La force de la perspective

The Canadian Bar Association

Yves Faguy

Constitution 150

Understanding citizenship and why some Charter rights should be extended to non-citizens

Par Yves Faguy avril 25, 2017 25 avril 2017

Understanding citizenship and why some Charter rights should be extended to non-citizens

 

As we celebrate the 35th anniversary of the Canadian Charter of Rights and Freedoms and Canada's 150th anniversary of Confederation, CBA National is featuring opinions by leading constitutional scholars to examine the possibilities and challenges for constitutional rights and freedoms over the next 10-15 years, the theme of the University of Ottawa’s Public Law Group’ recent conference, The Charter and Emerging Issues in Constitutional Rights and Freedoms: From 1982 to 2032. For this instalment we caught up with Y.Y. Brandon Chen, an assistant professor at the University of Ottawa's Faculty of Law, to discuss the meaning of citizenship in Canada and whether the Charter should do more for non-citizen residents.

CBA National: We see governments around the world taking steps to tighten the boundaries of citizenship.  There’s been some evidence of that in Canada too. What is behind that?

Y.Y. Brandon Chen:  In many countries, because of growing anti-immigrant pressure, citizenship is becoming harder to obtain and easier to lose. Several factors have contributed to such an anti-immigrant push. First, the number of forcibly displaced people worldwide has been on the rise. As some of these forced migrants sought protection in high-income countries such as Canada, it fuels a narrative that our society is under siege.

Second, since 9/11, countries around the world have increasingly viewed international migration through the lens of national security. Meanwhile, for many citizens of receiving countries who have been negatively affected by neoliberal austerity measures, the inflow of newcomers raises the spectre of further diminished social resources and economic opportunities. Together, these forces cast non-nationals as a threat that society must guard against rather than embrace.

Third, many governments have discovered that they stand to gain by not extending citizenship to newcomers, at least not right away. In Canada, for example, governments’ denial of legal protection or benefits to non-citizens is largely condoned. This in turn transforms non-citizens into a pool of “flexible” workers that can be fully exploited by employers when the demand for labour is high and yet readily disposable when the demand sags.

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Criminal justice

Canada's Criminal Code needs a "different perspective"

Par Yves Faguy avril 19, 2017 19 avril 2017

 

Lisa Silver has an interesting post up with some ideas on modernizing the Criminal Code.  She welcomes the repeal of invalid “zombie” provisions that the government is looking to remove, but is less impressed with recently proposed amendments to the impaired driving offences – “Charter unfriendly”, in her view – that are part of the government’s move to legalize pot by next year. She laments that the government is taking a piecemeal approach to the Code’s modernization and makes a pitch for a grander makeover:

What needs to be done instead of modernization for the sake of modernizing is a thoughtful and deliberate consideration of the whole of the Code. What needs to be done is a rethinking of our criminal law not as a jumble of sections prohibited conduct but as a unified reflection of societal values. This includes all of what the criminal law stands for such as the integrity of the administration of justice itself.  This requires, as suggested by the Supreme Court of Canada in Jordan, a cultural change. Not just a “new look” but a different perspective. To do this, instead of taking a page from the Code, let’s learn from our case law and use the principled or contextual approach to change. Real change is only possible if we design laws holistically mindful of the law as a mere part of the larger social fabric. Laws can act as visual markers, creating and defining social space in a community. Successful laws will therefore integrate with society, be flexible to societal needs and frame societal space. The Criminal Code must therefore be considered as part of the social landscape and be created as a marker of who we are, not as a headstone marking the past. The federal government has an opportunity to do this, let’s hope that in the next step to rethinking the Criminal Code, they will fulfill their promise and do just that.

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Billets récents

The fight over mandatory CPD: A waste of judicial resources?

Par Yves Faguy avril 18, 2017 18 avril 2017

 

 

Omar Ha-Redeye struggles to understand why anyone would take on mandatory CPD imposed by his law society as something worthy of a challenge all the way to the Supreme Court of Canada (in Green v Law Society of Manitoba, the top court ruled that law societies can suspend lawyers for not completing their mandatory credits)

Aside from the fact that he was being compelled to do it, I'm not exactly sure what the lawyer was objecting to with mandatory CPD. Granted, many lawyers simply complete it to check off a box. But many more actually benefit from CPD, gaining useful insight into strategy and techniques, obtaining copies of checklists and precedents, or learning about new and emerging areas of law.

Jim Middlemiss thinks he’s missing the broader point:

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Constitution 150

Religious freedoms: How will Canada relate to its minority communities

Par Yves Faguy avril 18, 2017 18 avril 2017

Religious freedoms: How will Canada relate to its minority communities


As we celebrate the 35th anniversary of the Canadian Charter of Rights and Freedoms and Canada's 150th anniversary of Confederation, CBA National is featuring opinions by leading constitutional scholars to examine the possibilities and challenges for constitutional rights and freedoms over the next 10-15 years, the theme of the University of Ottawa’s Public Law Group’ recent conference, The Charter and Emerging Issues in Constitutional Rights and Freedoms: From 1982 to 2032. For this instalment we caught up with Howard Kislowicz, an assistant professor, at UNB Fredericton Faculty of Law, who shares his views on where litigation of religious freedoms may be headed in the coming years.

CBA National: Why are religious freedoms are so difficult to balance against other rights recognized under the Charter?

Howard Kislowicz:  Well the main challenge is that the Supreme Court of Canada has said that there’s no hierarchy of rights in the Charter. So there’s no presumption that when an equality right comes into conflict with a religious freedom right that one or the other will win.  The lawyers advising clients can’t give necessarily too sound a prediction just based on the nature of the right. Like all constitutional analysis now, context is everything.

N: So where do the tensions lie within religious rights themselves?

HK: First, you have to read the Charter guarantee in conjunction with other mentions or constitutional protections of religious rights in the constitution. The most obvious one is in the 1867 Constitution Act which gave protection to minority religious communities in terms of having their schooling rights protected. What it generally meant was that in Quebec, Protestant schools would get constitutional protection in most of the province, and then in the other provinces, Catholic schools would get protection. So this idea that Canada is Catholic and Protestant in its constituent parts, is in tension with the more universalistic, more non-denominational guarantees of religious freedom, which are supposed to apply to everybody, regardless of whether they’re one of those two founding groups.

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International law

Was the U.S. strike against Syria legal under international law?

Par Yves Faguy avril 10, 2017 10 avril 2017

Was the U.S. strike against Syria legal under international law?


Noting that U.S. President Trump can invoke no clear authority in international law to use force in response to Syria’s use of chemical weapons, John Bellinger argues that he needs to justify his actions legally all the same:

Although a U.S. military strike cannot be easily justified as self-defense of the United States, it is possible that the United States could argue that the use of force was permissible as an action in collective self-defense of Syria’s neighbors.  Alternatively, it might be better for the Trump Administration to argue that its limited use of force was justified, even if not strictly lawful, under international law based on the specific facts in Syria and that other avenues had been exhausted.   This is the approach the Clinton Administration took when it participated in the NATO bombing campaign in Kosovo in the 1990s, and that the Obama Administration was apparently prepared to take if it had decided to use force against Syria in 2013.

But for Craig Forcese, there are no persuasive legal arguments to be articulated, notably around exceptions of  “humanitarian intervention” or the “responsibility to protect”:

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