Charter Of Rights Research Articles

A Tale of Two Centuries? Expanding Constitutional Labour Rights in Canada and Their Impact on Legislation, Conflict and Wages

ABSTRACTUsing collective agreement and strike data from the Canadian Federal and provincial jurisdictions for the years 1978–2019, this study examines the effect that various legislative regimes that govern public‐sector bargaining disputes have on the incidence, duration and cost of conflict. This study seeks to replicate and improve previous estimates related to this topic but also extends the analysis to examine changes to the legal environment in Canada in which labour rights have been increasingly enshrined in constitutional law through the Canadian Charter of Rights and Freedoms. This study finds, in contrast to previous studies, that the legislative regime impacts the way agreements are settled when disputes occur but not the likelihood of a directly negotiated agreement prior to impasse. It also highlights some differences in contract and wage settlements prior to and after the constitutionalization of labour rights in Canada.

Ecological constitutionalism within the Canadian context: Charter-ing international standards of the human right to a healthy environment

The Strengthening Environmental Protection for a Healthier Canada Act (SEPHCA), Canada's most recent attempt at mobilising federal and provincial action, does not go far enough toward depoliticising environmental justice within its borders. Based on a comprehensive review of legislative and academic literature, the current paper argues for the codification of the right to a healthy environment to be enshrined in Canada's Charter of Rights and Freedoms. In doing so, Canada will realise the merits of ecological constitutionalism, meet the standards of the United Nations and the international human rights discourse, and realise its sustainable development goals in light of the triple planetary crisis.

The Holy See’s Charter of Rights of the Family and the Family Law of Contemporary European States

After presenting the main provisions of the Charter of the Rights of the Family, announced by the Holy See on 22 October 1983, the paper discusses the key directions of changes taking place in almost all modern European states in the last three decades. Solutions concerning so-called same-sex marriages or partnerships, adoption of children by homosexual couples, and surrogacy are included. The manner in which the solutions in individual European countries are implemented is examined to illustrate the corresponding changes chronologically. The paper also touches on the following: the evolution of the ECtHR jurisprudence in cases concerning relationships between homosexual persons, hate speech by reason of sexual orientation and gender identity, and the age of legal sexual intercourse. The ECtHR jurisprudence is illustrated with representative examples of judgements, and the latter two issues are highlighted on the basis of the adopted statutory solutions. Finally, the responses of the Polish legislator to the described changes are discussed, followed by conclusions.

Constitutional Courts as Guarantors of EU Charter Rights: A Rhetorical Perspective on Constitutional Change in Austria and Germany

The ‘rights revolution’ and ‘displacement doctrine’ of the European Court of Justice – EU Charter as a yardstick for constitutional review – Constitutional Courts of Austria and Germany: Charter judgment and Right to Be Forgotten II order – Rhetoric, persuasion and eloquence in judicial reasoning

Providing Health Care but Receiving None in Return: An Expanded Right to Health Analysis of the Live-In Caregiver Program of Canada (1992-2014)

Canada’s robust universal, single-payer healthcare system has long made socio-economic rights (SER) advocates in the United States envious of our neighbors to the north. Fundamental human rights tenants echo in the Canadian Charter of Rights and Freedoms, including non-discrimination and individual freedom, yet the “right to health” has not been constitutionalized at the moment this essay was written.1 While Canada has a strong track record of signing international human rights conventions and guaranteeing the right to health for permanent citizens, there remains a gap in the health rights of migrant workers, even in regular situations or formalized citizenship pathways. Ever-changing legal qualifications for permanent residency and arbitrary three-month waiting periods for healthcare coverage to come into effect make securing the right to health for even the most highly desirable workers—namely, healthcare workers in private households—a thorny task. The motto for Canada’s paradoxical commitment to the socio-economic rights of migrant workers might be, as Toronto doctors Ritika Goel and Michaela Beder aptly articulate in the title of their medical journal op-ed, “Welcome to Canada...but don’t get sick.”

Unsettling the Royal Proclamation of 1763: A Substantive Analysis of Section 25 of the Charter

The Canadian Charter of Rights and Freedoms has a significant impact on rights discourses in Canada. Section 25 of the Charter protects Aboriginal rights from infringements of the rights and freedoms endorsed elsewhere in the Charter. Section 25 also protects and codifies rights created by the Royal Proclamation of 1763. Despite this inclusion, Royal Proclamation rights have remained relatively undefined in the history of the Crown- Indigenous relationship. In this article, I investigate the content of Proclamation-based Aboriginal rights protected by section 25 by focusing on the Proclamation, the legislative development of section 25, and recent jurisprudence of section 25. I then take these insights and apply them to two recent Aboriginal rights cases: Rice v. Agence du revenu du Québec and Restoule v. Canada. In doing so, I problematize the argument of section 25 as a savings provision and argue that there is a disconnect created by section 25, as the legislative intent of these rights was for their content to be determined at a later date, and yet, they never were determined. Accordingly, if the settled interpretation of the Proclamation were to become unsettled, there could be an expansion of Aboriginal rights within Canada.

The Judicialisation of Parliamentary Privilege in Canada: A Cautionary Tale

Over the past few decades, Canadian courts have exerted strong influence over the meaning and operation of parliamentary privileges. Starting with a television producer’s Charter rights claim to access a provincial legislature’s public gallery and followed by an employment law claim made by the chauffeur to the Speaker of the House of Commons, the Supreme Court of Canada has articulated an approach under which judges closely scrutinise privileges invoked by legislatures when defending themselves against litigated claims. By applying the doctrine of necessity, Canadian courts make authoritative rulings on what counts as a valid legislative function and the processes and activities needed to fulfil those functions. Canadian courts also require the scope of parliamentary privileges to be pleaded in narrow terms that correspond to the details of a plaintiff’s claim, which has resulted in a hollowed-out conception of privilege over time. In scrutinising the necessity and scope of privilege, Canadian courts have chipped away at the separation of powers. Further, the Canadian approach unjustifiably prioritises the judicial vindication of private rights over the institutional needs of the legislature. Courts in other jurisdictions should reject the Canadian approach and avoid scrutinising the propriety of the exercise of privilege through a necessity test. Instead, courts should engage in a more limited jurisdictional test to confirm the availability of a relevant category of parliamentary privilege in law or historical practice. Judicialising parliamentary privileges weakens the autonomy and vitality of legislative institutions, with the Canadian approach serving as a cautionary tale. Ultimately, the legislature is accountable to the electorate for the exercise of its privileges. To promote fairness and reduce the risk of court interference, parliaments should strengthen the accountability and transparency associated with the exercise of their privileges, including by developing guidelines for their appropriate use.

Swimming Up Niagara Falls! The Battle to Get Disability Rights Added to the Canadian Charter of Rights and Freedoms

Swimming Up Niagara Falls! The Battle to Get Disability Rights Added to the Canadian Charter of Rights and Freedoms

Ongoing Debate on Medically-Assisted Death in Canada

In 2016, Canada introduced Bill C-14, the Medical Assistance in Dying (MAiD) Act, providing an end-of-life care option for a rapidly increasing number of Canadians. MAiD includes active and passive methods, known as voluntary euthanasia – administered by a designated medical professional – and assisted suicide – the provision of medication by a medical professional to self-administer. The House of Commons and Senate passed Bill C-14 following The Supreme Court’s unanimous decision in Carter v Canada. This case challenged the prohibition of physician-assisted death, decreeing it an infringement on the Canadian Charter of Rights and Freedoms.

The Canadian Extradition System and its Reform: Balancing Between Rights and Freedoms and National Security

It is often advocated that the fundamental rights of Canadian citizens enshrined in the Charter of Rights and Freedoms must not be sacrificed at the altar of national security. However, upon analyzing the Canadian extradition system, a dual standard is revealed. In one case, Dr. Hassan Diab, an Ottawa-based professor, was alleged by the French authorities in 2007 to have been involved in a 1980 synagogue bombing in Paris. After his trial within Canada (2010–14), he was finally extradited to France in 2014, jailed, eventually released, and returned to Canada in February 2018. Media reports document that Canadian Department of Justice lawyers worked assiduously to “prove” his guilt. By way of contrast, in 2011, the US’s request to extradite Abdullah Khadr was rejected by the Supreme Court, citing his previous 14-month-long ill-treatment. These two cases illustrate an existing tension between coercive “force of law” and the “rule of law" and the Canadian government’s uncritical stand in protecting its citizens when it comes to extradition treaty obligations. This article argues that the current Canadian extradition system established through the 1999 Act is questionable because it presupposes a person’s “guilt” over “innocence” by placing the burden of proof on the accused. It also raises the question of the veracity of a large number of extradition cases in the past. The article further contends that current provisions in the Canadian Extradition Act in general and the Canada-France agreement in particular fall short of protecting a citizen’s life and reputation; thus, they need reform. My suffering and that of my family was prolonged by senior officials at the Department of Justice. I trusted the government's promise that what happened to me would never happen to anyone else. It's a one-sided report. Its purpose is not to provide accountability. Its purpose is to absolve the Department of Justice of any accountability, and to shield senior officials at the department of any accountability. Dr. Hassan Diab, Press Conference in Ottawa, on the event of release of the independent external review of his case, July 26, 2019.

The potential of African philosophy in interpreting socio-economic rights in the African Charter on Human and Peoples’ Rights

Socio-economic rights in the African Charter are ideal in transforming socio-economic conditions of Africa’s people and preserving their historical collective way of living. For these rights to achieve goals envisaged by the Charter, an innovative interpretation that engages relevant interpretative tools is required. This article argues that African philosophy is a potential interpretative tool that can contribute immensely to upholding the Charter’s object and purpose. Founded on the principles of collectiveness and togetherness of Africa’s people, African philosophy has the potential to enrich the meaning, scope and content of socio-economic rights and enable individuals to commune with others in all spheres of socio-economicactivities. The article argues that engaging African philosophy in the interpretative process will guarantee individual and collective enjoyment of socio-economic rights to Africa’s people as understood in the African context. However, the supervisory organs of the African Charter have not effectively applied this significant interpretative tool in their socio-economicrights jurisprudence.

Federalism, Disaster Planning Standards and Canadian Charter Rights


 
 Canada has a problem with emergency management (EM) standards. Canadians utilize a federalist government structure that pushes responsibility for EM planning from the federal government to provinces and territories, who then pass responsibility to municipalities (or regional counties) – who typically have less resources to engage in effective EM than higher levels of government (Raikes & McBean, 2016). In this structure, there are no set standards for levels of risk and disaster protection across the nation. The overall effect of this is the lack of protective measures and planning in place to provide the people living, working or visiting Canada to be as safe as they could be.
 For the purposes of this discussion, the definition of a disaster is any hazard that overwhelms a community’s ability to respond, where the hazard has an immediate and negative effect on tangible (lives, property and the environment) and intangible (cultural practice, knowledge and psychological well-being) assets (Coppola, 2020; Mysiak et al., 2016). Public Safety Canada (2017) has numerous documents, including ‘An Emergency Framework for Canada: Third Edition,’ that suggests all levels of government and citizens of Canada are responsible to be prepared and help mitigate disasters. Pragmatically, however, not all people have the means, opportunity, or privilege to be prepared (Cox & Kim, 2018). Furthermore, is it the responsibility of private citizens and businesses to be prepared in case of a large-scale natural or human-made disaster for which they have little resources, training, and control compared to governments? Federal, provincial and territorial (FPT) governments have the ability and responsibility, both morally and ethically, to institute more concrete disaster risk reduction (DRR) standards across the nation to ensure a higher level of safety for the people in Canada. DRR is described in line with the UN’s Sendai Framework for Disaster Risk Reduction 2015–2030 (SFDRR) (2015), where disasters are mitigated through reducing existing and future risk by investing in effective policy, legislation and the recognition of areas of inequality/vulnerability in society that typically lead to an increase of negative disaster outcomes. There is a variety of ways standards could be adopted by FPT governments, such as intergovernmental agreements (IGAs) or coercive or ‘strings attached’ federal funding (Rolland, 2022). Regardless, to date no standards have been created or adopted. As Raikes and McBean (2016) note, all but one province and territory—Québec, have little or nothing in their EM legislation that attempts to reduce risk through planning and preventative measures. Most provincial/territorial legislation only state that municipalities will develop and practice a plan; there are no or few specific guidelines, rules or frameworks for what should or should not be in EM plans; only that one should exist. This paper proposes greater research into interpreting the Canadian Charter of Rights and Freedoms (CCRF or the Charter) (1982) sections on the rights to life and security for EM, where insufficient legislation may leave FPT governments open to liability unless specific DRR standards are created and upheld to protect Canadians’ rights.
 

The Role of Patients’ Advocacy Groups to Reduce Headache Pain in the European Union: from the Italian Case History to the European Migraine Action Plan

From the “patients’ right to avoid unnecessary suffering and pain” to the “Charter of Rights of the Cephalalgic Patient”, over the years the role of the civic & patients’ organisations to reduce headache pain in the European Union is increased: this research article explores the experiences of individuals affected by migraines and headaches, highlighting challenges, rights, and the need for improved healthcare support. Based on an extensive civic survey conducted at the national level by the Italian NGO Cittadinanzattiva, the study reveals the profound impact of headaches on people's lives, emphasising the lack of disability recognition and difficulties in accessing quality care. Through compelling testimonies, the article underscores the emotional, psychological, and physical burden of these conditions, and describes an innovative artificial intelligence-based tool called “EMI”. Together with many actors, since decades Cittadinanzattiva has been engaged in the fight against chronic pain for decades, both at the national and European levels. In this regard, what attention will the new MEPs (Members of the European Parliament) and the new leadership of the EU Commission DG Santé (Directorate-General for Health and Food Safety) dedicate to this issue in the wake of the upcoming European elections in 2024? From various quarters, there is a call for a European Migraine Action Plan aimed at finally placing this issue on the agenda of European political institutions, promoting a more inclusive and patient-centered vision within the European healthcare landscape, where the pain of those suffering from migraines and headaches is no longer invisible or unheard.

Grounds-Based Distinctions: Contested Starting Points in Equality Law

Over the past five years, the Supreme Court of Canada has continued to grapple with the meaning of constitutional equality and discrimination. In this regard, there is a clear consensus that the Court should follow a two-step test to assess violations of section 15(1) of the Canadian Charter of Rights and Freedoms. First, the Court must identify a grounds-based distinction and, second, determine whether the distinction violates substantive equality. While both parts of the test present interconnected conceptual and contextual challenges, this article focuses on how the Court has applied the first step of the section 15 equality analysis. Recent case law reveals a deeply divided Court. First, fundamental differences are apparent with respect to whether grounds-based distinctions may be understood as inextricably embedded in legislative schemes. Second, the justices diverge on the exigencies of proving adverse impact discrimination. Legal technicalities, comparator group formalities, and fear of imposing any positive rights obligations on governments obscure critical dimensions of the disproportionate effects of law. Third, the association of adverse impact with unintentional discrimination risks overlooking the importance of the actual knowledge of disparities in the effects of laws and policies. Finally, the complex realities of intersectionality, while recognized by some justices, continue to remain on the periphery of equality rights doctrine. While the second step of the equality analysis engages more directly with an assessment of the contextual realities of substantive inequality, it is critical to ensure that courts reach this stage of the analysis and that it is not thwarted or obstructed by narrow and formalistic approaches to identifying grounds-based distinctions.

The role of fundamental rights in the environmental case law of the CJEU

AbstractThere has been a turn to fundamental rights in environmental and climate cases before national and international courts in recent years. We know very little whether there has been such a turn in relation to European Union (EU) law before the Court of Justice of the European Union (CJEU). The CJEU occupies an increasingly relevant position in this nexus between environmental law and human rights because of strong and effective EU enforcement mechanisms, the abundance of specific EU secondary environmental law, the growing role of fundamental rights since 2009 and the self-standing provision on the environment in Article 37 of the Charter. An analysis of the case law, nonetheless, shows that Charter rights that can be used as ‘swords’ in the interest of environmental protection have so far played only a limited role. After explaining the absence of a rights turn, we argue that such a turn is warranted before the CJEU as well, also from a legal perspective. This article examines two potential avenues. The CJEU can derive positive obligations from relevant Charter provisions, including Articles 2 (right to life) and 7 (right to respect for private life and the home) of the Charter, or it can rely more extensively on Article 37 as a tool for interpreting primary and secondary EU law in an environmentally friendly way.

Preparing for a Mid-Life Crisis: Section 92A at 40

Section 92A, the resources amendment, was added to Canada’s foundational constitutionaldocument in 1982 at the same time as Canada patriated its Constitution from Westminster and adopted the Canadian Charter of Rights and Freedoms. The provision was designed to confirm and enhance the legislative and executive authority of provincial governments. As we approach the fortieth anniversary of section 92A, Canada appears destined for another federation-defining conflict over resource-related issues including the construction of new pipelines, legislative and policy responses to greenhouse gas emissions, and the reach of federal environmental impact assessment legislation. This article begins by examining the events that led to the adoption of section 92A and next assesses both how litigants have invoked section 92A and how Canadian courts have interpreted its text in the 40 years since its adoption. Earlier decisions relied on section 92A to confirm the validity of provincial or municipal legislation, but, in more recent cases, section 92A has been invoked to question the validity or applicability of federal legislation. Section 92A arose out of conflict with respect to trade in resources and the right to appropriate the economic rent associated with developing those resources. The current conflicts focus on the power to make laws with respect to the development and exploitation of those resources.

Reflections on the Supreme Court of Canada's Decision in R. v. Sharma

The criminal law has been criticized for failing to engage with the right to equality when delineating its permissible scope. While these criticisms are forceful, they must also be tempered by the structure of judicial review. The Supreme Court’s recent decision in R. v.Sharma is illustrative. Despite an avid dissent, a narrow majority found that Parliament’s decision to amend a prior sentencing law that conferred a benefit to a minority group could not by itself sustain a violation of the right to equality. This approach is principled as any other interpretation would undermine the constitutional framework for punishment under the Canadian Charter of Rights and Freedoms. This follows as the essence of the constitutional challenge in Sharma concerned whether refusing to permit a conditional sentence order for select offences would result in an unconstitutional punishment. By finding a violation of the right to equality, the minority circumvented the gross disproportionality standard required to declare a punishment unconstitutional under section 12 of the Charter. In its place, the minority would have imposed a mere proportionality standard under section1 for any punishment laws that retract a previously granted benefit to a minority group. Such an approach might be justifiable if there were no other means to consider equality interests when determining the constitutionality of sentencing laws. However, that is not the case as the reasonable hypothetical offender analysis under section 12 can ensure that the equality considerations implicit in the criminal law are given due weight. While conducting the analysis under section 12 does not change the result in Sharma, it upholds the principle underlying that provision requiring the scope of sentencing policy to remain reasonably broad to account for differing political opinions about the appropriate use of punishment.

Moving the Needle on Ableism: From Higher Education Access to Inclusion

Legislation in recent decades, such as the Canadian Charter of Rights and Freedom (1982) and the Ontario Human Rights Code (1962), have increased access to postsecondary education for diverse student populations; however, many students still face identity-based marginalization. While safety and inclusion are presented as foundational for learning, the experiences of disabled students suggest a hostile environment where access does not equate to a sense of belonging and safety may not even be guaranteed. As students’ sense of belonging impacts their willingness to get involved at their institution, inclusion is critical to the success outcomes of students with disabilities. I argue that meaningful inclusion requires universal access and intentional opportunities for participation by people who are historically excluded on the basis of disability and other intersectional identities, which must be preceded by increased awareness of the issues facing these students and collaboration among institutional actors to address them.

The Conflation of the Justification Framework for Infringement of Aboriginal Rights with the Oakes Test in Tsilhqot’in Nation v British Columbia

In Tsilhqot'in Nation v British Columbia, the Supreme Court of Canada replaced the test for the justification of Aboriginal rights infringements with a framework that is nearly indistinguishable from the Oakes test. The goal of this paper is to show that this development in the law, and thus the current justification framework, is undesirable and erroneous. This paper submits four reasons to arrive at this conclusion. First, the justification test proposed in Tsilhqot'in mirrors the test rrequired to prove an infringement of Aboriginal rights, whose burden of proof falls on the Indigenous party, and hence shifts the entire onus of proving justification from the Crown to the Indigenous party. Second, the conflation of the Oakes test with the justification framework makes justification effectively impossible, which may cause reluctance amongst courts to recognize Aboriginal rights. Third, Aboriginal rights are fundamentally different from Charter rights and should not be subjected to a test designed for the Charter. Fourth, the incorporation of the Oakes test into the justification framework runs contrary to established principles of constitutional interpretation. These four reasons merit abandoning the framework proposed in Tsilhqot'in. Otherwise, this area of the law will be riddled with doctrinal flaws and Indigenous interests will suffer.

AB v Northwest Territories: A New Low for the Doré/Loyola Framework

Since the advent of the Canadian Charter of Rights and Freedoms in 1982, the relationship between the Charter and administrative law has been somewhat rocky. The unique nature of administrative decisions has been perceived by some jurists as requiring an unnecessarily nuanced approach to Charter issues in the administrative law context, resulting in problematic decisions untethered from jurisprudential Charter reasoning and the text of the Charter itself. The most notable of these cases are Doré v Québec and Loyola High School v Québec (Attorney General). The legacy of these decisions, sometimes referred to as the Doré/Loyola framework, regrettably established that on judicial review, administrative decisions need only demonstrate a proper balancing of implicated Charter rights or elusively-defined Charter values with relevant governmental objectives, and that these decisions will only be reviewed on a standard of reasonableness rather than correctness. The recent decision of the Northwest Territories Court of Appeal in AB v Northwest Territories (Minister of Education, Culture and Employment) (“AB”) highlights how far down a slippery slope of constitutional misinterpretation the framework has allowed the law to slide.