smith, Wayn Hamilton, George Gray, Tony Smith, Gerald Morrison, Joan Jones

Reports & Public Policy Documents

The Nova Scotia Home for Colored Children Restorative Inquiry was established following a 17-year journey for justice by former residents of the Nova Scotia Home for Colored Children (NSHCC, or the Home). It was established under the authority of the Public Inquiries Act following a collaborative design process involving former residents, Government, and community members.

This public inquiry was the first of its kind in Canada to take a restorative approach. The Inquiry was a part of the Government of Nova Scotia’s commitment to respond to the institutional abuse and other failures of care experienced by former residents of the …

Constitutionalizing Abortion Rights In Canada, Joanna Erdman

Articles, Book Chapters, & Popular Press

This article endeavours to understand the feminist activism from which constitutional abortion rights in Canada were born in the landmark Supreme Court case of R v Morgentaler 1988, and the influence of these rights on continued feminist activism for reproductive justice. Part I reviews abortion practice in the ‘back-alley’ prior to and immediately after the 1969 criminal reform with attention to the direct service activism of liberation feminists in their campaign to repeal the abortion law as a matter of constitutional justice. Part II turns to adjudication in the courts to study how judicial reasoning channelled these constitutional claims, exploring …

Extradition And Trial Delays: Recent Developments (And Lessons?) From Canada, Laura Ellyson

Articles, Book Chapters, & Popular Press

Extradition – the formal rendition of criminal fugitives between states – is well-known to be a time-consuming process that often has impacts, minor or major, on the ability of states to complete prosecution in a timely manner. Thus, the extradition process can sometimes be at odds with the right to trial within a reasonable time, which is part of the overall package of fair trial rights enshrined in international human rights law. In Canada, this right is implemented by paragraph 11(b) of the Canadian Charter of Rights and Freedoms. In recent years Canadian courts have developed a series of principles …

Internet Surveillance, Regulation, And Chilling Effects Online: A Comparative Case Study, Jonathon Penney

Articles, Book Chapters, & Popular Press

With internet regulation and censorship on the rise, states increasingly engaging in online surveillance, and state cyber-policing capabilities rapidly evolving globally, concerns about regulatory “chilling effects” online — the idea that laws, regulations, or state surveillance can deter people from exercising their freedoms or engaging in legal activities on the internet have taken on greater urgency and public importance. But just as notions of “chilling effects” are not new, neither is skepticism about their legal, theoretical, and empirical basis; in fact, the concept remains largely un-interrogated with significant gaps in understanding, particularly with respect to chilling effects online. This work …

Law As An Ally Or Enemy In The War On Cyberbullying: Exploring The Contested Terrain Of Privacy And Other Legal Concepts In The Age Of Technology And Social Media, A. Wayne Mackay

Articles, Book Chapters, & Popular Press

This article focuses on the role and limits of law as a response to cyberbullying. The problem of cyberbullying engages many of our most fundamental legal concepts and provides an interesting case study. Even when there is general agreement that the problem merits a legal response, there are significant debates about what that response should be. Which level and what branch of government can and should best respond? What is the most appropriate legal process for pursuing cyberbullies—traditional legal avenues or more creative restorative approaches? How should the rights and responsibilities of perpetrators, victims and even bystanders be balanced? Among …

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 …

When Disciplines Collide: Polygamy And The Social Sciences On Trial, Jodi Lazare

Articles, Book Chapters, & Popular Press

This article draws on the Supreme Court of British Columbia’s Reference re: Section 293 of the Criminal Code of Canada [the Polygamy Reference] as a concrete example of the benefits and limitations of intense judicial reliance on social science evidence in the adjudication of constitutional rights and freedoms at the trial level. By examining the evidence tendered, I suggest that the current adversarial model of adjudication is illsuited to combining the legal and the social scientific endeavours. The divergent values, methodologies and objectives of the legal and scientific enterprises severely limit the benefits that the former can yield, thus compromising …

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 …

Communications Disruption And Censorship Under International Law: History Lessons, Jonathon Penney

Articles, Book Chapters, & Popular Press

With Internet censorship on the rise around the world, a variety of tools have proliferated to assist Internet users to circumvent such censorship. However, there are few studies examining the implications of censorship circumvention under international law, and its related politics. This paper aims to help fill some of that void, with an examination of case studies wherein global communications technologies have been disrupted or censored — telegram cable cutting and censorship, high frequency radio jamming, and direct broadcast satellite blocking — and how the world community responded to that disruption or censorship through international law and law making. In …

Insecure Refugees: The Narrowing Of Asylum-Seeker Rights To Freedom Of Movement And Claims Determination Post-9/11 In Canada, Constance Macintosh

Articles, Book Chapters, & Popular Press

This chapter has a modest goal: to track some legislative changes since 9/11 which impact on two rights of asylum-seekers where those changes are linked to or justified by security concerns. These are the rights of asylum-seekers to have their claim determined, and to not be detained. This article identifies how legislation restricting these key rights of asylum-seekers has largely been promoted as necessary for Canada to be able to protect its public from criminality and security threats. The article thus queries whether measures, especially those introduced under Bill C-11, The Balanced Refugee Reform Act and those proposed under Bill …

Internet Access Rights: A Brief History And Intellectual Origins, Jonathon Penney

Articles, Book Chapters, & Popular Press

If there is anything we have learned from recent protest movements around the world, and the heavy-handed government efforts to block, censor, suspend, and manipulate Internet connectivity, it is that access to the Internet, and its content, is anything but certain, especially when governments feel threatened. Despite these hard truths, the notion that people have a "right" to Internet access gained high-profile international recognition last year. In a report to the United Nations General Assembly in early 2011, Frank La Rue, the UN Special Rapporteur on Freedom of Expression, held that Internet access should be recognized as a "human right". …

Sex And The Supremes: Towards A Legal Theory Of Sexuality, Elaine Craig

PhD Dissertations

This thesis examines how the Supreme Court of Canada, across legal contexts, has tended to conceptualize sexuality. It focuses primarily on areas of public law including sexual assault law, equality for sexual minorities, sexual harassment and obscenity and indecency laws. There were a number of trends revealed upon reviewing the jurisprudence in this area. First, the Court’s decisions across legal contexts reveal a tendency to conceptualize sexuality as innate, as a pre-social naturally occurring phenomenon and as an essential element of who we are as individuals. This is true whether one is speaking of the approach to gay and lesbian …

Adding Social Condition To The Canadian Human Rights Act, A. Wayne Mackay, Natasha Kim

Reports & Public Policy Documents

Almost a decade ago, in June 2000, the Canadian Human Rights Act Review Panel conducted a comprehensive review of the Canadian Human Rights Act [CHRA] and recommended that “social condition” be added as a prohibited ground of discrimination. Since then, no action has been taken to implement this recommendation, despite calls for action from international bodies, political actors, human rights agencies and organizations, and academic commentators to provide protections from discrimination for those suffering from social and economic disadvantage. The authors analyze the experiences at the provincial level with socio-economic grounds of discrimination, jurisprudential developments under the Canadian Charter of …

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 …

The Politics Of The Imagination: A Life Of F.R. Scott, J King Gordon

Dalhousie Law Journal

The task of a biographer is a challenging one at best. And when the subject is one who has achieved distinction in many fields the difficulties are magnified many times. Better, perhaps, to settle for a Festschift where colleagues and friends in fields in which the subject has excelled join together to pay their separate tributes. So in the case of Frank Scott and his biographer, Sandra Djwa. She is a professor of literature and has achieved recognition for the work she has done on the writings and life of E.J. Pratt. It was undoubtedly Frank Scott, the distinguished Canadian …

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 …

Book Review Of Passion: An Essay On Personality , Richard F. Devlin Frsc

Articles, Book Chapters, & Popular Press

Passion is a cogently structured, compel Jingly argued and seductively enthralling masterpiece which, in years to come, will undoubtedly stand out as an inspirational source for many who seek social transformation. Unger's style, in this essay at least, is lucid and inviting. Substantively, Passion demonstrates not only the depth of his penetrating intellect but also his command of an array of' disciplines. Unger's polymathy is all the more impressive when we remember that ours is an era in which idiosyncratic specialization is the norm.