http://www.cardus.ca en Copyright 2012 Cardus Wed, 22 Feb 2012 20:22:24 -0500 Cardus Wed, 22 Feb 2012 20:22:24 -0500 http://www.cardus.ca/lexview/article/3037 In late November, the B.C. Supreme Court upheld the constitutionality of Canada's criminal prohibitions on polygamy. In his 300-page landmark decision, Chief Justice Robert Bauman concluded that any infringement of religious freedom flowing from the law against polygamy is justified by the intrinsic harm the practice causes to the individuals involved—and to Canadian society as a whole. Yet after a meticulous analysis of the ruling, LexView writer Kevin Boonstra warns that though the chief justice got it right on the harms of polygamy, he might have placed religious freedom itself in serious and unacceptable jeopardy. Mon, 16 Jan 2012 00:00:00 -0500 In late November, the B.C. Supreme Court upheld the constitutionality of Canada's criminal prohibitions on polygamy. In his 300-page landmark decision, Chief Justice Robert Bauman concluded that any infringement of religious freedom flowing from the law against polygamy is justified by the intrinsic harm the practice causes to the individuals involved—and to Canadian society as a whole. Yet after a meticulous analysis of the ruling, LexView writer Kevin Boonstra warns that though the chief justice got it right on the harms of polygamy, he might have placed religious freedom itself in serious and unacceptable jeopardy. http://www.cardus.ca/lexview/article/2969 On September 30, the Supreme Court of Canada ordered the federal government to keep open the doors of a controversial "safe" injection site for drug addicts on Vancouver's tragic Downtown Eastside. It was an order LexView writer Kevin Boonstra says represents a serious error in judicial logic. There's no question, Boonstra agrees, that something must be done to help addicts in the deeply troubled neighbourhood. At the same time, it's dubious to claim the Insite facility is, in fact, safe. And the high court accepted a dangerous false dichotomy in its finding that the government could only allow Insite to remain open—or refuse health care to addicts. The SCC's decision took a narrow view on an issue of complex health and criminal law policy. Wed, 26 Oct 2011 14:32:25 -0400 On September 30, the Supreme Court of Canada ordered the federal government to keep open the doors of a controversial "safe" injection site for drug addicts on Vancouver's tragic Downtown Eastside. It was an order LexView writer Kevin Boonstra says represents a serious error in judicial logic. There's no question, Boonstra agrees, that something must be done to help addicts in the deeply troubled neighbourhood. At the same time, it's dubious to claim the Insite facility is, in fact, safe. And the high court accepted a dangerous false dichotomy in its finding that the government could only allow Insite to remain open—or refuse health care to addicts. The SCC's decision took a narrow view on an issue of complex health and criminal law policy. http://www.cardus.ca/lexview/article/2786 True tolerance requires that we respect one another. In reading the decisions in this case, one is left with the impression that it is less important to respect and accommodate religious beliefs than equality rights. This is inconsistent with the law and undermines a truly tolerant society. Wed, 18 May 2011 00:00:00 -0400 True tolerance requires that we respect one another. In reading the decisions in this case, one is left with the impression that it is less important to respect and accommodate religious beliefs than equality rights. This is inconsistent with the law and undermines a truly tolerant society. http://www.cardus.ca/lexview/article/2674 To what extent is morality and the moral judgment of legislators still a legitimate basis for the promulgation of criminal laws? Who will determine whether a criminal statute is founded on moral considerations? Tue, 15 Feb 2011 00:00:00 -0500 To what extent is morality and the moral judgment of legislators still a legitimate basis for the promulgation of criminal laws? Who will determine whether a criminal statute is founded on moral considerations? http://www.cardus.ca/lexview/article/2332 In her decision in late September, Justice Susan Himel of the Ontario Superior Court struck down provisions of the federal law making it illegal to communicate for the purposes of prostitution, live off the avails of prostitution or keep a bawdy house. While libertarians might argue that commercial sex should be strictly a matter of contract between willing buyer and seller, that is a political argument to be made in Parliament, not before the courts. Justice Himel should have deferred to Parliament's prerogative to pass laws reflecting society's deep antipathy to dehumanizing acts associated with the rental of bodies for sexual gratification. Tue, 16 Nov 2010 00:00:00 -0500 In her decision in late September, Justice Susan Himel of the Ontario Superior Court struck down provisions of the federal law making it illegal to communicate for the purposes of prostitution, live off the avails of prostitution or keep a bawdy house. While libertarians might argue that commercial sex should be strictly a matter of contract between willing buyer and seller, that is a political argument to be made in Parliament, not before the courts. Justice Himel should have deferred to Parliament's prerogative to pass laws reflecting society's deep antipathy to dehumanizing acts associated with the rental of bodies for sexual gratification. http://www.cardus.ca/lexview/article/2201 Can faith-based charities legally demand employees adhere to codes of conduct that are in keeping with an agency's religious principles? When the evangelical charity Christian Horizons dismissed one employee because she had violated its rules by living in a same-sex relationship, an Ontario Human Rights tribunal said "No, they can't." On appeal, however, the Ontario courts say, "Oh, yes, they can" . . . sort of. Mon, 27 Sep 2010 00:00:00 -0400 Can faith-based charities legally demand employees adhere to codes of conduct that are in keeping with an agency's religious principles? When the evangelical charity Christian Horizons dismissed one employee because she had violated its rules by living in a same-sex relationship, an Ontario Human Rights tribunal said "No, they can't." On appeal, however, the Ontario courts say, "Oh, yes, they can" . . . sort of. http://www.cardus.ca/lexview/article/2112 In dealing with criminal justice, the public has a right to all available evidence. Canadians have an obligation to come to court and provide their evidence when ordered. The issue in this case was whether freedom of expression under s.2(b) of the Charter, which includes "freedom of the press," can exempt persons from the obligation to provide evidence when the media is involved in protecting the confidential source. Fri, 25 Jun 2010 00:00:00 -0400 In dealing with criminal justice, the public has a right to all available evidence. Canadians have an obligation to come to court and provide their evidence when ordered. The issue in this case was whether freedom of expression under s.2(b) of the Charter, which includes "freedom of the press," can exempt persons from the obligation to provide evidence when the media is involved in protecting the confidential source. http://www.cardus.ca/lexview/article/2113 At the end of the day, we must as a society determine whether we err on the side of preserving life. Our law has always erred in this direction since cheapening human life has dire and unforeseen consequences. We derivate from such fundamental principles of the common law and common wisdom at our peril. No safeguards will be adequate to avoid making tragic mistakes. In addition, allowing the practice of euthanasia could result in serious negative societal incentives that work against finding new treatments and ways to alleviate pain, both physical and mental. Mon, 19 Apr 2010 00:00:00 -0400 At the end of the day, we must as a society determine whether we err on the side of preserving life. Our law has always erred in this direction since cheapening human life has dire and unforeseen consequences. We derivate from such fundamental principles of the common law and common wisdom at our peril. No safeguards will be adequate to avoid making tragic mistakes. In addition, allowing the practice of euthanasia could result in serious negative societal incentives that work against finding new treatments and ways to alleviate pain, both physical and mental. http://www.cardus.ca/lexview/article/2114 When a government in Canada infringes on freedom of religion under s.2(a) of the Charter, to what standard is the government held in justifying that infringement and thereby overriding religious liberty? To what extent will generally applicable legislation and regulations need to exempt some citizens because of their religious beliefs and practices? Fri, 06 Nov 2009 00:00:00 -0500 When a government in Canada infringes on freedom of religion under s.2(a) of the Charter, to what standard is the government held in justifying that infringement and thereby overriding religious liberty? To what extent will generally applicable legislation and regulations need to exempt some citizens because of their religious beliefs and practices? http://www.cardus.ca/lexview/article/2115 Do mature children have a right to determine their medical treatment, even if the consequences of refusing treatment may cause harm or even death? Will the right to liberty and security of the person and freedom of religion allow mature children to refuse treatment? How will the state make a determination of when it should override self-determination by mature children? Tue, 20 Oct 2009 00:00:00 -0400 Do mature children have a right to determine their medical treatment, even if the consequences of refusing treatment may cause harm or even death? Will the right to liberty and security of the person and freedom of religion allow mature children to refuse treatment? How will the state make a determination of when it should override self-determination by mature children? http://www.cardus.ca/lexview/article/2116 This case is one of the most important decisions in Canada with respect to the proper interpretation and application of section 2(a) of the Charter of Rights and Freedoms, freedom of conscience and religion. It is as consequential in the development of Canadian religious liberty as R. v. Big M Drug Mart and Trinity Western University v. British Columbia College of Teachers. Mon, 29 Dec 2008 00:00:00 -0500 This case is one of the most important decisions in Canada with respect to the proper interpretation and application of section 2(a) of the Charter of Rights and Freedoms, freedom of conscience and religion. It is as consequential in the development of Canadian religious liberty as R. v. Big M Drug Mart and Trinity Western University v. British Columbia College of Teachers. http://www.cardus.ca/lexview/article/2124 Does suggesting homosexuals are paedophiles amount to conveying extreme feelings and strong emotions of detestation, calumny and vilification contrary to human rights guarantees? Is a purely objective test sufficient to determine whether section 14(b) of the Code is violated? Must professional disciplinary bodies consider the Charter rights of professionals in assessing professional misconduct? Did the Discipline Committee's decision infringe Mr. Whatcott's right to freedom of expression under section 2(b) of the Charter? What expression is protected under the Charter? Wed, 17 Dec 2008 00:00:00 -0500 Does suggesting homosexuals are paedophiles amount to conveying extreme feelings and strong emotions of detestation, calumny and vilification contrary to human rights guarantees? Is a purely objective test sufficient to determine whether section 14(b) of the Code is violated? Must professional disciplinary bodies consider the Charter rights of professionals in assessing professional misconduct? Did the Discipline Committee's decision infringe Mr. Whatcott's right to freedom of expression under section 2(b) of the Charter? What expression is protected under the Charter? http://www.cardus.ca/lexview/article/2125 When is it appropriate for the Courts to enforce a religious obligation? Does the enforcement of religious obligations permit the Courts to get involved in religious doctrine? What impact does this have on the concept of separation of church and state? Fri, 15 Feb 2008 00:00:00 -0500 When is it appropriate for the Courts to enforce a religious obligation? Does the enforcement of religious obligations permit the Courts to get involved in religious doctrine? What impact does this have on the concept of separation of church and state? http://www.cardus.ca/lexview/article/2126 How broadly can a government's regulatory objective be drawn to justify infringing a Charter right? To what extent will persons holding religious beliefs contrary to a law of general application be accommodated? Can the difficulty in assessing religious sincerity be used to justify an infringement of section 2(a)? Fri, 09 Nov 2007 00:00:00 -0500 How broadly can a government's regulatory objective be drawn to justify infringing a Charter right? To what extent will persons holding religious beliefs contrary to a law of general application be accommodated? Can the difficulty in assessing religious sincerity be used to justify an infringement of section 2(a)? http://www.cardus.ca/lexview/article/2127 Can the citation of strongly worded statements in a sacred text amount to discrimination on the basis of sexual orientation? Do such texts expose persons to hatred? What public statements can be limited by human rights legislation without unjustifiably infringing the Charter guarantees of freedom of expression and freedom of religion? Wed, 04 Apr 2007 00:00:00 -0400 Can the citation of strongly worded statements in a sacred text amount to discrimination on the basis of sexual orientation? Do such texts expose persons to hatred? What public statements can be limited by human rights legislation without unjustifiably infringing the Charter guarantees of freedom of expression and freedom of religion? http://www.cardus.ca/lexview/article/2128 Is the reference to religion, politics or ideology necessary for a definition of terrorism or to make criminal "terrorist" activities? What harm would come of (and what benefits obtained from) requiring a proof of religious, political or ideological motivation in criminalizing terrorist activities? Has the court's concern about the chill on religion, belief and association rights been consistently applied in Canada? Wed, 10 Jan 2007 00:00:00 -0500 Is the reference to religion, politics or ideology necessary for a definition of terrorism or to make criminal "terrorist" activities? What harm would come of (and what benefits obtained from) requiring a proof of religious, political or ideological motivation in criminalizing terrorist activities? Has the court's concern about the chill on religion, belief and association rights been consistently applied in Canada? http://www.cardus.ca/lexview/article/2478 How can the recognition of marriage as exclusively heterosexual be changed and what powers do each of the federal Parliament and the provincial legislatures have in this regard? Was the proposed legislation consistent with the Charter? Did the proposed legislation (and does the subsequent Civil Marriage Act enacted as a result) protect religious individuals and communities? Could the "fourth question", never answered, be posed in another Reference? Fri, 20 Oct 2006 00:00:00 -0400 How can the recognition of marriage as exclusively heterosexual be changed and what powers do each of the federal Parliament and the provincial legislatures have in this regard? Was the proposed legislation consistent with the Charter? Did the proposed legislation (and does the subsequent Civil Marriage Act enacted as a result) protect religious individuals and communities? Could the "fourth question", never answered, be posed in another Reference? http://www.cardus.ca/lexview/article/2477 Do teachers, and other citizens holding professional qualifications, have the right to freely express themselves on controversial issues without risking discipline by their professional bodies? Will freedom of religion and freedom of expression protect these professional people? Is there "harm" to public schools when a teacher uses discriminatory language in the public square, even if there is no evidence of a poisoned school environment? Mon, 26 Jun 2006 00:00:00 -0400 Do teachers, and other citizens holding professional qualifications, have the right to freely express themselves on controversial issues without risking discipline by their professional bodies? Will freedom of religion and freedom of expression protect these professional people? Is there "harm" to public schools when a teacher uses discriminatory language in the public square, even if there is no evidence of a poisoned school environment? http://www.cardus.ca/lexview/article/2476 The Supreme Court of Canada held that a governmental body, in order to comply with the Canadian Charter of Rights and Freedoms, has a duty to make reasonable accommodation for the religious practices of individuals. The Court held that an orthodox Sikh elementary school student was entitled to carry a ceremonial dagger known as a kirpan in school provided that it was sealed inside his clothing. Fri, 02 Jun 2006 00:00:00 -0400 The Supreme Court of Canada held that a governmental body, in order to comply with the Canadian Charter of Rights and Freedoms, has a duty to make reasonable accommodation for the religious practices of individuals. The Court held that an orthodox Sikh elementary school student was entitled to carry a ceremonial dagger known as a kirpan in school provided that it was sealed inside his clothing. http://www.cardus.ca/lexview/article/2331 This decision, by appearing to adopt John Stuart Mill's harm principle as a prerequisite for the criminalization of conduct, may signal that the Court now views so-called "victimless crimes", such as polygamy, possession of pornography, and certain personal drug offences, as inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms. On a narrower reading, however, the decision may simply reflect the Court's determination that consenting adults can engage in relatively private sex free of criminal liability. Even if the Court's ruling is read as limited to sex between consenting adults, uncertainty will haunt police, prosecutors and lower courts until the Court revisits the issue. The decision raises questions about the extent to which Parliament can use the criminal law to promote a social environment relatively free from powerful inducements to vice. Fri, 28 Apr 2006 00:00:00 -0400 This decision, by appearing to adopt John Stuart Mill's harm principle as a prerequisite for the criminalization of conduct, may signal that the Court now views so-called "victimless crimes", such as polygamy, possession of pornography, and certain personal drug offences, as inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms. On a narrower reading, however, the decision may simply reflect the Court's determination that consenting adults can engage in relatively private sex free of criminal liability. Even if the Court's ruling is read as limited to sex between consenting adults, uncertainty will haunt police, prosecutors and lower courts until the Court revisits the issue. The decision raises questions about the extent to which Parliament can use the criminal law to promote a social environment relatively free from powerful inducements to vice.