Charter Of Rights Research Articles

Working from Home: Privacy Concerns arise during COVID-19

The principle of proportionality, which is designed to limit abuse of power and infringement of human rights by governments, has become a fundamental and binding legal principle in the jurisprudence of many countries. Ever since the seminal R. v. Oakes decision, when the Supreme Court of Canada interpreted s. 1 of the Canadian Charter of Rights and Freedoms as entailing a three-step proportionality test, proportionality has become an important pillar of Canadian law. This article examines whether the principle of proportionality extends or should extend to the private sphere and impose some limitations on employers and trade unions when they exert as much control over an individual’s life as governments. It first argues at a descriptive level that proportionality already plays a significant role (although often not explicitly) in various Canadian labour and employment law contexts, a role not sufficiently acknowledged thus far. It then turns to the normative level and explores the justifications for extending the application of proportionality to the private sphere and more specifically to the employment relationship. First, it explains why a higher standard of behaviour is required in employment relationships as opposed to other contracts. Second, it defends the use of proportionality stressing its legal and analytical merits. Lastly, it demonstrates that the application of proportionality fits within contemporary legal doctrines and advances legal coherence. The article therefore advocates a more explicit use and structured application of the three-stage proportionality test in various employment and labour law contexts. The findings of this article could thus contribute to the development of labour and employment law; they are also highly relevant to the more general discussion about the applicability of the principle of proportionality outside the boundaries of public law.

Evaluation of the Observance of the Charter of Rights of Patients with Mental Disorders from the Perspective of Nurses and Patients in Panj Azar Hospital in Gorgan in 2020

Background: One of the most essential indicators of quality evaluation of health services is to assess the status of patients' rights, especially in those with mental illness due to their physical and mental conditions, and how health care providers and recipients interact. Objectives: This study aimed to investigate the observance of the Charter of Rights of Patients with Mental Disorders from the perspective of nurses and patients in Panj Azar Hospital in Gorgan in 2020. Methods: This descriptive cross-sectional study was performed in 2020 among 100 patients admitted to the Psychiatric Ward and 200 nurses working in the psychiatric ward selected by simple random sampling. Data were collected using a demographic questionnaire and a self-made questionnaire. Data were entered into SPSS version 18 and analyzed using descriptive statistics, chi-square test, and independent t-test. Results: In this study, the results showed that the mean age of the subjects was 52.7 ± 22.4 years, and the highest age group of the study participants was 21 - 30 years. Overall, 196 (65.3%) participants were married, and 191 (63.7%) recommended others to return to this hospital. The mean scores of observance of the patient's charter from the nurses' and patients' points of view were 59.26 ± 6.26 and 57.98 ± 8.13, respectively. The subgroup with highest score was respect for the right to free choice and decision making in both groups. The level of compliance with the Charter of Patients' Rights was good and average from both nurses patients’ point of view. Furthermore, there was only a significant relationship between the views of nurses and patients in the subgroups of respect for patient privacy, compliance with the principle of confidentiality (P = 0.001), and access to an efficient grievance redressal system (P = 0.001). Conclusions: Overall, it is inferred that in most cases, nurses are aware of the extent of their compliance with their charter of rights, and from the patients' point of view, the level of compliance with the charter of patients was often moderate.

Section 28’s Potential to Guarantee Substantive Gender Equality in Hak c Procureur général du Québec

Hak c Procureure générale du Québec is an action that has combined four distinct challenges to An Act Respecting the Laicity of the State . In this article, I canvass section 28 doctrine and jurisprudence to outline the purpose and role of section 28 in order to understand how it might operate in the challenge undertaken in Hak . To do so, I conduct a purposive analysis of section 28. In my opinion, section 28 has two distinct purposes: first, it acts as a “gender equality interpretive tool” that requires judges to choose constitutional interpretations that favour substantive gender equality and, second, it ensures that substantive gender equality cannot be overridden by anything else in the Canadian Charter of Rights and Freedoms . Within these broad purposes, I also discuss section 28’s status as an interpretive provision that confers the substantive right to substantive equality, and I offer illustrations of the gender equality tool in case law. I conclude with the potential of section 28 to operate as a gender equality tool in Hak , including its potential to do so intersectionally.

Chapter 13 – The Dangers of Charter-Proofing the Toronto 18’s Prosecution

This chapter examines the many failed Charter challenges brought by the Toronto 18. Although the Charter of Rights and Freedoms was added to Canada’s Constitution in 1982 as a response to national security excess, it failed to benefit the Toronto 18 and make the prosecution longer. Charter challenges to mandatory publication bans that some of the Toronto 18 argued prevented them from responding to prejudicial pre-trial publicity failed. Charter challenges to bail conditions and harsh conditions of pre-trial detention – including solitary confinement and prosecutorial use of a direct indictment to pre-empt a preliminary inquiry – also were unsuccessful. Although the courts found that the police had violated various Charter rights in several cases, they never excluded evidence obtained as a remedy. The Toronto 18 had Charter rights, but not Charter remedies. The Supreme Court reversed a trial judge’s decision, not allowing him to decide national security secrecy claims and what evidence could not be disclosed to the accused. Finally, the courts upheld broad terrorism offences as consistent with the Charter. Although the many failed Charter challenges can be seen as producing due process excess and delay, it is argued that the conclusion that the prosecution were consistent with the Charter or “Charter-proof” can blind the public to troubling and problematic aspects of the prosecution and of our broad terrorism laws. It also confirms that even in the Charter era, the executive and the legislature play the dominant roles in the national security context.

Private Records, Sexual Activity Evidence, and the Charter of Rights and Freedoms

In December 2018, Parliament amended the Criminal Code to add a new regime dictating the process and admissibility criteria for private records in the possession of an accused in a sexual assault proceedings. The legislation also includes new procedural requirements for applications to introduce evidence of a complainant’s other sexual activity under section 276 of the Criminal Code. Several courts have concluded that various parts of these new provisions – which some have nicknamed the Ghomeshi Rules – are unconstitutional. The problem with these decisions is that, in each one, the court has failed to properly balance the competing interests at stake. Stated most plainly, each of them overstates the impact of these provisions on the accused’s right to a fair trial and understates the competing interests to be balanced in an analysis of the constitutionality of these new laws. This article confronts two problematic aspects of the assessment of the impact on the accused’s rights in these cases: hyperbolic assertions about the impact of notice to the complainant on the right to cross-examination and assumptions about the impact of disclosure to the complainant on the truth-seeking function of the trial. This analysis is done, in part, through a case study of the trial transcript in R. v. Ghomeshi because several of these cases appear to have been litigated or adjudicated in the shadow of Ghomeshi. The article concludes with an assessment of the competing interests that must be balanced with the accused’s right to a fair trial: the complainant’s privacy, equality and dignity interests, and the societal interest in encouraging survivors to report sexual offences.

The Application of EU Fundamental Rights During the Financial Crisis: EU Citizenship to the Rescue?

The procedure of challenging austerity measures for EU fundamental rights violations during the financial crisis has revealed a serious ‘review gap’ due to the – often atypical – nature of financial measures and the Charter’s limited application. This article examines a different way to address the ‘review gap’ by focusing on EU citizenship’s role to provide the ‘way into’ EU law, allowing Charter rights to be invoked in a broader scope of application that would encompass austerity measures challenges. Specifically, Article 20 Treaty on the Functioning of the European Union (TFEU) and the ‘substance of rights’ doctrine can provide that opening, when placed into a different jurisdictional test that also involves the ‘operationalisation’ of Article 2 Treaty on European Union (TEU). This ‘inverse applicability of EU law’ test will allow further rights to be judicially incorporated into the list already expressly articulated in Article 20 TFEU, creating a bridge between what are traditionally conceived as ‘purely internal situations’ and establishing the necessary ‘connecting factor’ to EU law. EU Courts, Right to trial within a reasonable time, Excessive duration of court proceedings, Effective remedies, Damages liability of the EU, Economic harm, Non-material harm, Conditions for liability, Requirements for establishing harm and causation, Significance for EU damages liability law

Collective Religious Freedom as Associational Action: How Sociological Concepts Can Help Make Sense of the Jurisprudence

AbstractReligious freedom is protected by section 2(a) of the Canadian Charter of Rights and Freedoms. Historically, the right has been understood in individual terms, though the courts have acknowledged a collective dimension to religion as expressed in a community of believers. Yet, the precise meaning of collective religious freedom has not been fully fleshed out. The current case law only encompasses a limited range of forms of collective religious expression and does not articulate a coherent theory as to why some collective 2(a) claims succeed while others fail. This paper draws on concepts from interpretive sociology to help clarify the existing jurisprudence and reveal a tension that is otherwise invisible over the status of volition/voluntariness in the collective religious freedom framework. Addressing this tension can help rationalize the Court’s jurisprudence and give resources to critics looking to change how the law encompasses collective religious experience.

Dialogue and distrust: John Hart Ely and the Canadian Charter

Abstract John Hart Ely’s process theory of judicial review has had an influence on constitutions across the globe. This article explores and evaluates Ely’s influence on the drafting and development of the 1982 Canadian Charter of Rights and Freedoms. The article first outlines the rudimentary elements of Ely’s theory of judicial review, then how Ely’s explicit influence on the development of the Charter has mostly been limited to the context of Section 15 equality rights. But Ely’s influence has been more extensive in the way scholars have sought to understand the Charter. The third section of this article shows how Ely has had an impact on Patrick Monahan’s theory of judicial review under the Charter, and in Rosalind Dixon’s process theory of dialogue. The article concludes by arguing that although Ely’s concerns remain relevant in the Canadian context, there are two reasons to be skeptical of using Ely’s theory to understand Charter rights: the first reason is that the Charter features substantive rights that do not seem to be reducible to protections for participation in the political process; the second reason is that process-based dialogue theory appears to be insufficiently distrusting of courts.

Between Populism and Juristocracy: The Republicanism of Rainer Knopff

AbstractRainer Knopff's scholarship on Canadian constitutionalism has offered some of the most trenchant criticism of the exercise of judicial review under the Charter, yet his theory has largely been misunderstood (as has that of his frequent co-author F. L. Morton). This article exposes two prominent critiques of Knopff's constitutional writings as straw man arguments and provides a republican account of his constitutional theory. The first straw man argument is that Knopff supports a majoritarian or populist conception of direct democracy. This claim is belied by Knopff's embrace of representative democracy and institutions structured to encourage reflexive deliberation. The second straw man argument is that Knopff is a moral rights skeptic. Knopff's rights skepticism is a legal skepticism about the determinacy of many rights that is merely a function of his inclusive legal positivism. The article concludes by reflecting on the republican lessons that Knopff's constitutional scholarship continues to offer, including how holding legislatures responsible for settling reasonable disagreements about legally indeterminate Charter rights might help counteract the twin threats of populism and juristocracy.

The Implementation of Economic, Social and Cultural Rights in Canada: Between Utopia and Reality

Canada has been at the forefront of the recognition of human rights, including economic, social and cultural rights (ESC rights) in the international scene. As a party to the International Covenant on Economic, Social and Cultural Rights,1 Canada has, over the years, implemented in legislation and case-law some ESC rights such as the right to health, education and social welfare.While ESC rights were not explicitly identified in the Charter of Rights and Freedoms,2 which forms part of the Canadian Constitution, ESC rights in different forms have received some protection in the Canadian legal order. An analysis of the Canadian record with respect to ESC rights demonstrates the immense gap between a glorified image of Canada as an international human rights proponent (the ‘utopia’) and the actual implementation of internationally recognized human rights in Canada (the ‘reality’). As Canada is bound to face major transformational changes to its economy and social fabric in the years to come, the Courts will have to adapt quickly and efficiently to ensure a smooth transition. This paper overviews the evolution of the case-law on ESC rights in Canada in light of its international obligations, and suggests, the relevant ESC rights jurisprudence signals a disconnect with Canada’s international obligation ‘requiring progressive implementation to the maximum of available resources by all appropriate means.’

El derecho de propiedad y su “función social” en el ordenamiento jurídico italiano y en el europeo

The Italian Constitution defines property not as a fundamental right, but as a right “recognized and guaranteed by law… with the objective to secure its social function”. For this reason, many authors have emphasized that its inclusion in the European Convention on Human Rights as well as in the Charter of Fundamental Rights of the European Union, could be considered as a blameworthy return to ancient (and excessively liberal) views. In truth, as this paper will try to demonstrate, the notion of “social function” is not stranger to European Law, which even extents this concept and its significant implications to many other rights and freedoms protected in modern Charters of Rights.

An Incremental Approach to Filling Protection Gaps in Equality Rights for Persons with Disabilities

Abstract The Convention on the Rights of Persons with Disabilities (CRPD) guarantees that persons with disabilities (‘PWD’) are to be equal before and under the law. There are almost identical equality guarantees in the Canadian Charter of Rights and Freedoms and Hong Kong's mini constitution – the Basic Law. Australia boasts similar legislative equality guarantees for PWD. The CRPD Committee has interpreted the right broadly, whereas constitutional courts have taken a proportionality approach, balancing the right to substantive equality against competing concerns. The tension between these methods of rights protection means the CRPD is being positioned as an alternative model of rights protection, but it is not an alternative mechanism for enforcement. This article calls on the Committee to modify its guidance to make suggestions to state parties as to how incremental advances in rights protection can be immediately implemented, even if in the short-term, these advances fall short of full inclusion.

Teleological Interpretation in the Emerging Socio-Economic Rights Jurisprudence of the African Court: African Commission on Human and Peoples’ Rights v Republic of Kenya

Abstract The African Court has recently decided on merits its first socio-economic rights case – ‘the African Commission on Human and Peoples’ Rights v Republic of Kenya’. The Court applied aspects of the teleological approach to interpretation to interpret socio-economic rights in question. The article examines the Court’s application of the teleological approach in its emerging socio-economic rights jurisprudence. The analysis shows that, although the Court found the respondent State in violation of a wide range of socio-economic rights, there are still some shortcomings in its application of the teleological approach. The African Court did not extensively exhaust all the interpretative tools within the African Charter that are in line with the teleological approach. Consequently, the interpretative potential embedded in these aspects of the teleological approach for effective interpretation of socio-economic rights in the African Charter is restricted. The Court also applied the tenets of the teleological approach inappropriately and interpreted some rights relevant to socio-economic rights based on a narrow textual approach. The mixing of the interpretative approaches leads to jurisprudential inconsistencies. If the Court certainly adopts and appropriately apply the teleological interpretation, it will contribute in advancing effective promotion and protection of these rights in the Continent.

The Alchemy of Equality Rights

A clear legal test for equality is impossible, as it should be. Indeed were the test clear, it could not be for equality. It would have to be for something other than equality — in effect, for inequality. The abstract character of equality is not a new idea. In fact, the Supreme Court of Canada’s first decision under section 15 of the Canadian Charter of Rights and Freedoms1 recognized equality as “an elusive concept” that “lacks precise definition.”2 Why, then, do judges continue to demand such definition over thirty years later? The answer, at times, is politics.
 1 s 15(1), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].2 Andrews v Law Society of British Columbia, [1989] 1 SCR 143 at 164, 56 DLR (4th) 1 [Andrews].

The Elephant in the Room and Straw Men on Fire

A great unacknowledged challenge in litigating systemic discrimination claims under the section 15 equality guarantee of the Canadian Charter of Rights and Freedoms1 is that claimants bear a double burden. Like all litigants, they must meet the burden of proving the elements of their legal claim. But, before they can do that, equality claimants must often first meet the extraordinary burden of dislodging judges’ phenomenological anchoring in worldviews shaped by privilege. Where judges lack lived experience of systemic oppression, claimants must convince them that oppression exists. This gulf between lived experiences — what I call the reality gap — is the elephant in the room in many section 15 cases.
 1 s 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

Critical Reflections on Fraser: What Equality Are We Seeking?

In this brief comment, I contextualise and complicate the conventional reading of Fraser v Canada as a victory for equality seeking groups.1 Instead, or at least alongside that reading, I want to suggest some other stories about the trajectory of equality in Canada since the Charter2 era began, and about what future doctrinal developments Fraser might lead us to predict.
 1 Fraser v Canada (Attorney General), 2020 SCC 28 [Fraser]. 2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

Comment on Fraser v Canada (AG): The More Things Change

Very early in my academic career I wrote two pieces about section 15.1 The first was written in 1987, before the Supreme Court of Canada had heard any section 15 cases,2 and the second in 1989 was a comment on Andrews v Law Society of British Columbia, the first of the Court’s section 15 decisions.3 When I re-read these pieces recently it struck me that with a few minor updates they could be read as comments on the Court’s recent decision in Fraser v Canada(Attorney General). 4 The same issues and tensions that were there at the beginning of section 15 are still there. They are built into the concept of constructive/effects discrimination and are not about to disappear. Shamelessly, I have reconstituted these two earlier pieces into a comment, of sorts, on the Fraser case. Other contributors in this special issue of the Constitutional Forum have set out the facts of the Fraser case and so I have not done so here.
 1 Canadian Charter of Rights and Freedoms, s 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].2 Richard Moon, “Discrimination and Its Justification: Coping with Equality Rights under the Charter” (1988) 26:4 Osgoode Hall LJ 673.3 Richard Moon, “A Discrete and Insular Right to Equality: Comment on Andrews v. Law Society of British Columbia”(1989) 21:3 Ottawa L Rev 563.4 2020 SCC 28 [Fraser].

Intersections and Roads Untravelled: Sex and Family Status in Fraser v Canada

It has been a long road to the judicial recognition of women’s inequality under the Cana‑ dian Charter of Rights and Freedoms.1 The Supreme Court of Canada ruling in Fraser v Can‑ ada is significant for being the first decision where a majority of the Court found adverse effects discrimination based on sex under section 15,2 and it was only two years prior that a claim of sex discrimination in favour of women was finally successful at the Court,3 almost 30 years after their first section 15 decision in Andrews v Law Society of British Columbia. 4
 1 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], s 15. 2 Fraser v Canada (Attorney General), 2020 SCC 28 [Fraser]. 3 Quebec (Attorney General) v Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 [Alliance] (majority found sex discrimination under s 15 and rejected the government’s justification argument under s 1 in the pay equity context). See also Centrale des syndicats du Québec v Quebec (Attorney General), 2018 SCC 18 [Centrale] (majority found violation of s 15 but accepted the government’s s 1 argument, also in the pay equity context). For comments on these decisions see Fay Faraday, “One Step Forward, Two Steps Back? Substantive Equality, Systemic Discrimination and Pay Equity at the Supreme Court of Canada” (2020) 94 SCLR (2d) 301; Jonnette Watson Hamilton & Jennifer Koshan, “Equality Rights and Pay Equity: Déjà Vu in the Supreme Court of Canada” (2019) 15 JL & Equality 1. See also British Columbia Teachers’ Federation v British Columbia Public School Employers’ Association, 2014 SCC 70 (a one-paragraph decision restoring an arbitrator’s award allowing a s 15 employment benefits claim by women); Newfoundland (Treasury Board) v NAPE, 2004 SCC 66 (finding a violation of s 15 but accepting the government’s s 1 argument, again in the pay equity context).4 [1989] 1 SCR 143, 56 DLR (4th) 1.

Cautious Optimism: Fraser v Canada (Attorney General)

Adverse effects discrimination arises when a law that appears to be neutral on its face has a disproportionate and negative impact on members of a group identified by a protected ground.1 The discrimination is usually not as easy to see as it is in cases of direct discrimination, where distinctions are drawn by a law, program, or policy. This may be why Fraser v Canada (Attorney General)2 is only the third adverse effects claim under section 15(1) of the Canadian Charter of Rights and Freedoms3 to succeed since section 15 came into force in 1985.4 Fraser is notable simply because it is the first successful adverse effects claim in twenty-two years.5
 1 Jonnette Watson Hamilton & Jennifer Koshan. “Adverse Impact: The Supreme Court’s Approach to Adverse Effects Discrimination under Section 15 of the Charter” (2015) 19:2 Rev Const Stud Studies 191 at 196 [“Adverse Impact”]. 2 2020 SCC 28 [Fraser]. 3 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. 4 The other two cases in which adverse effects claims were successful were Eldridge v British Columbia, [1997] 3 SCR 624, 151 DLR (4th) 577 [Eldridge cited to SCR] and Vriend v Alberta, [1998] 1 SCR 493, 156 DLR (4th) 385 [Vriend cited to SCR]. 5 At least five adverse effects claims made under section 15 of the Charter failed in the intervening twentytwo years: Health Services and Support — Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC

Algorithms & the Border

While Canada is revered as a migration hub, discriminatory practices remain a persistent issue at Canada’s borders. In 2017, the RCMP was publicly condemned for distributing Islamophobic, religiously coded questionnaires amongst Muslim migrants on the border between Quebec and the United States. Since 2014, the Canadian government has deployed artificial intelligence-led decision making in Canada’s immigration system. (Molnar, 2018) The use of these technologies has an alarming impact on the internationally recognised human rights, and s15, s2, s8 and s6 of the Canadian Charter of Rights and Freedoms. (Molnar and Gil, 2018) In this essay, I will argue that the use of predictive analysis and automated decision-making systems in Canadia’s immigration decisions can lead to serious breaches of the right to privacy, the right to movement, the right to freedom of association and the right to be free from discrimination. In the first half of this paper, I will define predictive analysis and automated decision-making systems, and outline how AI is used in immigration in the Canadian context. Then, I will discuss the human rights protections violated through automated decision systems in the Canadian immigration system.