Law as an Ally or Enemy in the War on Cyberbullying: Exploring the Contested Terrain of Privacy and Other Legal Concepts in the Age of Technology and Social Media

This article focuses on the role and limits of law as a response to cyberbullying. The problem of cyberbullying engages many of our most fundamental legal concepts and provides an interesting case study. Even when there is general agreement that the problem merits a legal response, there are significant debates about what that response should be. Which level and what branch of government can and should best respond? What is the most appropriate legal process for pursuing cyberbullies—traditional legal avenues or more creative restorative approaches? How should the rights and responsibilities of perpetrators, victims and even bystanders be balanced? Among the key legal concepts that will be explored are privacy, free speech, liberty, and equality. These are the cornerstones of Canada’s constitutional framework and striking the proper balance between them is a challenging and complex business

Fairness After the Charter: A Rose by Any Other Name?

On at least a short term basis the Charter of Rights and Freedoms has made a significant dent in the Canadian legal landscape. Not only has it produced a veritable cottage industry for practising lawyers and legal academics - it has raised some of the most fundamental questions about which institutions should shape public policy in Canada. The courts have a bold new mandate to measure the acts of the legislative and executive branches of the government against the new standards of the Charter. When these agencies are found wanting, they are to be checked and their illegal actions invalidated. In some respects, the supremacy of Parliament, in relation to human rights, is dead. Section 7 of the Charter raises the most intriguing and exciting questions of any of the provisions with the possible exception of the equality guarantees in section 15. Section 7 states: Everyone has the right to life, liberty and security of the person and right not to be deprived thereof except in accordance with the principles of fundamental justice. Section 7 bristles with basic legal questions: what is fundamental justice; are there affirmative rights to life, liberty and security of the person; can limitations on fundamental justice ever be justified as reasonable in a free and democratic society ? These are but a few of the questions the courts will have to address. Although the focus of this paper is on how the concept of fundamental justice fits with the existing common law doctrines of natural justice and fairness, this issue cannot be addressed without consideration of these more basic questions. In the context of the existing legal framework, section 7 raises a host of important practical questions for lawyers. What is the impact of section 7 on the existing law about fair procedures in administrative law? Does it simply \u27constitutionalize\u27 natural justice and fairness and if so, does this change anything? Does it add a third category of procedural rights, if indeed there are two at the present time? What impact does it have on the range of interests which attract procedural protections? What are the standing and remedial implications of making a constitutional claim to fundamental justice as opposed to a common law claim for fairness? Will section 7 be a window to American-style substantive due process

The Elwood Case: Vindicating the Educational Rights of the Disabled

The guarantees of the Charter of Rights affect the definition of education for the disabled. The case of Elwood v. Halifax County - Bedford District School Board, a landmark case in educational rights of disabled children in Canada, has major implications for educational practice. One of the earliest and most controversial Charter of Rights challenges to the existing educational structure has come from parents of disabled children. Disabled children and their parents are blazing a trail to define educational rights in Canada, and the process is giving some shape to the the elusive concept of equality enshrined in the Charter. This article explores several facets of what equality means. Do we want a Canadian society which includes or excludes minorities such as the disabled? How can we best accommodate the needs of the disabled and thereby allow them a real equality of opportunity? Who should have the final say about the education of a child - the parents, the school authorities, or the child? What should be the respective roles of legislators, administrators, and courts in trying to answer some of these difficult questions

Public Education in Nova Scotia: Legal Rights, Fleeting Privileges or Political Rhetoric?

A truly democratic and egalitarian society cannot exist without a broadly based public education. Nova Scotia has an enviable record in the field of education as a leader and innovator in the development of both the public schools and post secondary institutions. The Scots, who have always valued educating their young, implanted this same value in Nova Scotian soil. Other groups have also followed the Scottish lead in educational matters. Even in difficult economic times, which came frequently to Nova Scotia, education has not been sacrificed on the altar of economic restraint. In the 1980\u27s education does not appear to hold such a protected position. Education budgets are being slashed at both the public school and post-secondary levels. Economic restraint has become the accepted gospel and not even education is immune from the message. It is thus timely to consider the status of education in the political and legal framework of Nova Scotia. Moreover, it should be strongly asserted that Nova Scotia\u27s children have a legal right to education that cannot be diminished either in the name of financial restraint or political expediency. The purpose of this article is to make that assertion

Freedom of Expression: Is It All Just Talk?

In this article Wayne MacKay argues that effective interpretation of section 2 of the Charter of Rights and Freedoms requires the weighing of real world impacts beyond the traditional liberal parameter of judicial decisions. The usual judicial unwillingness to acknowledge freedoms as opposed to rights limits governmental legal action while not recognizing political and economic barriers to freedom of expression. The trend toward limiting protected expression both at the definitional stage and through section 1 reasonable limits reflects this cautious approach.This article examines who the early beneficiaries of freedom of expression have been: those affected by criminal sanctions and those who can afford litigation. The latter group consists largely of business pursuing commercial free speech and the corporate controlled media pursuing freedom of the press . Focusing on freedom of the press, the author asks the crucial question : whose interests are being served? The tacit acceptable of liberalism is implicit in the usual notion of a free press. This fails to consider that the press is not neutral and most frequently favours business elites whose interests are already well-served by the political process without the protections of the Charter. The balancing of various interests by the courts is closely examined in sections covering media access to the courts and possible conflict between freedom of the press and other legal rights. In conclusion, MacKay calls for a shift away from the role of freedom of expression as an instrument in the democratic process, toward its use to promote primarily community self-actualization, entailing judicial willingness to stop relying on liberal theory and focus on actual life impacts on disparate, and often marginalized, groups in society

Power, Parliament and Prorogation: A Canadian Political Drama

Rarely have Canadians (or Americans!) been so riveted by political life in Ottawa as during the late days of November and the early days of December, 2008. The nature of this focus on Canada’s Parliament was not the kind of positive energy that surrounded American President-elect Obama’s historic election victory a few weeks before, but rather a negative and nervous energy characterized by disbelief, disgust and surprise. In a time of economic crisis rivaled only by the Great Depression of the 1930s, Canada was being plunged into a political crisis not seen since 1926, when then-Governor General Byng denied then-Prime Minister William Lyon Mackenzie King’s request to dissolve Parliament, so the Prime Minister could avoid a non-confidence vote in the House of Commons. Governor General Byng denied the request and called upon the leader of the opposition (former Prime Minister Arthur Meighen) to attempt to govern by forging an alliance between the Conservatives and the Progressives – a coalition of sorts. Fast forwarding to 2008, Prime Minister Stephen Harper’s minority Conservative Government, elected only a few weeks before in a general election, brought forward an economic update that so enraged the opposition parties in the federal Parliament that they formed a coalition of the Liberal and New Democratic Parties, supported by the separatist party from Quebec – the Bloc Quebecois. The items in the economic update that forged this coalition included a ban on public service strikes, a roll-back of pay equity and the removal of public funding for political parties. The funding cuts would have effectively neutered the opposition parties and epitomized an economic update that was more ideological than economic in nature, and was both partisan and mean spirited. It was also contrary to Prime Minister Harper’s pledge after his recent election victory to work together with the opposition parties to combat the looming economic problems facing the nation. Indeed, there was little in the economic update to address economic concerns

Some Thoughts on a More Humanist and Equitable Legal Education

This article starts with the premise that all teaching is a communication of values between student and teacher. An important challenge in confronting law is making it more inclusive and equitable. A critical step in this process is first recognizing one\u27s own biases. Only then will genuine dialogue about the inherent biases in the legal profession and in law schools be possible. Making law schools more inclusive entails not only superficial changes, but an examination of what is taught, how it is taught and how students are evaluated

Framing the Issues for Cameras in the Courtrooms: Redefining Judicial Dignity and Decorum

This article examines the role of s. 2(b) of the Charter of Rights in determining the role of cameras in Canadian courtrooms. The discussions reveal that arguments in opposition to cameras are largely unfounded and in contradiction to the freedom of expression guarantee. The denial of the right is in reality based on judges\u27 and lawyers\u27 fear of loss of control of the courtroom environment. Cameras should only be banned from courtrooms as part of a total publication ban, and then only after a careful s. 1 analysi