Suchergebnisse

The Nova Scotia Court of Appeal here in R. v. Chehil overturns the trial judge's conclusion that the accused had a reasonable expectation of privacy in the information the police obtained from the computer manifest. With respect, their application of the totality of the circumstances test is subject to question at several important points.For example, in assessing the objective reasonableness of an expectation of privacy, the Court of Appeal relies on the fact that the Westjet website informs customers that "information will be disclosed to the authorities without your knowledge and consent as required by law." The court then observes of the Personal Information Protection and Electronic Documents Act (PIPEDA). 7(3)(c.l)(ii) authorizes disclosure of information for law enforcement purposes." They conclude from these facts that it would not be reasonable to expect privacy in information supplied to the airline.However, this reasoning seems inverted. Section 7(3)(c.l)(ii) actually only authorizes disclosure for law enforcement purposes to a government institution that has "identified its lawful authority to obtain the information." That is also the essential message of the Westjet website — that the rule is non-disclosure and the exception is when disclosure is "required by law." To say that information will be disclosed when there is, for example, a warrant requiring its disclosure, is not to diminish the objective reasonableness of an expectation of privacy. Quite the contrary, the recognition that something like a warrant will be required before the information is released stresses precisely that there is a reasonable expectation of privacy in it.

This Women's Court of Canada judgment considers the issue of whether parties can consent in advance to sexual activity that will occur while they are asleep or unconscious. The Supreme Court of Canada's 2011 ruling in R v JA generated critique and debate among feminist and law and sexuality scholars that pitted women's equality and security interests against their affirmative sexual autonomy. The Women's Court judgment analyzes whether it is possible to adopt an approach to advance consent that protects or at least balances all of these interests. My particular focus is the spousal sexual violence context, where courts have often interpreted the sexual assault provisions of the Criminal Code to the detriment of women's sexual integrity and equality, yet where arguments about affirmative sexual autonomy have also predominated. Taking a harm-based approach to criminality that considers both negative and positive sexual autonomy, I conclude that advance consent should not be considered valid without certain legal safeguards being put into place. The judgment, which was originally published in 2016, is accompanied by a postscript where I reflect on the case from the fictional standpoint of a retired judge.

This judgment of the Women's Court of Canada re-considers the reasons in the 2008 Supreme Court of Canada decision in R v Kapp, though it concurs in the result. The judgment takes particular issue with the Supreme Court's interpretation of section 15(2) of the Canadian Charter of Rights and Freedoms as an independent "saving" provision capable of exempting ameliorative laws and programs from scrutiny under section 15(1), identifying three reasons that this approach cannot stand: (1) the existing interpretation of section 15(2), which treats it as an interpretive provision informing the whole of section 15, is sufficient to protect ameliorative laws and programs from formal equality challenges like the one advanced in this case; (2) the novel approach to section 15(2) established in this case may be inconsistent with substantive equality in cases of under-inclusiveness and discriminatory effects; and (3) the Court's reading of section 15(2) in this case improperly displaces section 1 of the Charter in cases involving allegedly ameliorative laws or programs. The judgment concludes that the interpretive approach to section 15(2), which views this section as informing the overall section 15 promise of substantive equality, ought to be maintained. Finally, the judgment offers a brief critique of the Supreme Court's obiter comments on section 15(1) of the Charter, calling into question the narrow approach to discrimination suggested by the two-part test adopted in Kapp.

This judgment of the Women's Court of Canada takes issue with the reasons, but not the result, in the Supreme Court of Canada's treatment of R v Kapp. It concludes that the Supreme Court was wrong to accept the argument that there was discrimination on the ground of race. Discrimination under section 15 has three required parts: differentiation on an enumerated or analogous ground that is discrimination. Noting that the meaning of "race" is little discussed in jurisprudence of the Supreme Court, the judgment demonstrates that the arguments made in Kapp and the nature of the impugned regulations do not support a conclusion of differentiation on the ground of race (although they may support differentiation on the ground of Band membership). If Kapp is not a case in which the appellants had all of the elements of a section 15 claim, then it was not an appropriate case in which to provide guidance on the doctrine of section 15(2) and section 25. Sections 35 and 25 resist the racialization of Indigenous peoples in Canada, and together with case law, they offer a solid constitutional basis—indeed, requirement—for the recognition of Indigenous sovereignties. Kapp, though it ultimately provides a safe haven for ameliorative programs, ignores the constitutional position of the Musqueam, Tsleil-Waututh (Burrard), and Tsawwassen Nations affected by the regulations at issue. The Supreme Court should not have considered section 15(2), as there was no prima facie case under section 15(1) of discrimination on the basis of race, and the claim should have failed on that basis.

In its 2008 decision in R v Kapp, the Supreme Court of Canada gave broad effect to the Canadian Charter of Rights and Freedom's ameliorative program provision, section 15(2). The Supreme Court's decision signalled that a government respondent's declaration that a program is "ameliorative" may shield it from further scrutiny under section 15(1). This Women's Court of Canada judgment takes the opportunity to reformulate the approach to section 15(2). Although the Charter provides express protection of ameliorative programs, such programs have sometimes been challenged by members of advantaged groups claiming "reverse discrimination." We argue that such "equality regressive claims" should be caught by section 15(2). However, for challenges to "under-inclusive" programs, deference to the government on the development of ameliorative programs may perpetuate disadvantage experienced by excluded disadvantaged groups and should not be similarly shielded. This decision develops a contextual approach to section 15(2) that ensures that it does not become a loophole through which government respondents can avoid fulsome Charter scrutiny of claims of under-inclusivity. We outline a test that not only encourages government to take affirmative action but is also narrow enough to subject genuine equality claims to section 15(1) review.

76International criminal law — Offences against humanity — International Convention to Suppress the Slave Trade and Slavery, 1926 — Slavery — Definition — Definition of slavery in Australian Criminal Code (Cth) deriving from definition in Article 1 of Convention — Whether respondent possessing and using complainants as slaves — Whether proof of intention required — Sections 270.1 and 270.3(1)(a) of Code — Meaning and constitutional validity — Convictions in Australia of slavery offences contrary to Section 270.3(1)(a) of Code — Provisions in Chapter 8 of Code dealing with offences against humanityRelationship of international law and municipal law — Treaties — Effect in municipal law — International Convention to Suppress the Slave Trade and Slavery, 1926 — Sections 270.1 and 270.3(1)(a) of Australian Criminal Code (Cth) — Construction and application of Code — Relevant provisions introducing into Australian municipal law offences deriving from 1926 Slavery Convention — Constitutional validity of Sections 270.1 and 270.3(1)(a) of Code — The law of Australia