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Judicial Activism In Transnational Business And Human Rights Litigation, Hassan M. Ahmad Jan 2022

Judicial Activism In Transnational Business And Human Rights Litigation, Hassan M. Ahmad

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This article explores a more expansive adjudicative role for domestic judiciaries in the U.S., U.K., and Canada in private law disputes that concern personal and environmental harm by multinational corporations that operate in the Global South. This expansive role may confront—although not necessarily upend—existing understandings around the separation of powers in common law jurisdictions. I canvass existing literature on judicial activism. Then, I detail legality gaps in the selected common law home states, which can be broken down into four categories: i) failed legislation; ii) deficient legislation; iii) judicial restraint; and iv) judicial deference.

I suggest three ways to actualize …


Freedom Of Thought At The Ethical Frontier Of Law & Science, Marcus Moore Jan 2021

Freedom Of Thought At The Ethical Frontier Of Law & Science, Marcus Moore

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Some of the most compelling contemporary ethical questions surround 21st Century neuroscientific technologies. Among these, neurocognitive intervention technologies allow an unprecedented ability to alter thought. Concerns exist about their impact on individual freedom, behavior and personhood. They could also distort society, eroding core values of dignity, equality, and diversity. Potent laws are needed to anchor regulation in this rising field. The article explores how the long-neglected human right of Freedom of Thought might protect the integrity of the mind at the legal system’s highest level. Sample cases illustrate how it could be given effect ethically and legally to set boundaries …


R V. Turtle: Substantive Equality Touches Down In Treaty 5 Territory, Sonia Lawrence, Debra Parkes Jan 2021

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 …


Human Rights And The Rule Of Law: Implications For Canada-China Relations, Pitman B. Potter Oct 2020

Human Rights And The Rule Of Law: Implications For Canada-China Relations, Pitman B. Potter

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China’s rise to prosperity has seen increased tension with international standards of human rights and the rule of law such that, after a lengthy period of tentative engagement China has more recently worked to change international standards to accommodate its interests. China’s approach to human rights and the rule of law has significant implications for Canada, not only for our bilateral relations but also in terms of the impacts on international institutions that are of vital interest to Canada. In response, Canada should pursue a program of selective engagement, that combines attention to China’s abuses of human rights and the …


Charter Rights, State Expertise: Testing State Claims To Expert Knowledge, Emma Cunliffe Jan 2020

Charter Rights, State Expertise: Testing State Claims To Expert Knowledge, Emma Cunliffe

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This article considers the individual and collective significance of two decisions issued by the Supreme Court of Canada in 2018: Ewert v. Canada and R. v. Gubbins.


Translating Modern Slavery Into Management Practice, Galit A. Sarfaty Jan 2020

Translating Modern Slavery Into Management Practice, Galit A. Sarfaty

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This article examines how ill-defined legal norms around modern slavery are being outlined in supply chain legislation and then interpreted by management professionals. Building on an infrastructural analysis of supply chain governance, I uncover the set of practices that underlie recent regulations around modern slavery. I track the implementation of these laws by following the “chain of translation,” whereby information is transformed from on-the-ground raw data; to quantitative metrics of modern slavery risks; and finally, to polished corporate statements. This analysis focuses on the critical role being played by Sedex (Supplier Ethical Data Exchange), which is a platform for sharing …


Workplace Sexual Harassment And The "Unwelcome" Requirement: An Analysis Of Bc Human Rights Tribunal Decisions From 2010 To 2016, Bethany Hastie Jan 2020

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 …


Assessing Sexually Harassing Conduct In The Workplace: An Analysis Of Bc Human Rights Tribunal Decisions In 2010–16, Bethany Hastie Nov 2019

Assessing Sexually Harassing Conduct In The Workplace: An Analysis Of Bc Human Rights Tribunal Decisions In 2010–16, Bethany Hastie

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Sexual harassment in the workplace was first recognized as a form of discrimination in the 1980s. Since that time, the concepts of sexual harassment and discrimination have evolved substantially. This article explores how human rights tribunals address complaints of sexual harassment in the workplace through a case analysis of BC Human Rights Tribunal decisions from 2010 to 2016. Focusing on an examination of how the tribunal determines what constitutes sexually harassing conduct, this article suggests that, while human rights tribunals are advancing in their understanding and analysis of sexual harassment claims, there remain inherent limitations associated with the individualized nature …


Workplace Sexual Harassment: Assessing The Effectiveness Of Human Rights Law In Canada, Bethany Hastie Aug 2019

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 Feb 2019

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 …


Human Rights Protection: The Role Of Institutional Capacity And Selective Adaptation, Pitman B. Potter Jan 2018

Human Rights Protection: The Role Of Institutional Capacity And Selective Adaptation, Pitman B. Potter

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This paper will examine the potential application of selective adaptation and institutional capacity to the understanding of international human rights norms and practices. Enforcement of international human rights norms depends on the capacity of intermediary institutions; that is, their ability to perform their assigned tasks. Institutional performance is in turn contingent on domestic political and socio-economic conditions, and as such, local conditions of rapid socio-economic and political transformation pose particular challenges. The other key concept in this paper, selective adaptation, describes a process by which practices and norms are exchanged across cultural boundaries. The dynamic of selective adaptation can operate …


Devalued Liberty And Undue Deference: The Tort Of False Imprisonment And The Law Of Solitary Confinement, Efrat Arbel Jan 2018

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 …


R. V. K.R.J.: Shifting The Balance Of The Oakes Test From Minimal Impairment To Proportionality Of Effects, Marcus Moore Jan 2018

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

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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 …


Recognizing The Relevance Of Human Rights: The Application Of The Presumption Of Conformity In The Context Of Copyright, Graham Reynolds Jan 2018

Recognizing The Relevance Of Human Rights: The Application Of The Presumption Of Conformity In The Context Of Copyright, Graham Reynolds

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This article discusses the application of the presumption of conformity with international law in the context of copyright. Although Canadian courts have applied the presumption of conformity in a number of copyright cases, no Canadian court has explicitly considered, under the presumption of conformity, whether interpretations of provisions of the Copyright Act are consistent with, or reflect the values and principles of, international human rights treaties that Canada has signed and ratified. In this article, I will argue that Canadian courts applying the presumption of conformity in the context of copyright should do so with reference to Canada’s obligations under …


The Limitations Of Supply Chain Disclosure Regimes, Adam S. Chilton, Galit A. Sarfaty Jan 2017

The Limitations Of Supply Chain Disclosure Regimes, Adam S. Chilton, Galit A. Sarfaty

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Although the past few decades have seen numerous cases of human rights violations within corporate supply chains, companies are frequently not held accountable for the abuses because there is a significant governance gap in the regulation of corporate activity abroad. In response, governments have begun to pass mandatory disclosure laws that require companies to release detailed information on their supply chains in the hopes that these laws will create pressure that will improve corporate accountability. In this paper, we argue that supply chain disclosure regimes are unlikely to have a large effect on consumer behavior, and as a result, their …


Henry V. British Columbia: Still Seeking A Just Approach To Damages For Wrongful Conviction, Emma Cunliffe Jan 2017

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 …


Can Big Data Revolutionize International Human Rights Law?, Galit A. Sarfaty Jan 2017

Can Big Data Revolutionize International Human Rights Law?, Galit A. Sarfaty

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International human rights efforts have been overly reliant on reactive tools and focused on treaty compliance, while often under emphasizing the prevention of human rights violations. I argue that data analytics can play an important role in refocusing the international human rights regime on its original goal of preventing human rights abuses, but it comes at a cost. There are risks in advancing a data-driven approach to human rights, including the privileging of certain rights subject to quantitative measurement and the precipitation of further human rights abuses in the process of preventing other violations. Moreover, the increasing use of big …


Transparency Evolution: More Than The Right To Know, Ljiljana Biuković, Pitman B. Potter Jan 2017

Transparency Evolution: More Than The Right To Know, Ljiljana Biuković, Pitman B. Potter

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Providing an analysis of global regulation and the impact of international organizations on domestic laws, this collection grew out of a central objective to explore methods of domestic engagement with international trade and human rights norms, and the inherent difficulties in establishing balanced links between these two international law regimes. The common thread of the papers in this collection is a focus on the application of socio-legal normative paradigms in building knowledge and policy support for coordinating local performance with international trade and human rights standards in ways that are mutually sustaining.


Solitary Confinement, Prisoner Litigation, And The Possibility Of A Prison Abolitionist Lawyering Ethic, Debra Parkes Jan 2017

Solitary Confinement, Prisoner Litigation, And The Possibility Of A Prison Abolitionist Lawyering Ethic, Debra Parkes

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This paper considers the role that litigation might play in ending the human rights crisis of solitary confinement in Canada while also examining the relationship of prisoner rights litigation to broader, anti-carceral social movements. The paper proceeds in four parts. The first section provides a brief overview of the widespread use of solitary confinement in Canada’s federal prisons and in provincial and territorial jails. Next, current litigation seeking an end to solitary confinement in the federal prisons system is located in the context of a long history of prisoner rights litigation in both the US and Canada. The third section …


R. V. Safarzadeh-Markhali: Elements And Implications Of The Supreme Court's New Rigorous Approach To Construction Of Statutory Purpose, Marcus Moore Jan 2017

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

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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 …


The Limits Of Statutory Interpretation: Towards Explicit Engagement, By The Supreme Court Of Canada, With The Charter Right To Freedom Of Expression In The Context Of Copyright, Graham Reynolds Jan 2016

The Limits Of Statutory Interpretation: Towards Explicit Engagement, By The Supreme Court Of Canada, With The Charter Right To Freedom Of Expression In The Context Of Copyright, Graham Reynolds

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In its post-2002 copyright jurisprudence, the Supreme Court of Canada has clarified that the Copyright Act grants a significant degree of latitude to non-copyright owning parties to express themselves using copyrighted works. This outcome is attributable neither to the SCC having interpreted provisions of the Copyright Act according to Charter values nor to the SCC having weighed provisions of the Copyright Act against the section 2(b) right to freedom of expression. Rather, it has resulted from the SCC interpreting provisions of the Copyright Act through the lens of the purpose of copyright, as re-articulated by the SCC. The author argues …


Bordering The Constitution, Constituting The Border, Efrat Arbel Jan 2016

Bordering The Constitution, Constituting The Border, Efrat Arbel

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It is an established principle in Canadian law that refugees present at or within Canada’s borders are entitled to basic constitutional protection. Where precisely these borders lie, however, is far from clear. In this article, I examine the Canadian border as a site in which to study the constitutional entitlements of refugees. Through an analysis of the Multiple Borders Strategy (MBS) – a broad strategy that re-charts Canada’s borders for the purposes of enhanced migration regulation – I point to a basic tension at play in the border as site. I argue that the MBS imagines and enacts the border …


Anti-Social Behaviour, Expulsion From Condominium, And The Reconstruction Of Ownership, Douglas C. Harris Jan 2016

Anti-Social Behaviour, Expulsion From Condominium, And The Reconstruction Of Ownership, Douglas C. Harris

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Statutory condominium regimes facilitate massive increases in the density of owners. The courts are responding to this spatial reorganization of ownership by reconstructing what it means to be the owner of an interest in land. This article analyzes the ten cases over eight years (2008-2015) in which Canadian courts grant eviction and sale orders against owners within condominium for anti-social behaviour. The expulsion orders are new. Until these cases, ownership within condominium in Canadian common law jurisdictions was thought to be as robust as ownership outside condominium such that owners could not be evicted from and forced to sell their …


The Case For ‘Firewall’ Protections For Irregular Migrants: Safeguarding Fundamental Rights, Bethany Hastie Jan 2015

The Case For ‘Firewall’ Protections For Irregular Migrants: Safeguarding Fundamental Rights, Bethany Hastie

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The issue of irregular migration is experiencing heightened attention in political, social and legal arenas. While deterrence and crime-control discourse and practices dominate current approaches to irregular migration, this article seeks to focus on the problematic neglect of the treatment of irregular migrants in destination countries, in relation to their ability to access fundamental rights and basic public services. This article will put forth an argument for the establishment of firewalls – a separation between immigration enforcement activities and public service provision. This article will canvass existing trends and practices that have both contributed to the erosion of firewall protections, …


Contesting Unmodulated Deprivation: Sauvé V Canada And The Normative Limits Of Punishment, Efrat Arbel Jan 2015

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 …


Between Protection And Punishment: The Irregular Arrival Regime In Canadian Refugee Law, Efrat Arbel Jan 2015

Between Protection And Punishment: The Irregular Arrival Regime In Canadian Refugee Law, Efrat Arbel

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This chapter questions the Canadian border’s reconstitution as a site of punishment for refugee claimants by examining the Designated Foreign National (DFN) regime, which permits the Canadian government to discipline foreign nationals for suspected violations of Canadian border laws by subjecting them to penalties that are formally classified as administrative, but amount to de facto punishment. These include mandatory arrest and detention, as well as compulsory reporting and ongoing document inspection. In this chapter, I examine the operation of the DFN regime in relation to other border measures, focusing specifically on the Canada-US Safe Third Country Agreement. I argue that …


Ending The Isolation: An Introduction To The Special Volume On Human Rights And Solitary Confinement, Debra Parkes Jan 2015

Ending The Isolation: An Introduction To The Special Volume On Human Rights And Solitary Confinement, Debra Parkes

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Prisoners and their advocates in Canada and around the world have been calling attention to the harms and impact of solitary confinement for some time. What is significant about the current moment is that these calls seem to be achieving some traction, even as the use of solitary confinement grows across jurisdictions. This short piece introduces a special volume of the Canadian Journal of Human Rights which collects the writing of advocates and scholars from a range of disciplines (criminology, law, philosophy) who bring a variety of perspectives and methodologies to bear on the opaque correctional systems that hold human …


Complicity In Business And Human Rights, James G. Stewart Jan 2015

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 …


Introduction: Gender In Refugee Law: From The Margins To The Centre, Efrat Arbel, Catherine Dauvergne, Jenni Millbank Jan 2014

Introduction: Gender In Refugee Law: From The Margins To The Centre, Efrat Arbel, Catherine Dauvergne, Jenni Millbank

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Questions of gender have strongly influenced the development of international refugee law over the last few decades. This volume assesses the progress towards appropriate recognition of gender-related persecution in refugee law. It documents the advances made following intense advocacy around the world in the 1990s, and evaluates the extent to which gender has been successfully integrated into refugee law. Evaluating the research and advocacy agendas for gender in refugee law ten years beyond the 2002 UNHCR Gender Guidelines, the book investigates the current status of gender in refugee law. It examines gender-related persecution claims of both women and men, including …


Gendered Border Crossings, Efrat Arbel Jan 2014

Gendered Border Crossings, Efrat Arbel

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Nine years after the implementation of the Canada-US Safe Third Country Agreement (STCA), this chapter examines the STCA while asking the question: what about gender? How have initial concerns about the STCA’s adverse gender impact mapped onto the current, much-altered landscape of Canadian refugee law? The chapter revisits findings made in Bordering on Failure, a recent report I co-authored about the STCA, in an effort to read gender into its absence. I begin by charting an overview of the STCA’s operation and effect to provide context for discussion. I then revisit the central findings made in Bordering on Failure, paying …