‘Within or outside Canada’: The Charter’s application to the extraterritorial activities of the Canadian Security Intelligence Service

Since the swift passage of the Anti-Terrorism Act in 2015, the Canadian Security Intelligence Service (CSIS) has had the unprecedented and highly controversial authority to take ‘reasonable and proportionate’ measures to reduce threats to Canadian security. While there are some limits to the types of measures CSIS can employ, the Canadian Security Intelligence Service Act permits the use of measures that would otherwise contravene the laws of Canada or limit a right protected by the Canadian Charter of Rights and Freedoms so long as they are judicially authorized by the Federal Court. As new threats proliferate around the world, it is anticipated that CSIS will increasingly carry out this mandate overseas. Yet review bodies tasked with monitoring CSIS’s use of threat reduction measures (TRMs) report that CSIS has never sought judicial authorization to conduct a TRM. Why? One answer may be that CSIS has concluded that the Charter does not govern actions carried out abroad, and, as such, their extraterritorial conduct falls beyond the reach and oversight of the Federal Court. Whether the Charter applies to CSIS’s overseas conduct ostensibly lies in the Supreme Court of Canada’s leading case on the extraterritorial application of the Charter, R. v Hape. This article canvasses domestic and international law, as well as intelligence law theory, to explain why that presumption is wrong. Wrong, not least because the majority opinion in Hape is deeply flawed in its analysis and application of international law. But also, because intelligence operations are so distinguishable from the transnational criminal investigations at issue in Hape, the Court’s findings are inapplicable in the former context. In short, this article demonstrates that applying Hape to the actions of CSIS officers not only leaves their actions beyond the scrutiny of Canadian courts but also creates a significant human rights gap.

Hedge or Counterweight? New Constitutionalism and the Role of the Canadian Charter of Rights and Freedoms in Intellectual Property Litigation

This chapter looks at Canadian intellectual property law through a new constitutionalist lens. Over the past few decades, Canada has been the target of several international measures in the area of IP law. The chapter examines these measures through the lens of the theory of new constitutionalism. Doing so suggests that these measures have certain significant similarities: they all seek to use international trade law as a means through which to lock in strong protections for owners under Canada's IP system and to limit the ability of either the Government of Canada or Canadian courts to shape IP laws so as to constrain the exclusive rights of IP owners. Beginning from the position that IP rights ought to ‘serve human values’, the chapter proceeds by considering whether, and to what extent, the Canadian Charter of Rights and Freedoms (Canadian Charter) can produce counter-norms to those promoting strong protection for right-holders that are provided by international trade law. It argues that while the Canadian Charter has traditionally had little impact on Canada's IP system, it can and ought to play a more prominent role in this area by helping to preserve space for the Government of Canada to legislate in the public interest.

The implications of a supreme law Bill of Rights for judicial appointments in New Zealand

<p>The enactment of a supreme law Bill of Rights in New Zealand would have significant implications for the process of appointing judges. This essay contends that the present judicial appointments system is insufficiently transparent and offers too few safeguards to prevent judicial appointments from becoming politicised. It draws on Canada's experience after enacting the Canadian Charter of Rights and Freedoms to illustrate why reform is needed. Ultimately, it is contended that the adoption of a supreme law Bill of Rights in New Zealand should be accompanied by the creation of a judicial appointments commission.</p>

The implications of a supreme law Bill of Rights for judicial appointments in New Zealand

<p>The enactment of a supreme law Bill of Rights in New Zealand would have significant implications for the process of appointing judges. This essay contends that the present judicial appointments system is insufficiently transparent and offers too few safeguards to prevent judicial appointments from becoming politicised. It draws on Canada's experience after enacting the Canadian Charter of Rights and Freedoms to illustrate why reform is needed. Ultimately, it is contended that the adoption of a supreme law Bill of Rights in New Zealand should be accompanied by the creation of a judicial appointments commission.</p>

The notwithstanding clause: Legislatures, courts, and the electorate

This article interprets the notwithstanding clause in section 33 of the Canadian Charter of Rights and Freedoms. When a legislature activates the notwithstanding clause, subsection 33(2) temporarily ensures a protected law’s ‘operation’ by preventing it from being ‘inconsistent’ with the Constitution of Canada in the sense of the supremacy clause, thereby precluding judicial remedies such as striking down. Construed in the light of its components (some never considered by the Supreme Court of Canada) and other constitutional features, the notwithstanding clause does not make rights irrelevant or strip them of their legal character. Nor does it confide the assessment of trade-offs about rights to the legislature alone. Instead, subsection 33(3) indicates a framework for such assessments in which the voting public plays a crucial evaluative role. The courts, as interpreters and guardians of the Constitution, can, and in some circumstances should, support the public’s constitutional role by declaring the extent to which a protected law unjustifiably limits Charter rights. The public’s ability to take such declarations into account in evaluating rights trade-offs would advance the democratic purpose of subsection 33(3), a purpose that underpins our constitutional framework more broadly.

Recent Youth-Led and Rights-Based Climate Change Litigation in Canada: Reconciling Justiciability, Charter Claims and Procedural Choices

This analysis examines three recent and ongoing Canadian climate change litigation cases: ENvironnement JEUnesse c Procureur général du Canada, La Rose v Canada and Mathur v Ontario. Consistent with international climate change litigation trends, these cases are youth-led and rights-based and they advance claims for present and future generations. They present apparently conflicting judicial views on the justiciability of climate change claims and on the use of the Canadian Charter of Rights and Freedoms to advance such claims. We examine these issues. We also analyse the insights the cases offer into the connections between litigants’ procedural choices and early success, either in withstanding a motion to strike, or in obtaining court authorisation to proceed by way of class action.

Review of the book Educators on Diversity, Social justice, and Schooling: A Reader

The Canadian Charter of Rights and Freedoms (1982) recognizes aboriginal and treaty rights (section 25), official bilingualism (sections 16-20), and multiculturalism (section 27). The Charter also protects citizens from discrimination based on race, national or ethnic origin, colour, religion, sex, age, or disability (Canadian Charter of Rights and Freedoms, 1982). The spirit and values instilled by the Charter are significant to the field of education mission statements and policies endorsing diversity, inclusion and equity. Combined with different communities’ advocacy for social change, teachers are increasingly called to impart equal opportunities for all children in increasingly diverse classrooms with equitable curricular and pedagogical practices. In that context, Educators on Diversity, Social Justice and Schooling: A Reader provides insight for practitioners. This book is edited by Sonya E. Singer and Mary Jane Harkins, with each chapter’s authors representing various theoretical and methodological approaches. The book is organized in three thematic sections: diversity, social justice, and schooling.

Section 28’s Potential to Guarantee Substantive Gender Equality in Hak c Procureur général du Québec

Hak c Procureure générale du Québec is an action that has combined four distinct challenges to An Act Respecting the Laicity of the State . In this article, I canvass section 28 doctrine and jurisprudence to outline the purpose and role of section 28 in order to understand how it might operate in the challenge undertaken in Hak . To do so, I conduct a purposive analysis of section 28. In my opinion, section 28 has two distinct purposes: first, it acts as a “gender equality interpretive tool” that requires judges to choose constitutional interpretations that favour substantive gender equality and, second, it ensures that substantive gender equality cannot be overridden by anything else in the Canadian Charter of Rights and Freedoms . Within these broad purposes, I also discuss section 28’s status as an interpretive provision that confers the substantive right to substantive equality, and I offer illustrations of the gender equality tool in case law. I conclude with the potential of section 28 to operate as a gender equality tool in Hak , including its potential to do so intersectionally.

The securitization of asylum seekers in Canadian political discourse.

This study examines the representation of asylum seekers in Canadian political discourse published between 2009 and 2012. During this time period, Tamil asylum seekers arrived in Vancouver on the Ocean Lady and MV Sun Sea. Also in 2010 and in 2012 Bill C-11 and Bill C- 31 were introduced, which resulted in harsh changes to Canada’s asylum system. This study used securitization theory to understand how asylum seekers were presented as threats and the exceptional measures which were implemented to deal with them. It was found that asylum seekers were depicted in a very negative manner where they were accused of abusing the system, burdening the economy, and conspiring with migrant smugglers. This justified number of policies including the designated country of origin policy, mandatory detention for irregular arrivals, and cuts to refugee health care. These new policies were found to be inconsistent with the Canadian Charter of Rights and Freedoms.

Detention in Canada of asylum claimants for identity determination: a critical review of the literature pertaining to Canada’s immigration detention centres

This paper maps the unconstitutionality of Canada’s legislation regarding asylum claimants. In particular, the paper examines the policies that allow asylum claimant’s detainment in the absence of identification. The aim of this study is twofold. First, it establishes through a meta-synthesis of the literature, gap that exist in the study of immigration detention centers. These studies clearly demonstrate that immigration detention centres are similar to prisons but significantly do not consider the constitutionality of identification requirements that subject asylum claimants to detention. Second, the study demonstrates through a human rights approach that Canadian policies which require refugees to prove their identity prior to claim adjudication violates the asylum claimant’s Charter and fundamental human rights. Canada’s approach, which makes asylum claimants responsible for proving their identity reintroduces the practice of reverse onus. Hence Canadian immigration policies enacted in 2001 (post-9/11), are in violation of the Canadian Charter of Rights and Freedom and in violation of international human rights laws. I suggest that if the government is serious about the human rights of asylum claimants it must create policies that ensure the protection of refugee rights in Canada.