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A Professional Comedian’s Fundamental Right to Publicly Bully a Child Because of His Disability? Scrutinizing Ward v. Quebec Human Rights Commission Through a Disability Lens
Get PDFWard, a well-known Quebec comedian, thought it would be funny to publicly ridicule and humiliate an adolescent with a disability known in Quebec for his singing. Quebec’s Human Rights Tribunal found that Ward violated his target’s statutory right to be free from disability discrimination in relation to the right to dignity, guaranteed by section 4 of the Quebec Charter of Human Rights and Freedoms. A five-justice majority of a sharply split Supreme Court of Canada overturned the award, leaving Ward free to repeat his bullying. Ward’s Supreme Court majority extended problematic legal protection to extreme, widely disseminated public taunting and bullying of a child with a disability. It treated Ward, a professional comedian, as deserving extra legal protection while engaging in comedy. It treated his young victim as a less protected target because he was a “public figure.” This paper explores major errors in the majority decision beyond those in the dissent. Scrutinized through a disability lens (focusing on its impact on the equality rights of people with disabilities), the Ward majority decision reflects a stunning lack of understanding of, and devaluation of, equality for people with disabilities. It rests on bogus, unsupported judge-made psychology. It employs a harmful hierarchical approach to equality rights which deprioritizes disability equality. Some of Ward’s errors are rooted in problematic principles that the Court earlier established. Others are the Ward majority’s own innovations
When Should Publicly Owned Land Be Considered Private in Homeless Encampment Cases? A Critique of Recent Developments in BC
Get PDFTwo recent decisions of the Chief Justice of the BC Supreme Court, Evans (2016) and Brett (2020), introduced a dangerous new idea into homeless encampment jurisprudence: that the purportedly “private” character of encampment sites determines that defendants’ Charter rights are not engaged, and that government landowners are entitled to interlocutory injunctions evicting homeless encampments from publicly owned land. These decisions distort the established test for engaging section 2(b) of the Charter, collapsing a nuanced spectrum of government-owned property into a formalistic dichotomy in which any state-owned property that is not formally open to the public as of right is “private property” for civil and constitutional purposes. Moreover, they inappropriately extend the section 2(b) “public arena” inquiry to section 7, ignoring the established test for engagement of the right to life, liberty, and security of the person. These decisions drop the already low bar for granting interlocutory injunctions to evict homeless encampments from publicly owned land onto the ground, further tilting the homeless encampment litigation playing field against some of society’s most marginalized and vulnerable members. They should not be followed
Introduction to the Special Issue on Housing Precarity and Human Rights
Get PDFThis special issue brings together a collection of papers examining the legal dimensions of housing precarity. While we originally imagined a special issue focused on homelessness and human rights, we agree with our contributors that housing precarity sits along a disparate spectrum, with homelessness at one end. People weave in and out of living situations, whether in shelters, apartments, rooming houses, and encampments. Human rights, and their violation, are engaged at all stages of this spectrum. Yet this relationship has been underexamined in Canadian legal scholarship. The pieces in this issue contribute to an important conversation about the intersection of housing, human rights, and homelessness
The ‘contract’ and its discontents: Can it address protection gaps for migrant agricultural workers in Canada?
Get PDFCanada\u27s Seasonal Agricultural Worker Program has often been portrayed as a model for temporary migration programmes. It is largely governed by the Contracts negotiated between Canada and Mexico and Commonwealth Caribbean countries respectively. This article provides a critical analysis of the Contract by examining its structural context and considers the possibilities and limitations for ameliorating it. It outlines formal recommendations that the article co-authors presented during the annual Contract negotiations between Canada and sending states in 2020. The article then explains why these recommendations were not accepted, situating the negotiation process within the structural context that produces migrant workers\u27 vulnerability, on the one hand, and limits the capacity of representatives of sending and receiving states to expand rights and offer stronger protections to migrant farmworkers, on the other hand. We argue that fundamental changes are required to address the vulnerability of migrant agricultural workers. In the absence of structural changes, it is nevertheless important to seek improvements in the regulation of the programme through any means possible, including strengthening the Contract
Constitutional Cases (Pt 5) | The Laskin Lecture 2023 with Professor Dame Linda Colley
No full textThe 26th iteration of the Constitutional Cases conference was held on Friday, April 14, 2023. Osgoode Hall Law School’s Annual Constitutional Cases Conference, recognized as the leading constitutional law conference in Canada, brings together many highly respected constitutional scholars, lawyers, students, and experts for an insightful and practical analysis of the Supreme Court’s significant constitutional judgments of the past year.
The Laskin Lecture 2023 with Professor Dame Linda Colley , DBE, FBA, FRSL, FRHS
Shelby M.C. Davis 1958 Professor of History, Princeton
Author of The Gun, the Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World (2021)
Co-sponsored with the York Centre for Public Law and Public Polic
Introducing a Global Minimum Tax (Pillar Two) in Canada: Some Knowns and Unknowns
Get PDFThis paper provides a high-level overview of Pillar Two Global Minimum Tax in terms of its policy objectives, technical design and implications for Canada. After teasing out some significant known and unknown challenges, it offers some thoughts on whether, and if so, how and when Canada can proceed with implementation
Domestic Violence, Precarious Immigration Status, and the Complex Interplay of Family Law and Immigration Law
Get PDFSurvivors of domestic violence must frequently navigate multiple legal processes, as well as the various administrative systems that provide crucial supports and resources. For women with precarious immigration status, navigation is made all the more challenging not only because immigration and/or refugee law processes are added to the array of legal domains to be navigated, but because their access to supports and resources is both restrictive and in flux, shifting along with the changes in their immigration status.
Drawing from interviews with experienced lawyers and case law searches, I explore many of the intersections between family law and immigration law in cases of domestic violence. The picture that emerges is one of profound cross-domain influences: the mere existence of a
family law legal proceeding, the evidence adduced, the findings made, and the outcome will each bear on decisions taken in the immigration realm, including whether a survivor will be removed from Canada, with or without her children. Similarly, a survivor’s precarious immigration status impacts family law decision-making in a multiplicity of ways, including in assessing allegations of “family violence” and in contextualizing the challenges of mothering in the context of deportability, both of which have enormous consequence for the safety and well-being of survivors and their children.
As the lawyers interviewed made abundantly clear, the complex interplay of these domains and the grave harms that can materialize when there is lack of coordination calls out not only for experienced legal counsel in each domain, but intense collaboration and cooperation between counsel. The reality on-the-ground however is that the failure of many system actors to appreciate how actions taken in one domain will reverberate materially in another and the inadequacy of funding for representation in each of family law and immigration law and virtually no funding and no structure to support collaboration, significantly impair survivors’ access to justice
Ambiguities and Absences: Occupational Health and Safety Regulation of Platform-Mediated Work in Ontario, Canada
Get PDFPlatform-mediated work, whether location-based, as in the case of Uber, or cloud-based, as in the case of Amazon Mechanical Turk, poses severe challenges to effective occupational health and safety (OHS) regulation. While the work performed in the platform environment is not usually very different from work performed in more traditional employment settings, the platform environment often exacerbates those risks by, for example, increasing stress and incentivizing long hours and work intensification. Regulating these hazards is impeded by ambiguities surrounding the legal relationship between platform operators and platform workers that make it uncertain whether the OHS regime even applies. As well the regime itself was not designed to address the conditions of platform work or many of the risks and exacerbating factors it produces. Drawing on existing studies, this article explores the structure of platform-mediated work, examines its incidence in Ontario, Canada, summarizes its associated OHS risks, and provides a detailed analysis of the obstacles to effective regulation under Ontario’s OHS regime
Digitally Rethinking Hunter v Southam
Get PDFLawful access—the legal regime that authorizes various methods used by law enforcement to intercept, search, or seize information for investigatory purposes—has been subject to much debate in Canada. However, those debates need a new solution space for the digital age. This must be able to incorporate new technological solutions for minimizing rights infringements and provide new forms of accountability and safeguards against misuse. This is not simply a matter of adopting the popular framework of “privacy by design,” or even a reworked “lawful access by design.” We argue that an appreciation of the challenges of the digital world requires us to rethink our basic constitutional framework. The Canadian constitutional framework for lawful access was set out by the Supreme Court of Canada in Hunter v Southam and was then refined in the subsequent jurisprudence. We argue that this framework is ill-suited to contemporary digital challenges to informational privacy and requires four fundamental shifts. First, this framework’s basic point-of-collection focus needs to shift to the broader life cycle of the data. Second, this framework needs to shift away from its categorical approach to informational privacy, where some categories of information are thought to be inherently more private than others, and instead approach informational privacy in terms of the use-context of the data. Third, this framework needs to shift away from its exclusive focus on procedural safeguards at the point of collection (e.g., the warrant requirement), and consider procedural, legislative, and technical safeguards throughout the life cycle of the data as well. Overall, this framework needs to shift away from a dominant focus on privacy and recognize a broader set of rights and interests at stake in lawful access practices, including the rule of law, equality, and other fundamental freedoms. Once we have a constitutional framework that is better able to address the digital era, then we can more precisely craft new techniques for protecting rights, ensuring accountability, and safeguarding against abuse within this framework. Indeed, we can then see why some of these techniques are constitutional requirements. The payoff for doing so, we argue, is a way of enabling specific justified uses of data by law enforcement, while safeguarding the data against non-justified uses over its life span