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- Rule of law; administrative law; arbitrariness; fairness; standard of review; reasons; reasonableness; judicial review; Charter; Charter values; deference; Doré; proportionality (1)
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Articles 1 - 9 of 9
Full-Text Articles in Law
The Other Section 7, Margot Young
The Other Section 7, Margot Young
All Faculty Publications
The somewhat rudimentary notions of liberty, life and security of the person that are corralled by traditional section 7 jurisprudence are not the sole indicator of what the section potentially ought to, and indeed may ultimately, protect and ensure. It is now fairly well established that the rights section 7 of the Canadian Charter of Rights and Freedoms protects apply well outside the sphere of criminal law. Two strands of expansion exist, one less controversial than the other. First, it is relatively clear that section 7 encompasses executive administration of the law. The second path of expansion allows section 7 …
Bordering On Failure: Canada-U.S. Border Policy And The Politics Of Refugee Exclusion, Efrat Arbel, Alletta Brenner
Bordering On Failure: Canada-U.S. Border Policy And The Politics Of Refugee Exclusion, Efrat Arbel, Alletta Brenner
All Faculty Publications
In June 2012, the Canadian government ushered in sweeping reforms to Canada’s refugee system. These reforms brought debates about Canadian refugee protection to the forefront of legal and political discourse. In advancing these reforms, the Canadian government has asserted that Canada’s refugee system is among the most generous and compassionate in the world. Canada’s doors, the Canadian government has stated, remain open to legitimate refugees. This report evaluates these claims by examining the U.S.-Canada Safe Third Country Agreement and border measures implemented under the rubric of the Multiple Borders Strategy, and analyzing their effects on asylum seekers. A detailed examination …
Shifting Borders And The Boundaries Of Rights: Examining The Safe Third Country Agreement Between Canada And The United States, Efrat Arbel
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This article analyzes the Canadian Federal Court and Federal Court of Appeal decisions assessing the Safe Third Country Agreement between Canada and the United States (STCA). It examines how each court’s treatment of the location and operation of the Canada-US border influences the results obtained. The article suggests that both in its treatment of the STCA and in its constitutional analysis, the Federal Court decision conceives of the border as a moving barrier capable of shifting outside Canada’s formal territorial boundaries. The effect of this decision is to bring refugee claimants outside state soil within the fold of Canadian constitutional …
Social Justice And The Charter: Comparison And Choice, Margot Young
Social Justice And The Charter: Comparison And Choice, Margot Young
All Faculty Publications
At a time of radical inequality, the changes sought by social justice advocacy are urgently needed. Yet repeatedly, courts fail to respond adequately to this challenge. A core issue plagues social justice jurisprudence under sections 7 and 15: the difficulty inevitable in the contemplation and expression of the social and political forms in which oppression and social injustice occur. This problem manifests doctrinally in ways specific to the rights at issue. In section 15 cases, the casting of comparator groups has been deeply problematic, and in both section 15 and section 7 cases, the courts fail to deliver a nuanced …
Positive Obligations And Criminal Justice: Duties To Protect Or Coerce?, Liora Lazarus
Positive Obligations And Criminal Justice: Duties To Protect Or Coerce?, Liora Lazarus
All Faculty Publications
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 …
How The Charter Has Failed Non-Citizens In Canada – Reviewing Thirty Years Of Supreme Court Of Canada Jurisprudence, Catherine Dauvergne
How The Charter Has Failed Non-Citizens In Canada – Reviewing Thirty Years Of Supreme Court Of Canada Jurisprudence, Catherine Dauvergne
All Faculty Publications
This paper presents a study of all of the Supreme Court of Canada’s Charter-era jurisprudence addressing the rights of non-citizens. It traces the jurisprudential evolution from early decisions strongly supportive of non-citizens’ rights claims, to more recent rulings where non-citizens’ rights claims are rejected, sidelined or even ignored. Patterns in decision making are discernible and the decline in protections for non-citizens follows logically enough from a series of interpretive stances made relatively early on. There is evidence here of what I have termed ‘Charter hubris.’ This is a leading factor in explaining the current state of affairs, which works alongside …
Governments In Miniature: The Rule Of Law In The Administrative State, Mary Liston
Governments In Miniature: The Rule Of Law In The Administrative State, Mary Liston
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This chapter discusses several of the key attributes of the rule of law and explores their relevance for Canadian administrative law: the rule of law as an unwritten constitutional principle; the rule of law as a political ideal which structures institutional relations and competencies; and, the rule of law as a distinctive political morality which, in Canada, is understood as a dialogue among the three branches of government. The chapter assesses the Canadian articulation of the rule of law in the jurisprudence of the Supreme Court of Canada, then turns to the contemporary judicial review of administrative action. Recent case …
Migrant Smuggling: Canada's Response To A Global Criminal Enterprise, Benjamin Perrin
Migrant Smuggling: Canada's Response To A Global Criminal Enterprise, Benjamin Perrin
All Faculty Publications
Migrant smuggling is a dangerous, sometimes deadly, criminal activity. Failing to respond effectively to migrant smuggling and deter it will risk emboldening those who engage in this illicit enterprise, which generates proceeds for organized crime and criminal networks, funds terrorism and facilitates clandestine terrorist travel, endangers the lives and safety of smuggled migrants, undermines border security, and undermines the integrity and fairness of immigration systems. Introduced in the Canadian House of Commons in June 2011, the Preventing Human Smugglers from Abusing Canada’s Immigration System Act (Bill C-4) includes proposed amendments to the Immigration and Refugee Protection Act that would enhance …
The Culture Of Rights Protection In Canadian Refugee Law: Examining The Domestic Violence Cases, Efrat Arbel
The Culture Of Rights Protection In Canadian Refugee Law: Examining The Domestic Violence Cases, Efrat Arbel
All Faculty Publications
This article examines Canadian refugee law cases involving domestic violence, analyzed through a comparison with cases involving forced sterilization and genital cutting. Surveying 645 reported decisions, it suggests that Canadian adjudicators generally adopted different methods of analysis in refugee cases involving domestic violence, as compared with these other claims. The article argues that Canadian adjudicators rarely recognized domestic violence as a rights violation in itself but, instead, demonstrated a general predisposition toward finding domestic violence persecution in cultural difference. That is, adjudicators tended to recognize domestic violence claimants not as victims of persecutory practices but rather as victims of persecutory …