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Indefinite Detention Under Part XX.1 of the Criminal Code and Winko V. British Columbia
Get PDF“Indefinite Detention Under Part XX.1 of the Criminal Code and Winko v. British Columbia” is chapter 27 in a textbook titled Canadian Anthology on Mental Health and the Law. It draws on the author’s ten years as a legal member and alternate chair on the Ontario Review Board, as well as on her participation in a research study on perceptions of fairness in ORB proceedings, to provide critical comment on the procedural fairness and constitutionality of forensic detention for mentally disordered criminal offenders (i.e. not criminally responsible (NCR); unfit to stand trial (UST); and dual status offenders (DSO). An initial section outlines Part XX.1 of the Code and Winko’s principles of interpretation, which include fair treatment and the utmost dignity of those in forensic detention. That is followed by a discussion that tests the procedural fairness, including qualitative fairness, of ORB proceedings against those Winko, and exposes gaps in the system that undermine the fairness and perceived fairness of ORB hearings. This chapter turns to substantive questions about indefinite forensic detention, expressing doubt about the constitutionality of Part XX.1 and calling for re-consideration of Winko. The advocates the introduction of capping provisions – along the lines of those enacted as part of Part XX.1 but not proclaimed and then repealed – an imperative response to the problem of indefinite detention
R. v. J.J., Judicial Discretion and the Charter
Get PDFIn R. v. J.J., the Supreme Court of Canada upheld the new Criminal Code admissibility rules for the complainant’s private records held by the accused and the new procedural regime governing admissibility of private records and evidence of the complainant’s other sexual activity. The Court considered claims that these provisions violated section 7 and section 11(c) and 11(d) of the Canadian Charter of Rights and Freedom, and a six-member majority rejected all these claims. This paper analyzes a key theme in the majority judgment: discretion. The majority emphasized that one reason the new regime complies with the Charter is that it grants judges the evidentiary discretion to admit significant defence evidence and the procedural discretion to adjust procedures to ensure fairness on a case-by-case basis. This analysis highlights the majority’s reliance on judicial discretion and reveals some troubling features of that reliance. The majority’s appeal to evidentiary discretion worryingly downplays the Charter-based requirement that the balancing of prejudicial effect against probative value be weighted in favour of admitting relevant defence evidence. On the procedural side, the majority problematically grants trial judges broad discretion over procedures without providing a principled framework for its exercise
What the ICC’s anticipated arrest warrants against Netanyahu and Hamas leaders mean for Canada
No full textCommentary - Much Ado About Nothing? The Importance of a Decolonial Framing of the Withdrawal of the United States of America from the World Health Organization
No full textThe withdrawal of the Unites States from the World Health Organization (WHO) has been decried as bad for global health governance and the financing of the WHO. While there are legitimate concerns around the implications of this withdrawal, it is important that the action is framed through a decolonial lens. I argue that global health scholars must not replicate paradigms that problematize the withdrawal as a loss of the global north’s leadership in global health. I argue that the withdrawal offers an opportunity to interrogate the terms upon which global solidarity is built, and to push for the normative primacy of human rights, realized through empowered States driven by a true sense of collectivism for the good of all
Conference Proceedings - Symposium Insights and Implications: Advancing Regional Health Governance in the Inter-American System
No full textThis paper presents insights and implications from a two-day research symposium organized by the Regional Health Governance Study (RHGS) in 2024. The symposium examined how a regional approach to health governance within the Inter-American System, which comprises the Commission, the Court and the Pan-American Health Organization, can support the development of an equitable pandemic management system. It also examines the limitations of WHO-led pandemic response measures, identifies regional governance mechanisms, and offers policy recommendations to strengthen pandemic preparedness in the Americas. A qualitative thematic analysis using the Consolidated Framework for Implementation Research (CFIR) was employed to assess barriers, facilitators, and policy implications. Symposium proceedings, expert discussions, and recent policy developments, including International Health Regulations (IHR) amendments and pandemic treaty negotiations, were analyzed to provide actionable insights. Key themes emerged, including the need for binding regional agreements, strengthened cross-sectoral collaboration, enhanced human rights protections, and equitable resource distribution. The findings also highlighted barriers to regional equitable pandemic management, such as fragmented health policies, limited financing mechanisms, and inequities in healthcare access across the Americas. The findings emphasize the need for a regional governance approach that complements WHO’s global health governance mechanisms while ensuring decentralized decision-making, equity-driven health policies, and improved institutional accountability. By strengthening regional coordination and governance mechanisms, the Inter-American System can serve as a model for resilient and equitable pandemic management
Sharma: The Erasure of Both Group-Based Disadvantage and Individual Impact
Get PDFSections 7 and 15 of the Canadian Charter of Rights and Freedoms both play a critical role in protecting members of disadvantaged groups from the harms of state action. In R. v. Sharma, released in November 2022, a 5-4 majority of the Supreme Court of Canada dismissed arguments under both sections in a claim that raised the impact on Indigenous offenders of a 2012 law that restricted the availability of conditional sentences. Our focus in this paper is on the doctrinal implications of the majority and dissenting opinions in Sharma for future section 15 and section 7 claims. We discuss four key section 15 issues raised by the majority and dissent’s differing approaches: (1) the role of substantive equality as the purpose of section 15; (2) the test for section 15 breaches, including three purported “clarifications” made by the majority related to causation, context and positive obligations; (3) the application of the section 15 test to adverse effects discrimination claims that are quantitative and qualitative; and (4) grounds and intersectionality. We also examine several issues that arose with respect to the section 7 claim in Sharma: (1) the role of various principles of fundamental justice; (2) the characterization of the purpose of the impugned law when applying those principles; and (3) the majority’s failure to consider the impact of the impugned law on Cheyenne Sharma. We conclude by exploring the interplay between sections 15 and 7 and the important issues that interplay raises for claims going forward
A Quantitative Analysis of Leave Applications to the Supreme Court of Canada in Constitutional Cases
Get PDFThe requirement that a party must, in most cases, obtain leave to appeal in order to bring a case to the Supreme Court of Canada poses a significant barrier to cases being heard by that Court; indeed, the vast majority of cases are not granted leave to appeal. Because the leave process operates as a barrier, understanding the leave to appeal process and outcomes are in turn important to understanding the development of Canadian law. However, because the Supreme Court does not provide reasons for decision as to whether or not to grant leave in a particular case, conventional tools of legal analysis provide us with little insight into its decision-making. Quantitative analysis of leave applications can provide insights about leave applications, including the determinants of successful leave applications
They Just Looked at Me Like I Didn\u27t Matter - The Experiences of Assaulted LGBTQ+ Women with the Police
No full textResearch reveals that LGBTQ+ women are subjected to high rates of sexual and gender-based violence (SGBV). It is widely known that most victim-survivors of SGBV do not report it to the police and when they do, they usually have negative experiences, often due to the influence of myths and stereotypes on police officers’ attitudes and conduct. LGBTQ+ communities are known to be subjected to a multitude of myths and stereotypes that perpetuate violence against them, particularly in the case of highly marginalized subgroups (e.g., trans women, bisexual women). Little attention has been paid, particularly in the Canadian context, to the role of myths and stereotypes in LGBTQ+ women’s decision-making processes about whether to report SGBV to the police and experiences when it is reported. This thesis aims to address this gap and work towards practical solutions, through qualitative interviews with the frontline experts who support LGBTQ+ survivors