By Linda McKay-Panos

Republished with permission from LawNow Vol 42(2) (Nov/Dec 2017)

On October 4, 2017, Minister of Foreign Affairs, Chrystia Freeland, announced that the House of Commons had passed a bill that originated in the Senate: the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law) (Bill S-226, First Session, Forty-second Parliament, 64-65-66 Elizabeth II, 2015-2016-2017 (the “Magnitsky Act”). The bill must be approved again by the Senate before it becomes law. It is said to be similar to legislation and other motions passed in other countries and jurisdictions: United States, European Parliament, the Netherlands, the UK, Italy, Poland and Estonia. The legislation is named in memory of Russian whistle-blower Sergei Magnitsky, who accused Russian officials of tax fraud and was later beaten to death in 2009 in a Moscow prison.  When debating Bill S-226 at its second reading, Senator A. Raynell Andreychuk spoke at length about Canada’s international human rights obligations and efforts to ensure that human rights laws are adhered to around the world (see online: Senate of Canada, October 25, 2016) 1st Session, 42nd Parliament, Volume 150, Issue 65 https://sencanada.ca/en/Content/Sen/chamber/421/debates/065db_2016-10-25-e#54).

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photo: flickr/Government of Canada

In 2015, JH appealed a decision by a Review Panel, appointed to determine the need for his continued detention under the Mental Health Act, RSA 2000, c M-13 (Alberta MHA), that he should be held indefinitely in the care of the Foothills Hospital (JH v Alberta Health Services, 2015 ABQB 316 (CanLII)). JH had come to the Foothills with a fever and an infected knee injury the year prior, and was then kept there against his will, based on the Review Panel’s determination. The Review Panel’s conclusion that JH should continue to be detained was based on its view that JH lacked insight into his medical needs and exhibited poor judgment, both of which might put him at risk of harm. The outcome of the case and whether JH would continue to be held in detention was contingent on whether JH fit the criteria for detention set out in section 8(1) of the Alberta MHA, namely that he: (a) suffered from a mental disorder; (b) was likely to cause harm to himself or others, or to suffer substantial physical or mental deterioration if not kept in detention; and (c) was unable to continue at the facility other than as a formal patient. JH’s consulting psychiatrist testified that it was his opinion that JH fit these criteria, as he suffered from a neurocognitive disorder which manifested itself as poor judgment and memory, and that without mental health support in the form of psychiatric detention, JH would deteriorate both mentally and physically. However, an assessment completed by another doctor concluded that JH only had mild memory impairment, and that he understood his health problems enough to maintain health treatment on his own. Justice Eidsvik of the Alberta Court of Queen’s Bench considered JH’s steady employment history prior to the car accident that had left him with cognitive issues, his ability to obtain help both financially and medically on his own, and his commitment to continue on his medication. Based on this evidence, the Court concluded that Alberta Health Services (AHS) failed to prove that JH should continue to be detained, and that any risks to him were not severe enough to justify constraints on his liberty and self-determination.

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Image: flickr.com/Teri Bateman

Various provincial and federal jurisdictions choose to protect people from discrimination on various grounds in areas such as employment, services customarily available to the public and tenancy. In some cases, the grounds protected are the same across jurisdictions. In others, court challenges have resulted in court orders that grounds are to be read into human rights law (e.g., “sexual orientation” was read into Alberta’s human rights law by the Supreme Court of Canada in the Vriend case in 1998.)

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Photo: Flickr/Stephen Bartel

Various provincial and federal jurisdictions choose to protect people from discrimination on various grounds in areas such as employment, services customarily available to the public and tenancy. In some cases, the grounds protected are the same across jurisdictions. In others, court challenges have resulted in court orders that grounds are to be read into human rights law (e.g., “sexual orientation” was read into Alberta’s human rights law by the Supreme Court of Canada in the Vriend case in 1998.)

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Photo: Flickr/William Palmer...

Various provincial and federal jurisdictions choose to protect people from discrimination on various grounds in areas such as employment, services customarily available to the public and tenancy. In some cases, the grounds protected are the same across jurisdictions. In others, court challenges have resulted in court orders that grounds are to be read into human rights law (e.g., “sexual orientation” was read into Alberta’s human rights law by the Supreme Court of Canada in the Vriend case in 1998.)

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Photo: Flickr/ Jill Erickson

In this case, which involves political speech that is at the very core of protected expression in Canada, the Supreme Court of Canada’s (SCC) ruling doesn’t turn on lofty values as much as it relies on statutory interpretation. It also provides some interesting discussion on the amount of evidence the government must provide in order to defend a violation of Charter section 2(b) under Charter section 1 in the election context.

 

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Photo: Flickr/ Evgenia Rigaut

Whenever I teach undergrad students about gender discrimination, they are often quite shocked to discover that as recently as the 1970s, there was a Supreme Court of Canada (SCC) ruling that found that discrimination on the basis of pregnancy was not a form of gender discrimination (See: Bliss v Canada (Attorney General), [1979] 1 SCR 183 (Bliss)). However, the SCC reversed itself in Brooks v Canada Safeway, [1989] 1 SCR 1219 (Brooks). Afterward, protection from discrimination on the basis of pregnancy was clearly provided in human rights law across Canada. Although an entire generation has grown with the understanding that women cannot be discriminated against on the basis of pregnancy (e.g., in employment, rental accommodation or services customarily available to the public), there are indications of incidents involving pregnancy discrimination in today’s Canada.

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Photo: Flickr/ Tom Baugis

There have been several recent news stories about harassment issues in Canadian workplaces. For example, a 2013 review of the Calgary Police Services workplace was recently released, containing detailed allegations of sexual harassment, intimidation, bullying and even sexual assault within the force. Another example occurred when a class-action lawsuit was launched alleging discrimination and harassment within the RCMP. The lawsuit was settled in 2016, resulting in an apology and a potential $100 million in payouts.

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Photo: Flickr/ Mike Gifford

The Alberta Human Rights Act (Act), RSA 2000, c. A-25.5, protects people from discrimination in employment based on gender identity and gender expression under section 7 of the AHR Act:

7 (1) No employer shall

(a) refuse to employ or refuse to continue to employ any person, or

(b) discriminate against any person with regard to employment or any term or condition of employment,

because of the …gender identity, gender expression … of that person or of any other person.

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Photo: Flickr/g4ll4is

In two previous ABlawg posts (see here and here), I commented on the decisions in R v Canadian Broadcasting Corporation, 2016 ABQB 204, overturned 2016 ABCA 326 (CanLII), in which Alberta courts dealt with the issue of whether the Canadian Broadcasting Corporation (CBC) should be able to retain identifying information about a youthful homicide victim on its website. A majority of the Court of Appeal granted the Crown’s application for a mandatory injunction banning the continued publication of this material. In a follow-up decision, Mr. Justice Berger granted a Stay of Enforcement of the majority judgment pending an application for leave to appeal to the Supreme Court of Canada (see R v Canadian Broadcasting Corporation, 2016ABCA 372 (CanLII) at para 14).

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