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Equality before the Charter: Reflections on Fraser v. Canada (Attorney General)
Get PDFSince Andrews v. Law Society of BC, the Supreme Court’s section 15 jurisprudence has been marked by inconsistency, judicial disagreement, and scholarly criticism. In Fraser v. Canada, female RCMP offıcers challenged a policy that prevented access to full-time pension benefits. Refining the concept of adverse impact discrimination and drawing on evidence of women’s economic disadvantage, the majority found that the policy constituted sex discrimination. While Justice Abella’s majority judgment has been hailed as a major victory, Justices Brown and Rowe’s dissent sharply criticized the concept of ‘substantive equality’, confirming longstanding divisions. This paper uses Fraser to reflect on the narrative of substantive equality. First, it re-examines the oft-maligned cases decided under the Canadian Bill of Rights. The prevailing story – that the Bill of Rights jurisprudence relied on a narrow, ‘formal equality’ model which was then remedied by the Charter’s section 15 – is incomplete. A closer examination reveals a complex conceptualization of ‘equality before the law’ in pre-Charter jurisprudence. Second, the paper proposes that the principle of ‘equality before the law’, with its focus on identical standards and equal treatment, remains a powerful and necessary concept. Unsettling the strict dichotomy between substantive and formal equality, the paper concludes, can help to reveal the true nature of the Court’s continuing division on how to apply section 15’s guarantee of equality
Regulating the Corporation from Within and Without: Corporate Governance and Workers’ Interests
Get PDFThis dissertation critically explores how the increased legal regulation and governance of corporations can be used to help improve the interests of workers in global supply chains. Chapter one outlines the introduction and provides background information. Chapter two is the literature review. Chapter three examines the expansion of fiduciary duties and changes to corporate governance, including Benefit Corporations, and how expanded fiduciary duties can be used to increase the interests1 of workers. Chapter four contains a case study of the Rana Plaza disaster to demonstrate how governance models can be used to help increase working conditions in Bangladesh and other parts of the Global South. Chapter five is a case study of the Hudson’s Bay Company and three different versions of its code of conduct. Chapter six concludes
Judicial Depictions of Responsibility and Risk: The Erasure of State Accountability in Canadian Sentencing Judgments Involving Indigenous People
Get PDFThis dissertation is set within the context of Canadas mass imprisonment of Indigenous people and centres on a critical evaluation of reported sentencing judgments. In particular, the dissertation examines some of the ways in which sentencing judges both draw attention to, and obscure, state accountability. The dissertation demonstrates that sentencing judges erase the role of the state in the criminalization of Indigenous people and in the construction of Indigenous people as risky. The result is that sentencing judgments rationalize and support the re-entrenchment, rather than the redressing, of the states oppression of Indigenous people. The dissertation is theoretical and descriptive, critically examining sentencing judges portrayals of Indigenous people and the state. The case studies are disheartening: the studies illustrate a few different ways in which sentencing law, despite purportedly aiming to repair systemic harm, continues to cement such harm. Yet the theoretical tools used to dissect sentencing judgments destructive practices can also assist in thinking through possibilities for change. The dissertation draws on theories that engage with the centrality of relationships in peoples lives (including peoples relationships with the state), the role of the state in generating and sustaining inequality, the interconnections between state efforts to contextualize Indigenous people and the reinforcement of stereotypes, and the resilience, strength, and diversity of Indigenous Peoples, communities, families, and individuals. These theories all support some existing proposals (and some current practices and possible new proposals) for pursuing decarceral approaches. The decarceral approaches that this dissertation addresses recognize that any sentencing analysis (including an analysis of how to assign responsibility for past criminalized conduct and an analysis of how to protect a community in the future) requires a consideration not only of criminalized individuals experiences but also of the states actions and inactions. A sentencing analysis must see and identify the state as having contributed to the criminalization of Indigenous people and to the construction of Indigenous people as risky. Additionally, the state must take accountability for its actions in historically and contemporarily inflicting violence on Indigenous people and for its potential to instead support Indigenous peoples resilience, safety, and sovereignty
Implementing Equal Access to Legal Capacity in Canada: Experience, Evidence, and Legal Imperative – Final Report
No full textMany Canadians with disabilities have long been discriminated against in the enjoyment and exercise of their legal capacity, especially people with developmental, cognitive, or psychosocial disabilities.
The United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD) seeks to correct this pervasive discrimination. It recognizes the right to equality in the exercise of legal capacity without discrimination based on disability.
This study was motivated by two primary issues: 1) longstanding concerns in the disability rights community about this discrimination; and 2) the findings and recommendations made by the United Nations “Committee on the Rights of Persons with Disabilities,” (UN Committee) which is the independent body of experts monitoring implementation of the Convention. In its April 2017 concluding observations to Canada’s first report on its progress in implementing the CRPD, the Committee found that Canada should take “leadership in collaborating with provinces and territories to create a consistent framework for recognizing legal capacity and to enable access to the support needed to exercise legal capacity.”
There is an immense array of law, policy, and program provisions regulating legal capacity in Canada. The research team examined a broad range of these provisions. Given the available time frame and resources for the study, the team chose a representative selection of provisions to analyze in depth. The goal was to uncover themes and commonalities upon which to base an analytic approach to reform
Modular Legal Learning: Revitalizing the Law Classroom
Get PDFThe targeted and strategic use of asynchronous learning materials can free up important space for classroom teaching, and can unlock the spirit of experimentation, innovation, and engagement that animates in-person learning. This article sets out five principles that should guide future efforts to integrate asynchronous modules into legal education. Modules should be designed to supplement, not substitute, the live classroom; they should deliver content but also stimulate reflection, critique, and contextualization; they should be varied with respect to their subject matter; theoretical underpinnings, and pedagogical approach; professors should be able to easily customize their selections; and they should encourage collaboration and community building. A platform designed with these principles in mind has the potential to facilitate a much-needed revitalized experience of the live law classroom
Overview of Encampments Across Canada: A Right to Housing Approach
Get PDFHomeless encampments constitute one of the most serious right-to-housing issues in Canada today. During the COVID-19 pandemic, the number of shelter spaces decreased, indoor congregate settings became increasingly unsafe, and individuals lost their livelihoods. This has led to a rise in homeless encampments across the country. The lack of comprehensive data on this urgent crisis is distressing. Even so, we know that many individuals had little choice but to turn to living in tents or informal shelters to survive the confluence of historic crises in health, housing, climate change, colonial violence, and unemployment. As articulated by the UN Special Rapporteur on the Right to Adequate Housing, encampments represent, “instances of both human rights violations of those who are forced to rely on them for their homes, as well as human rights claims, advanced in response to violations of the right to housing.
Making Space for Online Research Experiments in Law School Courses
Get PDFThis reflective article explores opportunities for integrating online research experiments into large law school courses. It does so by drawing on the experience of the authors with an online research experiment involving simulated refugee adjudication undertaken with the full cohort of 1L students in a Canadian faculty of law. The article describes the context for the research, sets out the lessons that the authors learned about conducting experimental research, and describes the positive feedback provided by student participants. The article concludes with a recommendation by the authors that other legal scholars consider integrating research experiments into law school courses, both for research and pedagogical purposes
The text and the ballot box: s.3, s.33 and the right to cast an informed vote
Get PDFSection 33, which empowers legislatures to override most of the Charter’s fundamental rights and guarantees, has resurfaced in recent years and more ominously, as a rights-negating mechanism. The relationship between s.33 and the Charter’s non-derogable rights is one issue that has arisen under s.33 legislation enacted by Quebec and Ontario. In Ontario, Bill 307’s use of the override to reinstate unconstitutional restrictions on third party political advertising also engages the democratic rights of voters protected by s.3 of the Charter. In marking the first time override legislation forms the backdrop to s.3’s interpretation, Working Families v. Ontario (Working Families #2) contemplates s.33’s novel role in the analysis. Bill 307’s use of the override places the relationship between ss.33 and the right to vote in sharp relief, exposing a symbiotic relationship between the two that informs the Charter’s democratic rights. Democratic accountability, a principle that grounds the underlying assumptions of both, establishes a critical bond between these provisions of the Charter. That bond requires vigorous enforcement of the right to vote, not only to protect s.3’s democratic rights, but also to legitimize s.33’s legislative override. Put simply, the legitimacy of s.33 and its theory of democratic accountability are contingent on an interpretation of s.3 that prohibits interference with the democratic process. This article argues that Bill 307 violates s.3 because it interferes with that process and undermines the voter’s right to cast an informed vote
The Pillar 2 Undertaxed Payments Rule Departs From International Consensus and Tax Treaties
Get PDFThe OECD released pillar 2 model rules last December to provide a template for domestic legislation to implement the agreement reached on October 8, 2021, by almost 140 inclusive framework members on a two-pillar solution to address global ta challenges. The model rules are limited to the income inclusion rule (IIR) and undertaxed payments rule (UTPR) (collectively known as the global anti-base-erosion (GLOBE) regime) in the October agreement. However, and rather surprisingly, the meaning of the letter “P” in the UTPR was effectively changed from payments to profits in the model rules. There was little, if any, public discussion about this variation. The acronym UTPR is not truly defined in the model rules; chapter 10 merely defines it to mean “the rules set out in Article 2.4 to Article 2.6,” and those rules do not refer to payments or profits. The model rules do not even fully spell out UTPR and use the acronym from the very beginning