scholarly journals Separate but Unequal: Immigration Detention in Canada and the Great Writ of Liberty

2018 ◽  
Vol 63 (1) ◽  
pp. 1-44
Author(s):  
Siena Anstis ◽  
Joshua Blum ◽  
Jared Will
Keyword(s):  
Emergency Preparedness ◽  
Case Law ◽  
Federal Court ◽  
Habeas Corpus ◽  
Legal Regime ◽  
Immigration Detention ◽  
Indefinite Detention ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

Canada maintains a separate legal regime for immigration detainees who, until recently, were denied the right to seek release by way of habeas corpus. This denial of one of the most deeply entrenched rights at common law and under the Canadian Charter of Rights and Freedoms was justified by the proposition that the immigration detention scheme is “separate but equal”—that it provides an adequate remedy such that habeas corpus is not necessary. Perhaps unsurprisingly, this “separate but equal” regime has failed to provide basic procedural and substantive protections that are available in other Canadian legal regimes where liberty is at stake. However, in 2015, the Court of Appeal for Ontario reignited the availability of habeas corpus as a remedy to indefinite detention in the immigration context in Chaudhary v. Canada (Public Safety and Emergency Preparedness). By reversing a line of cases that had confined immigration detainees to review by an administrative tribunal and judicial review in the Federal Court, Chaudhary has opened the door to the superior courts for immigration detainees. This article provides a review of the immigration detention system in Canada, the applicable legislation, procedures, and case law, and canvasses the impact of Chaudhary on the rights of immigration detainees. It then considers the benefits of habeas corpus as a litigation strategy, the role it has played in debunking the “separate but equal” myth, and suggests other potential issues now ripe for further litigation.

scholarly journals Immigration Detention and Habeas Corpus

2020 ◽  
Vol 10 (1) ◽  
Author(s):  
Mannu Chowdhury
Keyword(s):  
Supreme Court ◽  
Emergency Preparedness ◽  
Case Law ◽  
Positive Development ◽  
Supreme Court Of Canada ◽  
Habeas Corpus ◽  
Immigration Detention ◽  
Missed Opportunities ◽  
The Supreme Court ◽  
Proper Weight

In Canada (Public Safety and Emergency Preparedness) v Chhina (“Chhina”), a majority of the Supreme Court of Canada found that immigration detainees in detention of lengthy and uncertain duration may access habeas corpus relief at provincial superior courts. The majority held that the detention review scheme under the governing statute did not accord as broad and advantageous protection as that provided by habeas corpus. The author argues that Chhina is a positive development with missed opportunities. The Supreme Court laudably clarified the case law and narrowed the exception that previously barred immigration detainees from seeking any form of habeas corpus relief. Further, in finding that the governing detention review scheme is not as broad and advantageous as habeas corpus, the majority adopted a pragmatic approach and focused on how detention reviews are conducted, not on how they ought to be performed. Notwithstanding these strengths, the majority missed an opportunity to resolve the conflicting case law on three common issues that arise when detainees in lengthy immigration detention file habeas corpus petitions: (i) determining when a detention becomes unduly lengthy such that it is unlawful; (ii) developing a singular approach to calculating the duration of detention; and (iii) establishing the proper weight that should be ascribed to detainee cooperation in habeas corpus applications. Moreover, in omitting substantive discussions of the broader context surrounding immigration detention, the majority missed a valuable opportunity to fully shine the light on the shortcomings of immigration detention and in the process potentially usher in systemic changes.

The Right to Housing: Challenges Associated with the ‘Waiting List System’ Ekurhuleni Metropolitan Municipality V Various Occupiers, Eden Park Extension 5 2014 3 SA 23 (SCA)

2017 ◽  
Vol 30 (1) ◽  
pp. 112-121
Author(s):  
Shamier Ebrahim
Keyword(s):  
Supreme Court ◽  
Waiting Lists ◽  
The State ◽  
Waiting List ◽  
Allocation Process ◽  
The Supreme Court ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

The right to adequate housing is a constitutional imperative which is contained in section 26 of the Constitution. The state is tasked with the progressive realisation of this right. The allocation of housing has been plagued with challenges which impact negatively on the allocation process. This note analyses Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 51 which dealt with a situation where one of the main reasons provided by the Supreme Court of Appeal for refusing the eviction order was because the appellants subjected the unlawful occupiers to defective waiting lists and failed to engage with the community regarding the compilation of the lists and the criteria used to identify beneficiaries. This case brings to the fore the importance of a coherent (reasonable) waiting list in eviction proceedings. This note further analyses the impact of the waiting list system in eviction proceedings and makes recommendations regarding what would constitute a coherent (reasonable) waiting list for the purpose of section 26(2) of the Constitution.

Prestaţia compensatorie în Codul civil român

2021 ◽  
Vol 2021 (2021) ◽  
pp. 164-179
Author(s):  
Flavius Antoniu BAIAS ◽  
◽  
Stela STOICESCU ◽  
Keyword(s):  
Case Law ◽  
Social Utility ◽  
Legal Institution ◽  
Legal Regime ◽  
Procedural Law ◽  
The Social ◽  
Legal Nature ◽  
Legislative Framework ◽  
The Right ◽  
Compensatory Payment

This study aims to describe the legal regime of the compensatory payment, with reference to the legislative framework, the sources of inspiration of the regulation, as well as to the current national case-law in this matter, which confirms, by the large number of cases solved after the entry into force of the Civil Code, the social utility of this legal institution. On the basis of the case law examples provided, the authors analyze the legal nature of the compensatory allowance by distinguishing it from similar institutions – the maintenance obligation between ex-spouses or the right to compensation – the conditions to be fulfilled when granting compensatory payment, the criteria used to impose, modify or terminate the obligation, and the substantive and procedural law difficulties of these disputes.

L'azione dell'Unione europea contro le discriminazioni basate sulla religione: l'impatto della giurisprudenza della Corte europea dei diritti umani

2012 ◽  
pp. 475-511
Author(s):  
Federico Casolari
Keyword(s):  
Human Rights ◽  
General Framework ◽  
Case Law ◽  
Legal Order ◽  
Equal Treatment ◽  
Freedom Of Religion ◽  
Eu Law ◽  
The Right ◽  
The Impact ◽  
The Eu

Law Although EU law has established a general framework concerning the fight against discriminations on the grounds of religion (namely as far as equal treatment in employment and occupation is concerned), the related ECJ case law is not very rich. This article tracks and evaluates the impact of the ECHR case law devoted to the freedom of religion on the interpretation and application of EU law concerning religion discriminations. It argues that the ECHR case law may contribute to identify the notion of ‘religion' which is relevant for EU law, while several arguments may be put forward against the application of the Strasbourg approach to the balancing between the right to quality based on religion and others human rights into the EU legal order.

scholarly journals The Islamic Law of Marriage and Inheritance in Kenya

2021 ◽  
pp. 1-25
Author(s):  
Jamil Ddamulira Mujuzi
Keyword(s):  
Human Rights ◽  
Islamic Law ◽  
Case Law ◽  
Equal Rights ◽  
High Court ◽  
Personal Status ◽  
The Right ◽  
Law Of Succession ◽  
Court Of Appeal ◽  
Islamic Marriage

Abstract Article 24(4) of the Constitution of Kenya qualifies the right to equality “to the extent strictly necessary for the application of” Islamic law “in matters relating to personal status, marriage, divorce and inheritance”. Section 3 of the Marriage Act provides that, although spouses have equal rights during marriage and at its dissolution, “the parties to an Islamic marriage shall only have the rights granted under Islamic law”. The Law of Succession Act states that it is generally not applicable to the estate of a deceased Muslim. In this article, the author examines case law from the Kadhi's Court, the High Court and the Court of Appeal on issues of Muslim marriages and inheritance. These cases illustrate, in some instances, the tensions between Islamic law and human rights.

6. The Doctrine of Judicial Precedent

2019 ◽  
pp. 160-195
Author(s):  
James Holland ◽  
Julian Webb
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Case Law ◽  
Stare Decisis ◽  
Legal Principles ◽  
Legal Problems ◽  
The Supreme Court ◽  
Pure Case ◽  
The Impact ◽  
Court Of Appeal

This chapter examines the use of case law to solve legal problems. In the study and practice of law we seek to analyse legal principles; and the ‘principles’ in English law are derived from pure case law or from case law dealing with statutes. The discussions cover the idea of binding precedent (stare decisis); establishing the principle in a case; the mechanics of stare decisis; whether there are any other exceptions to the application of stare decisis to the Court of Appeal that have emerged since 1944; whether every case has to be heard by the Court of Appeal before it can proceed to the Supreme Court; precedent in the higher courts; other courts; and the impact of human rights legislation.

scholarly journals The good character ‘backstop’: directions, defeasibility and frameworks of fairness

Legal Studies ◽  
2020 ◽  
Vol 40 (4) ◽  
pp. 675-693
Author(s):  
Richard Glover
Keyword(s):  
Criminal Trials ◽  
European Court ◽  
Jury Verdicts ◽  
House Of Lords ◽  
Character Evidence ◽  
The Law ◽  
Grand Chamber ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

AbstractThis paper examines the law on good character evidence in criminal trials through a discussion of the important but under-analysed case of Hunter, in which a five-judge Court of Appeal sought to clarify the law on good character directions to the jury. However, it is argued here that the judgment conflicts with the leading House of Lords decision in Aziz. The paper considers how the court misinterpreted the law and, in particular, the defeasible nature of the rule in Aziz and the impact of the Criminal Justice Act 2003. As a result, the circumstances in which a good character direction will be provided have diminished significantly. It is argued that this has important implications for the right to a fair trial, as good character directions act as a ‘backstop’ against miscarriages of justice. They also form a vital part of the ‘framework of fairness’ considered necessary, in lieu of reasoned jury verdicts, by the Grand Chamber of the European Court of Human Rights in Taxquet v Belgium. Accordingly, it is contended that Aziz rather than Hunter should be followed so that, where there is evidence of good character, a direction is normally provided as a matter of law.

Review and appeal in administrative law—what is happening to the right of appeal in immigation law?

Legal Studies ◽  
1992 ◽  
Vol 12 (3) ◽  
pp. 364-376 ◽  
Author(s):  
Satvinder S. Juss
Keyword(s):  
Administrative Law ◽  
Considerable Importance ◽  
Natural Justice ◽  
Secretary Of State ◽  
House Of Lords ◽  
Home Department ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

The purpose of this article is to examine the impact of two recent decisions on an immigrant’s right of appeal: Secretary of State for the Home Department v Sonia Mahli was decided in the Court of Appeal in December 1989 and R v Secretary of State for the Home Department, ex p Oladehinde was decided by the House of Lords in October 1990. Both cases raised other substantive issues of considerable importance for public lawyers: Oldehinde made the important point that the Secretary of State for the Home Department could delegate to senior immigration officers his powers to make deportation decisions; Malhi demonstrated how limited are the natural justice rights of overstayers.

scholarly journals EMPLOYERS’ STATUTORY VICARIOUS LIABILITY IN TERMS OF THE PROTECTION OF PERSONAL INFORMATION ACT

2016 ◽  
Vol 19 ◽  
pp. 1
Author(s):  
Daleen Millard ◽  
Eugene Gustav Bascerano
Keyword(s):  
Personal Information ◽  
Common Law ◽  
Case Law ◽  
Employment Equity ◽  
Vicarious Liability ◽  
The Common ◽  
The Right ◽  
The Impact ◽  
Data Subject ◽  
Responsible Party

A person whose privacy has been infringed through the unlawful, culpable processing of his or her personal information can sue the infringer’s employer based on vicarious liability or institute action based on the Protection of Personal Information Act 4 of 2013 (POPI). Section 99(1) of POPI provides a person (“data subject”), whose privacy has been infringed, with the right to institute a civil action against the responsible party. POPI defines the responsible party as the person who determines the purpose of and means for processing of personal information of data subjects. Although POPI does not equate a responsible party to an employer, the term “responsible party” is undoubtedly a synonym for “employer” in this context. By holding an employer accountable for its employees’ unlawful processing of a data subject’s personal information, POPI creates a form of statutory vicarious liability.Since the defences available to an employer at common law, and developed by case law, differs from the statutory defences available to an employer in terms of POPI, it is necessary to compare the impact this new statute has on employers. From a risk perspective, employers must be aware of the serious implications of POPI. The question that arises is whether the Act does not perhaps take matters too far.This article takes a critical look at the statutory defences available to an employer in vindication of a vicarious liability action brought by a data subject in terms of section 99(1) of POPI. It compares the defences found in section 99(2) of POPI and the common-law defences available to an employer fending off a delictual claim founded on the doctrine of vicarious liability. To support the argument that the statutory vicarious liability created by POPI is is too harsh, the defences contained in section 99(2) of POPI is further analogised with those available to an employer in terms of section 60(4) of the Employment Equity Act 55 of 1998 (EEA) and other comparable foreign data protection statutes. 

scholarly journals Why is it so hard to take lawful strike action in Australia?

2019 ◽  
Vol 61 (1) ◽  
pp. 129-144 ◽  
Author(s):  
Shae McCrystal
Keyword(s):  
Regulatory System ◽  
Tipping Point ◽  
Legal Regime ◽  
Industrial Action ◽  
Current Controversy ◽  
The Law ◽  
Definition Of ◽  
The Right ◽  
The Impact

This current controversy analyses the legal impediments to taking lawful strike action for workers in Australia, reviewing the components of the regulatory system that combine to restrict access to strike action for Australian workers. The discussion explores the flaws underlying the enactment of the right to strike, the limitations surrounding the definition of industrial action, the prerequisites to lawful strike action including the problems that arise from the pre-strike ballots regime, the grounds on which lawful strike action can be stopped, and the consequences of getting it wrong. The picture presented by the legal regime for strike action is that the impact of the regime is greater than the sum of its parts – making it very difficult to strike even for the most seasoned industrial players. It is possible that strike regulation in Australia has reached a tipping point whereby the costs associated with getting it right may now be so high that simply abandoning the lawful path and engaging in unlawful strike action may be more appealing than complying with the law.

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