The Shaky Foundation of “Statutory Platforms”: A Comment on Baier v. Alberta

In Baier v. Alberta the Supreme Court of Canada considered the validity of Alberta legislation, enacted in 2004, which established a province-wide restriction on school employees serving as school trustees on any Alberta school board. The majority of the Court upheld the validity of this statute, finding that while serving as a school trustee is an expressive activity, the province had no obligation to provide teachers with a “statutory platform for expression” and there was, the refore, no infringement of Charter section 2(b). This paper argues that the majority erred in seeing this as a freedom of expression case at all. The impugned legislation did not disqualify schoolteachers from speaking; they were free to express their views and opinions on any issues relating to education whether or not they were qualified or elected as school board trustees. What the teachers sought was neither a freedom to express their opinions nor a platform of expression, but a right to participate in the management of the schools, an activity that is not guaranteed by Charter section 2(b). While the “statutory platform” analysis may be helpful in the context of an activity that is exclusively or primarily expressive, such as voting in a referendum, it is ill fitted in the context of an activity — such as working in a particular job — which is only incidentally expressive. The paper also discusses the statutory role of school trustees as senior management of school boards and the special statutory regime that governs teachers’ collective bargaining. The Alberta restriction at issue supports the important principle of labour policy that workers and management should be free from interference from one another

Tort Lite?: Vancouver (City) v. War and the Availability of Damages for Charter Infringements

Ward is the first case in the Supreme Court of Canada where the lower courts had dismissed the tort claim but allowed damages under the Charter, thus transforming Charter damages into a “consolation prize” for plaintiffs whose claims, as a result of the law, the evidence or the pleadings, did not meet the applicable tort law standard. While the unanimous decision of the Supreme Court appears to uphold this approach, a closer reading of the decision indicates that the Court did not stray very far from basic tort law principles. The lower court decisions appear to adopt a “strict liability” approach to certain Charter claims, but the Supreme Court’s reasons indicate that something more than mere causation will have to be proven before Charter damages will be considered “appropriate and just”. A close reading of the decision indicates that the Supreme Court would have likely come to the same conclusion had the issue before it been one of damages for negligence rather than under the Charter. Accordingly, Ward will not result in a radical expansion of governmental liability beyond that already provided by the law of tort

Moore v. British Columbia: A Good IDEA?

While the Supreme Court’s recent decision in Moore v. British Columbia was concerned with the accommodation of disability in the public school system, the authors argue that the spectre of private school funding looms over the judgment. Given the political consensus supporting public schools in Canada, several substantive and remedial elements of the Moore decision should be viewed in a cautionary light. A standard of accommodation that is rooted in comparison to the services provided by better-resourced and less diverse private schools may not be attainable by or appropriate for public schools, and should the refore be eschewed as a standard of accommodation in analyzing equal access to public school education. at the remedial stage, the awarding of compensation to Jeffrey Moore’s parents for a decade’s worth of private school tuition risks transforming human rights tribunals into purveyors of private school vouchers, an American education policy rightfully rejected by Canadian legislatures. Human rights remedies should be concerned with improving the universally accessible public school system for the benefit of all students with disabilities instead of siphoning scarce resources towards a select few students able to attend private schools. The authors argue that the Supreme Court of Canada was right to reject the Human Rights Tribunal’s systemic remedies which would have, inter alia, shifted responsibility for individual special education programs from the local school boards to the Ministry of Education by mandating greater centralization at the Ministry level of the design, delivery and oversight of individual students’ special education programs. This role is best undertaken at the local level by teachers and specialized board personnel who are in the unique position to know a student’s individual needs and abilities, and the circumstances and resources of the particular board. Concern is raised that Human Rights Tribunals can impose such broad systemic remedies affecting major public policy issues like education funding and centralization subject only to review on the standard of reasonableness

Is Money No Object: Can the Government Rely on Financial Considerations Under Charter Section 1

Government programs have increasingly been challenged under the Charter on the grounds that they are provided inappropriately to a limited number of beneficiaries and that the benefits provided are set at insufficient levels. Courts have thus been asked to determine how governments should allocate finite resources in a world of infinite need. In this paper, the authors explore the question of the place of financial considerations for the purposes of section 1 of the Charter. In Martin (2003), the government of Nova Scotia attempted to rely on financial considerations in order to justify the exclusion of chronic pain sufferers from the regular compensation scheme provided by the Workers’ Compensation Act. Relying on dicta from the Schachter (1992) and Judges’ Reference (1997) decisions, the Supreme Court dismissed this argument and held that budgetary considerations could not be put forward by governments as a free-standing pressing and substantial objective for the purposes of section 1 of the Charter. However, the Court also acknowledged that “in certain circumstances”, financial considerations may constitute a pressing and substantial objective. The Court found it unnecessary to decide this point in Martin, and the question remains unanswered. Using examples from tort and administrative law, as well as lower court Charter decisions, the authors argue that courts cannot ignore the realities imposed on governments by fiscal limitations. If courts take on a greater role in policy-making, they must give serious consideration not only to arguments based on financial considerations, but also to the financial implications of their decisions

Canada at the Constitutional Crossroads

Canada has, of course, been at the constitutional crossroads for some time. As Dicey put it in 1885: \u27The preamble of the British North America Act, 1867, asserts with official mendacity that the Provinces of the present Dominion have expressed their desire to be united into one Dominion with a constitution similar in principle to that of the United Kingdom. If preambles were intended to express the truth, for the word Kingdom ought to have been substituted States. \u27 But Dicey was exaggerating. In dropping this line, he principally had in mind the Canadians\u27 adoption of a most un-British system of federal government, in which powers were divided between the dominion and its provinces

Adolescent immaturity in attention-related brain engagement to emotional facial expressions

Abstract Selective attention, particularly during the processing of emotionally evocative events, is a crucial component of adolescent development. We used functional magnetic resonance imagining (fMRI) with adolescents and adults to examine developmental differences in activation in a paradigm that involved selective attention during the viewing of emotionally engaging face stimuli. We evaluated developmental differences in neural activation for three comparisons: (1) directing attention to subjective responses to fearful facial expressions relative to directing attention to a nonemotional aspect (nose width) of fearful faces, (2) viewing fearful relative to neutral faces while attending to a nonemotional aspect of the face, and (3) viewing fearful relative to neutral faces while attention was unconstrained (passive viewing). The comparison of activation across attention tasks revealed greater activation in the orbital frontal cortex in adults than in adolescents. Conversely, when subjects attended to a nonemotional feature, fearful relative to neutral faces influenced activation in the anterior cingulate more in adolescents than in adults. When attention was unconstrained, adolescents relative to adults showed greater activation in the anterior cingulate, bilateral orbitofrontal cortex, and right amygdala in response to the fearful relative to neutral faces. These findings suggest that adults show greater modulation of activity in relevant brain structures based on attentional demands, whereas adolescents exhibit greater modulation based on emotional content

Decreased SGK1 Expression and Function Contributes to Behavioral Deficits Induced by Traumatic Stress

Exposure to extreme stress can trigger the development of major depressive disorder (MDD) as well as post-traumatic stress disorder (PTSD). The molecular mechanisms underlying the structural and functional alterations within corticolimbic brain regions, including the prefrontal cortex (PFC) and amygdala of individuals subjected to traumatic stress, remain unknown. In this study, we show that serum and glucocorticoid regulated kinase 1 (SGK1) expression is down-regulated in the postmortem PFC of PTSD subjects. Furthermore, we demonstrate that inhibition of SGK1 in the rat medial PFC results in helplessness- and anhedonic-like behaviors in rodent models. These behavioral changes are accompanied by abnormal dendritic spine morphology and synaptic dysfunction. Together, the results are consistent with the possibility that altered SGK1 signaling contributes to the behavioral and morphological phenotypes associated with traumatic stress pathophysiology