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Insert Title Page INSERT TITLE PAGE Canadian Journal of Revue canadienne des Human Rights droits de la personne An interdisciplinary Journal of Une revue interdisciplinaire sur Law and Policy le droit et les politiques Editor-in-Chief Donn Short Senior Editor Corey Shefman Editors Christine Arnold Andrew Boumford Bhanwar Dhanoa Janet Kwong Keith Lenton Georgia Ongley Jocelyn Turnbull Sam Yung French Language Editor Summer Editors Stephen Myher Keith Lenton Stephen Myher Assistant Editors Karen Diggins Katrine Dilay Kamini Dowe Erica Grant Brendan Harvey Tyrel Henderson Haley Hrymak Justin Kusyk Jessica Mahabir Peter Muto Tyler Omichinski Lalitha Ramachandran Hillson Tse Editorial Board 2010 - 2011 Lyndsey Amott Sloane Bernard Sayer Down Brandi Field Graham Honsa Michael Jones Keith Lenton Marie McLellan Landon Miller Corey Shefman Steve Toews Advisory Board Clint Curle Canadian Museum for Human Rights Gerald Heckman Robson Hall Faculty of Law Hin-Yan Lu Max Weber Fellow, EUI Anne McGillivray Robson Hall Faculty of Law James T. Sears Independent Scholar Rebecca Wallace Perth College, UHI Publication Information © 2012 Canadian Journal of Human Rights (CJHR). All works in this publication are available open access online at: www.cjhr.ca pursuant to the Creative Commons Attribution-NonCommercial-NoDerivs 2.5 Canada License. You are free to reproduce, distribute and transmit the articles and forewords in this publication provided that you attribute the author(s) and the Canadian Journal of Human Rights and provide a link to our content. You may not use the articles or forewords in this publication for commercial purposes. You may not alter, transform or build upon the articles or forewords in this publication. Visit http://creativecommons.org/licenses/by-nc-nd/2.5/ca. Legal Deposit / Dépôt legal 2012 National Library of Canada / Bibliothèque nationale du Canada ISSN : 1923-9211 / E-ISSN (Online) : 1925-5306 Cite as (2012) 1:1 Can J Hum Rts The CJHR is a refereed journal published by the Faculty Council, Robson Hall Faculty of Law. The opinions expressed in the contributions which appear are those of the individual authors and are not to be taken as representative of the views of the editors, the law school or the University. Acknowledgements The Canadian Journal of Human Rights gratefully acknowledges the support of the Legal Research Institute. Subscription Information For subscription information, please see our website: www.cjhr.ca Information For Contributors The Editorial Board invites the submission of unsolicited articles and reviews. Manuscripts should be submitted electronically in Microsoft Word. All citations must be in footnote format and conform to the Canadian Guide to Uniform Legal Citation, 7th Edition. Contributors should ensure the correctness of all citations and quotations. Articles should not exceed 15,000 words. All manuscripts should include an abstract and author biographical information. Communication Please forward submissions and communications to: Dr. Donn Short, Editor-in-Chief Phone: 204.480.1023 Canadian Journal of Human Rights Fax: 204.474.7580 224 Dysart Road, Room 104 E-mail: [email protected] University of Manitoba Web: www.cjhr.ca Winnipeg, Manitoba R3T 2N2 Production The editorial operations of the CJHR including editing and typesetting are conducted in-house using Microsoft Word and Adobe InDesign CS4. Cover design by The Message Studios Inc. Title page and trademark of CJHR designed by Carl Shura. Production assistance provided by Jennifer Chlopecki. The text of the Journal is set in Myriad Pro and Book Antiqua. Typesetting by Keith Lenton. Donn Short, Founding Editor. Keith Lenton, Journal Layout Design. The CJHR is printed and bound by Friesens Corporation, Manitoba. Canadian Journal of Human Rights An Interdisciplinary Journal of Law and Policy 2012 n Volume 1 n No. 1 FOREWORDS 1 Justice Rosalie Abella, Supreme Court of Canada 13 Dr. Lorna A. Turnbull, Dean of Law 17 Gail Asper, The Asper Foundation 21 Dr. Donn Short, Editor-in-Chief ARTICLES 25 Enhancing the Implementation of Human Rights Treaties in Canadian Law: The Need for a National Monitoring Body Amissi M. Manirabona & François Crépeau 61 Concepts and Precepts: Canadian Tribunals, Human Rights and Falun Gong David Matas & Maria Cheung 93 Cultural Restoration in International Law: Pathways to Indigenous Self-Determination Jeff Corntassel 127 Conscientious Objection to Creating Same-Sex Unions: An International Analysis Bruce MacDougall, Elsje Bonthuys, Kenneth McK. Norrie & Marjolein van den Brink 165 ‘Forced Marriage’ in Conflict Situations: Researching and Prosecuting Old Harms and New Crimes Annie Bunting Foreword by Rosalie Abella his new journal is a timely and, I predict, an indispensible contribution to our appreciation of human rights and their centrality in thriving Tdemocracies. Timely because of how sophisticated our approach to human rights has increasingly become, and central because rights are at the heart of justice. Human rights law is the law that addresses issues of discrimination. It deals with grievances flowing from group identity. More particularly, it deals with the disadvantaging practices flowing from arbitrary and stereotyped attributions about a group’s identity. Human rights addresses the rights of individuals who are members of historically disadvantaged groups to have those differences recognized and reasonably accommodated, not used as arbitrary barriers to social, political or economic access. Unlike civil liberties, which is the frame for analyzing the individual’s relationship with the state, human rights is the frame for analyzing a group’s relationship with both the mainstream and the state. Not all individuals in the group may feel disadvantaged, but for those who do, human rights offers a remedy for denials of access arbitrarily caused by their group’s identity and differences, the essence of discrimination. The law of discrimination in Canada developed along two seemingly parallel tracks. One was the law developed by provincial human rights commissions in the 10 provinces. The approach from these bodies, and later from their federal counterpart, the Canadian Human Rights Commission, was expansive and innovative in protecting human rights. The second - and older - track, was the law of discrimination developed by Canadian judges. This track, with rare exceptions, tended to submerge the development of human rights under what were seen to be the overriding demands of commerce or the constitutional division of powers. Even when the courts came to what we would today consider to be a ‘just’ result, as the Supreme Court of Canada did in Noble and Wolfe v. Alley invalidating a restrictive covenant prohibiting the sale of land to persons who were Jewish or black, the Court avoided taking direct aim at the discriminatory context of the covenant. Rather than basing its conclusion on the grounds that such discriminatory practices violated public policy, as an Ontario judge had done 2 n Canadian Journal of Human Rights (2012) 1:1 Can J Hum Rts in the singular 1945 decision Re: Drummond Wren, the Court structured its analysis around the law of contract and land use. Until three decades ago, in fact, the human rights journey taken by the Canadian courts had almost consistently been a discouraging one, permitting a province to prevent a “Chinaman” from working in a mine; upholding a provincial law preventing Asian persons from voting; refusing to invalidate a provincial law precluding a “Chinaman” from hiring white women or girls; upholding a tavern’s right to refuse to serve a black customer; and, famously, concluding that women were ineligible to be appointed to the Senate because the word “Persons” in the relevant section of the British North America Act did not include “female persons”. This last decision, overturned by the Judicial Committee of the Privy Council, produced a directive from Lord Sankey that constitutional interpretation be untethered from an originalist construction and approached instead as “a living tree capable of growth and expansion”, an exhortation that was to inform and infuse the Supreme Court’s approach to human rights under the Canadian Charter of Rights and Freedoms 50 years later. A seismic shift in the Supreme Court’s approach to discrimination seemed to come in 1959 with Roncarelli v. Duplessis. Although the conceptual divining rod of this case is seen to be, justifiably, administrative law, it is no less significant for its human rights implications. It was the apotheosis of a number of legal challenges to Quebec’s attempts to dissolve any rights for Jehovas Witnesses, including the right to practice their religion or carry on business. These attempts were definitively cauterized by the Supreme Court’s conclusion in Roncarelli that such arbitrariness was outside the sphere of legitimate government authority. The promise of this judgment for muscular rights protection, however, appeared to atrophy somewhat during the next decade, when the Court was presented with the opportunity of developing human rights under a new 1960 Canadian Bill of Rights. This federal statute gave the Court its first opportunity to consider a statutory provision explicitly granting Canadians equality and protecting them from discrimination. The beginning was auspicious. A provision of the Indian Act making it an offence for an aboriginal person to be intoxicated off a reserve, was declared to be inoperative because its punitive reach did not extend to persons who were not aboriginal. It proved to be a short-lived
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