Charter Of Freedoms Research Articles

The Individual is Not the Institution: The Flawed Logic of the New Brunswick Court of Queen’s Bench Decision in Acadian Society of New Brunswick v Right Honourable Prime Minister of Canada

In 2021, the Acadian Society of New Brunswick brought an application to the New Brunswick Court of Queen’s Bench seeking a declaration that the appointment of a unilingual anglophone as the Lieutenant Governor of New Brunswick was unconstitutional. Specifically, the Acadian Society claimed that the appointment of Brenda Murphy as New Brunswick’s lieutenant governor in 2019 violated the guarantees in the Canadian Charter of Rights and Freedoms of the equal status of English and French in New Brunswick. On April 14, 2022, the Chief Justice of the Court of Queen’s Bench, Tracey deWare, decided that the appointment of Ms Murphy as New Brunswick’s lieutenant governor was, indeed, in violation of the Charter. Yet, despite this conclusion, the Chief Justice also decided that it was appropriate to leave the question of what the implications of this determination should be to the executive branch of the Government of Canada.

Something in the air

This paper considers the issue of environmental racism as it relates to Indigenous and Black communities in Canada. Although the climate crisis affects us all, certain communities have felt the effects of environmental degradation more acutely and for a longer period. Environmental policy or practice that disproportionately disadvantages a racial group is an example of environmental racism. The article examines different policy responses to environmental racism in a Canadian context. The paper looks at proposed avenues for addressing environmental racism through the Charter of Rights and Freedoms, Private Members Bills, Senate Bills or the new Federal Housing Advocate position associated with the Canadian Human Rights Commission. It also examines a number of grassroots initiatives taking action against environmental racism. The article argues that having the right to a healthy environment encoded in the Charter is the best option for policy reform and that grassroots organizations working in coalitions continue to make meaningful social change as the policy battle continues. 
 
 How it fits theme:
 The political power of the Canadian government has important implications for all citizens, but that power is not exerted equally against all sectors of society. There is implicit power in policy and practice that has lived consequences for those living in communities that experience systemic inequalities in healthcare, employment, and environment. However, these systemic barriers do not render individuals powerless. Grassroots movements are the fundamental origin of all civil rights victories experienced thus far, and will continue to have an integral role in changing the balance of power for generations to come. The example of environmental racism in Canada is a good place to examine the role of state power in racialized communities. At the same time, the individuals fighting against environmental racism through policy and social movements simultaneously are an inspiring example of resistance in praxis.

The Right to an Effective Remedy In International Data Transfers of Electronic Evidence: Past Lessons and Future Outlook

Cross-border and international collaboration of authorities is often a necessity, involving inter alia the exchange of good practices, tools, human resources, but also information, including personal data. Cross-border access to data is essential in the context of electronic evidence in criminal investigations and proceedings, as more than half of all criminal investigations involve a cross-border request to obtain e-evidence. From a fundamental rights perspective, a common denominator in transborder exchanges of data -irrespective of whether they take place for commercial or for criminal purposes- is that the right to effective remedy of the individuals concerned shall be safeguarded, a right protected under Article 47 of the Charter of Fundamental Rights and Freedoms of the European Union. Taking into account this context, this paper provides a comprehensive analysis and assessment of the right on effective remedies for EU citizens in international data transfers of electronic evidence and discusses the future of the right to effective remedies in transatlantic transfers of data in this context. The main argument of the paper is that the effective remedies for sharing electronic evidence outside the EU territory are not sufficiently guaranteed by the existing applicable rules, due to the piecemeal approach followed in the EU.

Transitioning Old Order Mining Rights into New Mining Rights: A Critical Analysis

The transformation of the mining industry has been a recurrent issue since the drafting of the Freedom Charter of 1955 and the dawn of democracy. Transformation had to be promoted through the development of the law, including the transitioning of the old mining rights into the new mining rights by the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA). This paper focusses on the transition from the previous South African mining law in its historical context to the MPRDA, and the developments which brought it about, including various developments in law which assist in understanding the scope and limitations of the transition. The analysis clarifies the present position in our law associated with mining rights as well as how to deal with disputes arising out of it. The South African courts are critical in the interpretation of the transitional law and how it should apply. The judicial perspective on the development of the transitional law is empirically analysed.

Freedom of Expression: Values and Harms

When considering restrictions on socially disfavoured expression, the Supreme Court of Canada has often considered the targeted expression’s “value.” In the seminal cases of Ford v. Quebec and Irwin Toy Ltd. v. Quebec, the Supreme Court articulated the importance of expressive freedom by relating it to three core values: (1) seeking and attaining the truth; (2) participation in democratic institutions; and (3) diversity in forms of individual self- fulfillment. Subsequent cases considering restrictions on expression have evaluated the extent to which the targeted expression advances these values. Ironically, although Ford and Irwin Toy embraced a broad conception of expressive freedom, the Supreme Court has used the values analysis developed in these cases to justify limiting disfavoured expression. As applied to marginalized ideas, the Supreme Court has tailored its balancing test under R. v. Oakes such that expression found to be “distant from the core of free expression values” is granted little protection under the Canadian Charter of Rights and Freedoms. Under this test, legal restrictions on hate speech, obscenity, and other forms of disfavoured expression have been upheld based on the Supreme Court’s low assessment of the value of the underlying expression. This article argues that although certain forms of expression may be validly restricted under the Charter, the Supreme Court’s practice of assessing the value of targeted expression when applying the Oakes test is both politically illegitimate and vulnerable to error. This practice should be abandoned in favour of an alternative application of Oakes that balances (1) the severity of the restriction against (2) the harm of the targeted expression. Under this analysis, the value of the expression is not a factor because all expression is considered equally valuable. This approach adopts a relativistic perspective on the value of free expression and denies the ability of courts to mediate absolute truth. According to this view, the only characteristic of targeted expression that may justify its restriction is its likelihood to cause harm, a question more susceptible to judicial determination than its underlying value. The impetus for my argument is that, as applied, the Supreme Court’s values analysis inevitably imposes political preferences onto Charter interpretation. A more politically- neutral framework would be more consistent with section 2’s unqualified protection of “thought, belief, opinion and expression,” as well as section 1’s concern for “a free and democratic society.”

Taking Rights Frankly: Justice Iacobucci and the Canadian Charter of Rights and Freedoms

Taking Rights Frankly: Justice Iacobucci and the Canadian Charter of Rights and Freedoms

Dialogical theory of constitutional jurisdiction

The metaphor of dialogue between constitutional jurisdictions and legislatures was born in Canada to describe the role of the Supreme Court after the adoption of the Charter of Rights and Freedoms in 1982. Then he was engaged in the Anglo-American academic space of comparative constitutional law. It is the relationship of the constitutional judiciary to the deliberative paradigm that raises questions, as it is difficult to see how the supervisory function of the judge and his authority to repeal or amend legislative texts can be anything other than a transfer within the limits of the separation of powers. A famous argument in the 1803 U.S. Supreme Court decision Marbury v. Madison: Justice Marshall postulated that the existence of a written Constitution, supreme since its adoption by a sovereign people, implied a judicial guarantee, even if the text did not state it, which applies to all legal acts. including the law. Constitutional justice developed mainly a century later, and then especially at the end of World War II, as did the theory that accompanied it. Those proposed in the context of continental Europe by the Austrian legal theorist Hans Kelsen, who participated in its creation in Austria in 1920. Schematically, the legal order is a hierarchically structured system of norms, each norm of which is valid when it is produced by a norm of a higher rank, up to the Constitution. The judge checks the validity of the rules within the system; A constitutional judge, whether a court specializing in this control or an ordinary judge headed by a universal Supreme Court, checks the conformity of all or part of the norms with the constitutional norm, thus performing an essential function in structuring the legal order. Outside the European Union, the dialogue metaphor has been reused in two contexts where it has played two very different roles, in the space of English-language comparative law and then in America. Then the theory of democratic deliberation was extended to the constitutional judge. In the dialogic conception, as in other variants of constitutionalism understood as cooperative, the case for constitutional revision derives from the ability of courts to help counter failures of inclusiveness and responsiveness to the political process, framed here in terms of "blind spots" and "inertia weights."

The Canadian Charter’s Notwithstanding Clause as an Institutionalized Mechanism of Court Curbing

ABSTRACT Recent interest in the use of section 33 of the Canadian Charter of Rights and Freedoms has renewed political and scholarly attention to this unique device of constitutional politics. The notwithstanding clause is notable for being an opt-out clause exclusively available for government use, positioning it above the courts on key areas of rights. This article argues that the notwithstanding clause can be understood properly as an institutionalized mechanism of court curbing; that is, as an effort to limit a court’s power. We analyze uses of the notwithstanding clause using national and regional media coverage to understand how section 33 is framed, as well as an original dataset that investigates Canadians’ support of the notwithstanding clause and court curbing.

Pierre Elliott Trudeau, Prime-Minister of “One Canada”

A statesman of Canada, Pierre Elliot Trudeau (1918—2000), a Liberal Prime Minister in 1968—1979, 1980—1984, is the author of the “patriation” of the Constitution of 1982, which included a universal Charter of Rights and Freedoms, and of the law on official bilingualism. Trudeau defended the integrity of state from the threats of supporters of extremist forms of separatism that arose among the radical nationalists of the French-speaking province of Quebec, directing federal-provincial contradictions into the political and legal channel. Trudeau was inspired by the concept of “One Canada” and the philosophy of “Just Society”, combining the ideas of the supremacy of individual freedoms with the high responsibility of the state, social measures with equal linguistic and cultural development of Francophones and Anglophones as parts of a single political nation. Trudeau’s enduring legacy also includes the abolition of the death penalty, the end of the discrimination of homosexuals, the simplification of divorce proceedings, multiculturalism and anti-poverty measures. The foreign policy course also bore the imprint of Trudeau’s ideas of justice in a changing global world. He initiated the diversification of international relations, collaborated with socialist countries, defended detente and nuclear security, reducing Canada’s participation in NATO and removing nuclear missiles from the country’s territory.

Transitioning Old Order Mining Rights into New Mining Rights: A Critical Analysis

The transformation of the mining industry has been a recurrent issue since the drafting of the Freedom Charter of 1955 and the dawn of democracy. Transformation had to be promoted through the development of the law, including the transitioning of the old mining rights into the new mining rights by the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA). This paper focusses on the transition from the previous South African mining law in its historical context to the MPRDA, and the developments which brought it about, including various developments in law which assist in understanding the scope and limitations of the transition. The analysis clarifies the present position in our law associated with mining rights as well as how to deal with disputes arising out of it. The South African courts are critical in the interpretation of the transitional law and how it should apply. The judicial perspective on the development of the transitional law is empirically analysed. Keywords: Mining law; transition; transitional law; mining rights; Minerals and Petroleum Resources Development Act

Theology of Land: Reflections and Dialogue from a South African Socio-Political Perspective

This paper examines the current situation of land possession in the South African socio-political space. Land possession in South Africa is an emotive issue that receives different political responses based on historical constitutional land laws and declarations, such as the Freedom Charter of 1954. African views on land are elaborated, together with South African current political debates regarding land. Negative politics of the land leave the dispossessed humiliated, experiencing feelings of indignity and insentience. Being robbed of the land is humiliating, but the dialogue about regaining it should occur in the spirit of eschatological hope with one goal in mind: inheriting the land. The paper further elaborates a theology of the land and extensively explains its historical and biblical evolvement from the Abrahamic era to the period of exile. In the midst of tensions between colonial views of land and cultural clashes, eschatological hope is the route to take. Citizens are to be granted the rights and promises that lead to eschatological peace, which creates coexistence where life is fully experienced. Eschatological hope should not be read as opium with a calming effect or a soothing balm for people to endure injustice. It should be a message of hope for the restoration of quality of untrammelled joy on the fruitfulness of the land. All this is achievable through dialogue by and with all stakeholders regarding land issues. The contribution made by this article is the acknowledgement of the imbalances regarding the land issue, and it attempts to bring forth a theological understanding of land and how to apply it in the current South Africa.

Dudová and Duda before the Czech Constitutional Court: The question of autonomy of religious organizations

In the Czech Republic, the autonomy of churches is constitutionally guaranteed in a rather broad manner. The constitutional and legal basis for Church autonomy lies in the Charter of Fundamental Rights and Freedoms, which is part of the Czech constitutional order. It represents both an objective institutional guarantee (religious neutrality of the state) and the subjective right of religious communities to independence from the state and self-governance of their own affairs (the right to self-determination). Compared to other domains of the said autonomy, the staffing of churches is a relatively frequent subject of theoretical reflection and decision-making on the part of Czech courts. The Constitutional Court of the Czech Republic had to express its opinion on some problematic cases, in particular, the limits of Church autonomy. The case of Duda and Dudová is an example of a conflict between civil rights and the autonomy of churches in the modern Czech history. It started with Duda and Dudová’s dismissal from the pastoral ministry in the Czechoslovak Hussite Church in 1993, and the last (so far) decision related to this case was issued by the Constitutional Court in 2021. This article discusses the long and tortuous journey through the Czech judiciary system, which Duda, Dudová, and the Czechoslovak Hussite Church had to go through in order to clarify consequences of church autonomy. A particular deviation in the Supreme Court’s decision-making played an interesting role in this process. However, it was the Constitutional Court, which acted as the guardian of constitutional values (including the internal autonomy of churches), that placed this anomaly in the decision-making of the Supreme Court and, subsequently, general courts back within constitutional limits.

Pojištění zaměstnavatele za škodu při pracovním úrazu nebo nemoci z povolání z pohledu finančněprávní teorie

The paper deals with the system of employer’s insurance for damages in the event of a work accident or occupational disease from the perspective of financial law (especially tax law). First of all, the author discusses the theoretical nature of this insurance and its establishment in the Czech legal system. In the following parts of the paper, the author deals with further legal implications of the results of his findings, namely whether the paid insurance premium has the character of a tax or an insurance premium from a theoretical point of view. He then places these results in the context of the assessment of constitutionality within the meaning of Article 11(5) and Article 4(1) of the Charter of Fundamental Rights and Freedoms.

Structured Intervention Units and Mental Health in Canadian Federal Prisons: A Policy Assessment of Bill C-83

On 21 June 2019, the federal government passed Bill C-83: An Act to amend the Corrections and Conditional Release Act and another Act with the primary intention of eliminating the use of administrative and disciplinary segregation in Canadian federal prisons and replacing the practice with structured intervention units. This new correctional model would serve as a way to separate unsafe inmates while ensuring they receive appropriate mental health services, increased time outside of their units, and meaningful human contact. The conception of Bill C-83 was largely a result of a history of widespread criticisms that administrative segregation infringed on human rights, posed significant mental health concerns, and violated the Canadian Charter of Rights and Freedoms. While the reform mitigated immediate pressure on the federal government to act, several advocacy groups, legal experts, politicians, and other stakeholders voiced negative opinions and indicated the shortcomings of the new units and the impact they will have on the health of prisoners. Bill C-83 has the potential to prompt significant change in the context of prison health reform, but this will be dependent on the federal government’s coordination with Correctional Services Canada.

COVID-19 and Religious Freedom in Canada

In Canada, constitutional litigation arising from restrictions on worship and religious gatherings during the COVID-19 pandemic has yielded vindication for state authorities. To date, religious claimants in Canada have lost in every case where they have challenged the constitutionality of restrictions on these activities under the Canadian Charter of Rights and Freedoms.1 This result invites closer scrutiny. The Canadian provinces in which court rulings have been issued on this matter featured differing public health rules for worship and religious gatherings. While most provinces went no further than altering capacity limits and requiring physical distancing and masks, British Columbia prohibited in-person worship for several months across the province. Even among the provinces where capacity limits were the standard approach, there has been much variety when it comes to the size of permitted gatherings. Some of these provinces have opted for rules that apply throughout the province. Other provinces have opted for a region-by-region approach. This article will pay particular attention to the situation in British Columbia given that it was the most severe restriction on religious freedom in the country, both in nature and duration, and because litigation arising from this restriction is ongoing.2 It also seems intuitive to say that religious claimants should stand the best chance of success in court in this case. If the claimants in British Columbia fail, it is hard to imagine similar claimants faring better in other parts of Canada.

ПЕРЕДУМОВИ ПРИЙНЯТТЯ, ЗМІСТ ТА ОЦІНКА КОНСТИТУЦІЙНОГО АКТУ КАНАДИ 1982 РОКУ (ДО 40-РІЧЧЯ ПРИЙНЯТТЯ КОНСТИТУЦІЇ)

The article examines certain problems of the formation history of Canadian constitutionalism through the prism of the analysis of the prerequisites for the adoption and content of the Canadian Constitutional Act of 1982 and determines its place and influence in the world system of knowledge of a political and legal nature. As it is known, the constitution (from the Latin constitutio — establishment, system, order) is the main state document (law) that defines the state system, the order and principles of functioning of the representative, executive and judicial authorities, the electoral system, rights and obligations of a state, society and citizens. Usually, other laws of a particular state are based on the constitution. In addition, every modern written constitution grants specific powers to the organizations and public institutions established on the primary basis of compliance with the limitations of such a constitution. In most, but not all, modern states, the constitution takes precedence over the common law. Constitutions apply to a variety of levels, from sovereign states to the corporations and societies. An international treaty establishing international organizations is also their constitution in the scope that it defines how that organization is formed. For a state, whether sovereign or the subject of a federation, the constitution defines the principles on which the state is based and the order by which and who has the right to make laws. Some constitutions, especially codified ones, also act as restraints on the state power by establishing boundaries that state leaders cannot cross, i.e. fundamental rights. It is noted that today Canada is a constitutional monarchy, the head of state of which is the King or Queen of Great Britain. Canada officially belongs to the so-called «strong federations», in which parts of the federation have significant rights and responsibilities, some of the decisions of the central government shall be carried out by the provinces, but their activities are regulated by a series of agreements and laws, and disputes are often resolved by judicial authorities. All of Canada's provinces have unicameral parliaments and generally follow the same rules as the lower house of Canada's federal parliament. Considerable attention is paid to the fact that the Canadian constitution is the legal basis of the state and consists of both written text and unwritten traditions and agreements. The Constitution also includes the Canadian Charter of Rights and Freedoms, which guarantees basic rights and freedoms to citizens. In Canada, the constitution refers to a compilation of acts, British laws, court decisions, etc. The two main documents are the British North America Act of 1867, which declared Canada a dominion of Great Britain, and the 1982 act, which established that all laws passed in Canada did not require formal confirmation by the British Parliament.

Pre·Election coverage by SABC·TV of the 1989 General Election

This article is based on the findings of a group of eleven specialists (WITS) who were commissioned by IDASA to monitor SABC-TV news coverage of the run-up to the 1989 general election. The report attempts to be a "case-study" In the construction of television news, employing discourse theory and the semiotics of film and communication In preference to the traditional quantitative approach. The encoding procedures of TV news were the main focus of the analysis which sought to demonstrate above all the shifting perspective within which news is constructed and how the signs and codes of news are closely related to those of fiction. It is freely acknowledged that the monitoring group occupied a position critical of the State and espoused a non-racist, non sexist, unitary political dispensation for South Africa, along the lines of the Freedom Charter.

From Isolation to Inclusion: How the Charter Changed our Perceptions of Being and Belonging

The Canadian Charter of Rights and Freedoms is an indispensable catalyst in shaping Canadian identity, forming a rich and diverse mainstream that integrates and intermingles many streams of human experience. The idea of Canada and what it means to be Canadian is dynamic and evolving, empowered by a Charter that arguably for the first time recognized and affirmed Indigenous peoples as the founding nations of Canada, and nurtured a sense of inclusion that promoted unity in diversity. Just as emergence from the Covid-19 pandemic has been a journey from isolation to inclusion, so has the forging of Canadian identity since the adoption of the Constitution Act, 1982. Drawing from stories shared in a circle aux batons-rampus, and from observations from a four-decade career as a public intellectual, I argue that Canadians’ evolving sense of being and belonging, brought into even sharper relief by the Covid-19 pandemic, is shaped by a Charter which embraced both individual and collective rights.

Isolation and Human Rights: Arendt and the Charter at Forty

Great excitement greeted the Canadian Charter of Rights and Freedoms because it promised to deliver constitutionally enshrined equality rights (among other things) to all Canadian citizens. Those who had been formerly excluded from full civil and social participation because of social inequalities, prejudice, and bias would now be included in a new social compact. And, as the title of the conference that inspired this paper suggests, that promise was also that those isolated as a result of those exclusions, no longer would be.

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.