搜查与隐私权保护——加拿大宪法与美国宪法第4修正案之比较

<加拿大权利与自由宪章>第8条赋予了公民反对不合理的搜查和扣押的权利.与美国宪法第4修正案的发展历程类似,经由加拿大最高法院的判例解释,<宪章>第8条确立了隐私权的宪法保护.基于对美国宪法判例的批判和借鉴,<宪章>第8条下的隐私权在判断标准、保护范围方面体现了本国特色.第8条下隐私权具备的丰富内涵,不仅得益于加拿大最高法院确立的隐私权旨在促进的诸项基本价值,也与加拿大较为宽泛的非法证据排除规则有关.     

Immigration Act medical inadmissibility provision survives constitutional challenge

In a decision issued on 27 June 2002, the Federal Court of Canada ruled that the medical inadmissibility provision of the Immigration Act did not infringe sections 7 or 15 of the Canadian Charter of Rights and Freedoms. Although the Immigration Act was repealed effective 28 June 2002 with the coming into force of the Immigration and Refugee Protection Act (IRPA), the court's reasons are relevant to some HIV-positive people seeking admission to Canada under the new legislation.     

Why Does the Federal Government Appeal to the Supreme Court of Canada in Charter of Rights Cases? A Strategic Explanation

Despite the impressive body of scholarship dedicated to analyzing litigation involving the Charter of Rights and Freedoms in the Supreme Court of Canada, there remains an incomplete understanding of why these cases come to the Court. Notably absent from the literature is sustained analysis of why governments, the most frequent class of appellant, bring Charter cases to the Supreme Court. Recent work has addressed the decision to appeal by the U.S. federal government and state attorneys general and provides an excellent theoretical starting point. I use case data collected from interviews with federal government lawyers and law reports to test whether the Canadian federal government's decisions to appeal to the Supreme Court of Canada in Charter cases are also "procedurally rational." I conclude that these decisions are primarily shaped by strategic considerations related to policy costs, case importance, reviewability, and the prospect of winning on appeal, regardless of the party in power. In the process, the article further extends the application of strategic decisionmaking theory with regard to law and courts beyond judicial behavior, and beyond the U.S. context.     

The Process is the Punishment: Criminal Libel and Political Speech in Canada

The number of U.S. states with criminal libel laws has been steadily declining since the 1960s, and the offense has been struck down in the United Kingdom and several former British colonies. In Canada, however, criminal libel not only continues to exist, but appears to be enjoying a resurgence, albeit one that has flown beneath the radar of Canadian lawyers, judges, and journalists, who frequently assert that criminal libel prosecutions are rare. The research reported in this article found more than 400 prosecutions since the beginning of the twenty-first century. While many of these cases were brought against people who disseminated sexual slurs against former romantic partners, in a substantial number of cases criminal libel law was used to punish citizens’ political speech, particularly speech critical of police or other justice system officials, a use wholly inconsistent with the Canadian Charter of Rights and Freedoms.     

The right to minority language public school education as a function of the equality guarantee: a reanalysis of the Gosselin Supreme Court of Canada Charter case

This paper concerns a recent Supreme Court of Canada decision dealing ostensibly with the protection of language minority rights. The case, in fact, however, concerns the Court imposing statutory limits on constitutionally guaranteed equality and liberty rights. The Court in the instant case held as constitutional Quebec legislation permitting access to English language schools only to children who have received, or are receiving the majority of their instruction in English in Canada, or whose parents received the majority of their instruction in English in Canada at the primary school level. The appellants, members of the French majority in Quebec, could not meet those eligibility criteria. Therefore, they were held to have no right to access English language public schools for their children. The ruling, as discussed, is inconsistent with the equality and liberty guarantees as well as the minority language protection clause of the Canadian Charter of Rights and Freedoms.     

The role of popular mobilizations in the struggle for the Canadian Charter of Rights and Freedoms

In spite of the best efforts of Canada's first ministers, the debate leading up to the enactment of the Canadian Charter of Rights and Freedoms was characterized by the mobilization of several demanding factors of the Canadian populace. The Hays-Joyal hearings on the Constitution provided a formal setting for popular participation, and in fact drew submissions from a variety of special interest groups. Significantly, the minimal class representation in both the formal and informal processes of Charter construction was in stark contrast to the militant interventions of women's and Native's lobbies. In spite of the resistance of the politicians, and in spite of internal weaknesses, these movements were able to impose some elements of their collective demands on the otherwise limited vision of rights in Canada. Their voices were in fact heard over the din of federal-provincial squabbling.This article is a revised version of a Chapter from the author's Doctoral Dissertation, entitledCanada's Passive Revolution: The Charter and Hegemonic Politics, Carleton University, Ottawa, Ontario, August 1992.     

Fitness to be sentenced: a historical, comparative and practical review

A Canadian judicial decision recently held that a person convicted of a criminal offence who suffered a substantial deterioration in mental condition since the trial could be found unfit to be sentenced. The court based its conclusion on both historical arguments and the Canadian Charter of Rights and Freedoms. There are compelling justifications for recognizing this concept. The paper looks at the history of fitness and how the sentencing phase became disconnected from claims of unfitness in the late 19th century. It then considers theoretical justifications based on fairness, viewing sentencing as a moral discourse, and the effect of the Canadian Charter of Rights and Freedoms. Because of the number of practical questions that need to be addressed before implementing a concept of unfitness at the sentencing stage, the paper looks at some common law jurisdictions for guidance: Australia, New Zealand, and the American states of New York, Illinois, Connecticut, and Ohio. From these comparisons comes the idea of a "provisional cap". That is, the recognition of unfitness at the sentencing stage should be followed by a form of sentencing that takes into account the gravity of the offence, the prosecutor's position, any relevant aggravating or mitigating factors that can be adduced, and then results in a "provisional" sentence, whether custodial or community-based, which stays in effect until the offender becomes fit. The paper ends with a model that incorporates this approach while providing both that offenders will be confined, if necessary, in hospitals and not prisons, and also that the dispositions will be reviewed annually to ensure that the least restrictive and least onerous sanctions are imposed.     

The Tide in Favour of Equality: Same-Sex Marriage in Canada and England and Wales

The tide in favour of legal equality for gay and lesbian individualsand couples continues to roll forward on both sides of the Atlantic.In Canada, the federal Parliament recently passed legislation(the Civil Marriage Act) (CMA) that extends the legal capacityto marry for civil purposes to same-sex couples throughout thecountry. This change in the law was driven not by the executiveand legislative branches of government but by the courts, interpretingand applying the Canadian Charter of Rights and Freedoms (theCharter). On the other side of the Atlantic, in England andWales, the Westminster Parliament in 2004 passed legislation(the Civil Partnership Act) (CPA) that will enable same-sexcouples to obtain legal recognition of their relationships,and to access most of the legal rights and responsibilitiesoffered to married couples. However, unlike the Canadian legislation,civil marriages between same-sex couples will still not be legallyrecognized. This article considers whether the English courtswill also facilitate the legal recognition of same-sex civilmarriage, like their Canadian counterparts. The author concludesthat, in light of recent case law, there is an increasinglystrong argument that the opposite-sex marriage requirement inEngland and Wales violates Article 14 (the equality provision)of the European Convention on Human Rights (ECHR), which isincorporated into UK law by the Human Rights Act, 1998. However,the author also concludes that there are a number of reasonsto be cautious that a positive result would flow, at this point,from a domestic court challenge to the opposite-sex marriagerequirement.     

Feminism and Canadian justice: How far have we come?

This paper discusses two interrelated problems. First, it discusses the impact the Canadian Charter of Rights and Freedoms has had on women's social and economic status. Second, it discusses the role feminists can play in changing the face of the Canadian justice system. With regard to the first of these issues, it is observed that considerable evidence suggests that women's economic position has not improved in recent years. Women continue to be paid less men, are less likely than men to have access to employer pension plans, and are more likely to be included among those with incomes below the poverty line. The Charter has done little to change this. With regard to the role feminists can play in changing the justice system, it is argued that feminists must continue to channel at least some of their energy through the Supreme Court of Canada, even though the ultimate goals of feminism require a radical departure from and a transformation of the theories of justice.     

Courts and health policy: judicial policy making and publicly funded health care in Canada

The 1982 Canadian Charter of Rights and Freedoms provided political actors with the opportunity to make rights-based challenges to public policy decisions. Two challenges launched by providers and consumers of health care illuminate the impact of judicial review on health care policy and the institutional capacity of courts to formulate policy in this field. The significant impact of rights-based claims on cross-jurisdictional policy differences in a federal regime is noted.     

Workplace Monitoring and the Right to Private Life at Work

In Barbulescu v Romania, the European Court of Human Rights clarified the application of the Article 8 right to private life in the workplace, and the extent of the state's positive obligations to protect the right against workplace monitoring. The decision establishes that there is an irreducible core to the right to private life at work that does not depend on an employee's reasonable expectations of privacy, and sets out clear principles for striking a fair balance between Article 8 and the employer's interests in the context of workplace monitoring. This article considers the nature of states’ positive obligation to protect human rights at work, the scope of the right to private life, and the impact of the decision on domestic law of unfair dismissal.     

Charter rights & health care funding: a typology of Canadian health rights litigation

Canadian health consumers have increasingly relied on the Charter of Rights and Freedoms to demand certain therapies and reasonably timely access to care. Organizing these cases into a 5-part typology, we examine how a rights-based discourse affects allocation of health care resources. First, successful Charter challenges can, in theory, lead to courts granting and enforcing positive rights to therapies or to timely care. Second, courts may grant a right to certain health services; however, subsequently government fails to deliver on this right. Third, successful litigation may create negative rights, i.e. rights to access care or private health insurance without government interference. Fourth, consumers can fail in their legal pursuit of a right but galvanize public support in the process, ultimately effecting the desired policy changes. Lastly, a failed lawsuit can stifle an entire advocacy campaign for the sought-after therapies. The typology illustrates the need to examine both legal and policy outcomes of health right litigation. This broader analysis reveals that the pursuit of health rights seems to have caused largely a regressive rather than progressive impact on Canadian Medicare.     

The EU and Issues of Human Rights Protection: Same Solutions to More Acute Problems?

Academic literature repeatedly calls for the EU's accession to the Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (hereinafter Convention 1 ). Similarly, the Lisbon Treaty provides that the EU must accede to the Convention. [Correction made here after initial online publication.] This might seem odd as the European Court of Justice (hereinafter ECJ 1 ) has over the years developed abundant case‐law on human rights protection in the EU, and the EU has not so long ago adopted a, albeit non‐binding, catalogue of human rights (the Charter of Fundamental Rights of the EU (hereinafter Charter)). But after all these years, cases, and Treaty amendments, the EU is in fact going back to the ECJ's 1996 landmark opinion which recommended the EU's formal accession to the Convention, 1 already proposed in 1979 by the Commission. 1 One reason for this might be that, in the meantime, human rights issues have multiplied in the application of EU law, especially in areas such as the Second and Third Pillars where—at least initially—fewer human rights protection guarantees were foreseen.     

The dilemmas of citizenship: Limitations on canadian legal rights

Since the entrenchment of the Canadian Charter of Rights and Freedoms, Canadian courts have been burdened with a disproportionate number of cases concerned with issues arising from the newly introduced legal rights. However, the transition from the Canadian crime-control model to the American-style due-process model is far from complete. The rights of the accused are consistently deemed to be secondary to the aim of reinforcing the legitimacy of the criminal justice system. Canadians' legal rights will in fact remain limited as long as judges continue to decide cases on the basis of harm done to the justice system, rather than individuals and groups. An earlier version of this paper was presented at a joint session of the Canadian Sociology and Anthropology Association and the Canadian Law and Society Association, Leamed Societies Conference, Carleton University, Ottawa, Ontario; June 7, 1993. I thank attending colleagues for their useful feedback. I am also grateful for the comments of Piers Beime.     

The body and the body politic: assisted suicide under the Canadian Charter of Rights and Freedoms

The author critically examines the majority judgment of the Supreme Court of Canada in Rodriguez v. Canada (A.G.) and concludes that the judges in the majority have adopted a legislative public policy mandate rather than carrying out a judicial function that accords with established canons of Charter interpretation and analysis. The author contends that the majority read section 7 of the Charter as enshrining the sanctity of life as an intrinsic, abstract societal value necessary to protect the ill and the vulnerable and not as an expression of the individual's entitlement to autonomy against the State. She also contends that the majority's section 1 analysis was unduly deferential not only to the Canadian Parliament but also to the legislatures of the majority of Western democracies. This came at the expense of considering the legislative pattern of abandoning laws against suicide, the common law respect for individual autonomy and quality of life regarding refusal of and withdrawal from medical treatment, and the widespread lax enforcement of laws critical of the majority's reliance on "slippery slope" reasoning, which subordinated Ms Rodriguez's Charter rights to apprehend wrongdoing by the medical profession and the presumed best interests of society as a whole. The author recommends that legislators who address the question of assisted suicide look to methods of regulating access to assisted suicide that reflect respect for individual dignity under the Charter at the end of life, and reject any reading of the majority judgment that suggests that legislators are free to regulate or to proscribe assisted suicide according to abstract notions of the sanctity of life, pragmatic views of the public good, or the false consciousness or perceived vulnerability of the terminally ill or disabled.     

So Long,Farewell, Auf Wiedersehen,Adieu: Brexit and the Charter of Fundamental Rights

The UK's relationship with the Charter of Fundamental Rights of the European Union can at best be described as strained, at worst, actively hostile. The Charter was, for the UK, an unwanted child, unloved at birth, grudgingly tolerated during life, and willingly surrendered at the death of the UK's membership of the EU. This article charts the UK's approach to the Charter from its inception to its demise in the EU (Withdrawal) Act 2018. It considers, in particular, the UK's so‐called opt out from the Charter in Protocol 30 and the confusion that has been generated as a result. It then argues that the Charter will have a legacy effect in the UK, primarily through the renaissance of the general principles of law.     

Privacy,Data Retention and Domination: Digital Rights Ireland Ltd v Minister for Communications

In Digital Rights Ireland Ltd v Minister for Communications, the European Court of Justice found the EU Data Retention Directive, which required the retention of communications data for up to two years, to be incompatible with Articles 7 and 8 of the EU Charter of Fundamental Rights – the rights to privacy and to the protection of personal data. It is argued in this note that the decision ought to be taken as one that is concerned with the exercise of arbitrary power, a concern that is captured by the concept of domination.     

Privative clauses in special education legislative schemes: are they constitutional under the Canadian Charter?

This paper suggests that privative clauses in the enabling statutes (Education Acts) governing provincially appointed special education appeal tribunals (SET) are unconstitutional under the Canadian Charter of Rights and Freedoms. It is suggested that ‘final and binding’ SET decisions about children's designation as special needs and their educational placement infringe upon the Charter rights of both parent and exceptional child. The standard for judicial review of SET decisions, given a privative clause, is whether the decision is ‘patently unreasonable’ while ‘correctness’, according to case law, is the appropriate standard when finally determining fundamental rights. Parents of exceptional children in practice have recourse to the courts regarding only procedural rather than substantive issues regarding SET decisions due to the high deference the courts afford any administrat ive tribunal protected by a privative clause. The very high judicial review standard of ‘patently unreasonable’ rather than ‘correctness’ is not consistent, furthermore, with the child's ‘best interests’ or in meeting international obligations to disabled children under the Convention on the Rights of the Child.     

The Impact of Legal Mobilization and Judicial Decisions: The Case of Official Minority-Language Education Policy in Canada for Francophones Outside Quebec

The article investigates the impact of legal mobilization and judicial decisions on official minority-language education (OMLE) policy in the Canadian provinces outside Quebec, using the "factor-oriented" and "dispute-centered" theories of judicial impact developed by U.S. scholars. The Canadian Supreme Court's decision in Mahé v. Alberta (1990), which broadly interpreted Section 23 of the Charter of Rights to include management and control of OMLE programs and schools, along with federal funding to the provinces to implement OMLE policy, are important to explaining OMLE policy change as predicted by the factor-oriented approach. The dispute-centered approach, on the other hand, helps us understand how the Charter of Rights and judicial decisions shaped the goals and discourse of Francophone groups in the policy process and, more instrumentally, provided opportunity structures that Francophone groups exploited effectively. The article concludes that both approaches to explaining judicial impact could be accommodated within an institutional model of judicial impact that construes institutions as state actors, as sets of rules, and as frameworks of meaning and interpretation. Such an approach would allow for the development of a more comparative model of judicial impact.     

Whatever Happened to Canadian Children's Equality Rights? A Reconsideration of the Eaton Special Education Case

This paper reconsiders the Canadian Supreme Court Decision in Eaton and examines its implications for the equality rights of Canadian children in general. The suggestion is made that a 'best interest of the child' standard cannot be met if it involves the violation of fundamental Charter rights. Segregated special education placement, when against the wishes of the parents or guardians and with no s. 1 justification, it is argued, is unconstitutional. The latter gives rise to violations of equality provisions with regard to the student's freedom of association, the right to personal autonomy in decision-making for parents in regards to their child's education, as well as, in some cases, security of the person insofar as the psychological, social and cognitive development of the disabled child is concerned. Such an exclusion from the mainstream, if imposed, it is suggested, does not generally meet the test for 'reasonableness' in accommodation consistent with Charter guarantees. The presumption in favor of integration unless the parent or guardian wishes otherwise is, it is argued, a constitutional imperative based on Charter equality rights rather than a preference for one pedagogical theory (integration) over another (segregated special education placement).