Human Rights, the Charter, and Access to Justice

By: Jennifer Koshan

PDF Version: Human Rights, the Charter, and Access to Justice

Case Commented On: Canadian Human Rights Commission v. Canada (Attorney General), 2016 FCA 200 (CanLII)

This summer, the Federal Court of Appeal upheld the ruling of the Canadian Human Rights Tribunal (CHRT) that if a claimant wishes to challenge discriminatory federal legislation, they must do so via a Charter claim rather than a human rights complaint. This post will analyze the Court’s decision, compare it to the approach taken in Alberta in cases such as Gwinner v. Alberta (Human Resources and Employment), 2002 ABQB 685 (CanLII); aff’d 2004 ABCA 210 (CanLII), and raise some concerns about the implications of the federal approach for access to justice. I will not analyze the Court’s reasons on standard of review, but it is interesting to note that following a survey of Canadian courts of appeal, the Federal Court of Appeal refers to the “sorry state of the case law and its lack of guidance on when decisions of human rights tribunals interpreting provisions in human rights legislation will be afforded deference” (Canadian Human Rights Commission v. Canada (Attorney General), 2016 FCA 200 (CanLII) at para 78). The Supreme Court has an opportunity to clarify the standard of review issue in Stewart v Elk Valley Coal Corporation, 2015 ABCA 225, leave granted 2016 CanLII 13730 (SCC), which we have blogged on here and here and which will be heard by the Court in December. In addition, this month the Canadian Human Rights Commission filed an application for leave to appeal the Federal Court of Canada decision that is the subject of this post. Continue reading

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Fisheries Act Review Should Be Evidence-Based

By: Martin Olszynski

PDF Version: Fisheries Act Review Should Be Evidence-Based

Matter Commented On: Standing Committee on Fisheries and Oceans Review of the Fisheries Protection Provisions (section 35) of the Fisheries Act R.S.C. 1985 c. F-14.

Consistent with the Prime Minister’s mandate letter to the Minister of Fisheries and Oceans and the Liberal government’s announcement this past summer of a broad review of the federal environmental and regulatory regime, the Standing Committee on Fisheries and Oceans (FOPO) is about to begin its review of the changes to the habitat protection provisions of the Fisheries Act introduced by the previous Conservative government back in 2012. I have previously blogged about those changes here and here, and eventually wrote an article about them. What follows is a letter that I recently sent to FOPO with respect to the scope of its review, urging it to ensure that it has the evidentiary foundation necessary to make its review meaningful. Continue reading

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International Child Abduction: A ‘Time-Limited Consent’ Does not Change the Habitual Residence of a Child

By: Rudiger Tscherning

PDF Version: International Child Abduction: A ‘Time-Limited Consent’ Does not Change the Habitual Residence of a Child

Case Commented On: Balev v Baggott, 2016 ONCA 680 (CanLII)

Introduction

The issues arising from international family disputes involving the non-consensual relocation of children abroad is perhaps one of the more difficult areas of private international law, in that the mechanical aspects of the conflict of laws (as set out in the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 19 ILM 1501) interact with the more personal aspects of international family life.

This post will examine the issue of international child abduction under the Hague Convention regime from the perspective of ‘time-limited consent’, namely whether the ‘habitual residence’ of a child can unilaterally be changed during a time-limited consent period when one parent wrongfully removes or retains a child in another contracting state. Continue reading

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Does Judicial Review Apply to Decisions Made by Religious Groups?

By: Shaun Fluker

PDF Version: Does Judicial Review Apply to Decisions Made by Religious Groups?

Case Commented On: Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2016 ABCA 255 (CanLII)

September at the law school for me includes getting back to the basics of administrative law with the 2Ls as we begin another academic year in the JD curriculum. Early on we study Justice Rand’s seminal 1959 judgment on abuse of discretion in Roncarelli v Duplessis, [1959] SCR 121 (CanLII) (as an aside for some interesting footage of media coverage on Roncarelli see here – thanks to my colleague Professor Martin Olszynski for passing this along), and then we move along to the doctrine of procedural fairness and the threshold question of when does a decision-maker exercising authority owe a duty of fairness. As it turns out, the Alberta Court of Appeal has very recently split over this threshold question in Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2016 ABCA 255 (CanLII) and this is the subject of my comment here. The point of interest in Wall for administrative law is that the majority (written by Madam Justices Paperny and Rowbotham) rules the doctrine of procedural fairness applies to the impugned decision of the Highwood Congregation even though it is a non-statutory entity exercising power that is not sourced in legislation and does not purport to affect legal rights. Justice Wakeling provides a strong dissent on this point. Continue reading

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Myths, Stereotypes, and Credibility in Sexual Offence Trials

By: Drew Yewchuk

PDF Version: Myths, Stereotypes, and Credibility in Sexual Offence Trials

Case Commented On: R v CMG, 2016 ABQB 368 (CanLII)

R v CMG, 2016 ABQB 368 (CanLII) is a Crown appeal of the acquittal of an accused of sexual offences. Justice Sheilah Martin ultimately ordered a new trial due to errors of law by the trial judge regarding self-incrimination, allowing myths and stereotypes to influence the judgment, and failing to make certain factual findings with sufficient clarity (at para 108). This post will review the errors of the trial judge, with a particular focus on the trial judge’s comments regarding the credibility of the complainant. The post concludes with a suggestion on how decisions relating to the credibility of complainants in trials for sexual offences should be written. Continue reading

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