THE CHARTER AT FORTY From Isolation to Inclusion: Navigating the Post-COVID World November 8-10, 2021 University of Alberta An Opening Keynote: The Department of Political Science Annual Hurtig Lecture Join us for a public keynote featuring former Chief Justice of the Supreme Court of Canada, the Right Honourable Beverley McLachlin "40 Years of the Charter: Where We've Been and Where We're Going" Thursday, October 28, 2021 - 7:00pm MDT
Charter at Forty Academic Panels Schedule November 8, 9, 10 November 8: Conference Opening and Territorial Acknowledgement 8:00-9:00
Indigenous Peoples 9:10-10:30MST Chair: Chad Cowie (Department of Political Science, University of Alberta) Discussant: Matthew Wildcat (Department of Political Science, University of Alberta)
Presenter: Robert Hamilton (Faculty of Law, University of Calgary), “Section 25: Indigenous Governance and the Charter” Outline of Presentation: Section 25 of the Constitution Act, 1982 guarantees that the Charter of Rights and Freedoms will not be construed in a manner that abrogates or derogates from the rights of Aboriginal peoples. In comparison with section 35, which recognizes and affirms Aboriginal and Treaty rights and has been the subject of constant litigation and a flood of scholarship, section 25 has received almost no attention from litigators, courts, or scholars. In Dickson v Vuntut Gwitchin First Nation, the Yukon Court of Appeal recently considered the provision in the context of governance under a modern self-government agreement. The case raised the question of whether, or to what extent, s.25 shields Indigenous governments from application of the Charter. In this, Dickson not only highlighted the tension between individual and collective rights at the heart of section 25, but also squarely raised questions about the recognition of Indigenous governance and the place of Indigenous peoples in the constitutional order. This presentation examines Dickson with a view to exploring what it can tell us both about the future of section 25 and the unfinished project of recognizing Indigenous rights of governance and self-determination in the Canadian constitution.
Presenters: Kiera Ladner (Faculty of Arts/Political Studies, University of Manitoba), Jeremy Patzer (Faculty of Sociology, University of Manitoba) “Charting Unknown Waters” Outline of Presentation: Through the inception and negotiation of the Constitution Act, 1982, many Indigenous leaders were leery of the idea of a Charter of Rights and Freedoms. Mindful of its philosophical liberal underpinnings with a simultaneously individualizing and universalizing worldview, they perceived it as incompatible with Indigenous political and legal traditions and the recognition and preservation of distinct collective rights for Indigenous peoples—and thus the section 25 non-derogation clause related to Aboriginal and treaty rights was added. After four decades of maturation, however, the case law concerning Indigenous peoples and the Charter is more haphazard and varied than the jurisprudence of section 35: Charter claims have been used as legal argument by all manner of litigants (Indigenous and non-Indigenous) and against all manner of defendants (Indigenous governments, Crown governments, etc.). From an Indigenous rights perspective, however, the case law does reveal two things. Firstly, similar to the s. 35 jurisprudence, the Charter jurisprudence concerning Indigenous peoples contains a generous measure of the arbitrary and indeterminate, giving the courts notable latitude in their interpretations. Secondly, similar to its ‘managerial’ ethos in defining, protecting, and even limiting s. 35 Aboriginal rights claims, the SCC has alluded to a conception of the Charter's s. 25 non-derogation clause as less of a shield than as an interpretive framework implying a 'balancing of rights' approach, suggesting an interest in eroding bright lines of protection in favour of promoting greyer areas of juridical governance that can offer an opening to the non-Indigenous politics of resentment of Indigenous rights. Break 10:30-11:00 MST
Official Languages and Quebec 11:00-12:20 MST Chair:Nathalie Kermoal (Faculty of Native Studies, University of Alberta) Discussant: Fréderic Boily (Faculté St. Jean, University of Alberta)
Presenters: François Larocque (Faculty of Law, University of Ottawa) (with Linda Cardinal, Faculty of Social Sciences, School of Political Studies, University of Ottawa), "Canada’s Bilingual Constitution: An Unfulfilled Obligation” Outline of Presentation: Many Canadians would be surprised to learn that most of Canada’s constitutional documents are not officially bilingual, including most notably the Constitution Act, 1867. The Canadian Constitution is the supreme law of the land. Its provisions must imperatively be respected not only because of our collective reliance on the rule of law, but also because they express our most cherished ideals. The adoption of a completely bilingual written constitution, as commanded by section 55 of the Constitution Act, 1982 is entirely consistent with these ideals. Respect for the rule of law and respect for Canada’s official language minority populations demand nothing less. The paper will discuss how Parliament and the provincial legislatures could jointly exercise their constitutional authority “to advance the equality of status or use of English and French”: see para 16(3) of the Canadian Charter of Rights and Freedoms. It proposes concrete steps be taken to comply with section 55 of the Constitution Act, 1982 by formally adopting the French version of the constitutional documents that were prepared and tabled in 1990. The applicable constitutional amendment procedure will likely vary according to the document, as the case may be. To be sure, this project can only succeed through intergovernmental cooperation and coordination.
Presenter: François Rocher and David Carpentier (School of Political Studies, University of Ottawa), “The Impossibility of Accepting a Differentiated Reading of Rights: Systemic Francophobia at the Heart of the Moral Superiority of the Dominant Anglo-Saxon Norms.” Outline of Presentation: The aim of this presentation is to understand how issues referring to the “Quebec difference” in the application of the rights enumerated in the Canadian Charter of Rights and Freedoms are portrayed in the Canadian national media and within the political classes unfolding on the provincial and national scenes. This analysis borrows from the framework developed by sociologist Elke Winter, who stresses the importance of taking into consideration “socioethnic leveraging, which takes places as one group is constructed as socially, culturally, or morally more (or less) deviant from the dominant norm than the other.” This process, which could be described as systemic francophobia that will be the subject of theorization, is part of a radical critique of the interpretation and application of the legal norms favoured by a majority of French-speaking Quebecers. This contributes to reinforcing the social norms of Anglo-conformity at the heart of Canadian identity, which is constructed, among other things, through the identification of an undifferentiated “other” (French-speaking Quebecers) judged by the standards of the Empire imbued with its moral superiority. Two cases will hold our attention, distant in time, but which illustrate the same dynamic: the debates that preceded the adoption of the Charter of the French Language (1976-1977) that predate the adoption of the Canadian Charter and those surrounding the Loi sur la laïcité de l’État and the legal challenges to which it gave place (2019-2020). Immigration, Diversity, and Multiculturalism 1:40-3:00 MST Chair: Péter Szigeti (Faculty of Law, University of Alberta) Discussant: Arjun Tremblay (Politics and International Studies, University of Regina)
Presenter: Alexandra Dobrowolsky with Bethany Leal-Iyoupe (Department of Political Science, Saint Mary’s University), “Shame Face? Equality, Diversity and the Justin Trudeau Blackface Scandal” Outline of Presentation: Contemporary politics are both leader-focused and identity-centric and therefore key political figures’ discourses, and their use of personal imagery and visuals, have become pervasive and powerful forces in the mobilization of political meaning. This paper explores the implications of the pre-election, September 2019, release of several images of Justin Trudeau in black/brownface that seemed to disrupt, fundamentally, the omnipresent progressive messaging around the prime minister. Through an analysis of select newspaper coverage, the paper queries: i) the extent to which the so-called blackface scandal served to tarnish the Trudeau “brand”; ii) what the public response to these incidences of black/brownface tells us about Canada’s reputed multiculturalism and equality; and iii) whether the answers to these questions are somehow interrelated. A closer examination of this scandal and its repercussions, we argue, provides a telling tale of Canada’s problematic performativity around multiculturalism, and epitomizes the thinness of its patina of egalitarianism. Part I contextualizes and considers various dimensions of the Trudeau “brand” with respect to both Pierre Elliot and Justin Trudeau. Part II offers more details around the scandal and does so in light of a brief history of blackface. An overview and assessment of a selection of media responses to the scandal, in one national and two regional newspapers, is provided in Part IV, and Part V contains some concluding comments.
Presenter: Jeanique Tucker (Department of Political Science, University of Alberta), White Knights and Capital: Private Sponsorship and Refugee Precarity in Canada” Outline of Presentation: The lived experiences of refugees in Canada are in tension with the stories told about them. The stories about resilience and triumph distract from the racism, xenophobia, and labour exploitation refugees experience. My larger project aims to critique the resettlement programs that fail so many refugees, with a focus on the Private Sponsorship of Refugees Program (PSRP). I argue that the care we extend to refugees in Canada is insufficient, that self-congratulatory narratives about Canadian hospitality and humanitarianism are often rooted in racist paternalism, and that given the exploitability of refugees there is currently no incentive to transform a dangerously flawed system. In this paper, though, I consider how black radical thought might prove edifying in understanding Canada’s growing reliance on Private Sponsorship. David Theo Goldberg (2007) argues that invitations to outsiders are extended based on an unspoken expectation that they assimilate, be exotic or that they be exploitable. Is it possible that refugee precarity is a tolerable, even expected, outcome of extending this kind of humanitarian aid, as Canada makes use of the cheap labour, while also positioning itself as a beacon of multiculturalism and morality?
Presenter: Jack Jedwab (Association for Canadian Studies and Metropolis Canada), “‘Majority’ Rules? How Quebecers were Persuaded that Bill 21 is not Discriminatory” Outline of Presentation: Passed in the Quebec legislature in 2019, Quebec’s Bill 21 restricted the ability of persons deemed to be in positions of authority including public school teachers to wear visible religious symbols. The Quebec government persuaded the population that the legislation was not an infringement of constitutionally guaranteed freedom of religion as the legislation aimed at attaining state neutrality. The presence of the notwithstanding clause protected Bill 21 from potential Charter challenges based on claims that the legislation violated freedom of religion. Nonetheless, current legal challenges to the Bill contend that the Charter’s gender equality provision is not covered by the notwithstanding clause. Public debate about Bill 21 did not give rise to much discussion about Charter violations. Rather the government suggested that it was in the court of public opinion that the legislation found its legitimacy and hence there were frequent references made to public opinion surveys that confirmed that the Bill enjoyed support from the majority of Quebecers. This paper will use Bill 21 as a case study for how public opinion surveys can used by governments and researchers to frame rights issues. It will also examine the way in which selected surveys were presented to the judiciary by those making arguments in support of Bill 21 and those opposing the legislation. We will identify of using public opinion data as evidence in issuing Charter challenges, in this case, around freedom of religion. Break 3:00-3:30 MST
Federalism and Charter Canadians 3:30-4:50 MST Chair: Feodor Snagovsky (Department of Political Science, University of Alberta) Discussant: Lori Thorlakson (Department of Political Science, University of Alberta)
Presenters: Johanne Poirier and Colleen Sheppard (Faculty of Law, McGill University), “Federalism and the Charter: Rethinking the Connections” Outline of Presentation: Federalism and the Canadian Charter are often conceived as being in tension with one another. The Charter is seen as a pan-national document affirming individual (and some collective) rights and imposing uniform values and norms across the country in ways that risk undermining provincial diversity and the multinational character of Canadian federation. Indeed, it is possible to point to cases affirming reproductive rights and same sex equality rights as examples of the Supreme Court intervening to affirm Charter rights at odds with provincial choices. However, there is another strand of constitutional jurisprudence that complicates this traditional narrative. Federalism allows for local innovations and experimentation that have proven critically important for advancing rights and freedoms. Moreover, building on process-based conceptions of constitutionalism, the meaning of rights has also been informed by attentiveness to participation in local democracy, minority empowerment, collective solidarity and self-governance. Examples include linguistic rights, the rights of Indigenous peoples and provincially enacted rights rooted in citizen mobilization. In some contexts, therefore, the affirmation of constitutional rights reinforces a decentralized vision of governance. Rethinking the traditional dichotomy between conceptions of federalism and constitutional rights, therefore, makes possible a more nuanced and complex understanding of the jurisdictional dimensions of justice.
Presenter: Matt James (Department of Political Science, University of Victoria), “Worlds Reversed: Charter Rhetoric and Charter Scholarship, Forty Years On” Outline of Presentation: Once associated with the civic claims-making of feminists, antiracists, and LGBTQ activists, in today’s political discourse the Charter has found new life as a favoured symbol of far-right anti-lockdown protestors, conservative religious freedom advocates, and even Alberta Premier Jason Kenney. The turnabout is puzzling: just 10 years ago the federal government in which Kenney served refused even to observe the Charter’s 30th anniversary. We need to understand both the political and intellectual significance and the sources of this apparent discursive and symbolic transformation. Politically, it reflects not only the partial demise of the welfare-state political rationalities that informed the 1980-82 entrenchment but also a weakening of the postwar “never again” memory culture that made entrenching human rights seem a necessary response to Nazi genocide and an antidote to authoritarian backsliding at home. Intellectually, Canadian political science is ill-equipped even to notice, let alone interpret, the changed discursive and symbolic valences of the Charter. Whereas early observers were keenly interested in the Charter’s impact on Canadian self-conceptions and political discourse, their contemporary successors—having taken White et al.’s “comparative turn”—are instead preoccupied with testing international theories about the impact of judicial review on policy processes. This paper takes up these political and intellectual challenges by attempting to understand the nature and variety of symbolic Charter invocations in pandemic-related activism; by asking why the Charter has all but disappeared from the Canadian politics of apology and redress, with which it was once strongly linked; and by arguing for the continued importance of interpretive—and indeed unabashedly inward-looking—research agendas in contemporary Canadian political science.
November 9: Talk: Entropy Law, Economic Processes and the Current Existential Crisis: A New Approach to Economic and Environmental Rights8:00-9:00 MST Presenter: Ramprasad Sengupta (Jawaharlal Nehru University) Outline of Presentation: Economic and Environmental human rights have come sharply into focus in the 21st century, as inequity and ecological degradation continue to surge in liberal democracies committed to political freedoms, including freedom of expression and assembly. The twin problems of the Covid-19 pandemic and climate change have seriously threatened the life, livelihood and sustainability of human development all over the world. Applying the lens of entropy helps us to address the challenges — and explore the remedies — to abetting the progress of economic and environmental human rights. These challenges, when situated in the entropy perspective of economic processes, point to the ecological links of these phenomena and to the critical issues posed by biodiversity loss and atmospheric heating, causing extreme health related or climate events. This short paper gives an overview of these interrelated interdisciplinary issues concerning such events. Further, it shows how the rise of entropy as induced by the processes of economic growth lead to scarcities of resources and income which are directly correlated to rising social disorder, or social entropy. Policy perspectives arising from such analyses must address economic, social and environmental aspects of sustainability in development; ideally from a holistic scientific perspective. The paper concludes by pointing out how the short- and long-run policy issues warrant closer examination of the human rights issues that underlie an entropy perspective.
Disability Rights 9:10-10:30MST Chair: James Muir (Faculty of Law, University of Alberta) Discussant: Evelyn Hamdon (Equity and Human Rights, University of Alberta)
Presenter: Michael Orsini (Institute of Feminist and Gender Studies and School of Political Studies, University of Ottawa), “Disability in Movement? Tracing Ableist Histories of Social Movement Activism in a Post-Charter Era” Outline of Presentation: Progressive social movements dramatize injustice; they move us, compel us to take notice. While myriad social movements have overturned the status quo and challenged authorities, these movements are also governed by a set of implicit assumptions about the bodies and minds at the heart of these struggles. Movements are invested in communicating their force, power, and determination, and their ability to ‘overcome’ injustice. But some of these movements were invested in ableism practices. As Kathleen Lowrey suggests, “Movements opposed to colonialism and racism argued that non-white people were not really less mentally able than white people; the feminist movement argued that women were not really physically less capable than men… As we all know, these were successful strategies. However, they had the impact of reinforcing the stigma of disability itself.” Recognizing this inherent ableism is a reminder that progressive politics is admittedly partial when it leaves intact certain forms of oppression. It requires us to challenge the language and histories of movements that have thrived in the post-Charter era, and to counter discourses of strength, overcoming, and self-determination as marking superiority. What does it mean to mobilize injustice from the perspective of people whose bodies and minds are not “mobilizable” in the normative sense of what that means in an able-bodied world? Understanding the politics of disability demands that we uncover how disability operates across a range of social movements, some of whom purportedly seek to incorporate intersectional approaches that ostensibly include disability as a site of struggle.
Presenter: Trudo Lemmens (Faculty of Law, University of Toronto), “Ableist presumptions in the balancing of public interest and individual rights during and outside a pandemic” Outline of Presentation: In the context of the COVID19 pandemic, constitutional and health law scholars have appropriately defended the introduction of often broad legislative and regulatory powers to promote public health. Measures that restrict various individual rights have been justified because of the broad public interest in curbing the pandemic. These measures have been introduced, certainly in the early period of the pandemic, in a context of significant uncertainty with respect to their effectiveness and necessity. They reflect a precautionary approach to preventing harm, which has received widespread support. Science and scientific experts have played a key role in determining to what extent public measures could appropriately curb individual rights, even in situations where scientific answers remained open-ended. Choices they made or measures they recommended reflect values about what risks, including the risk and at times even measurable direct harm by the pandemic measures themselves, are acceptable, and who should reasonably be exposed to what level of risk. Although seemingly ‘neutral’ and focused on ‘the public interest’, many decisions had a uniquely serious impact on people with disabilities. In this presentation, I will first explore with some examples how some of the policy decision making during the pandemic failed to sufficiently include a ‘disability perspective’ and reflected arguably ableist presumptions that should be considered discriminatory. I will then also contrast the ease by commentators and the general public have accepted in the context of the pandemic public interest justifications for measures in situations of significant uncertainty, whereas arguments based on the risk of long-term harm invoked by the disability community in relation to other policy debates have often been dismissed because of what has been framed as the uncertain nature of the harm. I will explore how both the rejection of broad disability related harms in other areas of policy making, and the particular shape of balancing of public interest and rights during the pandemic reveals the ableist perspective of policy makers, commentators, and the general public.
Break 10:30-11:00 MST
LGBTQ2S Rights 11:00-12:20 MST Chair: Cressida J. Heyes (Department of Political Science, University of Alberta) Discussant: Julie Rak (Department of English and Film Studies, University of Alberta)
Presenter: Miriam Smith (Department of Social Science, York University), “LGBTQ Rights and the Charter at 40: Recent Critiques of the Liberal Rights Model” Outline of Presentation: The constitutional entrenchment of the Charter empowered Canadian courts in ways that undoubtedly strengthened LGBTQ rights. By reading sexual orientation into the equality rights section of the Charter, the Supreme Court of Canada opened up a new era for LGBTQ people as rights-bearing subjects in Canadian politics leading to enhanced discrimination protections, same sex relationship recognition, and same sex marriage. At the same time, however, this legal recognition has been scrutinized extensively by diverse constituencies within LGBTQ communities and, in general, Charter-type models of liberal human rights are increasingly contested at the global level. After providing a brief overview of the evolution of LGBTQ rights recognition in Canada under the Charter, this paper surveys these critiques of the Charter-based human rights model, focusing on key concepts such as intersectionality, critical race theory, postcolonialism, and homonationalism (including carceral homonationalism). In doing so, the paper considers who is privileged and who is not within the Charter-based model of LGBTQ rights, specifically focusing on the interests of racialized, Indigenous, and trans people. Drawing on interdisciplinary scholarship in sexuality studies, the paper argues that, despite Charter-based protections for LGBTQ people in Canada, formal-legal change has not always effected change on the ground for LGBTQ people and Charter-based protections may have negative and damaging consequences for marginalized communities.
Presenter: Tobias Wiggins (Women’s and Gender Studies, Athabasca University), "The Child as Panic Room: Transgender Youth and a Wish for Anomaly” Outline of Presentation: The “panic room” is a miniature safe house, constructed within the walls of the affluent private Western residence. Its mythos stages the neoliberal fantasy of privatized success, where those with wealth have the capacity to care for the self, far above and beyond what’s available in the public sector. The panic room therefore mirrors interdependent concerns for domestic safety and national security, acting to reproduce the fear that it proposes to ameliorate. In this way, it serves a double function: this safe room provides a sanctuary to keep panic out, while also acting as a container for the panic to exist freely within. This paper considers how the panic room can be pedagogical, helping to better comprehend the influx of mainstream alarm surrounding the visibility of transgender children and youth. In particular, I analyze Bell v Tavistock, and the High Court of Justice of England and Wales’s ruling on Dec 1, 2020, which stipulates that it is “highly unlikely” that a child under 13 could consent to puberty blockers, and that it is “very doubtful” that children aged 14 and 15 could give similar consent. This decision, and the upcoming appeal from Tavistock and Protman NHS Trust, carries severe global ramifications for the health and well-being of transgender youth, setting precedent for the restriction of young people’s bodily autonomy. I argue that in this case, the figure of the transgender Child becomes akin to a panic room, a legitimized container for otherwise restricted cisgender affects. Ultimately, Bell v Tavistock illustrates the wish for gender variance to remain an anomaly – or a rare occurrence – while simultaneously denying the anomalous nature of gender itself.
Gender and Women’s Rights 1:40-3:00 MST Chair: Siobhan Byrne (Department of Political Science, University of Alberta) Discussant: Linda Trimble (Department of Political Science, University of Alberta)
Presenter: Jennifer Koshan (Faculty of Law, University of Calgary), “Women’s Equality Under the Charter at the Supreme Court of Canada” Outline of Presentation: It was only in 2018 that a claim of sex discrimination in favour of women under section 15 of the Canadian Charter of Rights and Freedoms was finally successful at the Supreme Court of Canada. Two years later, in 2020, the Court recognized that laws which appear to be neutral on their face can adversely impact women and amount to sex discrimination under section 15. While these long-awaited victories are significant, their systemic impact is open to question. Furthermore, the Court has yet to fully embrace an approach that recognizes the multiple and intersecting inequalities faced by some women, such as those involving sex as it intersects with race, Indigeneity, disability, sexual or gender identity, poverty, and family or marital status. This paper will review the history of sex equality litigation at the Supreme Court of Canada to identify the progress made and the gaps remaining in achieving equality for all women in Canada.
Presenter: Lise Gotell (Department of Women’s and Gender Studies, University of Alberta), “Charter Challenges to Canada’s Rape Shield Provision” Outline of Presentation: Sexual assault law reform has been viewed as a paradigmatic example of “constitutional dialogue.” The rape shield provisions of the Criminal Code were struck down in R. v. Seaboyer (1991), rewritten in response to feminist law reform (Bill C-49, 1992), and subsequently challenged and upheld in R. v. Darrach (2000). Bill C-49 was passed with a preamble that articulated Parliament’s objectives in terms of a balancing of constitutional rights -- as a response to the problem of violence against women and children that reconciled the legal rights of defendants against the privacy and equality rights of complainants. The sexual history evidence provisions sought to eliminate discriminatory myths about sexual assault that undermine the truth-seeking function of trials. This paper examines the most recent chapter in the rape shield constitutional dialogue, examining Bill C-51 (passed in 2018), as well as a number of cases in which defendants have argued that new provisions (specifically, the requirements that sexual communications in the possession of the accused are subject to its provisions, and that require the accused to disclose his/her defense in a pretrial application in which the complainant has standing) violate the rights to full answer and defense, the presumption of innocence, and the right to a fair trial. As I will demonstrate, these challenges are the outcome of a coordinated strategy by defense lawyers seeking to undermine legal protections for complainants. Relying on the approach to fair trial rights articulated in R. v. Mills (1999), in which the Supreme Court recognized that trials must be fair from the point of view of the community and the complainant, as well as the accused, I will argue that the revised rape shield provisions strike a balance between equality rights and legal rights.
Break 3:00-3:30 MST
Freedom of Expression 3:30-4:50 MST Chair: Andy Knight (Department of Political Science, University of Alberta) Discussant: Toni Samek (School of Library and Information Studies, University of Alberta)
Presenter: Dax D’Orazio (Department of Political Studies, Queen's University), “What’s Public About Publicly-Funded Universities?: The Law and Politics of Extending Charter Protections to Expression on Campus” Outline of Presentation: Free expression on Canadian university campuses is in a state of flux. Despite universities comfortably avoiding application of the Charter to expression on their campuses, contemporary events have conspired to make Charter applicability an actual possibility. Two recent changes, in particular, have heralded a firmer connection between universities and ‘government,’ a prerequisite for Charter applicability. First, a seminal legal decision in Alberta (UAlberta Pro-Life v. University of Alberta) found that universities cannot preemptively curtail student expression due to security concerns (what’s referred to as the “heckler’s veto”). Second, both Alberta and Ontario mandated that all of their post-secondary institutions develop and implement more explicit free expression policies. Because universities are subject to administrative law within judicial review, they have some institutional latitude in restricting expression if it might unnecessarily impede upon normal operations and/or pose a legitimate risk to the campus community. But because universities are, in essence, hybrid institutions, the question of whether or not the Charter ought to apply is a difficult one. It is clear that universities fall short of “government” for technical and legal purposes, but universities still carry out a public function, and to a large degree. Accordingly, this paper asks whether or not there is a disjuncture between the public function(s) carried out by universities, such as education and civic development, and the non-application of constitutional protections for expression. The analysis will wade through a handful of seminal cases that decided whether or not the Charter ought to apply to universities. However, rather than focusing on technical details or legal reasoning, the analysis will instead ask normative questions about the university’s role in supporting the public good and how that accords with the letter and spirit of constitutional human rights protections. In sum, the paper will show how different understandings of the role and purpose of universities – as hybrid institutions sitting uncomfortably between public and private – will impact new prospects for Charter applicability.
Presenter: Emmett Macfarlane (Department of Political Science, University of Waterloo), “Beyond the Hate Speech Law Debate: A ‘Charter Values’ Approach to Freedom of Expression” Outline of Presentation: Debates over what to do about hate speech in contexts ranging from social media to “campus speech” continue to rage. That legal restrictions on hate speech remain controversial despite major Charter cases like Keegstra (1990), Taylor (1990), and Whatcott (2013), which have seen the Supreme Court uphold Canada’s anti-hate speech laws, reflects a number of issues, including: the effectiveness of anti-hate speech laws; the evidence about, and diffuse nature of, the harms involved in hate speech that falls short of targeted harassment or incitement of violence; the high threshold the Court has drawn for identifying when hateful speech crosses the line into unlawful hate speech; and the nature of authority to censor or suppress speech, including when it is wielded against members of oppressed groups. This paper will argue in favour of a “Charter values” approach to free expression that seeks to enhance the expressive freedoms of members of groups subjected to historical and ongoing forms of oppression. After analyzing the Court’s approach to assessing Canada’s hate speech laws, the paper will contend that debates over hate speech laws, which apply to such a miniscule number of relevant instances of hateful speech, distract us from properly remedying one of the most pressing consequences of hate speech: the impairment of the human dignity and sense of belonging of targeted groups within our society. Instead, a Charter values approach imposes obligations on relevant institutions to take positive action to enhance and protect the expressive freedom of oppressed groups. Rather than an approach that falsely “balances” equality rights (and other sections of the Charter, like section 27) against free expression, the approach advocated here seeks to strengthen all of those rights and values by ensuring not only that targeted groups cannot be silenced by harmful or offensive speech but also that their sense of belonging and status within the community is promoted and ensured.
Dinner Break 4:50-6:00 MST
Panel Launch: Special Issue of Political Science Undergraduate Review moderated by Zain Velji 6:00-7.20 MST Panelists: Hailey Lothamer, Salma Ibrahim, Darren Choi, Chloe Dizon (Department of Political Science, University of Alberta)
November 10: Legal and Environmental Rights 9:10-10:30 MST Chair: Jessica Eisen (Faculty of Law, University of Alberta) Discussant: Patricia Paradis (Centre for Constitutional Studies, University of Alberta)
Presenter: Reem Bahdi (Faculty of Law, University of Windsor) and Roxana Jahani Aval (Faculty of Law, University of Windsor)“Is Human Dignity a Meaningless Concept for Charter Rights?” Outline of Presentation: This paper critically analyzes the role and potential of human dignity as a Charter value that can advance equality in Canada. While dignity was once part of equality doctrine, the Supreme Court held in Kapp v. Canada that the concept was meaningless as a legal test and was thus not needed to decide equality cases. At the same time, the Court affirmed that “the protection of all of the rights guaranteed by the Charter has as its lodestar the promotion of human dignity” (par. 21). This paper will suggest that a new framework is needed for thinking about dignity’s role in Charter jurisprudence. Most decision-makers and commentators have focused on dignity as legal doctrine. Within this paradigm, they tend to invoke the concept without defining it or exploring its nuances, or they reject it as meaningless and vague. But, this paper argues for a different approach to thinking about dignity’s place in the Charter, one that emphasizes dignity as method rather than dignity as doctrine. The paper argues that dignity requires perspective-taking. Dignity points decision-makers to the ways in which perspectives shape legal outcomes. A turn to perspective-taking, has been theoretically endorsed by the Supreme Court, especially the current and former Chief Justices in their extrajudicial speeches and remarks off the bench. But, perspective-taking has yet to be fully integrated into legal reasoning, partially because it runs up against orthodox understandings of judicial impartiality and neutrality. This paper suggests that the Charter’s potential to play a more positive role in the lives of equality seeking groups turns on understanding the relationship between dignity and perspective as a legal method.
Presenter: Lynda M Collins (Faculty of Law, University of Ottawa), “Constitutional Eco-literacy and the Canadian Charter of Rights and Freedoms” Outline of Presentation: In the 21st century, some of the most serious threats to human rights in Canada (and around the world) derive from environmental harm such as climate change and chemical pollution. Recognizing that a viable environment is the prerequisite to and foundation of all human rights, the majority of countries around the world have codified some form of environmental right in their domestic constitutions. Canada is one of a minority of nations whose constitution is silent on the right to a healthy environment. However, an ecologically literate reading of Charter rights to life, liberty, security of the person, equality and freedom of religion could provide citizens with constitutional protection from serious, state-sponsored environmental harm. This paper will argue that such protection is necessary to effectuate Charter rights in the Anthropocene era, and further that the environmental rights implicit in our Charter rest on a deeper, unwritten constitutional principle of ecological sustainability. Break 10:30-11:00 MST
Criminal Law and Justice 11:00-12:20 MST Chair: Temitope Oriola (Department of Sociology, University of Alberta) Discussant: Nykkie Lugosi-Schimpf (Faculty of Native Studies, University of Alberta)
Presenters: Adam Thurschwell (Military Commissions Defense Organization, United States Department of Defense) and Catherine Kellogg (Department of Political Science, University of Alberta), “Rights and Extraterritorial Detainees: Guantanamo @ 20, The Charter @ 40” Outline of Presentation: While international human rights by definition apply everywhere, traditionally domestic rights – like those enshrined in the United States Constitution and Charter of Rights and Freedoms –do not, for reasons practical and political as well as legal. It is one thing for a country to enforce its own law on its own territory; it is quite another to enforce it in another country that has its own laws and own enforcement mechanisms. Over the past 50 years, however, globalization has increasingly complicated the distinction between territorial and extraterritorial enforcement as domestic judicial systems have had to deal with legal problems that cross national boundaries, from business regulation to immigration. Nowhere has this development been more controversial than in the area of extraterritorial detention. The “forever prisoners” of the so-called war on terror held at Guantanamo Bay are the poster children for this phenomenon, but other democracies – most notably Australia – have also implemented brutal offshore detention policies to deal with their perceived immigration problems. Rightist politicians in the European Union have also begun to argue for the “Australian solution” as refugee crises proliferate around the world.
To date, with its traditionally welcoming stance toward immigrants, Canada has not employed these legal “black holes,” in part because since Singh v. Minister of Employment and Immigration was decided in 1985, it has been clear that non-citizens have rights under the Charter on Canadian territory and at Canadian ports of entry. Nevertheless, in Omar Khadr’s criminal and civil cases, the Supreme Court has had to deal with the Charter rights of its own citizens who were detained in another country’s offshore prison. In this paper we discuss the status of extraterritorial detention under the United States Constitution and the Charter of Rights and Freedoms as a way of comparing how extraterritoriality is dealt with by the two legal systems.
Presenters: Salina Abji (Thinking Forward Network) and Stephanie J. Silverman (Thinking Forward Network) “De-nationalizing the Charter? Non-citizens in immigration detention and the limits of a statist conception of rights and freedoms” Outline of Presentation: Alongside the growth of Charter rights has come the diminution of human rights for non-citizens imprisoned for immigration status related reasons in Canada’s detention system. Particularly with the Conservative governments of Stephen Harper, the federal administration has rapidly expanded and normalized indefinite detention of non-citizens, inland border enforcement, and overall securitization of immigration and mobilities. This presentation will outline how immigration status is the basis for a growing disparity in access to Charter rights, including the basic freedoms to liberty and autonomy, and from non-arbitrary punishment. Using a feminist, intersectional, and anti-carceral approach, we will suggest that Charter rights are fundamentally flawed in their statist conception of rights and freedoms, which delimit recognition of ‘the right to have rights’ as a necessary pre-condition to personhood (Arendt 1951). In doing so, our presentation will raise questions about the possibilities (and challenges) of de-nationalizing the Charter as one among several sites for advancing the human rights of non-citizens in a decarceral future. The Notwithstanding Clause 1:40-3:00 MST Chair: Mojtaba Mahdavi (Department of Political Science, University of Alberta) Discussant: Robert Normey (Ministry of Justice and Solicitor General, Government of Alberta)
Presenter: Eric Adams (Faculty of Law, University of Alberta), “Notwithstanding History” Outline of Presentation: Section 33 of the Canadian Charter of Rights and Freedoms occupies a curious place in Canadian constitutional law, culture, and history. Certainly its role in Canadian political and constitutional theory, as well as contemporary political debate, far outstrips the number of times it has been actually used by Parliament or legislatures to “expressly declare” that a statute “shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of [the] Charter.” That may be about to change. Legislatures in Quebec and Saskatchewan recently invoked the clause, and others have stated a future willingness to do so. Litigation on the constitutional uses and misuses of the clause are currently before the courts. All of which suggests a new chapter in the history of the notwithstanding clause may be unfolding. What is the proper role of the history of the clause in such a moment? In this paper, I locate the origins of constitutional states of notwithstanding deep in the common law and track its emergence as a unique Canadian tool of controversial constitutional design in legislation, constitutional instruments, and political negotiations. What emerges are various histories and mythologies that cling to the origins of the notwithstanding clause: a plural story of a plural constitution. My point is not to resolve them, but rather is premised on the idea that as the notwithstanding clause emerges out of debates in constitutional theory to applications of constitutional law we will want to know not only where it is taking us, but how and why we have arrived at this moment.
Presenter: Mustafa Farooq (National Council of Canadian Muslims), “The Gaze and the Ghutra: Quebec’s Loi 21, The Notwithstanding Clause of the Charter, and the State of Exception 40 Years On" Outline of Presentation: In Lacan’s famous seminar on the Gaze, Lacan remarks that the fundamental connection with the Other-as-subject must be able to be referred back to the permanent possibility of being seen by the Other. As we look back at the question of the impact of the Charter on its 40th anniversary, in the light of the impacts of COVID-19, we must understand the question of looking back and looking forward on the margins. This gaze requires us to look where we are most uncomfortable in looking, as we reflect on the tension of the Charter containing the Agambian state of exception within it in the form of section 33 (also known as the notwithstanding clause). In this paper, relying heavily on Agamben, Lacan, and Asad, we explore the question of the notwithstanding clause, grounded within the legal battle around Bill 21 in Quebec (“The Laicity Act”) which precludes those who are “seen” to wear religious symbols, like hijabs, ghutras, turbans, kippahs, from being able to become teachers, police officers, or prosecutors. Set within the courtroom drama of the Bill 21 trial, which took place during November 2020, conducted under COVID protocols, the case fundamentally illustrates the great tensions within the Charter framework when examined within the Agambian framework. Break 3:00-3:30 MST
Decolonizing Human Rights 3:30-4:50 MST Chair: Yasmeen Abu-Laban (Department of Political Science, University of Alberta) Discussant: Isabel Altamirano-Jiménez (Department of Political Science, University of Alberta) Presenters: Keith Cherry, Pablo Ouziel, and Rebeccah Nelems (Centre for Global Studies, University of Victoria), “Human Rights Assessments (HRAs) in a Decolonizing Key” Outline of Presentation: Our paper will explore the challenge of measuring and assessing human rights, particularly in settler-colonial contexts where the ideas of ‘universal’ standards and ‘objective’ measurement have long been used to reinforce a mode of top-down, technocratic rule that silences local perspectives, reinforces state power, undermines community agency, and furthers colonization. Indeed, Human Rights Assessments (HRAs) have historically reinforced a single, colonial perspective on the content and measurement of human rights at the expense of locally-identified and community-based indicators. Using a decolonizing lens, we explore what becomes possible when HRAs are re-envisioned as relational, community-led measures that enable and generate self-determination at multiple scales. By focusing on community agency, rather than objective outcomes, this approach provides a measure of human rights that supports, rather than inhibits, democratic agency in rights protection.
Presenter: Joyce Green (Professor Emerita, Political and International Studies, University of Regina), "Rights and Responsibilities: Indigenous Realities, Indigenous Priorities" Outline of Presentation: This presentation proposes that both constitutional rights and reconciliation impulses are still utterly contained by the logic of colonial triumphalism. In this presentation I frame the colonial condition in Canada, and in my own territory, ‘amakis Ktunaxa. I then consider the nature of rights, and the nature of responsibilities. Indigenous perspectives on rights are less absolutist, more contextual, and more relational and reciprocal (as opposed to the anti-vaxxers who claim absolute rights which are entirely unrelational and reciprocal). Where the state has recognized Indigenous rights, they are not being implemented completely, enthusiastically, or sometimes at all: see the matter of Mikmak fishing rights in their territory, now part of Nova Scotia. Indigenous rights are often not recognized or treated respectfully by the state or by its settler population, which frequently expresses resentment of Indigenous rights that constrain settler entitlements or priorities. And yet the concept of rights remains important for Indigenous people. I conclude by considering how rights may be animated in ways that are liberatory rather than assimilative, in the context of relationships with are de facto oppressive, but which have at least theoretical potential to be transformed into something more positive.