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The Charter at 25: The Complaint of Judicial Activism.

The establishment of the Housing and Property Directorate (HPD) and Claims Commission (HPCC) in Kosovo has reflected an increasing focus internationally on the post-conflict restitution of housing and property rights. In approximately three years of full-scale operation, the institutions have managed to make a property rights determination on almost all of the approximate 30,000 contested residential properties. As such, HPD and HPCC are being looked to by many in other post-conflict areas as an example of how to proceed. While the efficiency of the organizations is commendable, one of the key original goals – the return of displaced persons to their homes of origin – has to a large degree been left aside. The paper focuses on two distinct failures of the international community with respect to the functioning of HPD/HPCC and its possible effect on returns: a failure of coordination between HPD/HPCC and other organizations working on returns, and the isolation of residential property rights determinations from other aspects of building a property rights-respecting culture in Kosovo.

Government-sponsored gambling is a signficant source of revenue for the Province of Ontario, but it comes at a significant social costs to a vulnerable segment of society. It is estimated that 4.8% of adults who gamble are problem gamblers, but they contribute 35% of Ontario's gaming revenues. Is Ontario responsible at law for harm suffered by problem gamblers in the province's casinos? In this paper, the authors address this question by considering the common law duty of care, particularly in the context of commercial host liability, and its possible extension to the problem gambling context.

There is a growing disconnect and alienation between lawyers and the legal profession in Canada. The etiology of this discontent is complex. One cause, which is the focus of the paper is philosophical in nature. It concerns the role morality of the profession and what I posit is a disconnect between the role lawyers want to pursue (i.e. a facilitator of justice) and the role that they perceive the profession demands they play (i.e. a hired gun). In my opinion, this perception is a mistaken one. Given the paucity of Canadian research and reflection on ethics and professionalism, we have created an ethic of lawyering that finds expression in American stories, fears and academic criticisms. I argue in the paper that over the last 15 years, we have been engaged in a process of role morality reconstruction. Under this reconstructed institutional role, lawyers are problem-solvers whose mandate is to seek justice not only for their client but also for the broader legal, social and political system within which they operate. In other words, I contend that an ethic of client-centered zealous advocacy has slowly begun to be replaced with a justice-seeking ethic that seeks to give effect to law's ambition. Part II of this article provides the basic foundations of my reconstruction thesis. In the first section of Part II, I define role morality and defend it as the beacon of ethical reflection rather than jettisoning it in favour of an approach that relies on personal responsibility or morality. The next section attempts to trace the evolution of our understanding of the public interest. As the legal profession has always attempted to ground itself in the public interest, how the profession conceives of it will largely determine how it, and its members, should conduct themselves. The final section of Part II attempts to provide the evidence of this reconstructed role morality by exploring statements from leading members of the profession, recent ethics jurisprudence and by examining equality and harm prevention principles in our codes of conduct. Like any large bureaucratic institution, the profession will inevitably be slow to respond to its new identity and the changing set of norms and values that go with that identity. The required institutional changes are beyond the scope of the paper. However, Part III does address how lawyers can on an individual level give effect to this evolving role morality by adopting a pervasive justice-seeking ethic and by engaging in identity lawyering that is consistent with the interests of justice.

This article critically examines emerging public participatory processes and rhetoric about their ability to increase participatory democracy. The author questions the assumption that participatory democracy is an adequate goal for North American democratic decision-making processes; rather, both government and ADR practitioners should consider the potential of diversity-based democratic theory to inform participatory processes. The author draws from several emerging democratic and ADR theories to form a series of recommendations to incorporate diversity-based practice, thus improving the quality of democratic participation.

The issue of racial profiling has finally begun to attract the attention of the Canadian media; courts; human rights commission; the Canadian Bar Association; and, the academy. The focus has been on racial profiling defined as the use of racialized stereotypes of the usual suspect as the basis for suspect selection. Less attention,however, has been given to cases where race forms part of the description of a suspect provided by the victim or witness. Through the use of narrative, the article examines how race-based suspect descriptions have been misused by the police in Canada. The narratives also reveal the devastating collateral damage when the police use race in any manner in suspect selection. This damage includes widespread harassment, intimidation, false arrests, violence, death, stigmatization and an engendering of mistrust. Given the misuse, the article recommends including suspect descriptions in the racial profiling prohibition where race is used as the dominant characteristic. After considering whether there should be a complete prohibition on using race in suspect descriptions, the article examines current constitutional standards to protect against misuse and proposes a new dominant feature constitutional test.

This paper compares and contrasts American and Canadian efforts to regulate debit cards. The paper begins by outlining significant differences between the two approaches arguing that Canadians do not enjoy the same level of protection as do their American counterparts with respect to its provisions governing unauthorized transactions, dispute resolution and its enforcement mechanisms.

In the recent case of Syndicat Northcrest v. Amselem, the Supreme Court of Canada held that a condominium association’s refusal to permit Orthodox Jewish unit-owners (the appellants) to construct succahs on their balconies, as part of the Jewish festival of Succot, breached their freedom of religion under the Quebec Charter of Human Rights and Freedoms. Because the restriction of religious practice was imposed by a non-state actor, the Canadian Charter of Rights was not applicable. However, the majority judgment of Iaccobucci J. was clear that “the principles … applicable in cases where an individual alleges that his or her freedom of religion is infringed under the Quebec Charter” are also applicable to a claim under section 2(a) of the Canadian Charter of Rights and Freedoms.

After September 11, 2001, some scholars and policy-makers promoted the racial profiling of Arabs and Muslims as a means towards greater national security. While racial profiling has not been officially sanctioned in Canada, it attracts popular support and undeniably takes place. The first part of this article identifies three different categories of racial profiling in the context of Canada's War against Terrorism. The second part identifies the problems associated with racial profiling. It argues that racial profiling undermines national security while also heightening the vulnerability and exclusion of Arabs, Muslims, and other racialized groups in Canada.

United Nations Security Council Resolution1325 calls for a more active role for women in the prevention and reconciliation of conflicts. Focusing on the Palestinian Right of Return and the work of a feminist organization called the JerusalemLink,this paper examines Resolution 1325’s premise that women can make a unique contribution to peace building.

The Canadian Charter of Rights and Freedoms guarantees to all persons “freedom of conscience and religion.” The Charter, however, does not include any obvious equivalent to the Established Clause of the First amendment of the United States Bill of Rights. According to the Canadian courts, s. 2(a), the freedom of religion provision in the Charter, protects the individual from “coercion in matters of conscience.” It prohibits the state from either restricting or compelling religious practise. But it does not necessarily preclude state support for religion. State support for the practises of institutions of a particular religion will breach s.2(a) only if it coerces some members of the community, and interferes with their ability to practise their faith or compels them to practice the favoured religion.

This Article identifies and explores the justifications or rationales offered by national court judges in support of their references to international human rights law. It does not analyze the extent to which judges invoke international law; rather, it examines the reasons offered by judges to explain their references to international law. The focus is on leading decisions rendered by higher courts in the United States and Commonwealth jurisdictions where the international norms do not bind decision-makers because they have not been made part of domestic law through an act of incorporation, the relevant treaty has not been ratified, or the ratifying state has filed a reservation limiting a treaty's domestic effect.

Women’s pain and death blurs the distinction between war and peace. Women are disproportionately starved, attacked physically, emotionally and psychologically, and killed during both war and peace. This paper focuses on the sanctions imposed against Iraq by the United Nations Security Council (“Se- curity Council”) in response to Saddam Hussein’s invasion of Kuwait in 1990 and the on-going purported threat posed to international peace and security by the Iraqi regime. Intended as a humane alternative to war, the sanctions have nonetheless lead to such high levels of death and suffering, particularly among women and children, that commentators have labeled them “genocide,” a “medieval military siege,” and “a humanitarian disaster comparable to the worst catastrophes of the past decades.”

This paper presents a particular reading of Truth and Method, Hans-Georg Gadamer's landmark text, as a lens through which to consider the meaning of international texts in domestic contexts. Gadamer's thoughts have been the subject of inquiry and controversy across legal lines; yet, they remain virtually unknown within international human rights law. His absence within this circle is unfortunate because Gadamer takes up questions concerning culture, perspective, difference, and authority - issues that no international human rights scholar can hope to ignore. More importantly, however, Gadamer addresses these issues within a theory of language that proves relevant to the very structure of international human rights law itself, given that it lacks a third party arbitrator authorized to pronounce on meaning. The judicial use of international law within domestic courts brings this feature of the international regime into stark relief because the rising judicial reliance on international law has the potential to generate as many meanings of international texts as there are courts willing to engage those texts. Truth and Method expounds a theory of language that recognizes the authority of international texts and international law's governance ambitions while still accommodating variations in interpretation between national jurisdictions.

The author argues that the apparent collapse or erosion of the Oakes test reflects the problem of fitting a right such as freedom of expression, which is social and relational in character, into a structure of constitutional adjudication, which is built on an individualist conception of rights. In the leading Canadian freedom of expression cases, the task for the courts under section 1 is not simply to strike the proper balance between competing interests, but rather to resolve the single but complex question of whether the expression contributes to, or undermines, human agency or autonomous judgment. In these cases, the “value” of expression and the “harm” of expression are not distinct issues, but rather two sides of the same basic issue. Whether expression is more likely to contribute to insight and judgment or to manipulate and lead to an unreflective response is a relative judgment that will depend significantly on the social and economic circumstances in which it occurs. This issue fits awkwardly within an adjudicative structure that is based on an individual liberty model of rights. The author argues that this awkwardness accounts for the “erosion” of the Oakes test in freedom of expression cases and more specifically for the court's increasing, and inadequately justified, deference to legislative judgment under section 1.

When poverty activist resort to the Canadian Charter of Rights and Freedoms, things cannot be going very well. The Charter of Rights will not eliminate poverty or gross disparities in wealth. It will not ensure that affordable housing is provided to those in need. All it may be able to do is to protect the individual’s right to ask others for help, to beg in the streets.

This is one of the first articles written in Canada on racial profiling and policing. While dated, the piece set out standards that can be used to prove racial profiling and recommended enhanced Charter standards to facilitate adjudication. As noted in the Introduction:

The worker who receives compensation through the Commission de la santé et de la sécurité du travail (CSST) for an injury resulting from the sexual harassment finds herself with no recourse to the Quebec Charter for moral, material or exemplary damages. This principle has become entrenched in the law since the decision of Béliveau St-Jacques v. Fédération des employées et employés de services publics inc. [1996] 2 S.C.R. 345.The matter is further complicated by the fact that the Act respecting industrial accidents and occupational diseases compensates only for loss of integrity, providing a completely inappropriate compensation for sexual harassment – an incident through which the person’s dignity is first and foremost put under attack. In this paper, the author explores the possibility of reforming the Act in order to provide a more appropriate compensation for victims of workplace sexual harassment, one that addresses the very real affront to dignity that sexual harassment poses. As the Act is grounded in a particular social and legal history, this exploration involves a review of its history and evolution as well as an examination of recent decisions by the CSST’s reviewing bodies. Consideration of the place of the person in Quebec Civil Law and the definition of certain personality rights (integrity and dignity) also form an integral part of this article.

The mass rapes of Bosnian women by Serb soldiers were a tool of war specifically used to systematically drive away women and their communities. This paper examines that phenomenon in light of representations of rape in current literature and the effort to develop a feminist understanding of rape. It considers the feminist debate over whether the mass rapes in Bosnia should be seen as a crime perpetrated against the women as female individuals or against the Bosnian community. The foundation for this examination is a discussion of three normative conceptions which affect international treatment of rape as a war crime - rape as part of the game of war, as an attack on community, and as terrorization and retaliation. The author then documents the exclusion of any conclusive mention of rape from the Hague Conventions (1907) and discusses the repercussions of its eventual definition in the later Geneva Conventions (1949). Finally, the author calls for gender-sensitive approaches to humanitarian assistance, for sensitive treatment of rape survivors, and for the injection of a female voice into humanitarian law.

A discussion of the Supreme Court of Canada's freedom of expression decisions which move between a discourse of freedom and rationality when defining of the freedom to a causal or behavioural discourse when determining justified limits.