Charter Of Rights Research Articles

Restricting Access to Legal Content in House Rules: The Platform’s Freedom To Conduct a Business as a Counterargument To Limit Users’ Freedom of Expression

This chapter focuses on platforms’ protection against (unjustified) interference with the free drafting of house rules, viewed through a lens of European fundamental rights protection. It discusses the difference in protection of two fundamental rights in the European Charter of Fundamental Rights: article 16’s freedom to conduct a business and article 17’s right to property. The articles’ subject of protection (“the essence of the right”) will be mapped by analyzing the CJEU’s case-law between respectively 1974 and 1979 until 2020 and the outcome of this analysis will be applied to the process of running a platform. It will show that article 16, rather than article 17, covers platforms’ house rule-drafting. However, it is unlikely that restrictive measures will interfere with the freedom’s essence. To be justifiable, measures that do not interfere with the essence must live-up to the principle of proportionality. Therefore, subsequently, the question arises whether potential measures live up to this principle. To prevent a purely normative answering of that question - due to the fact that a standardized test does not exist - the Unfair Contract Terms Directive’s unfairness test will be used as interpretational guidance. It is concluded that measures limiting a platform’s contractual freedom can, and most likely will, be justifiable to protect platform users’ freedom of expression. That opens the door for future legislation. Outside the direct realm of platforms, this chapter demonstrates that the freedom to conduct a business has been reduced to an empty shell, or rather, a shell that has never been inhabited. Apart from the situation where an undertaking would be able to demonstrate that a proposed measure would mean the end of the business, the freedom to conduct a business does not provide any effective protection.

Freedom of Thought in Canada: The History of a Forgetting and the Potential of a Remembering

Abstract Canada has a constitutional freedom of thought clause that has received almost no attention. This article considers reasons behind this phenomenon and the future potential of the clause. Unlike many constitutional rights and freedoms in Canada, constitutionalised freedom of thought did not have precedents in prior Canadian human rights instruments. Rather, its precedents are in international human rights instruments, with Canadian drafters choosing to adopt this freedom into Canada’s 1982 Charter of Rights and Freedoms. For a complex set of reasons, almost no Canadian case law has developed on freedom of thought. This article explains that phenomenon in terms of path dependence and problematic features of Canadian jurisprudence and scholarship. It argues that some recent cases offer new hope for development of freedom of thought jurisprudence. It argues that comparative constitutional conversations and emerging contemporary challenges may be significant in the development of Canada’s constitutional freedom of thought guarantee.

Pesky Polygamist Women: The Marginalization of Qualitative Data in British Columbia’s Charter Reference on Polygamy

AbstractThis paper explores the thorny mingling of law with qualitative social science methodologies through the lens of the 2010–11 Supreme Court of British Columbia Charter Reference on polygamy, which was conducted to determine whether the criminalization of polygamy was consistent with the Canadian Charter of Rights and Freedoms. The Reference reveals how the marginalization of qualitative research(ers) effectively controlled whose voices were to be heard and whose were to be silenced in the broader project of sovereign intervention into family formation. With specific focus on Professor Angela Campbell, who provided expert opinion testimony in the Reference, this paper reflects on two important questions: when social science is invoked in legal settings, whose knowledge is legitimized, and who benefits from this legitimization? Drawing upon the longstanding feminist project of deconstructing assumptions of value-neutrality in all science, this paper considers how qualitative, feminist research(ers) may be inherently at odds with law’s quest for (rational) “truth.”

From détente to Revolution: Soviet Solidarity with Chile after Allende, 1973–79

Based on untapped sources from the state and foreign policy archives of the Russian Federation, and bridging the historiographies of human rights, Cold War Latin America, and Second-Third World relations, this article argues that Soviet solidarity with Chile after the 1973 coup that toppled socialist president Salvador Allende reflected the fundamental dilemma at the heart of Soviet policy in the 1970s: the pursuit of détente jeopardized Moscow’s leadership of the international communist movement. Soviet solidarity with Chile is analyzed at the diplomatic level; at the transnational level, through exchanges with a variety of political and social groups not limited to communist parties; and at the international level, where these groups pursued their agendas in the United Nations and other organizations. Removing the East/West lenses and viewing Soviet responses to Allende's downfall in the context of intra-communist bloc rivalries and the explosion of global human rights activism, demolishes the orthodox paradigm of the Cold War international system and reveals the ways in which Soviet ideology was shaped not only by official party interpretations of Marxism-Leninism, but by the innovations of allies and competitors in the Global South, and the universal language of the UN Charter and human rights.

J'accuse: Justice Canada minimizes human rights every single day

Justice Canada has a statutory obligation to ensure that Canada's federal government is in compliance with the law and that any proposed laws and regulations are consistent with the Canadian Charter of Rights and Freedoms. This paper argues that Canada is not in compliance with its legal obligations. This paper pays special attention to the author's many years as a Justice Canada lawyer and with a court case where another Justice Canada lawyer took Justice Canada to court over these issues.

Towards gender equity in emergency medicine: a position statement from the CAEP Women in Emergency Medicine committee.

As of January 2019, over half of all doctors working in Canada under the age of 40 were women. Despite equal representation in the profession of medicine, women still experience harassment, discrimination, and pay inequity when compared to their male colleagues. Gender discrimination is present at all levels of medical training and negatively impacts women who want to become emergency physicians. The right to gender equity is part of the Canadian Charter of Rights and Freedoms. The World Health Organization states that "gender inequities are socially generated and, therefore, can be changed." CAEP recognizes that gender equity is important to its members and that it intersects with inequities experienced by other minority groups. This position statement from the committee for Women in Emergency Medicine (EM) is intended to support women and those who identify as women who have chosen EM as their career. Furthermore, it is meant to inform and support policy makers as they consider the unique challenges that women face in their pursuit of excellence in EM.

Restricting Freedom of Peaceful Assembly During Public Health Emergencies

As the second wave of the COVID-19 pandemic in Canada continues, so too does litigation challenging policies intended to slow the spread of the virus. A growing number of claimants have argued that these sweeping public health measures — many of them drastic and previously unimaginable — infringe various provisions of the Canadian Charter of Rights and Freedoms.1 While a significant number of claims have been brought pursuant to protections that support a sustained body of jurisprudence, litigants may yet seek to explore some of the more forgotten sections of the Charter, particularly section 2(c)’s guarantee of freedom of peaceful assembly. In an effort to encourage the development of a body of jurisprudence on section 2(c), this article envisions how such Charter challenges might unfold.

Two-tier healthcare after Cambie.

In 2019, a British Columbia (BC) court decided against a Charter challenge, launched by Cambie Surgical Services (a private clinic). Cambie claimed that various laws in BC suppressing a two-tier system are contrary to the Canadian Charter of Rights and Freedoms and should be overturned. The trial judge carefully weighed the evidence for and against a two-tier system as a “safety valve” for long wait times in public Medicare, finding overall that two-tier will do more harm than good in the BC context. It is a small victory and a reprieve for public Medicare, which is increasingly under attack from various forms of privatization. But the courts cannot save healthcare on their own nor should they be expected to. The commitment and participation of all levels of government to improving waiting times is crucial.

Heritage Moments: Customs, Traditions, and Multicultural Citizenship in Canada

ABSTRACT For many scholars who worry about the future of liberal democracy, a central challenge has been to conceive civic and national identities that are robust enough to sustain collective action without defining the criteria of shared membership in ways that are too narrow, exclusive, or inaccessible. This essay addresses the familiar questions that lie at the heart of this challenge – who belongs? and on what terms? - but with a double twist: First, I reflect on the normative questions posed by political theorists about ”belonging,“ but do so in dialogue with the empirical evidence generated by a cross-national opinion survey on national identity undertaken by the Pew Research Center. Second, I explore the Canadian case in greater detail, suggesting that sharing customs and traditions, anchored to and validated by the Charter of Rights, may be a surprising and under-utilized resource in establishing a more flexible account of belonging.

Locking up the locked up: solitary confinement of children and young people in Victoria

ABSTRACT Despite being the second Australian jurisdiction to introduce legislative human rights protections in 2006 (Charter of Human Rights and Responsibilities Act 2006 (Vic)), Victoria has failed to bring the legislation governing juvenile detention (the Children, Youth and Families Act 2005 (Vic)) in line with the human rights protections contained in the Charter. This was brought to the fore with the Victorian Government’s decision to detain children in a precinct in the Barwon adult maximum security prison in late 2016— a decision that the Supreme Court twice ruled breached the rights of the children protected by the Charter (Certain Children decisions 2016 and 2017). This article focuses on the solitary confinement of children and young people (aged 18 to 24 years) as a specific area in which Victorian legislation fails to comply with the Charter and international human rights law, as well as the main practice that has ultimately led to the first court decision concerning the rights of those in closed environments where the Charter has provided an immediate remedy.

Positive Charter Rights: When Can We Open the ‘Door?’

Whether the Supreme Court of Canada can and should recognize so-called ‘positive’ rights (viz, rights that require the performance of certain actions, possibly including the provision of goods, by the government) under the Charter of Rights and Freedoms remains contentious. Binding Supreme Court of Canada precedent states that there are no positive Charter rights – at least under sections 7, 12, and 15 of the Charter, under which demands for positive action are most controversially raised – but positive aspects of Charter rights could be recognized in the future. Yet the circumstances under which recognition would be appropriate remain opaque. This work suggests that the law of precedent is a helpful tool for examining when recognition could be justified from both the institutional perspective of the Court’s internal norms and from an all-things-considered perspective. It is, at minimum, a useful framing mechanism for exploring the most difficult issues concerning the recognition of positive rights. Interestingly, application of the test suggests a break between when the Supreme Court of Canada could recognize positive rights according to its own norms and when it would be all-things-considered justified to do so. Yet, more importantly, the considerations raised by the law of precedent test also highlight a burden for future all-things-considered justified recognition and demonstrate how the judiciary can avoid the potential negative consequences of positive rights recognition if they choose to recognize them (e.g., where recognition of some form cannot be avoided in a contested case).

A teleological approach to interpreting socio-economic rights in the African Charter: Appropriateness and methodology

SUMMARY The incorporation of socio-economic rights in the African Charter on Human and Peoples' Rights should be considered a vital move towards the transformation of socio-economic conditions of the people on the continent. However, the envisaged socio-economic transformation depends largely on how these rights are interpreted. It is the task of the supervisory organs of the African Charter to develop the scope and content of these rights and their related obligations through interpretation. To achieve this interpretative objective, interpretive process of the supervisory organs should be guided by an appropriate approach to interpretation that is applied coherently. This article argues that the teleological approach to treaty interpretation is an appropriate approach to interpreting socio-economic rights in the African Charter. The article develops a methodology for application of the teleological approach through which socio-economic rights in the African Charter may be effectively interpreted. Key words: socio-economic rights; African Charter; effective interpretation; teleological approach to interpretation

The Road Not (Yet) Taken: A Charter of Rights for the Island of Ireland: A Response to ‘The Protection of Rights in a United Ireland’ by Brice Dickson

The Road Not (Yet) Taken: A Charter of Rights for the Island of Ireland: A Response to ‘The Protection of Rights in a United Ireland’ by Brice Dickson

The Road Not (Yet) Taken: A Charter of Rights for the Island of Ireland: A Response to ‘The Protection of Rights in a United Ireland’ by Brice Dickson

The Road Not (Yet) Taken: A Charter of Rights for the Island of Ireland: A Response to ‘The Protection of Rights in a United Ireland’ by Brice Dickson

The Stubborn Persistence of the Lawyer Exemption in Canadian Collective Bargaining Legislation

In 1948, the Canadian federal government introduced transformative collective bargaining legislation that would serve as a template for provincial labour law in the post-War period. That legislation extended protections to employees to form and join unions and required employers to bargain with unions that were chosen by a majority of their employees, among other legal rights and obligations. However, some employees were excluded entirely from this legislation, including employees working in five professions, law among them. The reason provided by the government for excluding the professionals was simply that the national bodies representing the professions asked to be excluded. That exclusion was then adopted by all provinces (except Saskatchewan) as part of the incorporation of the federal model into provincial labour legislation. By the 1970s, the federal government and most provinces had repealed the professional exclusion from the primary collective bargaining legislation, consistent with Canada’s ratification of ILO Convention 87 in 1972, which calls for governments to extend collective bargaining protections to all employees “without distinction whatsoever”. However, four jurisdictions—Ontario, Alberta, Nova Scotia, and Prince Edward Island (Exclusionary Provinces)—have stubbornly maintained the exclusion to this day, notwithstanding that thousands of (mostly) public sector lawyers across Canada, including in the Exclusionary Provinces themselves, have engaged in collective bargaining for decades. This essay traces the history of the lawyer exclusion from Canadian collective bargaining legislation and of lawyer collective bargaining from the 1940s to present day. The paper concludes with an assessment of the lawyer exclusion in light of recent decisions by the Supreme Court of Canada expanding the scope of Section 2(d) freedom of association under the Canadian Charter of Rights and Freedoms.

Promoting Human Rights in the Context of Police Procurement: A Study of Predictive Policing Instruments

Across Canada, human rights activists demand greater democratic accountability of police departments. These demands are a symptom of a serious problem - there is a discrepancy between the goals of policing and the consequences of the police’s actions. This discrepancy materializes when the police’s attempts to ensure public safety result in the marginalization of racialized communities, particularly in larger cities across Canada. To understand why laudable goals lead to deeply problematic consequences, it is necessary to analyze the specifics of modern policing in our cities. This paper relies on the case study of predictive policing instruments to demonstrate that externalities, such as recommendations generated by private technology, play an important role in undermining the goals of policing. Predictive policing instruments analyse different sources of data - police stops data, reported crimes, individual criminal records, and gang databases - to predict potential criminal activity. The use of this technology may violate several provisions of the Canadian Charter of Rights and Freedoms, including the guarantees of liberty, due process, and equality. Due to the increasing reliance of police departments on private technology, democratic control over the exercise of the police’s contracting powers becomes an important, albeit often overlooked, instrument of police reform. This paper argues that communities should condition the funding of police procurement on ex ante technology assessment procedures, technical specifications, and contract enforcement rights. Also, local elected representatives should have an opportunity to approve any data and technology sharing arrangements that extend predictive policing to their communities.

Использование Верховным cудом Канады концепции достоинства человека в конституционных спорах о равноправии

This article explores the evolution of the Supreme Court of Canada’s approach to the application of the concept of human dignity in constitutional equality cases. Traditionally, in human rights cases, this concept serves only to strengthen the argument, to show that the violation affects the person’s intrinsic worth. It is only in Canada and in South Africa that there is experience in applying the concept as a criterion for identifying discrimination. In 1999, in Law v. Canada, the Supreme Court recognized the purpose of Article 15(1) of the Canadian Charter of Rights and Freedoms of 1982 to be the protection of human dignity and stated that discrimination must be established based on assessment of the impact of a program or law on human dignity. However, in 2008, in R. v. Kapp, the Court noted that the application of the concept of human dignity creates difficulties and places an additional burden of prove on the plaintiff. It is no coincidence that victims of discrimination have preferred to seek protection before human rights tribunals and commissions, where the dignity-based test is not used. Subsequently, the Supreme Court of Canada rejected the use of the concept of human dignity as a criterion for identifying discrimination. The unsuccessful experience of applying the concept of human dignity as legal test has demonstrated that not every theoretically correct legal construction is effective in adjudication.

What Meaning in a Right to Strike? MedReleaf and the Future of the Agricultural Employees Protection Act

In June 2020, the Ontario Agriculture, Food and Rural Affairs Appeals Tribunal released its decision in UFCW v MedReleaf Phase 2. This decision focused on a constitutional challenge regarding the right to strike under the Agricultural Employees Protection Act, 2002 (AEPA), a separate statutory regime for agricultural workers, who are excluded from the Labour Relations Act, 1995 (LRA) in Ontario. This article explores the right to strike argument as it unfolded in the MedReleaf Phase 2 decision and highlights the enduring tensions that exist in articulating and extending labour rights under subsection 2(d) of the Canadian Charter of Rights and Freedoms to non-Wagner models of labour relations. In particular, we highlight how the arguments and analysis in the MedReleaf Phase 2 decision narrowed the opportunity for a richer examination and interpretation of subsection 2(d) and the AEPA by focusing substantially on a comparison with strike regulation and protections as understood under the LRA. As such, the MedReleaf Phase 2 decision risks interpreting the right to strike under the AEPA as a “bare right” without necessary protections to enable workers to effectively exercise that right. We go on to craft an argument that such protections are readily available to workers under the AEPA. We establish that the language of the AEPA itself, coupled with the subsection 2(d) jurisprudence and fundamental rule of law principles, create the necessary foundation to make a right to strike a meaningful and protected activity under the AEPA. We conclude by offering commentary on the future of striking, and of labour organizing, under the AEPA.

Implementation of standards of the european convention on human rights regarding forced removal of aliens in the European Union law

Implementation of standards of the european convention on human rights regarding forced removal of aliens in the European Union law

The Heteronomy and independence of the Korean legal system

During the colonial period, Japanese imperial government nacted numerous modern laws for efficient Joseon rule, compelling Joseon people compliance with the law. The people of Joseon suffered a sudden change in their lives due to the rule of law. The modern mind presupposes a responsible human image that affirms human self-pulling ability, namely autonomy, that can attribute responsibility to the consequences of one s actions. The characteristics of modern jurisprudence include the democratic system through value relativism and the separation of power, the three principles of modern civil law, the principles of criminal law, which is the charter of rights for criminal defendant, and the thorough contractual thinking that even marriage sees as a contract. These principles still affect the Korean legal system to this day. The theory of separation of the three powers was advocated for the establishment of a balanced relationship between political powers in real politics, not ideological political institution. Some criticize the separation of powers as limiting the efficient implementation of state power rather than controlling power itself. As soon as a member of the National Assembly is elected, he or she will have the privilege of being independent from the people in their constituencies to carry out his or her political intentions. The member of the National Assembly is the representative of the constituency only during the election period, and once he is elected, he is legally justified even if he thoroughly acts for the interests of his party. Lawmakers in Korea have the dual power to enjoy various political privileges of party politics while retaining the principles of national representation in their favor. Article 37 Clause 2 of the Constitution faithfully embodies the principle of sameness that the ruler and the governed coincide by recognizing the legislative power of the National Assembly, the representative of the people, to guarantee the basic rights of the people. This constitutional clause is a clear rationale for the inevitable reason for the National Assembly to legislate and through this regulation, the National Assembly was given legislative power. Therefore, the legislative power of Article 40 of the Constitution should be considered to be within the limits permitted by Article 37-2. The independence of judicial power refers to the principle that judges exercising judicial power in practical terms judge specific cases independently without being bound by anyone s instructions or orders. However, it is hard to confirm an example of a judge being criminally punished for a wrong ruling. This is due to the false illusion that the independence of the judiciary becomes as sacred as religious beliefs. Because of the wide sentences that are given to the criminal accused, judges can have an arrogant mind to show mercy to criminal defendants. The sentence given to a criminal defendant should be balanced not only with the injured law-interest of the victim but also with the purpose of social defense. Excessive protection of rights interests for criminal defendants may undermine the value of practical justice. The many principles of law contained in Eastern legislation derived from long history can be a good alternative to this problems.