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An introduction to a general discussion of the Canadian courts' approach to religious freedom, which argues among other things that despite their formal commitment to state neutrality in religious matters, the courts have applied this requirement selectively - sometimes treating religion as a cultural identity towards which the state should remain neutral and other times (when it touches upon or addresses civic matters) as a political or moral judgment by the individual that should be subject to the give-and-take of politics. Behind the courts' uneven application of the neutrality requirement lies a complex conception of religious commitment in which religion is viewed as both an aspect of the individual's identity and as a set of judgments made by the individual about truth and right. The challenge for the courts is to find a way to fit this complex conception of religious commitment into a constitutional framework that that relies on a distinction between individual choices or commitments that should be protected as a matter of individual liberty, and individual attributes or traits that that should be respected as a matter of equality.

By: Joshua Sealy-Harrington PDF Version: Celibate, Awake, and Alone: The Hallmarks of a Credible Sexual Assault Victim? Case commented on: R v FY, 2013 ABQB 694 This post discusses a recent decisio…

A recent request for religious accommodation at York University has generated controversy not just about the merits of the particular claim but also about the general practice of religious accommodation under human rights codes and the Canadian Charter of Rights and Freedoms. The issue in this case exposes some of the tensions in our understanding of religious freedom and religious equality – and more particularly the requirement of religious accommodation. “Religion” (religious belief and practice) does not fit comfortably within the model of equality rights or anti-discrimination laws and seeing why this is so might help us to better understand the conflict in this case – the university’s decision to accommodate and the public reaction to that decision. The first difficulty is that religious adherence may be viewed as both an individual commitment and a collective identity. The second, and related, difficulty is that religious belief systems or traditions may be seen as both a set of practices and a set of beliefs about truth and right, which sometimes have public implications.

‘Abysmal’ was the word used to describe the accessibility of Canadian civil justice in a recent major report. Access to justice is simultaneously a social problem, a professional obligation for the legal profession, and a market opportunity for law firms. Are there any signs of significant progress on any of these fronts? This short Correspondent's report will review recent Canadian efforts to connect people of modest means with the expert legal services they urgently need.

There is a strong case to be made that racist, and other forms of bigoted, speech, even when it is not so extreme that it breaches general hate speech laws, should be prohibited on campus. A commitment to academic freedom supports the free and open exchange of ideas and information but also certain standards of communicative engagement – most notably the treatment of others in the academic community as interlocutors, as conversation partners who should be addressed and heard. Racial (and other) stereotypes and insults are inconsistent with the educational mission of the school and the idea of membership in an educational community. More generally, the injury of racist speech may be more acute in the closer environment and tighter community of the campus. However, the regulation of a broad category of racist speech raises a variety of challenges. In addressing the question of the fair and appropriate limits (or forms of regulation) of speech on campus, I will consider the case of Israel Apartheid Week [IAW], an event that takes place each year on several Canadian campuses, and more particularly whether IAW (and its claim that Israel is an apartheid state) is anti-Semitic and appropriately banned from campuses. The recent report of the Canadian Parliamentary Coalition to Combat Anti-Semitism [CPCCA] argues that IAW is anti-Semitic. However, the CPCCA claim appears to rest on the politically contestable view that the existence of Israel is vital to the continued existence of the Jewish people and that any criticism of actions taken by Israel to ensure its viability or any questioning of Israel’s religious ethnic identity constitutes an attack on the Jewish people. But these are politically contestable claims – about the link between nation and state, the treatment of religious-ethnic minorities, and the actions necessary ensure the viability of the state … The challenge to these claims must be treated as a legitimate part of political debate and cannot be excluded from campus.

Almost seventy years after the Universal Declaration of Human Rights, the birth of Israel, and the beginning of the Palestinian naqba (all in 1948) it is now clear that international law has fallen short of its promise to alleviate suffering, hold transgressors to account, and to encourage peace in the Middle East. Even John Humphrey, a drafter of the Universal Declaration of Human Rights, came to despair the efficacy of international law in Israel and Palestine. “He went there thinking that the proper application of the rule of law and respect for human rights could resolve the situation and came back thinking nothing could (since the debate was not a rational one)” (Hobbins 2006). Taking Humphrey’s despair over international law’s ability to guide behaviour in Israel and Palestine as its starting point and drawing on Stanley Cohen’s landmark book, States of Denial: Knowing about Atrocities and Suffering, this chapter argues that international law has fed into a process of denial maintenance in Israel, creating the backdrop against which Israeli leaders deny Palestinian suffering.

At the same time that Canadian public law jurisprudence has grappled with some very key cases on bias, a vibrant debate has also raged over the meaning and scope of the notion of impartiality within political and moral philosophy. Spurred by Rawls’ view of liberalism and culminating in deliberative democracy, this debate evolved over a span of more than four decades, yet, rarely, if at all, is this philosophical literature referred to in the public law jurisprudence dealing with impartiality. This paper inquires into whether the debates surrounding impartiality in political and moral philosophy and those in Canadian public law share common ground. In what ways might this literature and jurisprudence speak to one another? The author argues that knowledge of the two debates challenges us to reconsider the judicial methods by which decision-making impartiality is established. This is particularly so in administrative law. The author proposes a theory of grounded impartiality to be used in Canadian administrative law. The theory requires courts and administrative actors to pay close attention to factors such as administrative actor provenance, shared and local understandings, and the possibility for genuine discourse, to allow for more well-informed, meaningful, and transparent decision-making about allegations of bias. While these factors have been advocated by certain political and moral philosophers as an ideal means for assessing an individual’s claim to the good life, a parallel approach has faced ambivalent reception in Canadian administrative law impartiality jurisprudence.

This chapter provides a historical sketch of the events leading to the Georgia-Russia conflict of 2008, including South Ossetia’s de facto independence and gradual absorption by Russia. It then considers the legal status of South Ossetia under Soviet, Georgian and international law, and analyses the findings of the Independent International Fact-Finding Mission on the Conflict in Georgia. While the chapter concludes that South Ossetia’s right to self-determination does not, at this stage, include a right to secession, it argues that the emphasis now should be on restoring confidence between the parties and addressing humanitarian issues. This is a precondition for genuine negotiations over status within the international law framework on self-determination.

Many scholars have theorized that judicial review can provide a “friendly hand” to the elected branches by enforcing legislative bargains, taking on politically difficult decisions, clarifying vague or conflicting legislation, and/or buttressing federal power against state actors. Other scholars contend that empowering the judiciary to have an active role in policymaking has undesirable consequences – to these scholars, the judicialization of politics unwisely reframes the policy debate in legal terms, disempowers social movements by removing issues from traditional political contestation, and generates public and political backlash. This paper addresses these claims by examining an area where the courts, through either actively declining jurisdiction or passively acquiescing to executive power, have deliberately abstained from claiming a role in policymaking. We examine the negative space caused by such willful “un-juridification” by looking at American immigration policy.

English Abstract: Clinical work in law offers important opportunities for students to learn critical, reflective and politicized approaches to legal identity and practice. Such an approach is most meaningful when it is engaged by supervising lawyers and social workers in a clinical placement. The authors of this article, the Academic Clinic Director and Executive Director of two Windsor-based clinic programs, offer context, perspective and examples of how critical pedagogy (influenced by, but distinct from, critical legal studies) provides a roadmap for supervising lawyers and the programs in which they work. The paper briefly sets the context of the authors' teaching and practice. The authors then set out some of the interested parties in clinical legal education, including law schools, communities, students and clients. The paper concludes with ideas on how a clinical program might set out to strengthen critical pedagogy in the supervisory relationship.