Access to Justice: Comparing Human Rights Models in British Columbia

Since the passage of the first anti-discrimination laws in North America, the number of groups or classes protected has slowly expanded. People with disabilities are one of the more recent groups to be covered by such laws. No Canadian human rights statute includes the obese or overweight as a separate designated group. British Columbia is the only jurisdiction in which obesity per se has been found to be a covered disability. All other Canadian jurisdictions that have explicitly addressed the issue require claimants to prove that their obesity is a disabling condition and has an underlying involuntary medical cause. This paper examines the treatment of the obese under the antidiscrimination laws of the Canadian federal and provincial jurisdictions, focusing primarily upon the laws of Ontario. Its central thesis is that despite the reticence of various human rights agencies, there is ample legal basis for including obesity as a covered disability under human rights law.

Regional human rights courts like the European Court of Human Rights (ECtHR), the Inter-American Court of Human Rights (IACtHR), and the African Court of Human and People's Rights (ACtHPR) have become popular sites of mobilization for victims and activists who seek justice when justice fails at home. Besides being platforms for individual remedy, human rights courts increasingly shape social norms and state policy within countries, making them attractive avenues for rights advocates to develop new norms or to push domestic authorities to reform legislation. The judges of these courts can decide, for example, whether same-sex couples have a right to be married, if prisoners have the right to vote or receive HIV/AIDS treatment, or when a state can deport illegal immigrants to a country where they will likely be tortured. As these courts pass their judgments, they often find themselves in conflict with states that are violating human rights of marginalized groups on a large scale and are unwilling to implement international rulings. Although international human rights courts have become increasingly popular venues among victims and activists who seek justice when justice fails at home, we are only beginning to understand how activists play roles in shaping the development of regional human rights courts' case law—the body of judgments that shapes how judges will make their decisions in the future. We now have plenty of international relations and international legal research on the interactions between states and international courts: how judges in these courts wrestle between deferring to the interests of member state governments whose actions are on trial and sticking closely to the conventions' fundamental yet evolving principles (Alter et al., 2019; Helfer & Voeten, 2014). As some states begin to resist international courts' authority, scholars have begun to examine the dynamics of this backlash (Hillebrecht, 2022; Madsen et al., 2018; Sandholtz et al., 2018). Recent studies have also demonstrated that human rights advocates—whether NGOs or individual lawyers—have a significant impact on shaping the jurisprudence of international courts and the impact judgments have in concrete locations (Kahraman, 2018; Sundstrom, 2014; van der Vet, 2012; Kurban, 2020; Conant, 2018; Harms, 2021; Cichowski, 2016; Hodson, 2011; Haddad, 2018). Meanwhile, these advocates themselves have been subject to repression and stigmatization by governments as part of the backlash phenomenon. Without an adequate understanding of the factors shaping activists' engagement with international courts, we risk undervaluing their strategic impact on the expansion of case law, the human rights protection of marginalized groups who cannot find remedies at home, and the domestic implementation of these judgments in an age of state backlash. In this section, we summarize the three papers contained in this symposium and their original contributions to these themes. Over the last decade, dozens of countries have erected legal barriers or started vilifying campaigns to stymie the work of NGOs (Buyse, 2018; Chaudhry, 2022). One tactic in this toolkit is the enactment of burdensome regulation on NGOs that receive funds from foreign donors as they allegedly promote foreign agendas (Christensen & Weinstein, 2013; Dupuy et al., 2021). States that frequently abuse human rights are especially prone to target NGOs that engage in strategic litigation (Hillebrecht, 2019). Most NGOs depend on foreign funding, and NGOs that litigate international cases fall disproportionately in this category, but do funders affect the selection of cases? In “Foreign Agents or Agents of Justice? Private Foundations, NGO Backlash, and International Human Rights Litigation,” Heidi Haddad and Lisa Sundstrom examine the extent to which Western donors, particularly private foundations, have encouraged NGOs in Europe to litigate at the ECtHR as a human rights advocacy strategy. They examine overall patterns of donor funding and NGO litigation records, and look in more detail at the case of Russian NGOs' foreign funding and litigation records. The analysis is extremely timely, as the Russian government's criminalization of independent civil society actors, especially in the human rights field, and their accusation that foreign funding turns NGOs into “foreign agents” have been crucial elements of the Russian regime's autocratization. This claim has also provided fuel for Russia's disenchantment with the ECtHR in recent years, contributing to the assessment of many observers that Russia's full-scale attack on Ukraine was the last straw in an inevitable collision course leading to its exit from the Council of Europe. Haddad and Sundstrom debunk the idea that foreign donors are pushing NGOs toward strategies of human rights litigation. Instead, they argue, there is more evidence that NGOs themselves promoted the mechanism of international litigation as a strategy that donors later adopted. This article is a poignant reminder of the advocacy tools that Russian human rights activists and citizens have lost as a result of their government's departure from the Council of Europe, including ECtHR jurisdiction. Yet it also provides insight into the likely roles of foreign donors in other country cases where NGOs are using international court litigation as a human rights advocacy strategy, which is often a target of the ire of national governments, as explored in the next article in the symposium. When states attack human rights NGOs within their borders and/or international human rights courts themselves, how does this affect the willingness of those NGOs to take cases to international courts, and the ways in which they do so? De Silva and Plagis ask this question in their article about state backlash against NGOs in the case of Tanzania and the African Court on Human and Peoples' Rights. A fascinating empirical question they pose is: does state backlash against NGOs increase NGO litigation at international courts (to contest state repression at those courts and use international mechanisms when domestic ones are not available), roughly in line with Keck and Sikkink's famous “boomerang pattern” (Keck & Sikkink, 1998), or decrease it due to heightened fear and restricted NGO capabilities that state repression creates? Employing a process-tracing analysis of NGOs' involvement in three cases before the African Court at different stages of the Tanzanian government's backlash against the Court, De Silva and Plagis find that “two-level backlash” by states can result in both phenomena, either promoting or deterring NGO legal mobilization at international human rights courts, depending on certain conditions. The three selected cases concerning the death penalty, the rights of persons with albinism, and the rights of pregnant schoolgirls and mothers, which took place at different time periods, demonstrate a number of patterns of state backlash interacting with NGO strategies. The authors find that domestic-level state backlash deterred domestic NGOs from partnering with international NGOs in litigation, but that such backlash, when it repressed domestic political and legal mobilization opportunities, actually encouraged both Tanzanian and international NGOs to turn to the African Court more frequently to seek remedies. International-level backlash in turn only deterred NGOs from international litigation when such backlash consisted of state efforts to restrict NGOs' ability to engage in litigation, and not when the international backlash was in the form of routine noncompliance with African Court rulings. Importantly, the authors find that NGO responses to state backlash were significantly shaped by their degree of legal consciousness and expertise with the rules, proceedings, and workings of the African Court. Those NGOs with less knowledge and experience were more likely to back away from engaging with the Court under the pressure of state backlash. De Silva and Plagis conclude that “NGOs' persistent human rights advocacy in the face of state backlash is a double-edged sword,” in the sense that they may not be deterred by state backlash initially, but there is a danger that their continued determination to engage in international litigation could prompt governments to engage in even more severe forms of backlash, with critical impacts on international courts and already vulnerable human rights defenders. Rights advocates have a growing menu of institutions and courts available to them. How do activists choose at which institution to lodge their cases in a world where legal remedies have diversified, or as some have argued, fragmented (Koskenniemi & Leino, 2002)? In “What Makes an International Institution Work for Labor Activists? Shaping International Law through Strategic Litigation,” Filiz Kahraman goes beyond the tendency of legal mobilization studies to only examine how activists interact with a single court or institution. Instead, Kahraman opens up how rights advocates imagine which institution is most receptive to their claims. Drawing on a comparative interview study of British and Turkish trade union activists and their legal mobilization campaigns at international courts and quasi-judicial institutions like the International Labor Organization (ILO), Kahraman examines how activists first probe and then strategically identify which court or international institution is most susceptible to their primary goals of influencing structural reforms and setting new norms. Through this probing process—or dynamic signaling game between courts and litigants—activists push a court's jurisprudence and case law into new issue areas. For instance, at the ECtHR, Turkish trade unionists challenged domestic courts' ruling that public sector workers did not have the right to establish unions, even though the ECtHR had no established case law on labor rights in 1990s. They won the case, with the ECtHR finding that Turkey violated the right of public sector workers to unionize. These cases not only had an impact within Turkey, but over the next decades, similar cases brought by British unionists would spin off the early precedent set by the Turkish legal mobilization efforts. Kahraman argues that they ultimately pushed the ECtHR to recognize the basic trade union rights as fundamental human rights. Kahraman sheds light on the often hidden strategies behind international litigation. Activists litigate not just for the immediate impact on the current case they work on, but how they envision that all the cases they work on may shape norms and domestic structural reforms further in the future. Whether an institution is perceptive of claims lies in the eye of the beholder. Kahraman finds that besides targeting institutions with high compliance rates, they also take cases to institutions with low rates of compliance, especially “if these institutions have extensive judicial authority to create new international norms.” So, it is not the de jure protection set by an international courts, but rather how activists perceive the juridical responsiveness and judicial authority of courts—or, how judges adopt either an activist approach or restraint in response to incoming cases and how willing states are to implement cases of a court, respectively—that determines why activists select certain courts or quasi-judicial institutions (like the ILO). Kahraman gives us new tools to interpret how activists perceive authority and receptiveness and respond to opportunities. Rather than static external legal remedies, courts and quasi-judicial institutions are opportunity structures that are malleable to the strategic vision of the activist or litigant. The articles in this symposium together reveal a number of key overlapping insights. At the broadest level, they demonstrate that activists' behaviors and strategies influence international courts' jurisprudence, politics within states, and the human rights outcomes of everyday citizens—and these influences have often been hidden in our existing canon of research on international courts. In addition, all of these articles show that, while activists may face challenges in their efforts, often including significant backlash from their home state governments, they also continue to retain significant agency through their creative efforts to develop legal strategies and circumvent state repression. Activists perennially innovate: sparking the ideas that inspire donors who fund them; calculating how to continue their litigation work when government actors threaten them; and taking risks in litigation to push courts to expand how they define human rights. However, along with these uplifting conclusions, there are worrying patterns that demand future research. States are increasingly pushing back against the powers of international courts to bind them to costly measures, and as this symposium has shown, national governments often point to activists as contributors to this “problem” of invasive international human rights standards. A growing body of research has tracked how human rights defenders of all kinds globally are under threat from actors like governments and corporations who disagree with their contentious actions. We need more studies that gather comprehensive data and systematically track these threats, specifically with regard to activists who engage in international human rights litigation. We suspect that such activists are likely disproportionately targeted due to the international visibility of their complaints. We also desperately need research into possible innovative responses to these threats to activists—responses from activists, funders, governments of countries that support human rights, and international courts themselves. Freek van der Vet is a University Researcher at the Erik Castrén Institute of International Law and Human Rights, Faculty of Law, University of Helsinki and the principal investigator of the Toxic Crimes Project. Lisa McIntosh Sundstrom is Professor of Political Science at the University of British Columbia. She is the director of the ActinCourts network at UBC and conducts research on legal mobilization by Russian activists.

Gay and Lesbian Rights Issues: A Comparative Analysis of Sydney, Australia and Toronto, Canada 1 Evelyn Kallen (bio) I. Introduction A. The Framework of Human Rights Principles As used in this paper, the concept of human rights refers to a set of internationally agreed upon moral principles that have been set down in various United Nations human rights instruments. In the aftermath of the documented atrocities of World War II, these instruments were designed to [End Page 206] ensure that crimes against humanity, such as policies of genocide, would not happen again. 2 Over the years, in response to continuing input from nongovernmental organizations (NGOs) and governments, United Nations human rights instruments have been refined and expanded, and a number of special declarations on the rights of particular minorities—children, persons with disabilities, indigenous peoples, women, and others—have been developed. 3 To date, however, there is no international covenant that affords specified protection for the minority rights of gay men and lesbians. For purposes of this paper, it is important to distinguish clearly between international human rights principles and public policies or laws enacted by governments. Human rights principles are international, moral guidelines that are prior to law, representing the global standards to which the laws and public policies of all countries should conform. However, the laws and policies of governments do not always incorporate human rights principles: laws may be modeled on human rights guidelines (such as antidiscrimination laws), but laws may also violate human rights principles (such as South Africa’s former apartheid laws). When human rights principles become incorporated into the law of a country, they become legal rights that can be invoked by persons or groups who perceive that their human rights have been violated, in order to seek redress for the alleged violations. 4 B. The Legal Frameworks for Protection for Human Rights in Australia and in Canada In Australia, protections for general human rights were in the past provided by the common law. 5 Although some provisions in the Australian Constitution [End Page 207] do protect individual rights, “[t]he framers of the federal [Commonwealth] Constitution consciously and deliberately rejected . . . including a Bill of Rights similar to that which was added to the U.S. Constitution.” 6 Therefore, when the Commonwealth did introduce legislation to protect human rights beginning in the 1970s, it was based upon the Commonwealth’s foreign policy powers rather than the Constitution. 7 The Commonwealth’s first human rights law was the Racial Discrimination Act, passed in 1975, which was followed by the Human Rights Commission Act in 1981. 8 The latter was replaced five years later by the Human Rights and Equal Opportunity Commission Act (1986), with a mandate to inquire into allegations of discrimination based on race, color, and sex. 9 In addition to federal Commonwealth legislation, “each of the States, except Tasmania and Queensland, has its own anti-discrimination legislation, dealing with . . . grounds of race, sex, and marital status,” and in some cases, other grounds. 10 Discrimination on the ground of sexual orientation, in particular, is covered only in the New South Wales Act (under homosexuality), 11 and in the South Australian Act (under sexuality). 12 In Canada, pressure groups began to lobby for antidiscrimination legislation after World War II and, in the latter part of the 1940s, the provinces of Ontario and Saskatchewan passed the first human rights-oriented statutes. 13 In 1962, a major step was taken when the province of Ontario consolidated its legislation into the Ontario Human Rights Code, to be administered by the new Ontario Human Rights Commission. 14 By 1975, all provinces had followed suit. In 1977, a federal Commission was established to administer the (federal) Canadian Human Rights Act. 15 As in Australia, the prohibited grounds for discrimination vary from one [End Page 208] jurisdiction to another, but all the human rights codes prohibit discrimination on the grounds of race, color, ethnic or national origin, religion, and sex. Of a total of ten provinces, eight (Ontario, Quebec, Manitoba, Sas-katchewan, British Columbia, Nova Scotia, New Brunswick, and the Yukon Territory) offer protection against discrimination on the ground of sexual orientation. In contrast to Australia, Canada has offered constitutional protection...

Assessing Litigation Strategies by Government Respondents to Human Rights Complaints

<h3>Objective.</h3> —To compare overall rates of coronary artery bypass surgery (CABS) in several Canadian and US jurisdictions and to compare use by age and income groups in the two countries. <h3>Design.</h3> —Survey, using computerized hospital discharge abstracts. <h3>Setting.</h3> —All nonfederal hospitals in New York, California, Ontario, Manitoba, and British Columbia between 1983 and 1989. <h3>Patients.</h3> —All adult residents of the five jurisdictions who underwent CABS in a hospital in their jurisdiction. <h3>Results.</h3> —Between 1983 and 1989, the CABS rates were consistently highest in California and lowest in the Canadian jurisdictions. In 1989, the age-adjusted rate of CABS in California (112.5/100 000 adults) was 27% higher than in New York (88.4/100 000) and 80% higher than in the three Canadian provinces combined (62.4/100 000). The CABS rates increased for those aged 65 years and older and decreased for those aged 20 to 54 years in all five jurisdictions. In 1989, CABS rates were three times higher in California than in Canada for those aged 75 years and older, and the higher rates for those aged 65 years and older accounted for 75% of the overall difference in rates between California and Canada. In Canada, CABS rates for the nonelderly varied little by income of area of residence, but in New York and California, rates increased steadily with the income of area of residence. <h3>Conclusion.</h3> —Control over the supply of resources in Canada is associated with markedly lower CABS rates for the elderly than found in the United States. While overall rates are lower in Canada, the Canadian universal health insurance system reduces the influence of income on access to CABS found in the United States. However, even without universal health insurance, CABS rates for the nonelderly living in the poorest areas in California are similar to the rates for those living in the poorest parts of Canada. (<i>JAMA</i>. 1993;269:1661-1666)

To compare overall rates of coronary artery bypass surgery (CABS) in several Canadian and US jurisdictions and to compare use by age and income groups in the two countries. Survey, using computerized hospital discharge abstracts. All nonfederal hospitals in New York, California, Ontario, Manitoba, and British Columbia between 1983 and 1989. All adult residents of the five jurisdictions who underwent CABS in a hospital in their jurisdiction. Between 1983 and 1989, the CABS rates were consistently highest in California and lowest in the Canadian jurisdictions. In 1989, the age-adjusted rate of CABS in California (112.5/100,000 adults) was 27% higher than in New York (88.4/100,000) and 80% higher than in the three Canadian provinces combined (62.4/100,000). The CABS rates increased for those aged 65 years and older and decreased for those aged 20 to 54 years in all five jurisdictions. In 1989, CABS rates were three times higher in California than in Canada for those aged 75 years and older, and the higher rates for those aged 65 years and older accounted for 75% of the overall difference in rates between California and Canada. In Canada, CABS rates for the nonelderly varied little by income of area of residence, but in New York and California, rates increased steadily with the income of area of residence. Control over the supply of resources in Canada is associated with markedly lower CABS rates for the elderly than found in the United States. While overall rates are lower in Canada, the Canadian universal health insurance system reduces the influence of income on access to CABS found in the United States. However, even without universal health insurance, CABS rates for the nonelderly living in the poorest areas in California are similar to the rates for those living in the poorest parts of Canada.

Background: This paper considers how textbooks resolve the tension between contradictory goals of promoting a cohesive national identity while teaching respect and equality among diverse social groups in British Columbia (B.C.), Canada. Purpose: The article presents preliminary results of a larger study examining the content of required civic education textbooks in Canada to examine whether and how notions of national identity incorporate the principles of human rights and multiculturalism. Sample: The study draws on curricular material for required high school social science courses in B.C. The sample includes textbooks starting the first year of high school (Grade 8) and covers each year through high school graduation (Grade 12). The central analyses examine the content of 17 core textbooks approved by the provincial government for these courses. Design and methods: This research systematically examines the content of currently approved textbooks for high school social science courses in B.C. Aquestionnaire designed using the principles of content analysis measures textbook emphases on content relevant to human rights, multiculturalism and national identity. Results: This study finds that traditional notions of national identity are reshaped in response to the rise of emphases on human rights and multiculturalism. Rather than depicting national identity as stemming from a common race, ethnicity, language or history, the government pursues four main strategies to simultaneously promote human rights, multiculturalism and a shared national identity: (1) framing human rights and multiculturalism as part of national identity; (2) using pedagogical approaches that promote multiple perspectives; (3)celebrating social and scientific figures and accomplishments as a main source of national pride; and (4) drawing on exogenous sources to affirm state legitimacy. Conclusion: In a context that values diversity and human rights, contemporary sources of national identity can stem from facets of society that can transcend many cultures and emphasise organisational aspects of the nation-state. A main implication is that the inclusion of principles of human rights and multiculturalism into civic education is changing traditional conceptions of national identity.

Human rights invoked in the international context are often treated as having self-evident content. The focus is on implementation and enforcement. The urge to enforcement is especially strong when...

In British Columbia (BC), Canada, mental health reforms over the last decade have moved back and forth between calls for practices that restrict human rights and those that are rooted in equity and social justice. In this article, we explore some of these tensions and their implications for human rights and equity in mental health care by critically analyzing three policies guiding mental health reform in BC using an intersectionality-based policy framework. Specifically, we interrogate the effects of a biomedical and individualized framing of mental health and substance use. We argue that such a framing is buttressed by neoliberal ideology and lays the groundwork for public and professional acceptance of coercive practices with particular consequences for Indigenous and racialized populations. This framing is juxtaposed with a holistic wellness and trauma-informed policy framework anchored by an understanding of the impact of colonization. However, what is missing in both policy framings is a full account of the documented ongoing human rights violations experienced by many people accessing BC’s mental health system. Our analysis shows how applying an intersectionality-based policy framework allows for a deeper exploration of the complex, interlocking systems of power and oppression that give rise to these human rights violations. We conclude with a discussion of the important role that decolonizing and intersectional approaches play for capturing the complexities of systemic inequities and advancing mental healthcare that protects and promotes mental wellbeing and human rights.

Water Pressure: Defending Indigenous Peoples’ Right to Water in British Columbia

A physical obstacle, such as a step at the entrance of a building, is the product of the interplay of regulations that govern what and we build. The human rights complaint process can provide a remedy to people with disabilities when they are excluded from public spaces. But there are limits to what can be accomplished by way of a human rights complaint. Human rights commissions and tribunals are not competent to mediate or adjudicate complaints about accessibility before construction commences, because any alleged discrimination is only hypothetical. But just because human rights law is limited in this way should not mean that people with disabilities must wait to encounter inaccessibility before they can influence what and how we build. Planning law legislation in Canada mandates public consultation and it also gives members of the public the right to contest planning decisions by way of an appeal. For people with disabilities, this would mean challenging development and building permits that have already been issued if the proposed development is not accessible. After a municipality issues a development permit, most jurisdictions in Canada allow for an appeal by a third party. There are also some jurisdictions that also allow for this type of appeal after the municipality issues a building permit. If successful in an appeal, members of the public who are opposed to a project, or some of its aspects, may block construction altogether or require modifications. These appeal processes could offer an opportunity for people with disabilities to have a direct impact on how we construct the built environment. An appeal at the permit stage is a promising complement to a human rights complaint, because it is prospective rather than retroactive.

The individual application procedure of the European Convention on Human Rights is well analyzed due to its unique success. However, concentrating on the European complaint instrument bears the risk of a too Eurocentric approach. Individual applications can also be found in the human rights treaties of the Organization of American States and the African Union. This article aims for a comparison of these instruments in order to contribute to a better understanding of institutional and procedural human rights protection. To provide a thorough analysis, it takes a historical, a normative and a de facto perspective. In a normative view on the contemporary institutional and procedural aspects, the European Court of Human Rights stands out by granting direct access to a judicial procedure. However, the contentious jurisdiction of the Inter-American Court of Human Rights and the African Court on Human and Peoples Rights is in some respect even broader than the ECHRs due to less restriction being imposed on the admissibility of individual applications. In contrast, proceedings at the Inter-American Commission on Human Rights and the African Commission on Human and Peoples Rights suffer from several deficiencies, for example, with regard to transparency and procedural rights of the applicant. Considering the practical effectiveness of individual applications, the European system clearly serves as a role model, albeit its influence being far more limited in Eastern Europe. Judgments of the Inter-American Court of Human Rights have a remarkable implementation rate. In Latin-America as well as in Africa, nevertheless, comparable disadvantageous socio-political factors limit the practical impact of individual applications. Examples are a poor national human rights situation in average, a low level of education and social inequality. The African human rights institutions still need to establish effective individual human rights protection. Yet, contemporary characteristics of individual application procedures are only temporary results of a continuing historical development. Noticeable patterns are found in the way regional human rights systems successively overcome concerns of state sovereignty. In this process, courts and commissions play an important role by progressively interpreting treaty provisions and creating rules of procedure that expand their competences. This gives rise to hope that the »progressive evolution« of the individual application procedure will continue.

Is the Future of International Human Rights Law Transnational?

Reinstatement as Human Rights Remedy: An Evolving Jurisprudence

Political Posters for the Twenty-First Century: A Spotlight on the Justseeds Artists' Cooperative