By Myrna El Fakhry Tuttle

Reposted from LawNow with permission

The legal system in Canada treats young offenders differently than adults.

The Youth Criminal Justice Act (YCJA) regulates the youth justice system. Under the YCJA, young people are held accountable for their criminal acts, but not in the same way as adults. The YCJA provides special protections, unique procedures and numerous possible sentences for youth offenders.

However, young people can get an adult sentence in certain circumstances. In these cases, the Criminal Code sentences for adult offenders will be applied to young offenders.

The YCJA Provisions

Section 2(1) of the YCJA defines a “young person” as anyone who is “12 years old or more, but less than 18 years old.” Also, under this section, adult sentence means “any sentence that could be imposed on an adult who has been convicted of the same offence.”

Section 3(1)(b) of the YCJA states that “the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability, and must emphasize rehabilitation and reintegration,” among others.

The YCJA acknowledges that young people are vulnerable and have special needs and circumstances that must be considered when making decisions about them. For example, section 42(2) of the YCJA contains specific sentencing measures for young offenders that differ from the sentencing provisions for adults under the Criminal Code. However, under the YCJA, young offenders can be tried as adults for serious violent offences such as “murder, attempted murder, manslaughter or aggravated sexual assault.”

Adult Sentences for Youth

Before the YCJA was enacted, section 16 of the Young Offenders Act allowed the transfer of young persons who committed indictable offences to adult court. The YCJA eliminated this process.

However, at the time, section 72(2) of the YCJA, required young people to persuade the court that they should not be sentenced as adults.

According to the Department of Justice:

The YCJA established a process whereby the youth court first determines whether or not the young person is guilty of the offence and then, under certain circumstances, the youth court may impose an adult sentence. Offences that can lead to an adult sentence are indictable offences committed when the youth was at least 14 years old, for which an adult would be liable to imprisonment for more than two years. The YCJA […] also included a presumption that youth 14 or older found guilty of certain serious violent offences would receive an adult sentence. In these circumstances, the onus was on the young person to convince the court that a youth sentence would be appropriate.

This onus was challenged in 2008 by a youth convicted of manslaughter. In R v D.B, 17-year-old Bwas accused of killing R in a fistfight. B pleaded guilty to manslaughter – which was a presumptive offence under the YCJA and where an adult sentence was expected to be imposed. B sought a youth sentence, which the Crown opposed. B then challenged, under section 7 of the Charter of Rights and Freedoms, the constitutionality of the onus provisions when there is a presumptive offence. He claimed that the onus provisions placed the burden on the young person to convince the court that they should be given a youth sentence, rather than on the Crown to prove to the court that an adult sentence should be imposed.

The Supreme Court agreed with B and found that the sentencing provisions under section 72 of the YCJA were unconstitutional. The Court also overturned a provision that required young offenders who had been given adult sentences to show that their identities should continue to be protected by a publication ban.

The Supreme Court stated:

Because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. This entitles them to a presumption of diminished moral blameworthiness or culpability (at para 41).

The Supreme Court decided:

Under the presumptive offences regime, an adult sentence is presumed to apply and the protection of a publication ban is presumed to be lost. The impugned provisions place the onus on young persons to satisfy the court that they remain entitled to a youth sentence and to a publication ban. This onus on young persons is inconsistent with the presumption of diminished moral culpability, a principle of fundamental justice which requires the Crown to justify the loss both of a youth sentence and of a publication ban. The impugned provisions are therefore inconsistent with s[ection] 7 of the Charter and are not saved by s[ection] 1. To the extent that they impose this reverse onus, they are unconstitutional (at para 95).

The publication ban is part of the sentence, removing it “makes the young person vulnerable to greater psychological and social stress. Accordingly, it renders the sentence significantly more severe” (at para 87). The Supreme Court stated that the Crown must prove that an adult sentence is necessary. Therefore, the Crown should also have to prove that the lifting of a publication ban should be added to the sentence (at para 94).

Amending the YCJA

In 2012, Parliament responded to the Supreme Court decision by amending the YCJA, repealing the presumptive offences provisions. The Crown must now persuade the court that an adult sentence is justified.

After the amendment, section 72 of the YCJA read:

1. The youth justice court shall order that an adult sentence be imposed if it is satisfied that
   1. the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and
   2. a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour.

(1.1) If the youth justice court is not satisfied that an order should be made under subsection (1), it shall order that the young person is not liable to an adult sentence and that a youth sentence must be imposed.

(2) The onus of satisfying the youth justice court as to the matters referred to in subsection (1) is on the Attorney General.

Section 73 (1) states:

When the youth justice court makes an order under subsection 72(1) in respect of a young person, the court shall, on a finding of guilt, impose an adult sentence on the young person.

Summary

It is generally accepted that young people lack the maturity of adults. The YCJA addresses this by providing young people with their own unique court process and punishments.

A court may decide, however, to sentence a youth in the same way as an adult, for certain violent offences. That said, if the Crown wants to ask the court for an adult sentence, it must give notice of that intention before a trial occurs. The judge will hear arguments on that matter after a trial and a guilty verdict.

By Myrna El Fakhry Tuttle

Reposted from LawNow with permission

How can we balance an employer’s right to know about illness or disability and an employee’s right to privacy?

Editor’s Note: A version of this important article first appeared in LawNow in 2019. It has been reviewed for legal accuracy in 2024 by the author.

Requesting medical information from employees may raise privacy issues. Employees have the right to keep their medical information confidential and private. But employers also have the right to know about their employees’ illness or disability, and have the right to seek medical information in order to provide appropriate accommodation. So, how can we balance the two?

In Alberta, the Freedom of Information and Protection of Privacy Act (FOIP) section 17 provides that the disclosure of some personal information, including medical information, is presumed to be an unreasonable invasion of privacy. Without consent, such information would only be released in exceptional circumstances.

Section 3 of the Personal Information Protection Act (PIPA) covers the collection, use, and disclosure of personal information. PIPA balances an individual’s right to have his or her personal information protected, and an organization’s need to collect, use or disclose personal information for purposes that are reasonable. Under PIPA, while you may need to collect, use and disclose certain personal information, you must, according to privacy legislation, explain the reason for collecting the information and how it may be used or disclosed (see: A Guide for Businesses and Organizations on the Personal Information Protection Act).

The Health Information Act also governs the disclosure of health information in Part 5.

An employee’s personal medical information is generally acknowledged to be private and confidential. However, it is well established (and should be obvious) that an employer is entitled to access sufficient information for legitimate purposes. This includes assurance that the employee is able to continue or return to work, or to provide necessary appropriate accommodation to ensure that the employee can work without jeopardizing his or her safety, or that of other employees. An employer is entitled only to the least such information necessary for the purpose and an employee should generally not be required to disclose their medical files, or even diagnosis or treatment. However, exactly what is required will depend on the circumstances and purpose – and may very well include diagnosis, or treatment, or other information (Complex Services Inc v Ontario Public Service Employees Union, Local 278, 2012 CanLII 8645 (ON LA) at para 84)..

Employers may seek medical information in a variety of circumstances, including to support:

• a request for short-term sick leave;
• extended sick leave, or partial medical leave;
• an application for benefits;
• a request to return to work; or
• a request for accommodation (see: Devins, Jewell & Sartison, Medical Information in the Accommodation Process, (December 2013)).

An employer has a legitimate interest in seeking information related to employee’s prognosis and ability to attend work on a regular basis. The employer is entitled to request that the employee provide medical information and then to consider what, if any, impact the information had on its duty to accommodate the employee in the workplace. There is nothing inherently discriminatory for an employer to request a doctor’s note from employees to substantiate a request for sick leave (Stewart v Brewers Distributor and another, 2009 BCHRT 376 at para 48).

The Human Rights Tribunal of Ontario stated that an employee who seeks workplace accommodation has a duty to cooperate in the accommodation process by providing his or her employer with a reasonable amount of information about their physical and/or mental work restrictions and disability-related needs so that the employer can assess whether and how the employee’s needs may be accommodated without undue hardship (Bottiglia v Ottawa Catholic School Board, 2015 HRTO 1178 (CanLII) at para 99, affirmed 2017 ONSC 1517 (CanLII)).

The duty to accommodate requires persons seeking accommodation to make available to their employer such details of their medical circumstances as are necessary to prove the disability and to design and achieve the accommodation. In some cases, this can include diagnosis or treatment information, but each case depends upon its own circumstances (Peace Country Health v United Nurses of Alberta, 2007 CanLII 80624 (AB GAA)).

The duty to accommodate extends to employees who use medical marijuana, supported by a medical certificate, in the workplace. Can employers remove employees who use medical marijuana from safety-sensitive positions? In Calgary (City) v Canadian Union of Public Employees, the arbitration board stated that if there was no evidence that the grievor’s use of marijuana for medical purposes had any impact on his or her ability to perform safety-sensitive duties in a safe manner, then the employer cannot transfer the grievor to a non-safety-sensitive position (Calgary (City) v Canadian Union of Public Employees (Cupe 37), 2015 CanLII 61756 (AB GAA)). However, an employer who terminated an employee working in the logging industry for smoking marijuana without having a medical authorization to lawfully possess and use marijuana for medical purposes and without informing his employer, did not discriminate against its employee (French v Selkin Logging, 2015 BCHRT 101 (CanLII)).

In the purely technical sense of the term, an employee has an “absolute” right to keep their confidential medical information private. But if the employee exercises that right in a way that thwarts the employer’s exercise of its legitimate rights or obligations, or makes it impossible for the employer to provide appropriate necessary accommodation, there are likely to be consequences. This is because an employee has no right to sick leave benefits or accommodation unless the employee provides sufficient reliable evidence to establish that they are entitled to benefits, or that they have a disability that actually requires accommodation and the accommodation required. Although an employer cannot discipline an employee for refusing to disclose confidential medical information, the employee may be denied sick benefits, or it may be appropriate for the employer to refuse to allow the employee to continue or return to work until necessary such information is provided (Complex Services Inc. at para 86).

In certain circumstances, the procedural aspect of an employer’s duty to accommodate will permit, or even require, the employer to ask for a second medical opinion where the employer had a reasonable and bona fide reason to question the adequacy and reliability of the information provided by its employee’s medical expert. An employer is not entitled to request an Independent Medical Examination (IME) in an effort to second-guess an employee’s medical expert. An employer is only entitled to request that an employee undergo an IME where the employer cannot reasonably expect to obtain the information it needs from the employee’s expert as part of the employer’s duty to accommodate (Bottiglia v Ottawa Catholic School Board, 2017 ONSC 2517 (CanLII) at paras 76-77).

However, employers need to have the employee’s authorization in order to collect and use personal information. Thus, an employer cannot contact an employee’s doctor without the consent of the employee. There is nothing in the mere existence of an employment relationship that gives the employer any inherent right to compel its employees to compromise their legitimate right to keep personal medical information confidential. An employer only has a right to an employee’s confidential medical information to the extent that legislation or a collective agreement or other contract of employment specifically so provides, or that is demonstrably required and permitted by law for the particular purpose. Except where required or permitted by law, an employer cannot seek and a doctor cannot give out any patient medical information without the patient’s freely given informed specific authorization and consent (Hamilton Health Sciences v Ontario Nurses’ Association, 2007 CanLII 73923 (ONLA) at para 21).

In addition, there are some restrictions on the employers’ right to seek medical information. Employers are not allowed to use and disclose the medical information that they receive any way they want. The improper disclosure of the employee’s medical information can constitute a breach of PIPA. An employer discussing an employee’s medical information with other employees is inappropriate. Employees who have disclosed their medical information in order to be accommodated have the right to confidentiality. Medical information that they share with their employer should be kept private, unless they give their consent to the employer to disclose the information. Within the workplace, those who need access might include the employee, the employee’s supervisor and other staff handling accounting, payroll, deductions, benefits or related issues (see: An Employer’s Guide to Employment Rules).

Employees have the right to keep their medical information private. But in order to be accommodated in the workplace, they are required to provide relevant medical information. Employers have a duty to accommodate employees to the point of undue hardship, therefore they have a right to seek medical information when necessary.

By Myrna El Fakhry Tuttle

Reposted from LawNow with permission

Canada has two official languages: French and English. We always wonder why.

Editor’s Note: A version of this important article first appeared in LawNow in 2019. It has been reviewed for legal accuracy in 2024 by the author.

Canada’s two colonizing peoples are the French and the British. They controlled land and built colonies alongside Indigenous peoples, who had been living there for millennia. They had two different languages and cultures. The French spoke French, practiced Catholicism, and had their own legal system (civil law). The British spoke English, practiced Protestantism, and followed a common law system.

The British controlled parts of what is now Newfoundland. The French existed in the Maritimes (modern-day Nova Scotia, New Brunswick and Prince Edward Island) and Québec.

The French colonized Canada first. However, the British took over all French colonies in the Maritimes and Québec through different wars, including the Queen Anne’s War (1702-1713) and the Seven Years’ War (1756-1763). As a result, the British managed these territories politically, but the French dominated them culturally. That was a matter the British had to deal with. People in those colonies spoke French and followed French religious and legal practices (see: Official Bilingualism in Canada: History and Debates) [Official Bilingualism in Canada]).

In Québec, the British decided to authorize French culture and language but within British control. The British passed the 1763 Royal Proclamation. This action forced British law and practices on British colonies in North America, including those with large French populations. However, in 1774, the British enacted the Québec Act, which overturned this practice. This Act guaranteed the practice of the Catholic faith in Québec and allowed French civil law in private matters. In matters related to public administration, such as criminal prosecution, the common law system applied (see: Official Bilingualism in Canada).

In 1841, the Act of Union recognized that both the British and the French existed side-by-side but with the intention that French Canadians would eventually integrate into the British culture. The intention was that religious, cultural and legal dualism would be only temporary. This perception, based on the Durham Report, introduced a British parliamentary system including in Québec, but it could not banish the French language and the Catholic religion (see: Cultural Duality).

Following that, the federal government enacted many laws to preserve both languages. In 1867, the year of Confederation, the British Parliament passed the British North America Act (now the Constitution Act, 1867). This Act united three British colonies – Nova Scotia, New Brunswick and the province of Canada (Ontario and Québec) – as the “Dominion of Canada”. The Act allowed for other British colonies in North America to be admitted as well. With that came the idea that English and French-speaking communities should exist side-by-side and complete each other:

The Constitution Act of 1867 (formerly known as the British North America Act) established English and French as legislative and judicial languages in federal and Québec institutions. It also set out the right to denominational schooling, which at that time was closely associated with the anglophone (Protestant) and francophone (Roman Catholic) linguistic and cultural traditions. (See: Bilingualism.)

Section 133 of the Constitution Act, 1867 defined English and French as the official languages of the Canadian Parliament, as well as the courts. It also established both English and French as the official languages of the Québec legislature and courts. It states:

Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Québec.

The Acts of the Parliament of Canada and of the Legislature of Québec shall be printed and published in both those Languages.

In 1969, the federal government passed the first Official Languages Act on the recommendation of the Royal Commission on Bilingualism and Biculturalism. It proclaimed French and English as the official languages of Canada. According to this Act, all federal institutions must provide services in French or English, depending on the requested matter. In order to manage its implementation, the Act created the Office of the Commissioner of Official Languages (see: Official Languages Act (1969)).

The first Official Languages Act’s purpose was not to ensure that every Canadian spoke both English and French. The aim was to offer federal services to Canadian citizens in the official language of their choice. Those services were to be available in the requested language without any delay and were to be of equal quality, regardless of the chosen language (see: Understanding Your Language Rights).

One year later, in 1970, the federal government established the Official Languages in Education Program. This program provides provinces and territories funding for second language instruction and minority language education in both English and French. Besides this program, federal, provincial and territorial governments have also embraced French immersion education programs. In these programs, students receive most of their education in the French language (see: Official Bilingualism in Canada).

Moreover, to ensure that all Canadians can read and understand product packaging, the federal government enacted the Consumer Packaging and Labeling Act in 1974. This Act requests that consumer products sold in Canada be labelled in both English and French.

In 1982, the Charter of Rights and Freedoms recognized language rights. Section 16 of the Charter acknowledges that English and French are the official languages of Canada. Both languages have equal status and equal rights and privileges as to their use in all institutions of the Parliament and Government of Canada. Sections 17, 18 and 19 state that English or French are to be used in any debates and in the proceedings of Parliament, in parliamentary papers, and in court established by Parliament. Section 20 deals with the use of English or French in communications between federal institutions and members of the public. Section 23 talks about minority language education rights for English-speaking children in the province of Québec and French-speaking children in the rest of Canada.

In 1988, the federal government revoked the Official Languages Act of 1969 and replaced it with a new Official Languages Act. Section 2 sets out that the purposes of the new Act are to:

(a) ensure respect for English and French as the official languages of Canada and ensure equality of status and equal rights and privileges as to their use in all federal institutions, … ;

(b) support the development of English and French linguistic minority communities … ; and

(c) set out the powers, duties and functions of federal institutions with respect to the official languages of Canada.

In 2005, the Government of Canada amended Part VII of the Official Languages Act. This part requires all federal institutions to take positive actions to promote the acknowledgment and use of both English and French in Canadian communities (see: Archived – Perspectives of Canadians of Diverse Backgrounds on Linguistic Duality).

The Official Languages Act is a federal act and applies only to federal institutions. It does not apply to provincial and territorial governments. Therefore, each of Canada’s provinces and territories has adopted its own official language policy. Québec is the only province that acknowledges French as its sole official language. New Brunswick is the only bilingual province where both English and French are official languages. In other provinces and territories where English is the main working language, they provide government services in French as well as Aboriginal languages (see: Language in Canada).

The government enacted the laws described above in order to protect language rights and ensure that all Canadians are treated equally. However, having two official languages does not mean that every Canadian must speak both languages. It means that all federal services must be offered to Canadian citizens in both French and English. Bilingualism is one of Canada’s core values of inclusiveness and diversity. Canadians have recognized that diversity is a strength that has encouraged openness toward other peoples. And because of bilingualism, Canada is a more welcoming country for immigrants and refugees from different cultures and ethnic backgrounds.

By Myrna El Fakhry Tuttle

Reposted from LawNow with permission

Some universities have issued trespass notices and have ordered the encampment to be removed, with the help of the police, within hours of its set up. Other universities have filed for an injunction – that was denied by the court – to dismantle the encampment. While other universities have been granted an injunction against the encampment.

The Right to Protest

The right to protest is constitutionally protected by the Canadian Charter of Rights and Freedoms (the Charter).

Section 2 of the Charter states:

Everyone has the following fundamental freedoms:

1. freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
2. freedom of peaceful assembly; and
3. freedom of association.

Freedom of speech is also stated as a human right and fundamental freedom in the Canadian Bill of Rights, sections 1(d) and (f).

The right of students to express their opinions is a crucial element of a democracy. Freedom of expression is a basic characteristic of personal development. It gives us the right to dissent and the right to be heard. We can make our own choices about our basic beliefs by being exposed to different thoughts and opinions.

As I mentioned in a previous article, “the freedoms mentioned in the Charter guarantee that Canadians are free to hold their own opinions, discuss them and communicate them to other people. These activities are essential principles of individual liberty. They are also crucial to the success of a democratic society where people can freely discuss matters of public policy, can criticize governments and can express opinions on how to deal with social problems.”

Section 2(c) includes the right to participate in peaceful demonstrations, protests, parades, meetings, picketing and other assemblies.

When it comes to universities, provincial courts of appeal have been inconsistent on the question of whether the Charter applies to university campus events. In UAlberta Pro-Life v Governors of the University of Alberta, the Alberta Court of Appeal ruled in 2020 that the University of Alberta’s regulation of free expression on campus is a form of governmental action subject to the Charter.

What does Freedom of Expression mean?

In Irwin Toy Ltd. v Quebec (Attorney General), the Supreme Court of Canada stated:

‘Expression’ has both a content and a form, and the two can be inextricably connected. Activity is expressive if it attempts to convey meaning. That meaning is its content. Freedom of expression was entrenched in our Constitution and is guaranteed in the Quebec Charter so as to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream. Such protection is, in the words of both the Canadian and Quebec Charters, “fundamental” because in a free, pluralistic and democratic society we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual.

We cannot, […] exclude human activity from the scope of guaranteed free expression on the basis of the content or meaning being conveyed. Indeed, if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee. […]. It might be difficult to characterize certain day-to-day tasks, like parking a car, as having expressive content. To bring such activity within the protected sphere, the plaintiff would have to show that it was performed to convey a meaning. For example, an unmarried person might, as part of a public protest, park in a zone reserved for spouses of government employees in order to express dissatisfaction or outrage at the chosen method of allocating a limited resource. If that person could demonstrate that his activity did in fact have expressive content, he would, at this stage, be within the protected sphere and the s. 2(b) challenge would proceed.

The content of expression can be conveyed through an infinite variety of forms of expression: for example, the written or spoken word, the arts, and even physical gestures or acts. While the guarantee of free expression protects all content of expression, certainly violence as a form of expression receives no such protection.

The Federal Court of Appeal held in Weisfeld v Canada (Weisfeld) that “expression goes beyond words. People may choose to amplify or dramatize their messages in many ways: a sandwich board, a soapbox, a megaphone, a flag, a banner, a placard, a picture, a petition….”

In Batty v City of Toronto, Justice Brown following the reasoning in Weisfeld, held that the structures and tents erected by the protesters in a public park constituted a mode of expression protected by section 2 of the Charter (at para 72).

In addition, protests and demonstrations take place to spread a message; therefore, courts have dealt with section 2(c) as being ancillary to freedom of expression in section 2(b).

Limits on Freedom of Expression

Charter rights and freedoms are not absolute, the government can impose reasonable limits on them under section 1 of the Charter, which states:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

This section requires a balancing of people’s rights and freedoms against valid government objectives and policies. This balancing act seeks to locate “reasonable limits” that can be “demonstrably justified in a free and democratic society.”

For example, freedom of expression does not protect violence or threats of violence. It is limited by the Criminal Code hate speech laws. Therefore, protesting itself is legal, as long as protestors do not break any laws.

As Julian Walker stated: “the Charter’s guarantee of freedom of expression is not absolute. It has upheld restrictions on forms of expression that it has deemed to run contrary to the spirit of the Charter, such as hate speech, given that the purpose of such expression is to prevent the free exercise of another group’s rights”.

Recent Court Decisions

In May 2024, Justice Marc St Pierre denied the request for an injunction to dismantle the encampment at McGill university in McGill University et the Royal Institution for the Advancement of Learning c Association McGillienne Des Professeur E S de Droit (AMPD)/Association of McGill Professors of Law (AMPL) et al.

Justice St Pierre found that there was no urgent need to act since “no serious or violent incident had occurred at the encampment since it was established and even a confrontation with counter-protesters was peaceful.” He added that “other factors involving the balance between the activists’ right to protest and freedom of expression and, conversely, the university’s right to its property would take more time to weigh and shouldn’t be decided within the context of a provisional injunction request.” Therefore, he denied the injunction.

In a totally different ruling that took place in July 2024, Justice Markus Koehnen granted the University of Toronto – in University of Toronto (Governing Council) v Doe et al. – an injunction against the encampment.

Justice Koehnen decided not to determine whether the Charter applied in this case. However, he stated:

In the event I am wrong in this, I will nevertheless assess, in an alternative analysis whether the Charter applies and, if so whether the injunction the University seeks would breach Charter rights…That alternative analysis, however, makes no difference to the final outcome. In that alternative analysis I conclude that the Charter does not apply to the University in this situation. In the further alternative I conclude that if the Charter did apply, the restriction on the use of Front Campus breaches the respondents Charter rights but that the breach is justified under section 1 of the Charter (at para 116).

Justice Koehnen found that the university made a strong case for trespassing (at para 123). He granted the injunction even though he acknowledged that the encampment was peaceful (at para 69).

He stated: “the statements by the named respondents to which I was taken during oral argument are of the nature and intensity that one might expect from a student activist in their twenties, but have never approached violence or hatred” (at para 81). “There is no evidence to suggest that the named respondents have engaged in any acts of antisemitism, racism, violence, hate speech, or vandalism” he added (at para 212).

Justice Koehnen said the injunction would not prevent protesters from continuing to protest wherever they want on campus, but it would allow protests to take place only between the hours of 7 am and 11 pm. It would also prohibit them from camping, setting up structures or blocking entry to university property (at para 171).

In addition, Justice Koehnen stated that the protesters’ conduct is inconsistent with freedom of expression (at para 194). “There is ample judicial authority that says protestors do not have the right to occupy property that doesn’t belong to them” he asserted (at para 181).

He concluded by saying that “case law is clear that exercising freedom of expression is not a defence to trespass” (at para 220). “The university has suffered irreparable harm because of the protesters’ continued appropriation of Front Campus and their exclusion of others from Front Campus” he added (at para 220).

Summary

Peaceful protests cannot be silenced in a free and democratic society. Students have a right to express their opinions on university campuses. If there is any threat of violence, universities can take reasonable steps to avoid that.

University campuses are private property. Therefore, they can have their own rules about protests. But even so, they may not be private property for Charter purposes. As Richard Moon stated – regarding the Alberta Court of Appeal’s 2020 decision – “this would mean university students have a Charter right to protest on campus. It’s an interesting argument, and I expect the Supreme Court will have something to say about it at some point.”

By Myrna El Fakhry Tuttle

Reposted from LawNow with permission

Canada’s Medical Assistance in Dying (MAID) laws were set to change in March 2024 to include mental disorders. But the federal government has once again delayed implementation until at least March 2027.

Medical Assistance in Dying (MAID) was legalized in Canada in 2016 and became available to eligible adults with terminal illnesses. In 2021, An Act to amend the Criminal Code (medical assistance in dying) expanded MAID to include people whose natural death was not considered reasonably foreseeable.

The 2021 changes came in response to the 2019 Superior Court of Quebec’s decision in Truchon c Procureur général du Canada ( Truchon ). The Superior Court found the requirement that an individual’s death needed to be reasonably foreseeable to be eligible for assisted dying was unconstitutional and violated both Charter sections 7 and 15. The Court also found the violations were not justified under Charter section 1 (at paras 682-735).

The Current Law

Section 241.1 of the Criminal Code defines MAID as:

(a) the administering by a medical practitioner or nurse practitioner of a substance to a person, at their request, that causes their death; or
(b) the prescribing or providing by a medical practitioner or nurse practitioner of a substance to a person, at their request, so that they may self-administer the substance and in doing so cause their own death.

Section 241.‍2(1) of the Criminal Code reads:

A person may receive medical assistance in dying only if they meet all of the following criteria:
(a) they are eligible […] for health services funded by a government in Canada;
(b) they are at least 18 years of age and capable of making decisions with respect to their health;
(c) they have a grievous and irremediable medical condition;
(d) they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and
(e) they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.

Delays in Including Mental Illness

MAID excludes individuals whose sole underlying medical condition is a mental illness. The legislation states that “mental illness is not considered to be an illness, disease or disability” (see section 241.2(2.1) of the Criminal Code ). At first, the exclusion was delayed for a two-year period so the federal government could set up appropriate safeguards. (In order to appreciate the evidence in favour of including people with mental illnesses under MAID, see paras 351 to 466 of Truchon ).

In February 2023, the government extended the deadline until March 2024. Then in February 2024, the government extended the deadline – once again – until March 2027 .

The latest delay came after the Special Joint Committee on Medical Assistance in Dying concluded in itsreportthat “ the medical system in Canada is not prepared for medical assistance in dying where mental disorder is the sole underlying medical condition ( MAID MD-SUMC ).”

Reasons for the Delay

Consent and Capacity

To be eligible for MAID, a person must be able to give informed consent and be capable of making medical decisions. Giving informed consent means having capacity to give consent. In Canada, the law presumes adults have the legal capacity to make healthcare decisions unless the situation suggests otherwise.

People with mental disorders are usually considered to have the capacity to make treatment decisions. However, mental disorders can affect a person’s decision-making in different ways.

Mental disorders can be defined, according to the Council of Canadian Academies, as “health problems that disturb or impair a person’s thoughts, experiences, emotions, behaviour, and/or ability to relate to others.”

The Council of Canadian Academies stated:

Prohibiting or more broadly permitting MAID MD-SUMC is a question that must be considered alongside key issues such as eligibility criteria, including capacity to provide consent; vulnerability and autonomy; the state of mental healthcare and treatment in Canada; and the realities of suicide.

Jessica Taylor affirmed:

As part of the eligibility criteria for MAID includes providing informed consent, an individual must be capable of making decisions related to their health by being mentally competent or capable. ‘A person is mentally competent or capable when they have the capacity to understand the nature and consequences of their actions and choices, including decisions related to medical care and treatments.’

The Expert Panel Working Group on MAID stated:

In some instances (e.g., certain neurocognitive disorders like dementia, neurodevelopmental disorders and intellectual disabilities, and some cases of schizophrenia), there is a clear decline in the cognitive abilities needed to understand and appreciate information. In other instances (e.g., depressive, bipolar, and anxiety disorders), a person’s capacity for making decisions can be impaired by the disorder’s impact on their mood and emotions. For example, depression can impair one’s ability to deliberate about the future […] or to maintain a minimal concern for self […]. Furthermore, some disorders, such as bipolar disorder, may be characterized by manic, depressive, or mixed states, in which the impact of emotion on capacity will vary.

Therefore, assessing decision-making capacity for MAID MD-SUMC for people with mental disorders can be a real challenge as their wish to die could be a symptom of their condition.

Health Care System Readiness

Expanding MAID to mental illness in Canada will result in our law becoming one of the broadest in the world. Many critics have concerns.

The Centre for Addiction and Mental Health (CAMH)’s concern about the expansion is that the health care system is not ready. They say we need more time to ensure that guidelines, resources and experts are in place. In addition, the health care system is not equipped to deal with the anticipated increase in MAID requests that come with expanding eligibility.

According to CAMH :

[…] mental illness can be severe and cause suffering that can be comparable to physical illness. But the health care available for mental illness is not comparable to the health care available for physical illnesses.

Mental health care has been significantly underfunded compared to physical health care. There are also inconsistencies in treatments covered by different provincial health plans. This means that many people across Canada do not have ready access to the full range of evidence-informed treatments that can assist in their recovery.

The Canadian Mental Health Association (CMHA) stated that “robust and rights-based safeguards to prevent harm and discrimination must accompany the legislative change permitting MAID for those with a mental disorder as their sole underlying condition.”

According to CMHA, there has been insufficient time and resources allocated to:

• consulting with community-based partners and people with lived experience of mental health and substance use health concerns regarding provincial and territorial MD-SUMC implementation frameworks,
• supporting frontline mental health and substance use health staff who are navigating inquiries regarding MD-SUMC and may be involved in MD-SUMC assessments, and
• ensuring people with mental illnesses and substance use disorders can access the medical, social and economic care they need to be well.

Furthermore, some psychiatrists have said expanding MAID to people with mental illnesses would not give them the chance to find treatments that enhance their lives. According to Virginia Duff, it could violate the principles of suicide prevention. John Maher stated that “even patients with serious mental illnesses can improve; they often just need more time to find the right treatments that work for them.”

According to the federal government, the extension of the temporary exclusion will give provinces and territories more time to adjust their health care systems. It will allow them time to develop new safeguards to apply to people with mental illnesses. Further, it will also allow practitioners to become familiar with available supports, guidelines, and standards.

How Canadians feel

In a February 14, 2024 poll, less than half of Canadians agreed that MAID should be expanded to people whose sole underlying condition is mental illness.

Seventy-seven per cent of those surveyed are satisfied with the current MAID legislation. Only forty-two per cent agree to expanding the eligibility to people who have only mental-health conditions.

Having been delayed twice, March 2027 will reveal whether Canada goes ahead with an expanded MAID program.

Image source: flickr/michael_swan

By Myrna El Fakhry Tuttle

Case Commented On: Canadian Frontline Nurses v  Canada (Attorney General), 2024 FC 42 (CanLII).

On January 23, 2024, Justice Richard Mosley of the Federal Court ruled that the government was unreasonable and not justified when it invoked the Emergencies Act (the Act ) on February 14, 2022, in order to deal with protests in various parts of the country.

This ruling came almost a year after the Commissioner of the Emergencies Act inquiry, Justice Paul Rouleau, found that the government met the threshold for invoking the Emergencies Act.

Background

On February 14, 2022, the federal government in Canada invoked, for the first time, the Act by issuing a Proclamation of a public order emergency in order to end disruptions, border blockades and the occupation of the Capital City of Ottawa. The proclamation was followed by an Emergency Economic Measures Order (the Order) and by Emergency Measures Regulations (the Regulations). (See: Myrna El Fakhry Tuttle and Linda McKay-Panos, Canada’s Extraordinary Use of the Emergencies Act Poses Human Rights Concerns).

The Canadian Frontline Nurses, the Canadian Civil Liberties Association (CCLA) and The Canadian Constitution Foundation (CCF), among others, applied for judicial review arguing that the government’s invocation of the Act breached the country’s Charter of Rights and Freedoms.

Decision

The Federal Court found that the federal government’s decision to declare a public order emergency under the Emergencies Act in 2022 was unreasonable and not justified.

Discussion

1.     Reasonable Grounds

Section 16 of the Act states: “public order emergency means an emergency that arises from threats to the security of Canada that are so serious as to be a national emergency”.

Section 17(1) states: “When the Governor in Council believes, on reasonable grounds, that a public order emergency exists and necessitates the taking of special temporary measures for dealing with the emergency”.

Regarding the issuance of the Proclamation, Justice Mosley questioned “whether the Governor in Council (GIC), acting on the recommendation of Cabinet, reasonably formed the belief that reasonable grounds existed to declare a public order emergency under s 17 of the Act ” (at para 202). Justice Mosley stated that “the “reasonable grounds to believe” evidentiary standard requires more than mere suspicion and less than proof on a balance of probabilities” citing Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 (at para 114). Justice Mosley added that “[i]t is a probability, rather than possibility based standard” citing R v Chehil, 2013 SCC 49 (at para 27) ( Canadian Frontline Nurses at para 202).

Justice Mosley observed that “the Emergencies Act contains objective legal thresholds that must be satisfied before a Proclamation may issue. And these thresholds are “more akin to the legal determinations courts make, governed by legal authorities, not policy” (at para 210).

According to section 17(2)(c) “if the effects of the emergency do not extend to the whole of Canada, the area of Canada to which the effects extend” then a declaration of a public order emergency shall be specified.

The Applicants argued that “there was no, or insufficient, evidence that the lives, health or safety of Canadians were seriously endangered beyond the capacity or authority of the provinces to deal with the situation or, that it could not effectively be dealt with under any other law of Canada” (at para 223).

The Respondent claimed that the GIC had reasonable grounds to believe that there was a national emergency (at para 239) by stating that “the effects were being experienced across Canada and it was not reasonable to limit the application of the Act (at para 240).

In this regard, Justice Mosley asserted that “it may be considered unrealistic to expect the Federal Government to wait when the country is ‘threatened by serious and dangerous situations’, … while the Provinces or Territories determine whether they have the capacity or authority to deal with the threat or, if not, could enact what is lacking in their respective legislative or regulatory tool boxes” (at para 241). However, Justice Mosley added “that is what the Emergencies Act appears to require” (at para 241).

Justice Mosley made it clear that there was a concern that new blockades could take place at any moment across the country, but the government had evidence that these incidents were being dealt with by local and provincial authorities—except the ones in Ottawa (at para 249).

Justice Mosley noted:

[d]ue to its nature and to the broad powers it grants the Federal Executive, the Emergencies Act is a tool of last resort. The GIC cannot invoke the Emergencies Act because it is convenient, or because it may work better than other tools at their disposal or available to the provinces. This does not mean that every tool has to be used and tried to determine that the situation exceeded the capacity or authority of the provinces. And in this instance, the evidence is clear that the majority of the provinces were able to deal with the situation using other federal law, such as the Criminal Code, and their own legislation (at para 253).

Justice Mosley concluded that “there was no national emergency justifying the invocation of the Emergencies Act and the decision to do so was therefore unreasonable and ultra vires” (at para 255).

In addition, Justice Mosley stated that “it was reasonable for the GIC to be alarmed at the impact of the blockades and the effects they were having on cross-border trade. Those effects could be said to fall within a broader sense of ‘threats to the security of Canada’ or, more generally, the concept of ‘national security’” (at para 256).

Justice Mosley added that to declare a public order emergency under the EA ( Emergencies Act ), each element must be satisfied. He found that “the harm caused to Canada’s economy, trade and commerce, was very real and concerning but it did not constitute threats or the use of serious violence to persons or property” (at para 296).

Therefore, Justice Mosley found that “the GIC did not have reasonable grounds to believe that a threat to national security existed within the meaning of the Act and the decision was ultra vires” (at para 297).

2.The Charter of Rights and Freedoms (the Charter)

When the Act is invoked, and according to its preamble, the Charter continues to protect individual rights as the government takes special temporary measures to protect the safety and well-being of Canadians.

The Applicants argued that the Regulations passed to support the Act violated the fundamental freedoms set out in section 2 in the Charter (at para 302).

i.               Section 2(b)

Section 2 of the Charter states:

Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association

The Applicants argued that sections 2, 4 and 5 of the Regulations violated section 2(b) of the Charter (at para 303). These read:

2 (1) A person must not participate in a public assembly that may reasonably be expected to lead to a breach of the peace by:

(a) the serious disruption of the movement of persons or goods or the serious interference with trade;

(b) the interference with the functioning of critical infrastructure; or (c) the support of the threat or use of acts of serious violence against persons or property.

Minor

(2) A person must not cause a person under the age of eighteen years to participate in an assembly referred to in subsection (1).

Prohibition — entry to Canada — foreign national

3 (1) A foreign national must not enter Canada with the intent to participate in or facilitate an assembly referred to in subsection 2(1).

Exemption

(2) Subsection (1) does not apply to:

(a) a person registered as an Indian under the Indian Act;

(b) a person who has been recognized as a Convention refugee or a person in similar circumstances to those of a Convention refugee within the meaning of subsection 146(1) of the Immigration and Refugee Protection Regulations who is issued a permanent resident visa under subsection 139(1) of those Regulations;

(c) a person who has been issued a temporary resident permit within the meaning of subsection 24(1) of the Immigration and Refugee Protection Act and who seeks to enter Canada as a protected temporary resident under subsection 151.1(2) of the Immigration and Refugee Protection Regulations;

(d) a person who seeks to enter Canada for the purpose of making a claim for refugee protection;

(e) a protected person;

(f) a person or any person in a class of persons whose presence in Canada, as determined by the Minister of Citizenship and Immigration or the Minister of Public Safety and Emergency Preparedness, is in the national interest.

Travel

4 (1) A person must not travel to or within an area where an assembly referred to in subsection 2(1) is taking place.

Minor– travel near public assembly

(2) A person must not cause a person under the age of eighteen years to travel to or within 500 metres of an area where an assembly referred to in subsection 2(1) is taking place. 2(1). Exemptions

(3) A person is not in contravention of subsections (1) and (2) if they are:

(a) a person who, within of the assembly area, resides, works or is moving through that area for reasons other than to participate in or facilitate the assembly;

(b) a person who, within the assembly area, is acting with the permission of a peace officer or the Minister of Public Safety and Emergency Preparedness;

 (c) a peace officer; or

(d) an employee or agent of the government of Canada or a province who is acting in the execution of their duties.

Use of property — prohibited assembly

5 A person must not, directly or indirectly, use, collect, provide make available or invite a  person to provide property to facilitate or participate in any assembly referred to in subsection 2(1) or for the purpose of benefiting any person who is facilitating or participating in such an activity.

The Applicants claimed that the Regulations criminalized anyone who attended the protests even if they did not take part in the “actual conduct leading to a breach of peace”. Therefore, “the Regulations limited the right to expression of protestors who wanted to convey dissatisfaction with government policies, but who did not intend on participating in the blockades” (at para 307).

Justice Mosley agreed that the scope of the Regulations was overbroad as it included people who just wanted to join in the protest without having been the focus of enforcement efforts by the police. But, under the terms of the Regulations, they could have been subject to enforcement actions like anyone else who “behaved in a manner that could reasonably be expected to lead to a breach of the peace” (at para 308).

Justice Mosley stated that “one aspect of free expression is the right to express oneself in certain public spaces. By tradition, such places become places of protected expression,” citing Montréal (City) v 2952-1366 Québec Inc., 2005 SCC 62 (at para 61). Justice Mosley added “to the extent that peaceful protestors did not participate in the actions of those disrupting the peace, their freedom of expression was infringed” ( Canadian Frontline Nurses at para 309).

However, Justice Mosley found no breach of section 2(c) of the Charter right of peaceful assembly (at para 314) and no breach of section 2(d) of the Charter right of freedom of association (at para 317).

ii.             Section 7

Section 7 of the Charter reads:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Section 10(2) of the Regulations states:

In the case of a failure to comply with these Regulations, any peace officer may take the necessary measures to ensure the compliance and allow for the prosecution for that failure to comply

(a) on summary conviction, to a fine not exceeding five hundred dollars or to imprisonment for a term not exceeding six months or to both; or

(b) on indictment, to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding five years or to both.

The Applicants argued that section 10(2) of the Regulations created “an offence punishable by imprisonment engages the liberty interest protected by section 7 of the Charter and was geographically overbroad,” citing R v Heywood, [1994] 3 SCR 761 at p 794 ( Canadian Frontline Nurses at para 320).

Justice Mosley found no breach of section 7 by affirming that “the extension of the temporary measures throughout the country including where no disruption had occurred would appear to have been overbroad. However, a party asserting a violation of section 7 must not only show that the impugned law interfered with or deprived them of their life, liberty or security of the person, which laws do all the time, but also that the deprivation in question is not in accordance with the principles of fundamental justice” citing Carter v Canada (Attorney General), 2015 SCC 5 (CanLII) (at para 55). Justice Moley added that “in this instance, the deprivation was temporary in nature and subject to judicial review as these proceedings have demonstrated” ( Canadian Frontline Nurses at para 324).

iii.            Section 8

Section 8 of the Charter says:

Everyone has the right to be secure against unreasonable search or seizure.

The Applicants questioned whether the Gic’s Economic Order, which authorized the search, was reasonable (at 326). They claimed that section 2(1) of the Economic Order constituted a seizure within the meaning of section 8 because it allowed financial institutions to freeze the assets of designated persons. They also claimed that section 5 of the Economic Order violated section 8 since it allowed banks to disclose private information of designated persons, to the RCMP or CSIS (at para 328).

Justice Mosley decided that “while the purpose of Charter s 8 is to protect privacy rights and not property, governmental action that results in the content of a financial institution account being unavailable to the owner of the said account would be understood by most members of the public to be a “seizure”.” Justice Mosley added that “the disclosure of information about the bank and credit card accounts of the ‘designated persons’ by the financial institutions to the RCMP constituted a ‘seizure’ of that information by the government” (at para 334).

Justice Mosely concluded that “while the financial institutions were private entities and thus normally beyond the reach of the Charter, the activity in question here can be ascribed to government. The act was truly ‘governmental’ in nature to implement the temporary measures enacted by the GIC and thus brought the banks and other financial services providers within the scope of section 8 to the extent of that activity,” citing Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624 (at para 44.) ( Canadian Frontline Nurses and Kristen Nagle et al. at para 340). “The failure to require that some objective standard be satisfied before the accounts were frozen breached s 8” (at para 341).

iv. Section 1

Section 1 of the Charter states:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Justice Mosley agreed that the government had a pressing and substantial objective, and that “there was a reasonable connection between freezing the accounts and the objective, to stop funding the blockades”. However, Justice Mosley found that “the measures were not minimally impairing” (at para 352).

Justice Mosley stated that “minimal impairment requires that the measures affect the rights as little as reasonably possible, they must be ‘carefully tailored’,” citing Frank v Canada (Attorney General), 2019 SCC 1 (at para 66). Justice Mosley added: “The Regulations and Economic Order fail the minimal impairment test for two reasons: 1) they were applied throughout Canada; and 2) there were less impairing alternatives available” ( Canadian Frontline Nurses at para 353).

Justice Mosley found that “the infringements of Charter sections 2(b) and 8 were not minimally impairing, [and] that they were not justified under section 1” (at para 359).

Conclusion

Justice Mosley considered the events that took place in January and February 2022 went beyond legitimate protest and constituted an “unacceptable breakdown of public order.” He acknowledged that he had “considerable sympathy for those in government who were confronted with that situation”. He stated: “Had I been at their tables at that time, I may have agreed that it was necessary to invoke the Act” (at para 370).

However, Justice Mosley ruled that “the decision to issue the Proclamation does not bear the hallmarks of reasonableness – justification, transparency and intelligibility – and was not justified in relation to the relevant factual and legal constraints that were required to be taken into consideration” (at para 372).

Deputy Prime Minister Chrystia Freeland said the federal government will appeal the decision. “I would just like to take a moment to remind Canadians of how serious the situation was in our country when we took that decision”, she stated. “The public safety of Canadians was under threat. Our national security, which includes our national economic security, was under threat,” she added.

Image source: flickr/United Nations Photo

By Myrna El Fakhry Tuttle

Reposted from LawNow with permission

During times of armed conflict, international humanitarian law (IHL) and human rights law (HRL) are meant to protect human beings and reduce their suffering.

Armed conflicts are happening in various parts of the world. Unfortunately, serious violations of international humanitarian law ( IHL ) and human rights law ( HRL ) are also taking place. These violations can constitute genocide, war crimes or crimes against humanity.

IHL and HRL aim to respect and protect human beings and reduce their suffering. Though they have different purposes, both come into play during armed conflicts.

HRL consists of international norms that protect and promote universal human rights that are interrelated, interdependent and indivisible. According to the Office of the High Commissioner for Human Rights :

They are often expressed and guaranteed by law, in the form of treaties, customary international law, general principles and soft law. Human rights entail both rights and obligations. International human rights law lays down the obligations of States to act in certain ways or to refrain from certain acts, in order to promote and protect the human rights and fundamental freedoms of individuals or groups.

The Geneva Conventions and their Additional Protocols form the core of IHL, which establishes rules that try to limit the impacts of armed conflict on individuals, including “civilians, persons who are not or no longer participating in the conflict and even those who still are, such as combatants.” Therefore, IHL includes two areas: “the protection of persons; and restrictions on the means and the methods of combat.”

HRL Applies at All Times

For many years, there was a debate about the applicability of HRL in situations of armed conflict. It used to be the case that, during armed conflict, the operation of treaties between the parties was suspended. Under modern international law though, HRL continues to apply in situations of armed conflict together with IHL.

Sayed and Iqbal Dar stated:

[..] it is widely recognized nowadays by the international community that since human rights obligations derive from the recognition of inherent rights of all human beings and that these rights could be affected both in times of peace and in times of armed conflict, international human rights law continues to apply in situations of armed conflict. Consequently, the two bodies of law—international human rights law and international humanitarian law—are considered to be complementary sources of obligations in situations of armed conflict.

Further proof is found in human rights treaties, which do not say they do not apply in times of armed conflict. The United Nations International Law Commission, in its report on the Effects of Armed Conflicts on Treaties, stated that “the outbreak of an armed conflict does not ipso facto terminate or suspend the operation of treaties in force between the parties to the armed conflict” (article 2). The International Court of Justice (ICJ) has also confirmed this by stating that “the protection of the International Covenant on Civil and Political Rights does not cease in times of war.”

States’ Obligations under HRL

HRL sets out the obligations of States to promote and protect the human rights and fundamental freedoms of individuals.

The Office of the High Commissioner for Human Rights affirmed:

[…], in armed conflict, parties to the conflict have legally binding obligations concerning the rights of persons affected by the conflict. Although different in scope, international human rights law and international humanitarian law offer a series of protections to persons in armed conflict, whether civilians, persons who are no longer participating directly in hostilities or active participants in the conflict.

Under HRL, States are required to respect its nationals or citizens’ rights and protect them from any human rights violations. These obligations continue to apply in situations of armed conflict within the State’s territory and outside its borders.

According to Françoise Hampson :

When a State assumes an international legal obligation, it is bound to give effect to it wherever it takes relevant action. The content of the rule and the nature of the action to be taken may mean that it only has effect within national territory. Where the obligation concerns executive action, it is likely that the State will have to apply the content both within and outside national territory. It would be objectionable to allow a State to torture on condition that it did so outside national territory.

Human rights bodies suggest that the obligation to respect human rights applies once a State’s conduct (e.g. through an aerial bombardment) impacts a person’s rights. They also suggest that control over persons (e.g. detainees) can be sufficient to trigger jurisdiction.

Non-Derogable Rights

States cannot derogate from (downplay) fundamental human rights in any circumstances, including a public emergency. These rights are non-derogable, meaning they apply and are enforceable at all times. They include the right to life, the prohibition of torture or cruel, inhuman or degrading treatment, the right to a fair trial and prohibition of discrimination.

Article 4 of the ICCPR sets out this authority under HRL:

1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

In addition, article 75 of Protocol I Additional to the 1949 Geneva Conventions, which talks about fundamental guarantees under IHL, reads:

2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or military agents:

(a) Violence to the life, health or physical or mental well-being of persons, in particular:

·        murder,

·        torture of all kinds, whether physical or mental,

·        corporal punishment,

·        mutilation;

(b) Outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault;

(c) The taking of hostages;

(d) Collective punishments;

(e) Threats to commit any of the foregoing acts.

Françoise Hampson stated:

In situations of “[war or other] public emergency,” some rights may be modified, though not eliminated by derogation. Other rights (e.g., the prohibition of arbitrary killing, torture, cruel, inhuman or degrading treatment or punishment) are non-derogable. They therefore remain applicable, and the key question is how the concepts are interpreted.

Therefore, a State can suspend certain derogable provisions of HRL in situations threatening the life of the nation. Derogable rights include the freedom of movement, liberty and security, freedom of association, etc. A State may limit or suspend these rights during the public emergency, but only to the “extent strictly required by the exigencies of the situation.”

Common Rights to Protect

During armed conflicts, a special protection is granted to children and women against sexual violence and abuse. Discrimination and gender inequality are common issues during armed conflicts, particularly against women and girls. However, under IHL and HRL, States are required to protect women and children from these violations.

States must also protect religious and cultural rights, the right of persons to visit their families and individuals from arbitrary detention.