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HUMAN RIGHTS MEETS CLIMATE CHANGE LITIGATION IN CANADA

It is well known that the effects of climate change are detrimental to the environment, human health, and societies. Despite this, Canadian governments have failed to take effective action to reduce these harms – this represents a violation of basic human rights.

One of the main issues that Canada faces in meeting global agendas, such as the Kyoto Protocol and the Paris Agreement, is that our social and economic well-being relies on many environmentally damaging processes (e.g. agriculture, commercial products).

Activists trying to hold governments and large emitters accountable have turned to climate change litigation, which encompasses:  

  1. Suing large greenhouse gas emitters for damages caused by climate change 
  2. Holding governments accountable by suing them for failing to meet emissions reduction targets

An example of climate change litigation is the application filed by Environment Jeunesse (ENJEU) on November 26, 2018 to the Quebec Superior Court to bring a class-action lawsuit against the federal government. They filed on behalf of Quebec residents aged 35 and younger, claiming that the government’s historical inaction and adoption of unrealistic emissions targets has violated fundamental human rights under the Canadian and Quebec Charters, and that the burden of climate change unfairly falls on younger generations. 

The application was rejected, but it has opened a door for future climate change lawsuits that will be seen in Canada and around the world.

For example, on October 25, 2019, fifteen youth across Canada filed a separate climate change lawsuit against the Canadian government in Vancouver. The major challenge with climate change litigation will be working within the limits of Canadian courts.

The Canadian Constitution provides one avenue for legal action; however, it must be proven that government action has directly affected the rights of Canadians, rather than producing harms that indirectly affect those rights.  

AN OVERVIEW OF THE CRIMINALIZATION OF HIV NON-DISCLOSURE

The criminalization of HIV non-disclosure is noteworthy because the consequence of conviction can be loss of liberty, one of the most important civil rights.   

As the Criminal Code does not have specific offenses relating to HIV non-disclosure, prosecutors have charged HIV-positive people through the use of other criminal offenses, including the crimes of aggravated assault and aggravated sexual assault. Engaging in sexual activity and not telling someone you are HIV-positive is seen as an act that invalidates consent and  partners

Courts look at three criteria to determine if the consent was invalidated.  A conviction is possible if the HIV-positive person did not disclose or misrepresented the risk of transmission or if the HIV-negative person would not have consented to the sexual activity had he/she had known of the partner’s HIV-positive status.  A conviction is also possible if the activity causes or poses a significant risk of serious bodily harm.  The courts have some freedom to determine when there is a realistic possibility of transmission based on expert medical testimony presented on a case by case basis.   

The criminalization of HIV non-disclosure has been criticized for its disproportionate impact on people from marginalized backgrounds and for its failure to keep up with advances in medical research and treatment that have changed our understanding of HIV transmission risks.  In response, the Attorney General of Canada issued a 2018 directive on how HIV non-disclosure cases should be prosecuted in order for criminal law to play an appropriate role in the management of HIV as a public health issue.  This directive is only binding on federal Crown prosecutors, however, and therefore only affects cases in the Territories where criminal law is administered by federal Crown prosecutors, whereas the criminal law in the Provinces is administered by provincial Crown prosecutors.  

More detail is available through the link to the full article.   

ALBERTA QUEEN’S BENCH STRIKES DOWN OVERBOARD PROVISIONS OF THE MENTAL HEALTH ACT PERMITTING INVOLUNTARY DETENTION

In July 2019, the Alberta Queen’s Bench released a decision assessing the constitutionality of involuntary detention under the Alberta Mental Health Act, both declaring the applicant’s rights had been violated through his detention and striking down several provisions of the Act.

This decision provides important commentary on the potential rights violations that can arise through involuntary mental health detention, particularly when used in lieu of appropriate community supports, rather than for a clear therapeutic purpose.

More detail is available through the link to the full article.   

A BITTERSWEET DAY FOR AMERICAN DEMOCRACY IN THE SUPREME COURT

On June 27, 2019, the Supreme Court of the United States (“SCOTUS”) released major decisions dealing with partisan politics that will shape America’s democratic elections for years to come. In short, the proposed citizenship question on the 2020 national census is a ‘no’ and partisan gerrymandering is a ‘go’

The census case revolved around Secretary of Commerce Wilbur Ross’s March 2018 decision to add a question about citizenship on the upcoming 2020 US Census. The Secretary claims he was acting in response to a request for more accurate data about voting-age population. Critics, however, claim the question would result in an undercount of noncitizen households, particularly Latino families. An undercount (predicted at 5%) would mean fewer representatives and less federal funds are apportioned to urban centers with a higher proportion of noncitizens.

Despite the public controversy swirling the issue today, a citizenship question has been included in every census from 1820 to 1950 and asked of a subset of households between 1960 and 2000. Major democracies like Canada, also collect census-based citizenship information, as per the UN’s recommendation. What differentiates the 2020 US Census is President Trump’s ongoing “zero tolerance” immigration policy, which has undocumented immigrants reasonably fearing for their family’s future in the nation. 

At trial, this was found to diminish voter’s ability to elect their candidate of choice and associational rights, thereby violating the American First Amendment, this taking away their voting power. The Supreme Court ruled that this was not a justice issue, but instead a political issue despite valid racist issues and concerns.

 

A solution well within their means would be to undo the gerrymanders that clearly deny citizens the right to participate equally in the political process and to select their representatives. If America is to maintain a working democracy of the people, by the people, for the people, we need to ensure voters are choosing their politicians, not the other way around.

More detail is available through the link to the full article.   

ALBERTA GOVERNMENT ROLLS BACK PROTECTIONS FOR STUDENTS IN GSA's IN PASSING BILL 8

Bill 8, the Education Amendment Act of Alberta which passed its third and final reading, removes several protections for Gay Straight Alliances in schools that the former NDP government enacted in 2017.  

Under the new law, principals will no longer have a time limit to grant students’ requests to create a GSA and to appoint a club advisor, and students will no longer be guaranteed the right to include words like “gay” and “queer” in their club names.

Most prominently, though, Bill 8 removes protections for the privacy of students in GSAs—once enacted, teachers will no longer be prohibited from disclosing to parents if their children have joined a GSA.

More detail is available through the link to this article.

THE CANADIAN SECURITY INTELLIGENCE SERVICE (CSIS): PAST AND PRESENT

Canada’s national security interests have been enforced by the Canadian Security Intelligence Service (CSIS) since 1984.  Envisioned with a goal to “secure democracy against both its internal and external enemies without destroying democracy in the process”, the right balance has been hard to find. 

This article presents a synopsis of the history of CSIS and an overview of its legislative form, ending with a summary of the key goals of the bill currently before the Senate which will require CSIS to act consistently with the Charter of Rights and will give new powers to the Security Intelligence Review Committee (SIRC) to investigate and intervene.

More detail is available through the link to this article.

NON-CITIZEN VOTING RIGHTS

In an increasingly globalized and transnational world, the voting rights of non-citizens will continue to be an important point of discussion.

Although many non-citizen residents pay taxes and own property where they live, and are directly impacted by political decisions, they continue to remain politically voiceless, which leads to an issue of democratic legitimacy.

Although Canada’s current constitutional framework only guarantees that Canadian citizens have the right to vote, other jurisdictions have either already granted non-citizens voting rights, or are considering extending the right to non-citizens. As such, Canada should remain active in the debate.

More detail is available through the link to the article.

The current state of mental health in Canada

The objective of Canada’s Health Act, is to protect, promote and restore the mental and physical well-being of Canadians and to ensure access to health services regardless of circumstance or situation; such as income, education or cultural differences. Mental health has long been recognized as an aspect of individual health, however under our current health regime the majority of mental health services do not reflect. The lack of accessibility to mental health services has led healthcare providers, researchers and policy experts to make calls for Canadian health care reform. The government has taken the following steps to create change to mental health regiments.

Through a holistic approach and acknowledging that we will not reduce the impact of mental health problems through treatment alone, the government strategy is that we must pay more attention to the promotion of prevention where possible, encouraging facilitation to open conversations and advocacy surrounding mental health. The strategy further acknowledges that this is not the problem of the health sector alone but requires collaboration among multiple government departments (e.g., justice, education, finance, social services) and non-governmental actors such as workplaces, the media and members of the community.

The following are directions for taking action:

1.      Promote mental health across the lifespan in homes, schools, and workplaces, and prevent mental illness and suicide wherever possible.

  1. Foster recovery and well-being for people living with mental health problems and illnesses and uphold their rights.
  2. Provide access to the right combination of services, treatments and supports, when and where people need them.
  3. Reduce disparities in risk factors and access to mental health services, strengthening the response to the needs of diverse communities
  4. Working directly with First Nations, Inuit, and Métis to address their mental health needs, acknowledging their distinct circumstances, rights and cultures.
  5. Mobilize leadership, improve knowledge, and foster collaboration at all levels.

The proposed approach for funding calls for incremental changes over an extended period of time including increasing the proportion of health spending that is devoted to mental health from seven to nine per cent over 10 years (increasing the proportion of social spending devoted to mental health by 2%). The strategy also involves identifying areas for re-allocation of current mental spending to improve efficiency and achieve better outcomes, in addition to engaging with private sectors to contribute to mental health initiatives. 

More detail is available through link the full article