Rights at Work: Fairness in Personal Work Relations and Restorative Labour Market Regulation

By desire or necessity, virtually all of us work for a considerable portion of our lives. Work defines our social status, determines our degrees of health and happiness and underpins our sense of self. The productivity, efficiency and economic significance of the work we do, in aggregate terms, are critical to the prosperity of the societies in which we live. Moreover, fair treatment in our workplaces is an important aspect of our individual well-being and a mark of the civility and decency of our communities. Many of us expect the law to ensure fairness in our work relations; but increasingly, legal arrangements governing labour market regulation are not up to the task. In developed economies, legal rules dealing with rights at work vary dramatically in terms of their institutional context, substantive content and breadth of applicability across varying forms of productive or remunerated personal activity. However, a widespread current concern in many jurisdictions, including Canada, is that “rights at work” often hinge upon a worker’s status as an “employee” in a “standard employment contract” and do not inure to the benefit of those personally performing work for others in a broad range of other legal arrangements, and who are thus left vulnerable to exploitation. In the globalized new economy, legal regulation to support or ensure fairness through domestically legislated rights at work has become increasingly problematic. There has also developed a full blown scholarly crisis about the scope and content of labour and employment law, which has engulfed the global academy in the wake of the collapse of the post-war economic, political and social consensus over the welfare state. Finding ways around the apparent problems is not simple or easy – conceptually, economically, socially or politically. In part, this is because the values which underpin rights at work are contested terrain. But in large measure also, because this context requires a re-conceptualization of worker rights along the full gamut of personal work relations with a commensurate effort to understand how such thinking connects to broader labour market regulation. A myriad of legal structures regulate labour markets which are outside the confines of traditional labour and employment law as understood by most lawyers. That wider playing field is provides the background parameters for this paper. The paper’s purpose is to explore schematically ways to improve the fairness of the legal construction of personal work relations within an integrated, efficient and restorative approach to labour market regulation. Part I sets out the shifting contexts for reflection on rights at work as they have evolved in recent decades. It focuses on changing labour market realities, the collapse of the post-World War II welfare state, the abandonment of the intellectual consensus in which labour and employment law were imbedded, and the new normative tensions over rights at work in the globalized, post-modern economic, social and political environment. It highlights the prevalence of precarious employment, and its attendant devaluation of rights at work and benefits gained through work, as a potential precursor to significant political instability. Part II identifies ways of rethinking fair work relations and improved labour market regulation. It reviews advances in human capability development theory which provide a new normative framework for re-casting work relations and labour market regulation. It outlines the value of a relational understanding of rights in moving beyond the standard employment contract as the primary legal construct for the regulation of personal work relations. It then tackles principles of responsive or restorative regulation as procedural approaches for achieving integrated labour markets which enhance economic competitiveness while respecting fair work relations. Lastly, it contemplates possibilities for stability and social justice through greater rights at and through work, and for competitive but fair labour market regulation. If these ambitions are to be attained, it will involve harnessing both public and private means at national and international levels in the context of deliberative democracy

Labour Law as a Subset of Employment Law? Up-dating Langille’s Insights with a Capabilities Approach

Brian Langille’s influential 1981 article entitled “Labour Law is a Subset of Employment Law” is evaluated in the light of changes in the economic, social and political context since its publication and the shifts in the appropriate normative underpinnings for such an exercise. Langille’s conceptually radical original version of a unified field for legal governance of the workplace, rooted in liberal constitutional principles, has been accepted in the interim by many. However, four decades later, this schema is no longer an adequate basis for responding to challenges for achieving fairness and justice in a world of precarious employment, globally organized supply chains creating fissured workplaces and increasing levels of inequality. In the meantime, Langille, responding to these new circumstances, has moved to a vision of regulating work in accordance with a capabilities approach to the deployment of human capital. This principle should give workers greater freedom to chose to live lives they have reason to value. The question is: what are the real prospects for implementation of these optimistic notions for governing life at work? L’article influent de Brian Langille de 1981 intitulé « Labour Law is a Subset of Employment Law » est examiné à la lumière des changements survenus dans les contextes économique, social et politique depuis sa publication ainsi que des nouveaux fondements normatifs appropriés pour un tel exercice. La version originale, conceptuellement radicale, de Langille d’un domaine unifié pour la gouvernance juridique du lieu de travail, enracinée dans les principes constitutionnels libéraux, a été acceptée depuis lors par beaucoup de gens. Cependant, quatre décennies plus tard, ce schéma ne constitue plus une base adéquate pour répondre aux défis en matière d’équité et de justice dans un monde d’emplois précaires, de chaînes d’approvisionnement organisées à l’échelle mondiale créant des lieux de travail fragmentés et des niveaux d’inégalité croissants. Entre-temps, Langille, répondant à ces nouvelles circonstances, a adopté une vision de la réglementation du travail selon une approche du déploiement du capital humain fondée sur les capacités. Ce principe devrait donner aux travailleurs une plus grande liberté de choisir de vivre des vies qu’ils ont des raisons d’apprécier. La question est la suivante : quelles sont les perspectives réelles de mise en œuvre de ces notions optimistes pour régir la vie au travail

Sentencing and Visible Minorities: Equality and Affirmative Action in the Criminal Justice System

The Canadian criminal justice system is facing serious criticism for being racist. Certain Canadian laws and judicial decisions in the past have made the legal system an easy target for such charges. Canadian governments have acknowledged the problems of racism in Canadian society, and provincial and federal human rights legislation exemplify efforts to eradicate racial discrimination. However, racial discrimination persists in Canadian society and the criminal justice system occupies a particularly sensitive place in controversies over the role of the state in these problems. Moreover, the equality provisions in the Canadian Charter of Rights and Freedoms have quite properly raised expectations that legislatures, courts and policy makers can and must use legal mechanisms to counter racial discrimination wherever it exists, but particularly in the criminal justice system

On Criminal Procedure

Quebec jurists are sometimes want to decry, and justifiably so, the absence of recognition accorded the works of their Quebec colleagues by judges, practitioners and academics in the common law provinces of Canada.\u27 In the field of criminal law this situation exists, even though one might have thought that practical pressures to present the latest argument on a general criminal defence or some aspect of criminal procedure would drive English speaking lawyers across linguistic barriers in search of solutions. Irene Lagarde\u27s Droit pdnal canadien2 was the standard reference source for the francophone practitioner of Canadian criminal law for years, but went virtually unnoticed and uncited by courts outside Quebec even though it was in many respects superior to similar annotated criminal codes in daily use elsewhere in Canada

Why Restorative Justice is Not Compulsory Compassion: Annalise Acorn\u27s Labour of Love Lost [A Review of \u27Compulsory Compassion: A Critique of Restorative Justice,\u27 Annalise E. Acorn (Vancouver: University of British Columbia Press, 2004)]

Annalise Acorn has produced an immensely engaging book about love, sexuality and law, written with verve and elan; however, it paints a hugely misleading picture of restorative justice that could be seriously damaging to what is arguably the most significant development in criminal justice since the emergence of the nation state. Restorative justice is changing the nature of criminal justice systems the world over. The Canadian criminal justice system is a leader in this regard, though it is far from being alone. Simplistic and dysfunctional systems of punitive criminal justice are being altered and supplemented by restorative programs that are capable of obtaining high rates of offender compliance with sanctions as well as high rates of satisfaction for victims. Moreover, restorative justice, when judiciously used, has demonstrated a capacity for reductions in both recidivism rates and the costs of criminal justice. Annalise Acorn\u27s Compulsory Compassion: A Critique of Restorative Justice does not reflect these important realities. It is a peculiarly fascinating but fundamentally flawed book. The effort to demonstrate why this is the case is worthwhile, since the book is written with such an attractive style and enthusiastic energy that it could easily beguile the unwary reader into acceptance of its author\u27s jaundiced assessment of restorative justice. The problems begin with the book\u27s title. First, to be effective, restorative processes must be and are voluntary, not compulsory. Secondly, at its core, restorative justice is about accountability for wrongful behaviour, not about compassion. This critique, of course, may sound tedious by comparison to the alliteratively striking and paradoxically pointed description of restorative justice as compulsory compassion. Nonetheless, the alluring appearances of this faulty nomenclature are dangerously deceiving

Criminology: A Reader\u27s Guide

As a journeyman law teacher, sometime sociologist, enthusiastic law reformer, and an occasional dabbler in criminology and comparative law, this volume came to me like manna from heaven. It\u27s an intelligent catalogue of almost all I ever wanted to know but most often never had time to read. Modestly called a reader\u27s guide , this book will serve a multitude of purposes for anyone with an interest in criminology. It is an excellent starting point for the student wishing to commence research on nearly any serious criminological topic. Criminal justice professionals who wish to step out of their narrow niche and see the system as others see it will have their eyes opened. Legal scholars who think they have a pretty good handle on criminal justice issues may be amazed to find how much useful research is being done in cognate disciplines. Last and no doubt least, bluffers who wish to pontificate on criminal justice issues without having to go through the tedious business of real research will find it simply invaluable

Let My People Go: Human Capital Investment and Community Capacity Building Via Meta/Regulation in a Deliberative Democracy - a Modest Contribution for Criminal Law and Restorative Justice

Globalization and the new information economy are putting great stress on western high-wage economies of which Canada is an exemplar. As individuals and together as a society, Canadians are being forced to become more flexible and strategic in adjusting to changing employment opportunities and economic challenges. Meanwhile, governments have shifted from being purveyors of welfare to being supervisors of both markets and decentralized/ privatized public services. Key roles for the government in this new political environment are the sponsorship of mechanisms for autonomous, individual human capital investment as well as for community responses to these emerging economic and social challenges. This new supervisory state governs by various forms of regulation which are often developed through participatory processes. From legislative rulemaking to community consultation, governance can take the form of a broad and multi-faceted deliberative democracy. Responsive regulation is even having an impact on criminal justice, often thought to be one of the most inflexible arenas of state activity, primarily, though not exclusively, through what is called restorative justice. True restorative justice in response to crime has characteristics of deliberative democracy that have the potential to make a modest, if not significant, contribution to human capital development and community capacity building. The story of these hopeful developments is the subject of this article but, just as the devil is often said to be in the details, close analysis of detail can be the source of things divine in the best of all possible worlds. The reader is, therefore, forewarned that there follows a highly condensed discussion of the relations among models of criminal justice, regulatory theory, deliberative democracy and human/social capital investment. But the ultimate message is simple: we have the social, economic, political, and indeed legal means to liberate people\u27s creative and productive capacities in multiple ways and in curious places; hence, the reference in the title to the traditional black spiritual Let My People Go

Criminal Justice Models: Canadian Experience in European and Islamic Comparative Perspective

This paper examines Canadian models of criminal justice in a European and Islamic comparative perspective. The traditional model of Canadian criminal justice is a state centred adversarial one intended to punish, deter and/or rehabilitate offenders who are accorded formal due process protections embedded in a liberal constitutional and procedural rights. This model has been transformed recently into an ambiguously tripartite adversarial model through an overlay of victims’ rights at all stages. However, Canadian law also recognizes alternative processes through various forms of problem solving courts and sometimes comprehensive restorative justice approaches, the latter rooted in relational notions of rights. Meanwhile, criminal models in Europe have been evolving as well. The British common law model of criminal justice has arguably been transformed by statute into a state-centred managerial approach which has shifted the balance from due process toward crime control in a somewhat continental manner, while tolerating restorative justice experimentation at its periphery. On continental Europe, traditional judge-centered investigatory/accusatorial models have been the subject of adversarial due process reforms in differing ways, while “penal mediation” has been introduced to enhance victim satisfaction beyond historically available civil party recovery procedures. In the Muslim world, there has been a revival of Shar’iah law to varying degrees in many states, centered upon Islamic jurisprudential sources based on the Qu’ran, and Sunnah or Hadith, and reasoning through qiyas (analogy) to achieve consensus (ijma) in relation to the three traditional forms of Islamic offences with their distinct procedural characteristics. The victim-centred nature of flexible aspects of Islamic criminal law has led some to characterize Shar’iah as being suffused with restorative justice principles, despite widespread views to the contrary. Examination of the differences and similarities among these various models of criminal justice from “pure” and “applied” perspectives, leads to reflection on the capacity for criminal justice systems to evolve and change, and to tolerate significant levels of internal diversity, while demonstrating a wide range of potential forms for the instantiation of plausibly common values

Restorative Justice and the Rule of Law: Rethinking Due Process through a Relational Theory of Rights

Restorative approaches to criminal justice can be reconciled with fundamental notions of the rule of law through a relational understanding of rights. Firstly, the paper demonstrates how theories of rights have evolved from a liberal understanding in representative democracies, where individual rights holders can trump the interests of others, to a relational theory where rights embody values which structure appropriate relationships among citizens. Second, the paper shows that relational theory can explain how formal criminal justice and restorative justice in a deliberate democracy interrelate, while embodying different, though compatible, rights, duties and remedies among wrongdoers, victims, communities and justice system authorities. Third, the paper invokes a relational understanding of administrative law to chart an approach to judicial review of restorative justice processes, which can reinforce their deliberative and participatory nature through vindication of relational rights and remedies, without simply returning cases to criminal courts. Finally, the paper details the substantive and procedural administrative law standards to be applied in reviewing restorative justice. The conclusion asserts that a relational understanding of the role and rule of law in relation to restorative justice promotes relationships of equality based on mutual concern, respect and dignity in ways that can enhance justice and social solidarity in a deliberative democracy