The Power of Perspectives

The Canadian Bar Association
Constitution 150

The Charter as a living tree and the advance of socio-economic rights

By CBA/ABC National March 6, 2017 6 March 2017

The Charter as a living tree and the advance of socio-economic rights

 

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’ upcoming conference, The Charter and Emerging Issues in Constitutional Rights and Freedoms: From 1982 to 2032. For this instalment we caught up with Kerri A. Froc, a Postdoctoral Fellow at Carleton University, and a Trudeau and Vanier Scholar, to discuss the impact living tree constitutional interpretation has had on the recognition of socioeconomic rights.

CBA National: How is the living tree approach to Charter interpretation supposed to hold promise for the advance of socio-economic rights?

Kerri Froc: “Living tree” constitutionalism, as we know it in Canada, is that the meaning of words in the Charter can change; judges need only consider the contemporary meaning of the words; and that the text is a very loose guide, a sort of empty vessel in which meaning can be poured in.  Under this approach constitution-making history is treated skeptically.  And the Supreme Court has stated that this is the best way to ensure that rights are not “frozen,” that we do not have a Constitution that is increasingly out of step with Canadian society and becomes less and less relevant. In 2002, the majority of the Supreme Court said in the Gosselin case that “one day,” section 7 might be interpreted to include “a positive state obligation to guarantee adequate living standards,” but just not then, in that case.  It cited “living tree” constitutionalism to ground that possibility.  So it’s throwing out this hope that despite socioeconomic rights getting short shrift in many decisions, there might be a course correction in the future.

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Foreign investment

Opaque guidance: National security review guidelines

By Doug Beazley March 6, 2017 6 March 2017

Opaque guidance: National security review guidelines


Nine years ago, the government of Prime Minister Stephen Harper was faced with a thorny public relations problem. Vancouver-based MacDonald, Dettwiler and Associates wanted to sell its space division — maker of the Canadarm, the Dextre space station robot and the Radarsat-2 satellite — to a U.S. firm for $1.3 billion.

Critics ripped the deal as a sell-out of Canadian technological sovereignty. Stung by the blowback, the Harper government blocked the sale, using the only tool it had at the time: the “net benefit” test in the Investment Canada Act, the federal law that allows the government to review foreign investment. Net benefit is a blunt instrument; the threshold for review is quite specific and limited by the value of the proposed investment and by where the foreign investor comes from (WTO nations get a higher threshold). A year later, the government amended the ICA to add a second hurdle for foreign investment: a national security test.

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International Women’s Day

The legacy of the Persons case

By Rebecca Bromwich March 6, 2017 6 March 2017

The legacy of the Persons case


As I noted in my  last post, in the era of post-truth and alternative facts, lawyers matter. 

This week will mark International Women’s Day. It is another reminder that progressive reform to law matters and our times don’t have to define us. 

Much is rightly made about the landmark 1929 Persons Case, which recognized women as persons under the British North America Act, 1867, which provides in its section 24, that only “qualified persons” can be appointed to the Senate.

It was the name of Emily Murphy — one of the “Famous Five” women who pushed the legal battle all the way to Privy Council — which had been put forward for the Senate.  But it was Cairine Wilson who, shortly after was appointed Canada’s first female Senator. Wilson was not one of the upstart western women who had challenged the definition of “persons” in court, but rather someone from firmly within the circles of government. She was the daughter of a senator and had become the wife of an MP, a man whom she had first met at a gala at the Governor General’s residence.  

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Trans rights

What’s holding up the Trans Rights Bill?

By Justin Ling March 3, 2017 3 March 2017

What’s holding up the Trans Rights Bill?

 

The Senate appears to be up to its old tricks in delaying and frustrating legislation that could provide human rights protections for trans Canadians. 

Bill C-16 is government legislation that would include gender identity and gender expression in the Canadian Human Rights Act and as a protected class in the Criminal Code. 

Despite assertions that it would muzzle naysayers or criminalize transphobia, it would provide a recourse through the federal Human Rights Tribunal for discrimination against Canadians based on their gender in federally-regulated sectors, and recognize a statutory recognition that violence against trans people due to their gender is a hate crime. 

The text of the bill is not new. It has been proposed, and debated, for more than a decade in Parliament, and has now passed through the House of Commons three separate times. It has never made it through the Senate.

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CBA influence

All in good time: Private right of action provisions in CASL can wait

By Kim Covert March 3, 2017 3 March 2017


When Canada’s Anti-Spam Legislation was passed nearly three years ago, it contained provisions for private rights action, which come into force on July 1, 2017, as well as a requirement for a statutory review, also scheduled to begin on July 1, 2017.

In a letter to Innovation, Science and Economic Development Canada, the CBA makes a strong argument for holding off on implementing the former until the latter is completed.

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Digital communications

Netflix tax may be coming soon to Canada

By Julie Sobowale March 2, 2017 2 March 2017

Netflix tax may be coming soon to Canada

 

Are your Netflix and chill plans in danger? That’s what’s headlines have been saying in recent weeks with the federal government contemplating levying additional taxes on streaming services. While it’s unknown if and when a tax would be levied, the debate raises issues of digital media, Canadian content and tax reform.

The story of Netflix began in 1997 when the company was sending DVDs by mail to consumers. In 2007 the company launched its streaming services and in 2013 started to release its own original content. Netflix expanded into Canada in 2010 and is now operating in more than 190 countries. Even as other competitors move into the market – including Amazon Prime Video and Bell’s CraveTV – Netflix remains the leader in streaming services. This new market has created issues for Canada on how to deal with online content from foreign companies.

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Immigration

The financial barriers to becoming new Canadians

By Erika Schneidereit March 2, 2017 2 March 2017

The financial barriers to becoming new Canadians

 

In the first nine months of 2016, immigrants hoping to become Canadian citizens submitted over 56,000 citizenship applications. The number may seem high, but is far lower than the nearly 112,000 applications submitted in the same period the year before – a nearly 50 per cent drop.

Why the decline? It’s hard to say exactly but former Immigration and Citizenship director general Andrew Griffith points to the rise in processing fees for citizenship applications, which jumped from $100 to $530 in 2014-2015. Add to that a “right of citizenship” fee, this increase tripled the price for immigrants wishing to process a citizenship application. 

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Commercial disputes

Where did it happen? Causing loss by unlawful means

By Alexander Gay March 1, 2017 1 March 2017

Where did it happen? Causing loss by unlawful means

 

Torts are what happens when one person causes a loss to another.  Where they happen is an entirely different question. And it can be even trickier to figure out where a plaintiff should sue a defendant for interfering, unlawfully, in its business activities – what we call unlawful means tort. It’s a question Canadian courts have yet to resolve.

That’s because a series of events may be at play, and only one might determine where the tort happened.

It’s an issue we have mostly managed to ignore so far. In 2012 the Supreme Court in its Van Breda ruling gave us a two-stage inquiry into assessing whether a given court should assume jurisdiction over a tort. First, it’s up to the plaintiff to establish that a factor presumptively connects the litigation to the jurisdiction. That could be the location of where the tort was committed. Or it could be another connecting factor, such as where the defendant carries on business. Then, for the second part of the inquiry, it’s up to the defendant to rebut the presumption by showing that, based on the facts, the connection isn’t enough to be substantial and does not point to any real or strong relationship between the subject matter of the litigation and the forum.  If the defendant is successful on this count, the court must decline on jurisdiction.  

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CBA influence

Clarity and consistency: What IRCC needs for client service delivery

By Kim Covert March 1, 2017 1 March 2017


In January, the CBA National Immigration Law Section outlined how the government can improve the way it deals with immigrants, in a submission to the Standing Committee on Citizenship and Immigration’s study on the modernization of client service delivery. The MPs want to know about the experience clients have with the government departments and recommend best practices for improvement. Why? Because when things go wrong, the complaints land on their desks.

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Justice

Social media and the Rule of Law

By Yves Faguy February 28, 2017 28 February 2017

 

We have often discussed in this space the impact of social media and misinformation on public confidence in our justice system, and the need to adapt how we educate the public about the law.  Mark A. Cohen describes how he views the challenge:

Snippets of human interaction are captured on a smart phone or other device and go viral in minutes. This creates an instant, powerful, quickly scalable, and often biased court of public opinion. Social media is unfettered by rules of evidence that weigh credibility, materiality, and prejudicial impact. Social media is wildly popular because it is accessible, fast, unfiltered, and largely devoid of rules—the antithesis of the deliberate-often snail like pace of the judicial process. Social media has become a people’s court, shaping public opinion by providing a snapshot rather than a montage of human interaction and lacking truth filters. Social media also can serve as a global bullhorn for ‘leaks,’ misinformation, and propaganda. There are no easy fixes. Technologists, social scientists, media experts, legislators, and lawyers—among others– must create inter-disciplinary guardrails for social media to insure—among other things—that it does not subvert the judicial process. Social media is a new frontier in establishing appropriate boundaries for free speech as well as ensuring that the court of public opinion does not eclipse the judicial process as the arbiter of the social contract.

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Constitution 150

Greening the Charter? Why trying to constitutionalize a right to a healthy environment is misguided

By Jason MacLean February 28, 2017 28 February 2017

Greening the Charter? Why trying to constitutionalize a right to a healthy environment is misguided

 

We live in a new and increasingly unstable climate reality. How should we respond?

Traditional environmental law and policy has failed to elevate environmental protection above economic priorities, and existing constitutional rights are limited to impacts on human health and protected Aboriginal rights. The time has come, some prominent environmental lawyers and activists argue, to green the Charter by including an explicit, stand-alone right to a healthy environment to better protect non-human environmental values along with the rights of future generations.

Given the exigencies of climate change and the maturity of the Charter, surely this is an open-and-shut case? Not really. The argument in favour of constitutionalizing the right to a healthy environment suffers from three difficulties. 

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CBA Influence

Personal information in the balance under SCISA

By Kim Covert February 27, 2017 27 February 2017


When it comes to information sharing for national security, everything is a balancing act – the government needs to protect its citizens from outside threats without depriving them of their civil liberties in the process. Both of these important concerns are fundamental to our freedom.

Parts of the Security of Canada Information Sharing Act, according to the CBA, may tip the scales a little too far toward national security.

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