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Archive for the ‘Justice Issues’ Columns

Canada and the Prevention of Torture: Time to End the Foot-Dragging

In 2002 the United Nations adopted an important new human rights treaty focused on preventing torture. A laudable goal to say the least. And one which one would expect Canada would have supported quickly and enthusiastically by ratifying as soon as possible. 67 countries have signed up – about 1/3 of the members of the United Nations – including many of Canada’s closest allies. But more than a decade later, Canada is not yet on that list.

The treaty came in the form of an Optional Protocol to the UN’s existing Convention against Torture and other Cruel, Inhuman or Degrading . . . [more]

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Who Pays When Polluters Can’t?

In theory, Canadians are pretty comfortable with the polluter pay principle, at least when it applies to other people. (We do not seem to feel the same way about carbon taxes.) In theory, the polluter-pay principle ensures that polluters, rather than the public or the immediate victims of pollution, bear the cost of repairing damage done to the natural environment.

As described by the Supreme Court of Canada in Imperial Oil Ltd. v. Quebec (Minister of the Environment):

In fact, that principle has become firmly entrenched in environmental law in Canada. It is found in almost all federal and

. . . [more]
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Mandatory Dispute Resolution and the Question of Resources

In Wright v. Wright [2013] EWCA Civ 234, the English Court of Appeal suggested that it may be time to review the rule articulated nearly a decade ago in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 to the effect that a court cannot order unwilling parties to participate in mediation.

The dispute in Wright involved two unrepresented businessmen who had a falling out after years of successful collaboration. The litigation had been hard-fought and protracted. The court observed that the case involved “a breakdown of trust and friendship” and observed that “mediation is the obvious . . . [more]

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Of Taj Mahals and Strip Malls

A professional friend of mine in the health-care field once confided to me his very wise approach to automotive shopping. “You want to be classy. Refined. Executive. I can’t show up in an old econo-box and still expect the patients to trust and respect me” he said. “On the other hand, there’s a balance. You don’t want to be so classy, refined or executive that your patients leave your office through the parking lot wondering why they’re paying you so damn much.” Kia and Porsche? Not so much. Stylish but sensible Acura? Just right.

It turns out that courthouses can . . . [more]

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Beware of Obviosities: Can the Obvious Ever Be a Settled Question?

A long time ago – sometime back in the last millennium, as a I recall – Michael Enright, the C.B.C. host and motorcycle rider – during yet another debate on gun control, said of the bill then before Parliament, “I should think it would be an obviosity.” Besides any other criticism of this neologism, the case for (or against) gun control is anything but obvious. Any legislative proposal that divides the country almost evenly in half does not deserve to be called an “obviosity.” I have not heard this noun used since, and I remain, by and large a . . . [more]

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As Goes Access to Law School, So Goes Access to Justice – Part I

[The memosphere strikes again! Between submission and publication of this column, Omar Ha-Redeye posted a very informed and insightful Slaw entry entitled, “Access to Justice Starts With Legal Tuition“. Playing Bell to my Meucci (that reads rather strangely), Omar covers much of the same analytical territory as me—with the bonus of journalistic rigour. Still, I like to think that both posts deserve your attention.]

A lot happens in a year, and the Quebec student protests that dominated the news last spring are a distant memory now. The students went back to school, Quebec elected a new government that . . . [more]

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Closing Canada’s International Human Rights Implementation Gap

Canada is far from perfect when it comes to its domestic human rights record. Obviously the scale and gravity of concerns do not compare with tragedies unfolding in countries like Syria or the Democratic Republic of Congo, the threat to survival faced by so many of Colombia’s Indigenous nations or the relentless discrimination women endure in Afghanistan. But the concerns are nevertheless very real and longstanding, ranging from the alarmingly high and entrenched levels of violence experienced by Indigenous women to punitive new immigration detention laws; from the failure to tackle homelessness in the country to national security practices that . . . [more]

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Immigration Reforms : “Good for Canada” or Bad for Democracy?

In January 2012, at the World Economic Forum in Davos, Switzerland, Prime Minister Stephen Harper announced that his government would reshape the immigration system to make it “good for Canada”. This begged the questions whether the immigration had been “bad for Canada” up to now and whether this reshaping was necessary. Nevertheless, the government did proceed to institute a series of reforms that have now become part of Canadian law. Since 2012, we have seen increased Ministerial powers to bar individuals from entering Canada for vague public policy consideration, increased Ministerial powers to declare arrivals “irregular” and imprison the arriving . . . [more]

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“What Do Those Indians Want, Anyway?”: Some Legal Issues Underlying Idle No More (Update)

The arrival of a group of Cree youth from Whapmagoostui, the northernmost Cree village on Hudson Bay at the end of a 1,500 km walk (and the many friends they picked up along the way) after a two month trek through the northern bush should remind us that the spirit of Idle No More (INM) has not died. It has simply gone off the grid. The young people left Whapmagoostui (aka Great Whale) on January 16 and were expected in Ottawa on March 25. The first long leg of their journey – from Whapmagoostui to Chisassibi was on snowshoes and . . . [more]

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Do We Have Rights to a Healthy Environment?

Do governments owe us clean air and clean water? Many Canadians expect our government to protect us from contamination and other environmental harms in outdoor air, water and land. But is this a legal right?

The first formal recognition of environmental rights is found in the Stockholm Declaration, signed in 1972. Principle 1 recognizes our “fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being.” But this is international law, more of a statement of aspiration than a legal requirement.

David Boyd, one of Canada’s . . . [more]

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Smoked by Mandatory Minimums

When did sentencing policies shift from merely being questionable, misguided or ill-advised to becoming downright absurd?

For many years now, the blunt hammer of mandatory minimum sentencing has been gaining traction in repeated Criminal Code amendments. Long a feature of only the most heinous criminal act imaginable – murder – mandatory minimums leaked into the broader sentencing framework in the battle against drunk drivers imposing minimum licence suspensions followed by mandatory jail stints for repeat offenders. Since then, they have been invoked in an ever-growing array of anti-crime objectives including the war on drugs, to battle the scourge of gun . . . [more]

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Unbundling Legal Information

Because law belongs to the people, the governments and courts that issue law must make it available to the people. This is a simple and widely accepted fact.

In practice, as governments and courts carry out their responsibilities to make law available, they do so in a wide variety of ways. For example, the digital versions of federal statutes available from Justice Canada are “official”, and they exist in forms and with rights extended to all and sundry that permit reuse and republication without royalty or permission. However, in some provincial jurisdictions, a surprising range of limitations exist. . . . [more]

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