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 …

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 …

Judicial Workbook On Bill C-92 — An Act Respecting First Nations, Inuit And Métis Children, Youth And Families, Hadley Friedland, Naiomi Metallic, Koren Lightning-Earle

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Objective: Based on the purpose, history, textual wording and relevant interpretative principles, these are the approaches to the provisions of the Act that we believe will best achieve its purpose, which Canada has identified as “to protect and ensure the well-being of Indigenous children, families and communities by promoting culturally sensitive child welfare services, with the goal of putting an end to the overrepresentation of Indigenous children in child and family services systems."

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 …

Aboriginal Rights, Legislative Reconciliation And Constitutionalism, Naiomi Metallic

Articles, Book Chapters, & Popular Press

This paper sketches out the idea of ‘legislative reconciliation’ – governments in Canada using their legislative powers to recognize and protect the inherent rights of Indigenous peoples. Legislative reconciliation is needed because the existing approaches to the implementation of inherent rights—negotiation and constitutional litigation—have been insufficient on their own to bring about a mutually respectful relationship between Indigenous and non-Indigenous peoples. Despite the entrenchment of s 35, state governments have not seen themselves as having a role in its implementation in the same way they do for Charter rights. In particular, Canadian governments have not felt compelled to legislate to …

Animal Rights Activism And The Constitution: Are Ag-Gag Laws Justifiable Limits?, Jodi Lazare

Articles, Book Chapters, & Popular Press

Forthcoming in the Osgoode Hall Law Journal (2022).

It is a troubling time to be an animal rights activist in Canada. Recently, Alberta adopted legislation to create harsh penalties for trespassing onto private property, for obtaining permission to enter private property based on false pretences, and for interfering with vehicles on public highways. These laws relate to agricultural lands, to private property generally, and, where roads are concerned, to public property. Ontario, for its part, has adopted similar legislation aimed specifically at agricultural property. The legislation in both provinces purports to protect the security of farmers, their families, and rural …