Charter Of Rights Research Articles

The Charter at Forty: Commemorating Patriation and Reflecting Upon the Promises and Perils of Human Rights

Between November 8 and 10, 2021, a national online conference, The Charter at Forty: From Isolation to Inclusion: Navigating the Post-COVID World, gathered an impressive array of scholars, human rights advocates, community leaders, artists, and policymakers to commemorate and critically assess the four decades since the important occasion of April 17, 1982, when Canada patriated its Constitution and elevated the country’s human rights agenda to constitutional status. With 40 years of hindsight, it is a truism that the Charter of Rights and Freedoms has fundamentally changed the Canadian social, political, legal, and cultural landscape. Given the influence of the Charter, its 40th anniversary presents an opportunity to reflect on Canada as a settler colonial state with imperfect features of bilingualism and multiculturalism.

The River’s Legal Personhood: A Branch Growing on Canada’s Multi-Juridical Living Tree

Relationships with rivers in British Columbia are often imbued with social and material toxicity. Learning from three sources of law in British Columbia—Indigenous, Canadian, and international law—this article draws out one potential remedy to the imbalanced relationships between humans and rivers through exploring the viability of declaring the rights of nature in accordance with the socio-cultural and doctrinal frameworks embedded in these three sources of law. By taking seriously storied precedents and governing practices from the ‘Namgis, Heiltsuk, and W̱SÁNEĆ Nations, this article is guided by their water relations, governance, and legal orders. In expanding Canadian conceptions of personhood, challenging anthropocentrism within section 7 of the Charter of Rights and Freedoms, and expanding section 35 constitutional protections, this article also leverages Canadian legal concepts and protections for remedying river relations. Drawing upon the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) further guides the process of affirming the rights of rivers, especially in light of legislation that has codified UNDRIP domestically. Braiding these three sources of law indicates that subsequent rights of nature cases should be rooted in the interpretative and analytical framework of Canada’s multi-juridical living tree.

The Case of the Reasonable Hypothetical Sex Worker

This article critically considers the expanded use of reasonable hypotheticals in challenging the constitutionality of criminal offences under section 7 of the Canadian Charter of Rights and Freedoms (Charter). The author consolidates concerns raised by judges and scholars over use of the device and explains how these concerns are amplified in the first two constitutional challenges to three of Canada’s new criminal prostitution laws with potentially significant consequences for constitutional limitations on what can and cannot constitute a crime. The reasonable hypothetical is a device originally used by courts to evaluate the constitutionality of mandatory minimum sentences under section 12 of the Charter based on the circumstances of a reasonable hypothetical offender, rather than those of the actual offender before the court. Judges later expanded the use of the device to evaluate the constitutionality of criminal offences under section 7 based on the circumstances of a reasonable hypothetical accused, rather than those of the actual accused before the court. However, the process through which constitutionality is evaluated differs, raising distinct concerns about the use of hypotheticals in evaluating the constitutionality of criminal offences that have largely gone unexamined and unacknowledged. Concerns raised by judges and scholars about the use of reasonable hypotheticals fall into three categories: (1) the “air of unreality,” where the rights violation at issue does not arise on the facts of the case before the court; (2) the nature and scope of evidence that can, should, or must be before the court in cases where the device is used; and (3) the appropriate remedy where an impugned law applies in a constitutional manner to the offender or accused before the court, but in an unconstitutional manner in hypothetical circumstances. Each of these categories of concern is aggravated in the first two constitutional challenges to some of Canada’s new criminal commodification offences; the way hypotheticals are used in section 7 cases obscures the experiences of victims and complainants and allows courts to adjudicate constitutionality and remedy constitutional breaches based solely on hypotheticals and expert evidence. The author suggests that if courts continue to allow accused in criminal proceedings to use reasonable hypotheticals to challenge the constitutionality of offences under section 7 of the Charter, they undertake their evaluation of constitutionality with the benefit of adjudicative fact evidence about the circumstances of the case before them, to directly address how rights, interests, and values in tension with those of the hypothetical rights claimant may be relevant to a potential section 1 justification and tailor a remedy that meaningfully attends to the experiences of victims and complainants.

The Ontario Court of Appeal Takes a New Look at Automatism in R v. Sullivan.

Automatism has long been a significant topic of discussion between forensic psychiatry and the courts. In a recent case, the Ontario Court of Appeal addressed this concept in the setting of a Canadian law, s. 33.1 of the Criminal Code, that limits the defense of self-induced intoxication for any offense involving violence. The court found that s. 33.1 violated the presumption of innocence and the principles of fundamental justice and could not be saved by the Canadian Charter of Rights and Freedoms, as it was not demonstrably justifiable in a free and democratic society. Therefore, the court declared s. 33.1 to be of no force and effect. In this article, we describe the legal history of automatism in Canadian courts and the reasoning behind this important decision. Finally, we discuss some implications for forensic practice.

What Has No Place, Remains: The Challenges for Indigenous Religious Freedom in Canada Today by Nicholas Shrubsole (review)

Reviewed by: What Has No Place, Remains: The Challenges for Indigenous Religious Freedom in Canada Today by Nicholas Shrubsole Michael D. McNally (bio) What Has No Place, Remains: The Challenges for Indigenous Religious Freedom in Canada Today by Nicholas Shrubsole University of Toronto Press, 2019 THE UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES clarifies how particular rights to religion (Art. 12) and culture (Art. 11) should apply to Indigenous peoples, including rights to religious and cultural sites. But the Declaration elaborates protections for sacred places and a "distinctive spiritual relationship" (Art. 25) with traditional lands and waters atop a different conceptual foundation. Instead of basing protection for sacred places on the purportedly universal and equal rights to religion, the Declaration grounds protections for sacred places in Indigenous self-determination, in peoplehood. Nicholas Shrubsole's What Has No Place, Remains makes an important and timely contribution to the urgent task of growing the Declaration's legal teeth in the domestic law in Canada. Shrubsole does not endorse the language of religious freedom; instead he draws on a rich critical literature within religious studies to ask whether and how language of religious freedom can commend Indigenous efforts to protect and renew spiritual relationships with traditional lands and waters. Whether one thinks "religious freedom" discourse is too stuck in settler colonial categories or capacious enough to be reworked for meaningful legal protection, Shrubsole offers helpful intellectual framing for the conversation in the context of Canadian case law. Of particular note is his reading of Ktunaxa Nation v. British Columbia, a 2017 case in which the Supreme Court of Canada rejected arguments that a year-round glacier ski area development violated religious freedom because it would force the Grizzly Bear Spirit to withdraw from the sacred precinct, nullifying Ktunaxa religion. Although the developer was in the end persuaded to accept a settlement and back off the plan, the precedent is no less enduring and disappointing. Ktunaxa Nation was the Court's first consideration of Indigenous religious freedom under Canada's new constitutional order and decided amid Canadian efforts to make good on reconciliation. Shrubsole makes two key contributions. The first is his notion of the depth of religion. Advancing a reading of religion as a "four-dimensional phenomenon," he identifies how courts can effectively enlarge the length [End Page 144] and width of what counts as legally protectable religion while still failing to reckon with its depth and time dimensions (29). Thus, Canada's Supreme Court could affirm the sincerity of Ktunaxa claims while finding the proposed ski area would impact only the object of belief, the Grizzly Bear Spirit, not Ktunaxa religious belief per se, flattening the spiritual relationships among peoples, spirits, and land that give depth to religion. Secondly, Shrubsole develops what he calls a framework of "religions plus" in the book's pivotal chapter on "competing frameworks of Indigenous religious freedom," a discussion that is as instructive for U.S. law as it is for Canadian (78–99). In Canada, the tension is between universally applicable individual rights to religion under the Canadian Charter of Rights and Freedoms and the special collective rights pertaining to First Nations via the Constitution Act's Sec 35(1). "The problem," Shrubsole argues, "is that the courts have yet to read Charter right and Aboriginal rights together to construct a sort of 'religions plus' framework for the protection of Indigenous religious traditions" (79). "Religions plus" riffs on the language of "Citizens Plus" that emerged in in the late 1960s to underscore how First Nations persons and peoples hold more than the individual rights held equally by all Canadian citizens. Following the Ktunaxa assertion that Charter rights to religious freedom should be twinned with constitutional aboriginal rights, Shrubsole shows how a "religions plus" reading could correct for the vagaries of both religious freedom law and consultation standards under aboriginal rights. When [Charter] section 2(a) is pushed to its colonial limits within its Euro-Canadian common law framework, [the Constitution Act's] section 35(1) offers opportunities of redress incapable of realization under the Charter protection. At the same time, when section 35(1) is pushed to its historicized limit, [Charter] section 2(a...

Terra incognita: Victim Participation Rights, Sexual Offending and Brexit

Over the past four decades, the importance of safeguarding the rights of victims of crimes has been progressively recognised. While the European Convention on Human Rights, the EU Charter of Fundamental Rights, as well as the European Union Directive on the Rights of Victims of Crime Directive 2012/20 EU have all contributed to this change, this recognition has been driven primarily by EU law. 1 By contrast with the general provisions of the European Convention on Human Rights adopted in 1950, 2 which seeks merely to establish minimum standards in 46 very different States, the Directive sets out in detail the component elements of rights in a legislative text. Further, it enjoys probably both direct effect and certainly supremacy and has the overt intention to harmonise the law in the Member State to which it applies. 3 Increasingly, victims are seen as rights-holders. There is now a growing consensus that victims of crime have an inherent interest in the manner in which criminal justice is administered with accompanying rights as a participant. This concern is heightened 4 in cases of sex offending and has resulted in national reviews and inquiries into the investigation and prosecution of sexual offences 5 in the adversarial criminal jurisdictions of the UK and Ireland. One of the rights focussed on in these reports was the substantive participatory right to state-funded independent legal representation for defence applications to question the victim in relation to sexual history or character evidence at the pre-trial stage. Ireland played a significant leadership role in these initiatives and it extended the already established right from the trial to the pre-trial stage. By contrast, a report commissioned by the Victims’ Commissioner indicates that England and Wales is far behind in providing substantive participatory rights to victims of crime 6 while proposals exist in Scotland and Northern Ireland to follow the Irish approach and place the right on a statutory footing. The decision of the UK to leave the EU now means that the domestic implementing measures and any unimplemented provisions are converted to retained EU law by the European Union (Withdrawal) Act 2018. 7 Further, the Act removes Charter rights from domestic law on exit day 8 while retaining in domestic law fundamental rights or principles which exist irrespective of the Charter. 9 I will explore here some of the challenges for the UK courts in defining and interpreting these retained law rights. Crucially, any future development will not have access to the “benchmark” 10 of either EU law or a written constitution. The UK’s relationship with the Convention is an evolving one and, while general Convention protections continue to apply, for now at least, 11 I will focus here on implications for the UK’s uncodified constitutional order. This now diluted legal order will be more reliant on common law rights which, by contrast with rights in a written constitution, generally lack a hard -fundamental status.

“We Have No ‘Visibly’ Trans Students in Our School”: Educators’ Perspectives on Transgender-Affirmative Policies in Schools

Background/Context:In Ontario, and Canada more broadly, anti-discrimination on the basis of gender identity and gender expression is enshrined in the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms, which have required schools to address trans inclusion. However, the ways in which educators understand or enact these policies, and whether they are even aware of them, remain largely underexplored.Purpose/Research Question/Focus of Study:Our purpose was to learn more about educators’ awareness and understanding of trans-inclusive policies in schools and the extent to which such policies were informing practice.Participants:While this research is based on survey data comprising 1,194 respondents, this article examines comments provided about trans-affirmative policy from 463 educators.Research Design:This study involves large-scale survey research conducted on 1,194 educators in Ontario K–12 schools; the survey was disseminated via social media and educational affiliates. We draw primarily on the qualitative data component of the survey, where educators provided detailed comments about and insights into trans-inclusive policies. We employed a reflexive approach to coding and thematic analysis to identify key themes.Findings/Results:Although our quantitative data depicted a favorable assessment of support for trans-affirmative policies—94% of respondents found their school’s policy to be very or somewhat relevant—our findings highlight a discrepancy between policy and practice, and a lack of commitment to addressing cisgenderist, cisnormative, and cissexist systems. The themes that emerged from our coding and analysis of the qualitative data were: (1) educators’ understanding of policy as accommodation; (2) individualized approaches to trans inclusion; (3) lack of administrative support and intervention; (4) the gap between policy and practice; (5) transphobic and cissexist resistance to supporting gender diversity; (6) the need for trans-affirming and gender-expansive curriculum, and (7) the problem of generalized approaches to equity and acceptance of diversity. In addition, we discuss several educator comments that raise important questions about race and the need for intersectional approaches to addressing equity and trans inclusion in schools.Conclusions/Recommendations:We advocate for a paradigm shift with respect to the necessity of employing a trans epistemological framework that addresses the need for gender-expansive education which focuses on the harmful effects of cisgenderism, cisnormativity, and cissexism in the education system. Central to addressing gender justice and trans marginalization in schools for all students, we conclude, is the need for policy makers to ensure accountability and budgetary allocation for the provision of resources and professional development for educators in schools.

CONSTITUTIONAL CHALLENGES TO SCHOOL RULES*

The following four court applications set the stage for the debate on challenges to school disciplinary rules during the past two years:In July 2005, the mother of Sunali Pillay brought an application in the Equality Court against the principal and governing body of Durban Girls’ High School. The application aimed to restrain the school from taking disciplinary action against her daughter based on the girl’s refusal to remove a nose stud which was regarded by the school as a violation of the school’s code of conduct. The grounds for the application were that their refusal violated her constitutional rights to equality and freedom of religion, conscience, belief and culture. In September 2005, the Western Cape Residents’ Association brought an application in the Cape High Court on behalf of the parents of Bernel Williams. The application was to ensure her attendance at the matric farewell function hosted by Parow High School. It was argued that the school’s refusal to allow her to attend the function, based on her continued unacceptable behaviour, infringed her constitutional right to equality, dignity and freedom of expression. Similarly, the Supreme Court of Canada had to determine, on 2 March 2006, whether the refusal by the school authorities to allow an orthodox Sikh student, Gurbaj Singh, to wear a kirpan (religious object resembling a dagger) to the school he was attending, was an infringement of his freedom of religion under section 2(a) of the Canadian Charter of Rights and Freedoms. On 22 March 2006, the House of Lords in England decided in favour of the decision by the head-teacher and governors of Denbigh High School to exclude Shabina Begun from the school unless she conformed to the schooldress code. Begun insisted on wearing a hijab (long coat-like garment) and not the shalwar kameeze she had been wearing for the previous two years and which, according to the evidence, satisfied the Islamic clothing requirements. She argued that her exclusion infringed inter alia on her right to manifest her religion under art 9 of the European Convention on Human Rights.In all these matters the constitutional rights of the learner were weighed up against the right of the school to ensure a disciplined environment through the strict observance of the school rules. Although only two of the four applications were successful, it is encouraging that parents and learners are prepared to test decisions taken by schools – an indication that a human rights culture is taking root at secondary school level on both a national and international level.The aim of this note is to discuss these judgments within the parameters of the rights of learners vis-à-vis the rights of other learners and the necessity for discipline and a safe schooling environment. The first section of the note is devoted to an examination of each of these judgments. Thereafter, the issues are discussed with specific reference to the South African constitutional principles and the application of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.

Appetite for destruction: Food-related experiences of incarcerated children and young people

This article examines for the first time to what extent the lived food-related experiences of incarcerated children match principles proclaimed in the United Nations Convention on the Rights of the Child and the Charter of Rights for Children and Young People Detained in Training Centres. In doing so, consideration is given to the broader personal, situational and structural factors that frame their lives. Drawing on interviews with 40 detainee’s aged 10–19 years at the Kurlana Tapa Youth Justice Centre in South Australia, what young people’s accounts reveal is that food is a punitive aspect of the custodial experience, particularly in so far as it fails to reflect cultural expectations or preferences. Additional institutional consultation with residents and changes to foodservice are needed to ensure cultural appropriateness in the detention environment, to promote the right of the child or young person to practice their culture, and to positively influence young people’s lives while they are in custody, and after their release.

COVID-19 vaccine hesitancy, chemical retraumatization, and madness

Protecting the Section 7 autonomy rights of Canadian consumers/survivors/ex-patients and the mad (c/s/x/m), as enshrined in the Canadian Charter of Rights and Freedoms, with past experiences of enduring intrusive procedures forced upon them, to decline immunization against COVID-19 is a mad liberation issue, to which Mad Studies must not shut its eyes. To some c/s/x/m, vaccine mandates mirror traumatic moments from their psychiatric past, when they had their autonomy stripped, and their right to legal consent infringed upon by physicians of the mind claiming diminished capacity. In this article, I propose expanding categories of medical exemptions to consider mental health contexts, and accommodations be provided to those with diverging minds who are vaccine skeptic. I conclude with a clarion call to madvocates to stand against the violence of coercing vaccinations.

Delineating the Western Orders of Rights and Reason in Post‑Colonial Africa

Adherence to the fundamental tenets of Human Rights and advocacy of Democracy are the two traditionally entwined Western expressions of rights and reason that any state has to comply with to be treated as an egalitarian state. The degree of democratization in any state is to be gauged by its ability to give its citizens a fairly acceptable form of governance and a slew of natural rights and legal safeguards against human rights abuses, from which the idea of justice is to flow. Many of the African and Asian countries, that became sovereign states through the 1980s and 1990s and consequently came to be hailed as formal democracies, in reality, have only had a very perfunctory degree of democratization. In such circumstances, human rights, without the existence of a real democratic structure to uphold and sustain it, does not effectively translate into a charter of rights but would merely be retained as a set of flexible norms. It is in this context that the proposed paper intends to address the impact of globalization of the principles and values associated with the concepts of democracy and human rights in post-colonial African states. It also aspires to inquire into the need for an element of universality in the dialogues on human rights and democratization, so that they do not get reduced to mere synonyms for Westernization. Further, the reality and ambivalence surrounding the consolidation of democratic virtues along with the observance of human rights are best reflected in the exemplification of how the Sub-Saharan African country of Zimbabwe operated its “democracy”; both under its longest-serving President Robert Mugabe and post his unceremonious ouster following the coup d’etat on 14 November 2017. It would be interesting to study the political economy of transition in a country like Zimbabwe that, during and after its leading figure Mugabe, continues to pledge allegiance to a nationalist, post-colonial and populist anomaly of being principally antithetical to imperialism in all its forms while also being an anathema to the precepts of democracy, justice and human rights in practice.

Death with Dignity in Canada

Death with Dignity in Canada

Ideological Entanglements of Family Policy and Their Consequences – Could the Charter of Family Rights Help to Solve the Dilemmas?

Decisions related to family policy are the results of settlement of axiological dilemmas, understood as the necessity to make a choice between different types of good. These settlements are made on the basis of adopted and implemented ideologies. The article discusses the main assumptions of family policy in the liberal, conservative, social liberal and feminist perspective. Then it presents selected consequences of ideological entanglement of family policy on the example of state interference in matrimonial and procreation decisions, the right to raise children and to reconcile parental and professional obligations. The final part of the text discusses the Charter of the Rights of the Family as an example of a proposal that aims to go beyond the strict ideological framework of state policy towards the family.

Minority Language School Boards and Personal Federalism in Canada — Recent and Ongoing Developments in Quebec

In April 2021, the Superior Court of Quebec ruled on the constitutionality of the Act respecting the laicity of the State (Bill 21).1 In this awaited decision, the Court declared that the controversial ban on the wearing of religious symbols by some specifically designated public employees is consistent with the Constitution — because of the notwithstanding clause — but exempted English-language school boards from its application. Judge Marc-André Blanchard indeed concluded that Bill 21 violates section 23 of the Canadian Charter of Rights and Freedoms (Charter hereafter). According to Blanchard, section 23 grants constitutional rights to linguistic minorities in the management of their schools, as well as the right to establish policies for the hiring, retention and promotion of the personnel of their choice.2.
 1 SQ 2019, c 12. 2 Hak v Procureur général du Québec, 2021 QCCS 1466 [Hak].

Canadian Constitution Needs to Be Amended for Canada to Fully Embrace Multiculturalism

Reform is needed in the Canadian Charter of Rights and Freedoms to remove Section 16 that recognizes French and English as the two official languages. This clause is problematic as bilingualism is not consistent with the goals of multiculturalism. I argue first that bilingualism violates Section 15, which guarantees formal and substantive equality, as it creates a cultural and linguistic hierarchy. Secondly, I argue how bilingualism violates Section 2, specifically the freedom to choose the language to express themselves. I counter-argue my position and state that even if Canada removes Section 16, it is not substantial to protect the fundamental rights of marginalized citizens living in Quebec as Quebec can utilize Section 33 to override the Court. I respond to this perspective and conclude that removing Section 16 remains necessary to equalize the judicial powers of provinces and for Canada to advance forward with Indigenous reconciliation.

Liberalism, Law and Social Rights: The Charter of Rights and Freedoms in the Era of Welfare State Restructuring

Despite expanding the boundary of formal equality, the Charter of Rights and Freedoms is conducive to rationalizing liberalism's conception of the role of the state. Contrary to the hasty expectation of social rights advocates who hoped that they can utilize the Charter to advance social rights in Canada, the Charter has in fact been interpreted by the courts in a manner that justifies the subordination of the social rights to the vicissitudes in the economic sphere, which has historically been ingrained as an overriding tenet of liberalism. In line with a long-held liberal principle that the real threat to individual liberty emanates from the state, not private property relations which are indeed the basis for socio-economic inequalities, the Charter interpretations by the courts have, in fact, reinforced a legal rationalization for the neoliberal-motivated forces of welfare state retrenchment which are reflected in the courts’ refusal from imposing any positive obligation on the state to provide the basic means of subsistence for citizens as a matter of right. Thus, judicial interpretation of the Charter reflects and reinforces the nineteenth-century liberal tenet that the judiciary can restrain but cannot compel the state to take positive actions.

The Dawn of Vavilov, The Twilight of Doré: Remedial Paths in Judicial Review of Rights-Affecting Administrative Decisions and The Unification of Canadian Public Law

This article examines Canada’s position on the debate among comparative administrative law theorists about whether a court should apply the principle of proportionality to adjudicate allegations that an administrative agency has unjustifiably infringed human rights. On first impression, it would appear that decades ago, the Supreme Court of Canada affirmed the use of proportionality on judicial review of administrative decisions that allegedly limit rights that are explicitly protected under the Canadian Charter of Rights and Freedoms. It would then appear to be an open question whether or not the Supreme Court should “unify” Canadian public law by extending proportionality to cases where it is alleged that a decision has negatively impacted individual interests that do not enjoy constitutional protection. I argue that this framing of the debate from a Canadian perspective wrongly assumes that, by applying proportionality to adjudicate alleged infringements of Charter rights, the Supreme Court has applied it to all cases where an administrative decision has allegedly infringed human rights. In reality, the Supreme Court has applied proportionality only to cases where a person seeks a constitutional remedy for a violation of her Charter rights, not to cases where a person seeks an administrative law remedy traditionally available at common law for a negative impact on her human rights that are protected at common law. I argue that only more recent Supreme Court decisions can be interpreted as “unifying” Canadian public law by applying proportionality where a person seeks a common law remedy. Moreover, these conclusions suggest that the older legal doctrines the Supreme Court has developed applying proportionality where a person seeks a constitutional remedy should be substantially reformed.

Breaches, Bargains, and Exclusion of Evidence: Bringing The Administration of Justice Into Disrepute

The test for both exclusion of evidence under section 24(2) of the Canadian Charter of Rights and Freedoms (Charter) and whether a sentencing judge may divert from a joint sentencing recommendation is ostensibly the same: whether the admission of evidence or imposing the proposed sentence “would bring the administration of justice into disrepute.” Despite this, jurisprudence illustrates a vast divergence in what constitutes disrepute: the onerous standard applied to divert from a joint sentencing submission is all but absent when exclusion of evidence is considered under the Charter. This article addresses this disparate treatment in two parts. First, we argue that courts have consistently misapplied section 24(2) since the Supreme Court of Canada’s decision in R. v. Grant, as determinations of evidence’s admissibility under this section have focused almost exclusively on the factors articulated to guide the analysis, rather than the ultimate question to be determined. Moreover, courts have interpreted the phrase “bring the administration of justice into disrepute” differently depending on context — a trend that ought not to continue. We posit that the disrepute standard ought to be interpreted and applied consistently, with the recognition that “bringing the administration of justice into disrepute” is an exceptionally high bar. Second, we hope to provoke a broader reliance on the generous remedial powers conferred in section 24(1) of the Charter. This shift — which the Supreme Court has hinted at in recent decisions — would significantly change the adjudication of constitutional issues in criminal proceedings. We hope that the framework we propose for interpreting section 24 will stimulate attention to the practical benefits of eschewing a one-size-fits-all approach to Charter remedies and instead adopting a principled method that responds to each case’s individual circumstances.

Ban on religious symbols in the public service: Quebec’s Bill 21 in a global pluralist perspective

AbstractBill 21 is a highly contested law adopted in Quebec that bans certain civil servants from wearing religious symbols in the exercise of their duties. Rather than analyse Bill 21 on its merits, the article treats it as a test case for global legal pluralism, examining how the validity of the law from an international perspective depends on the frames one uses to analyse it. It finds that a basic tension permeates the entire debate between a universalist vision of rights and a vision of rights as anchored in particular political configurations that demand a constant process of adaptation. That tension is visible in the dualist opposition between Canadian and international law; in the role of federalism as a significant mediating factor in the implementation of constitutional and international rights; and in the kind of majoritarian check on rights that manifests itself in the Canadian Charter of Rights’ ‘notwithstanding clause’. Throughout, the article explores how these tensions might be mediated in ways that do not simply oppose international and domestic law but seek to make the most of their interaction.

Mapping human rights-based climate litigation in Canada

In line with global trends, there has been an increase in human rights-based climate litigation brought in Canadian courts in recent years. Some litigants invoke human rights as found in the Canadian Charter of Rights and Freedoms to push federal and provincial governments to take seriously the implementation of their climate obligations. Other litigants invoke procedural environmental human rights to engage in free speech and peaceful protest in the face of government action supporting fossil fuel consumption or expansion. At the same time, the Supreme Court of Canada has recognized that Canadian courts could develop civil remedies for corporate violations of customary international law, opening the door to future human rights-based corporate climate accountability litigation. Due to the nascent stage of climate litigation in Canada, this paper maps a broad variety of emerging cases into three interrelated sections: substantive, procedural and corporate accountability litigation. It also highlights emerging and potential future trends, such as the high level of youth and Indigenous plaintiffs. The paper aims to provide a critical overview of emerging Canadian developments in human rights-based climate litigation brought against the state, and reflects on potential strategies for future litigation, including against transnational corporate actors.