Gender Equality in Sports - A Human Rights Lawyer's Perspective

This paper analyzes gender equality in university sport programs through the lens of human rights legislation. It queries if and how the cause of gender equality in university sports might be advanced through the use of legal mechanisms and institutions charged with the administration and enforcement of human rights guarantees. The decision of the University of New Brunswick to cancel its Women's Hockey Varsity Team and a faculty policy on gender equity form the factual matrix of a case study that demonstrates how sports administrators may achieve or defeat gender equality in university sports. This study concludes that gender equality in sport trails the advance of that goal in other social spheres, rendering institutions and individuals vulnerable to legal liability. The paper provides an analytical framework that would manage this vulnerability. Résumé L’exposé analyse l’égalité des sexes dans les programmes de sports universitaires selon la législation sur les droits de la personne. Il propose de comprendre dans quelle mesure et de quelles façons la cause de l’égalité des sexes dans les sports universitaires pourrait être avancée grâce au recours de procédures juridiques et d’institutions chargées de l’administration et du renforcement des droits de la personne. La décision qu’a prise l’Université du Nouveau-Brunswick – soit celle de mettre fin à sa ligue universitaire de hockey pour femmes - et la politique universitaire sur l’égalité des sexes fournissent le contexte factuel d’une étude de cas qui montre à quel point les administrateurs du domaine sportif pourraient atteindre ou non l’égalité des sexes dans les sports universitaires. La conclusion affirme que l’égalité des sexes dans les sports accuse un retard par rapport aux autres sphères sociales, rendant ainsi les établissements et les personnes vulnérables à la responsabilité légale. Cette étude fournit un cadre de travail analytique qui permettrait de gérer ce risque

From Principles to Rules: The Case for Statutory Rules Governing Aspects of Judicial Disqualification

The common law “reasonable apprehension of bias” test for judicial disqualification is highly fact- and context-specific. While there are good reasons for this approach as a general proposition, it also gives rise to considerable uncertainty for both judges and litigants in considering whether or not it is appropriate for a judge to sit in a marginal case. This article explores statutory judicial disqualification regimes in the United States, Germany, and Quebec to gain insights into how statutory rules can be employed to provide greater clarity to judges and litigants who are addressing situations that have the potential to give rise to judicial disqualification. Using these insights, the authors then propose the use of statutory rules to address problem areas with respect to professional relationships with former colleagues and clients, prior judicial involvement with litigants, extrajudicial writings, and procedures for making determinations concerning judicial disqualification

The German Abortion Decisions and the Protective Function in German and Canadian Constitutional Law

In the First and Second Abortion decisions, the German Constitutional Court drew on earlier jurisprudence to hold that the state was under a constitutional duty to protect the fetus from deprivations of its interest in life by the pregnant woman. In this article, we suggest that Canadian constitutional law scholars and reproductive rights advocates would benefit from examining the German abortion decisions despite their highly controversial nature. In our view, the benefits are twofold. First, the German cases demonstrate that recognizing the protective function can help clarify constitutional doctrine by revealing the tensions that underlie many difficult constitutional cases. Second, a synthetic reading of the German and Canadian Courts’ abortion jurisprudence generates a more fulsome and nuanced analysis of the issues raised in the those cases, as well as additional critical commentary on the Courts’ analyses and conclusions

The German Abortion Decisions and the Protective Function in German and Canadian Constitutional Law

In the First and Second Abortion decisions, the German Constitutional Court drew on earlier jurisprudence to hold that the state was under a constitutional duty to protect the fetus from deprivations of its interest in life by the pregnant woman. In this article, we suggest that Canadian constitutional law scholars and reproductive rights advocates would benefit from examining the German abortion decisions despite their highly controversial nature. In our view, the benefits are twofold. First, the German cases demonstrate that recognizing the protective function can help clarify constitutional doctrine by revealing the tensions that underlie many difficult constitutional cases. Second, a synthetic reading of the German and Canadian Courts’ abortion jurisprudence generates a more fulsome and nuanced analysis of the issues raised in the those cases, as well as additional critical commentary on the Courts’ analyses and conclusions

Refining the Reasonable Apprehension of Bias Test: Providing Judges Better Tools for Addressing Judicial Disqualification

Despite a considerable amount of litigation concerning judicial impartiality, the Canadian reasonable apprehension of bias test for judicial disqualification has remained fundamentally unaltered and is well accepted in the jurisprudence. Unfortunately, the application of the test continues to generate difficulties for judges who need to use it to make decisions in marginal cases. Based on previously published doctrinal and empirical research, the goal in the present contribution is to suggest modifications to the test that will better explain the existing jurisprudence and make it easier for judges to understand when recusal is or is not necessary in marginal cases. The authors consider first the advantages of the existing test and suggest that in order to be useful, any refinement to the test must, to the greatest extent possible, preserve those advantages. Second, the authors explain why inconsistent application of the test in marginal cases is a concern. Third, they analyze the ways in which the existing test, and the jurisprudence explaining and applying it, are problematic. Fourth, the authors propose a modification to the reasonable apprehension of bias test that is designed to address these shortcomings while preserving the key advantages of the existing test

Constitutional Identity and the Identity of the People: The Constitutional Conceptualization of Non-Status and Off-Reserve Indigenous Populations in Canada

Abstract This article focuses on the issue of the relationship between constitutional recognition and constitutional imposition of identity. The Canadian state in its constitutional document describes itself as a liberal democracy governing a pluralist society. It also recognizes Aboriginal rights as constitutive. The first two elements have met with considerable success in terms of aligning state and citizen identity. This suggests that neutral constitutional identities or identities that respect individual diversity can be imposed successfully through the democratic process. However, these are not effective in meeting decolonizing objectives, which must instead be pursued through respecting Indigenous self-governance