Judicial Challenges, 1982–2019

The chapter compares Canadian and U.S. judicial challenges, tracing the development of Canada’s unconventional harm-based criminal obscenity law under the 1982 Charter’s substantive equality guarantees. It highlights the Canadian Supreme Court intervener LEAF—a women’s organization instrumental in Butler (1992), where the law was saved as an equality provision against freedom of expression challenges. Butler is contrasted with the more categorical U.S. First Amendment law. Despite Butler’s promises, it is shown that since then, pornographers have mainly been protected by Canadian courts, which use desensitized contemporary standards, flawed empirical evidence, surgically inserted loopholes, and wishy-washy judicial reasoning where harm is concerned. In light of LEAF’s successful intervention, the civil rights model is explored as an alternative to criminal law that would better represent the groups whose interests are most threatened by pornography—groups with substantially stronger incentives than the government to invest time and effort in challenging the pornography industry.

Queen of Canada and Not of Babylon: The Constitutional Status of the Crown in Canada and Freedom of Religion

In August 2014 the Court of Appeal for Ontario handed down two decisions concerned with the constitutional status of the Crown in Canada in relation to freedom of conscience and religion pursuant to the Canadian Charter of Rights and Freedoms. In one decision,Teskey v Canada (Attorney General), the court denied that the UK legislative changes to the succession rules to which Canada agreed constituted an infringement of the religious equality rights of a Canadian Roman Catholic pursuant to section 15 (the equality provision) of the Charter. In the other decision,McAteer v Canada (Attorney General)the court denied that the statutory requirement that a person take an oath to Her Majesty as Queen of Canada to obtain Canadian citizenship constituted an infringement of the freedoms of conscience, religion and expression provisions in sections 2(a) and 2(b) of the Charter of persons who regarded her as an ‘Anglican Queen’.

Equality & Disability – A Charter Analysis

<p>This article attempts to trace how the infuriatingly elusive concept of equality has been applied in the context of the Canadian Charter of Rights and Freedoms and more specifically, Section 15, commonly referred to as the equality provision. It suggests that a critical analysis of the historical application of this concept across various social groups of individuals (race, gender, disability) can bring to the forefront essential aspects of a notion of equality designed to promote justice for not only, but principally, people with disabilities. More pointedly, by distinguishing the differences in the application of the principle of equality in reference to the treatment of marginalized social groups, it argues that we might better uncover precisely what it is that is required of the institution of law when applying the equality provision. Ultimately, it arrives at the conclusion that decisions concerning people with disabilities tend to promote a lesser form of flourishing than those concerned with race or gender. This is the case for at least the two following omissions in disability-related judgments: (i) the recognition of the intrinsic worth of functionings; (ii) the recognition of historically situated prejudices and norm-constructed social arrangements.</p><p>Keywords</p><p>disability, charter, equality, race, gender</p>

Bills of Rights as process: the Canadian experience

This article seeks to address a specific aspect of Bills of Rights that tends to be neglected in the literature. That is, the process of how Bills of Rights are drafted. In particular it focuses on the drafting of a particular right-equality with a view to identifying if there is a link between: (a) the manner of how an equality provision is drafted and securing legitimacy of the final product; (b) whether a participative process can influence the formulation and articulation of an equality provision; and finally (c) if the ‘people’ have spoken through this document, does this encourage the judges to take a less restrictive approach in interpreting the equality provision? This task is undertaken by drawing upon the Canadian experience, which then will be used to draw out lessons for those jurisdictions where the process of drafting an equality provision in a Bill of Rights is under way. The article is supported in its conclusions by a series of semi-structured interviews with key players involved in the drafting and interpretation of the equality provision in the Canadian Charter.

Legal Protection against Discrimination based on Racial and Ethnic Origin Under European Union Law — Necessary but not Sufficient?

Inter-related developments at three distinct levels of European Union law relevan to protection against race discrimination are the focus of this article. First, the article considers Article 13 E.C. enacted by the Treaty of Amsterdam, and the enabling model it embodies. This model is critiqued and contrasted with other potential forms of equality provision, by drawing on international law models. Next, the article analyses the Council Directive on Equal Treatment between persons irrespective of racial or ethnic origin (EC 43/20(0) from a number of substantive and formal legal perspectives. Finally, the article discusses the Charter of Fundamental Rights of the E.U. and the import of its equality provision, Article 21. A number of themes recur in this piece: among them, the limitations of the current equality model with respect third country nationals and nationality discrimination which amounts to de facto race discrimination; the inadequacy of the current equality model to provide a consistent level of protection for all of the heads of discrimination enumerated in Article 13; and the absence of a general principle of equality which clearly binds Member States, E.U. citizens and the E.U. itself.

Using a Contextual Methodology to Accommodate Equality Protections along with the Other Objectives of Government (with Particular Reference to the Income Tax Act): Not the Right Answer, Stupid. The Best Answer

The article examines the judicial development of the Charter's equality provision. The author proposes a "middle-of-the-road" or contextual approach as the most preferable path for this development. He canvasses the approaches to either side of the "middle ground," those of the democrats and the civil libertarians. He argues that both of these more extreme positions should be discouraged in favour of the more "equivocal" contextual approach. After explaining how the contextual approach has arisen and been developed in recent Supreme Court cases, the author examines this methodology with respect to the interpretation of the Income Tax Act He then utilizes the methodology to resolve some difficult factual situations arising from application of the Income Tax Act.