Human Rights Law Commons^™

Revisioning The Oversight Of Research Involving Humans In Canada, Jocelyn Downie, Fiona Mcdonald

Articles, Book Chapters, & Popular Press

When individuals are asked to participate in research they should be able to assume that the research "is well designed and well executed, that the investigator is competent to undertake the study, that the study will be run efficiently, safely, and ethically and that the deviations from good practice will be identified and corrected." The central question that we focus on in this paper is whether the governance mechanisms that are currently in place to regulate the conduct of research involving humans are adequate to enable those who are approached to participate in research to make these assumptions. This review …

'I Do' Kiss And Tell: The Subversive Potential Of Non-Normative Sexual Expression From Within Cultural Paradigms, Elaine Craig

Articles, Book Chapters, & Popular Press

Using a comparative analysis of the equality movements of sexual minorities in Canada and India the author identifies a symbiosis between the subversive benefits of a deconstructionist approach to equality and the practical achievements to be gained by a rights-based model of social justice. The analysis is conducted through an examination of the role that the expression of same-sex desire plays in the legal and social positions of sexual minorities in Canada and India. The author argues that the acquisition of rights can provide sexual minorities with greater access to dominant cultural rituals and that such access provides opportunities to …

Protecting Human Research Subjects: A Jurisdictional Analysis, Jennifer Llewellyn, Jocelyn Downie, Robert Holmes

Articles, Book Chapters, & Popular Press

The most recent speech from the throne contained a pledge from the federal government to "work with provinces to implement a national system for the governance of research involving humans, including national research ethics and standards." This commitment signals a desire on the part of the federal government to address concerns about the inadequacies of the current governance of health research involving humans (RIH). To this end, Health Canada's Ethics Division is currently exploring the ways in which such a national governance system for RIH might be implemented. It is important for the federal government, as it moves toward making …

The Institutional And Substantive Effects Of The Human Rights Act In The United Kingdom, Christopher D. Jenkins

Dalhousie Law Journal

This article reviews the institutional and substantive impact that the Human Rights Act has on English law through its incorporation of the European Convention on Human Rights. Under the Act, higher courts can now move beyond a formalistic method of judicial review and substantively evaluate legislation in light of the Convention. The judiciary can accordingly issue declarations that statutes are incompatible with the Convention which, although not invalidating the act in question, will bring considerable political pressure to bear on Parliament to ensure compliance. The Act further directs courts to give special regard to the decisions of the European Court …

Retrieving The Rejected Stone: Rethinking The Marginalization Of The Economic, Social And Cultural Rights Under The African Charter On Human And Peoples' Rights, Shedrack Chukwuemeka Agbakwa

LLM Theses

The 'African Charter on Human and Peoples Rights' is unique in its conceptualization of rights. Among other things, it provides in a single document a core of both economic, social and cultural rights, as well as civil and political rights. However, the 'Charter's' Preamble clearly demonstrates where the emphasis of the document lies. The 'African Charter' asserts a belief that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights. Given the grave economic problems facing Africa, the emphasis on economic, social and cultural rights as a precondition for the enjoyment …

Human Rights And International Mutual Legal Assistance: Resolving The Tension, Robert Currie

Articles, Book Chapters, & Popular Press

If indeed, as has been said, "it is fashionable nowadays to discuss the problems that arise from the application of general human rights to extradition", then it is also true that human rights concerns are increasingly being raised with regard to other forms of international criminal co-operation as well. As compliance with international human rights norms has become the subject of greater scrutiny by both States and international adjudicative bodies, concerns have been raised regarding their application to the various processes by which States aid each other in combating transnational crime. Prosecuting authorities are presented with problems of how the …

Human Rights And International Mutual Legal Assistance: Resolving The Tension, Robert Currie

Articles, Book Chapters, & Popular Press

If indeed, as has been said, "it is fashionable nowadays to discuss the problems that arise from the application of general human rights to extradition", then it is also true that human rights concerns are increasingly being raised with regard to other forms of international criminal co-operation as well. As compliance with international human rights norms has become the subject of greater scrutiny by both States and international adjudicative bodies, concerns have been raised regarding their application to the various processes by which States aid each other in combating transnational crime. Prosecuting authorities are presented with problems of how the …

Redressing The Imbalances: Rethinking The Judicial Role After R. V. R.D.S., Richard Devlin Frsc, Dianne Pothier

Articles, Book Chapters, & Popular Press

The decision of the Supreme Court of Canada in R. v. R.D.S. dealt with whether a trial judge's comments, about the interactions between police officers and "non-white groups", gave rise to a reasonable apprehension of bias in the circumstances. They strongly criticize the contrary ruling of the dissent as inappropriately drawing a false dichotomy between decisions based on evidence and decisions based on evidence and decision based on generalizations, and as improperly ignoring social context with an unwarranted confidence in the ideology of colour blindness. While more supportive of the majority's analysis, the authors also find cause for concern, with …

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 …

In The Path Of Our Ancestors: The Aboriginal Right To Cross The Canada-United States Border, Pamela Doris Palmater

LLM Theses

In this thesis, I will argue that the Aboriginal peoples whose traditional territories straddle the Canada - United States border have the right to pass and repass the border freely. With this right comes the ability to live and/or work in either country without having to apply for permission each time with Immigration officials. I have suggested that instead of litigating these rights, the governments of both Canada and the United States should commence tri-partite discussions on how best to accommodate these rights, both on an interim basis and permanently through legislation. One of the measures that I have suggested …

Use Of Discretion In Independent Migrant Selection: A Study Of Canadian Immigration Law, Policy And Practice, Philip Lupul

LLM Theses

Canadian immigration law has traditionally relied upon broad grants of discretionary authority as a tool for immigrant application processing. Such authority has had two facets--a procedural aspect allowing for flexibility in methods and processes for handling applications, and a substantive aspect relating to actual decision making. This thesis examines such discretion in the particular context of the Independent category of migration that is provided for under the current Immigration Act and Regulations. This thesis argues that discretionary power has recently been significantly affected by two evolving trends. Hampered by fiscal constraints, the bureaucracy has sought to reduce usage of positive …

A Matter Of Balancing: The Inability To Force Treatment On All Voluntary, Treatment-Incapable Patients In Ontario, Cindy L. Blancher

LLM Theses

This thesis concentrates on the question of whether or not voluntary, treatment incapable patients who have had their treatment consented to by a substitute decision-maker can be involuntarily treated. It is my opinion that under the current legislative scheme in Ontario the restraint of a voluntary, treatment incapable patient for the purposes of treatment is illegal subject to the following exceptions: (a) a guardianship order exists that contains authority to restrain and detain; or (b) a Power of Attorney for Personal Care has been executed by the now treatment incapable individual authorizing his substitute decision-maker to have him detained and …

Development Projects And Project-Affected Peoples: The Need To Advance Sustainable Development By Establishing An International Development Institutions Inspection Panel To Redress Grievances, Ram Anand Shankar

LLM Theses

Indigenous and tribal communities are frequently affected by development projects in an adverse manner. Often they do not have any effective way of redressing their grievances, particularly against noncompliance of environmental guidelines and rules by International Development Institutions. This thesis explores avenues open to affected peoples to redress their grievances regarding the negative impacts of development projects. The thesis begins by defining "Project Affected Peoples," explores the concept of sustainable development, and suggests consequent principles for development projects. Then follows an examination of an existing grievance-redressal mechanism, the World Bank Inspection Panel, which has been mandated to redress complaints from …

Report On The Consultation With The Maritime School Of Social Work Community, Dianne Pothier

Dianne Pothier Collection

In my assessment there is a genuine and strong commitment to affirmative action and anti-racism at the MSSW. But that in itself is only the beginning. Real cross cultural understanding is a major challenge, and needs to be constantly worked at. In the process, mistakes will be made on all sides. Allowances need to be made for that. The School looks at itself compared to other institutions; critics look at the School compared to an ideal world. Neither perspective holds the complete truth. The MSSW needs to continue to work at the effectiveness of its affirmative action program, defining that …

A Comment On The Canadian Bar Association's Gender Equality Task Force Report, Dianne Pothier

Dianne Pothier Collection

The Task Force Report is a comprehensive one that deserves to be read by all members of the profession. It documents widespread problems and suggests wide ranging solutions. Reading a review is not an adequate substitute. A review can only touch on highlights, whereas it is in the detail of the Report that its real impact lies. This review will briefly comment on each of the themes announced in the title of the Report: equality, diversity, and accountability. Although in my assessment the report is in some respects too timid, that should not take away from the fact the Report …

Solidarity Or Solipsistic Tunnel Vision? Reminiscences Of A Renegade Rapporteur, Richard F. Devlin Frsc

Articles, Book Chapters, & Popular Press

In short, human rights is "an essentially contested concept". I think it is important to be clear right from the beginning as to what we mean by human rights, because that assumption will determine the remainder of our analysis. Two conceptions, in particular, tended to surface in the Conference and it is important to spotlight them because they underpin, concretize and reflect many of the other tensions of the last couple of days. These I shall call "the essentialist" and "the critical modernist" versions of human rights.

The Big Mac Attack: A Critical Affirmation Of Mackinnon's Unmodified Theory Of Patriarchal Power, Alexandra Z. Dobrowolsky, Richard F. Devlin Frsc

Articles, Book Chapters, & Popular Press

For several years now, Catharine MacKinnon has impressed and inspired us in that she has consistently and eloquently articulated much of what we felt and feared: that the condition of women in North American society is intoler able; that the state, because of its acts and omissions, is complicitous in the enforced inequality of women; and that law, more often than not, has been part of the problem rather th.an part of the solution. However, despite our broad agreement with the general direction of MacKinnon 's analysis throughout this period, we each have had, in our own different ways, a …

Rule Of Law In A State Of Emergency, John P. Humphrey

Dalhousie Law Journal

Is there any such thing as an absolute human right? Part of the answer to this question will be found in article 4 of the United Nations' Convenant on Civil and Political Rights. The article says in part that "in time of public emergency which threatens the life of the nation ... the States Parties to the present Covenant may take measures derogating from their obligation under the present Covenant to the extent strictly required by the exigencies of the situation ... " Similar provisions will be found in regional conventions on the human rights.

Le Rôle Organisations Internationales Dans La Protection Du Droit À La Vie., Paul Gormley

Dalhousie Law Journal

The emerging role of international and regional organizations toward the realistic protection of the right to life (along with closely related guarantees) constitutes the scope of the scholarly treatise, which is an outgrowth of the author's participation at the Research Center of the Hague Academy of International Law. Precisely Johannes van Aggelen of the Center for Human Rights, United Nations Office at Geneva, is one of the rising scholars of the coming generation of human rights lawyers. Indeed, his work in such closely related fields as humanitarian law, the Arab-Israeli conflict, the right to an adequate food supply and supporting …

Second Class Rights? Principles And Compromise In The Charter, Denise G. Réaume, Leslie J. M Green

Dalhousie Law Journal

Minority language rights are both historically and politically central to the Canadian constitution. It is also commonly supposed that they are fundamental rights, rooted in principle, and deserving generous interpretation by the courts. For a time, it seemed that the Supreme Court of Canada shared this view. In the Manitoba Language Reference, for example, they said that "The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity." In Mercure v. A.G. of Saskatchewan they reiterated: "It can hardly be gainsaid that language is profoundly anchored in the human condition. Not …

The Human Rights Committee And Articles 7 And 10(1) Of The International Covenant On Civil And Political Rights, 1966, P R. Ghandhi

Dalhousie Law Journal

The International Covenant on Civil and Political Rights and the Optional Protocol thereto, adopted by the General Assembly of the United Nations in Resolution 2200A (XXI) t of 16 December 1966, entered into force on 23 March 1976 in accordance with Articles 49 of the Covenant and 9 of the Protocol respectively. As at 28 July 1989, there were eighty-seven States Parties to the Covenant and forty-five States Parties to the Protocol.

The Concept And Present Status Of The International Protection Of Human Rights: Forty Years After The Universal Declaration, Annemieke Holthius

Dalhousie Law Journal

John P. Humphrey, the first Director of the Human Rights Division of the United Nations, in his preface to The Concept and Present Status of the International Protection of Human Rights - Forty Years after the Universal Declaration, observes that the question of the international protection of human rights "has received far too little attention from scholars, statesmen, diplomats and human rights activists". There "has so far been no attempt ... to provide a comprehensive account" of the concept of "protection" within the international law of human rights. In his new book, Dr. B.G. Ramcharan, the distinguished lawyer-adviser in the …

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 …

The Impact On Women Of Entrenchment Of Property Rights In The Canadian Charter Of Rights And Freedoms, Clare F. Beckton

Dalhousie Law Journal

On Friday, 29 April 1983 the Progressive Conservative opposition in Parliament proposed an amendment to the constitution which would change section 7 of the existing Charter to read: Everyone has the right to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except in accordance with the principles of fundamental justice. (emphasis added to identify amendment) The language used to present this amendment shows that its proponents were espousing a very traditional view of property. For example, Jake Epp said:

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.

Orwell's Prophecies: The Limits Of Liberty And The Limits Of Law, Julian Symons

Dalhousie Law Journal

Let me say something first about the scope of this talk. As we approach 1984, George Orwell's book with that title seems to have increasing relevancy. It was not intended as a prophetic work - the very title came simply from the fact that the final version was completed in 1948, so that the last two numerals were reversed. And it was concerned less with conjectural futures than with the world Orwell saw around him. It was, he said, a projection of what might happen if totalitarian tendencies in several countries developed as they had been doing in the years …

The Emerging Jurisprudence Of The Human Rights Committee, B. G. Ramcharan

Dalhousie Law Journal

Referring to the role of the Human Rights Committee in the examination of reports submitted by States parties to the International Covenant on Civil and Political Rights, the Canadian representative in the Third Committee of the General Assembly in 1966, expected that the Committee would "examine, analyse, appraise and evaluate the reports ... in a searching and critical fashion." ' After two years, during which five sessions of the Human Rights Committee were held, how does the Committee measure up to this standard? This will be the main inquiry of the present article during the course of which the following …

Science, Technology And Human Rights, Yoram Dinstein

Dalhousie Law Journal

The rapid development of science and technology, particularly in the last generation, has had a tremendous impact on human rights. Many, perhaps most, human rights are adversely affected - in actuality or potentiality - by modern machines.' The subject has been discussed at great length by scientists and statesmen, lawyers and laymen, preachers and futurologists. But, to understand it in its proper perspective, it is believed that a typological approach is called for. It is necessary to distinguish between four different types of cases, in accordance with the nature of the relationship between science and technology, on the one hand, …

A. G. For Canada Et Al V. Claire Dupond: The Right To Assemble In Canada?, Clare F. Beckton

Dalhousie Law Journal

The renewal of the Federation must confirm the pre-eminence of citizens over institutions, guarantee their rights and freedoms and ensure that these rights and freedoms are inalienable. 1 These words from Prime Minister Trudeau are a reflection of the concern today for protection of individual rights and freedoms. His words also reflect the past concerns with protection of individual rights and freedoms particularly in countries which espouse democratic principles. He has recognized that the balance between individual and state interests must be struck in favour of the individual. In order to achieve this result, there must be some consensus in …