This thesis examines the discourse surrounding the debate over whether the Canadian Charter of Rights and Freedoms ought to apply to First Nations governments in Canada. This is a constitutional and legal grey area at present because Section 32 of the Canadian Charter of Rights and Freedoms stipulates that this constitutional document applies to the federal, provincial and territorial governments, but does not mention Aboriginal governments. The lack of constitutional clarity on this issue has generated a debate involving three schools of thought. The first school proposes that the Charter ought to apply to First Nations governments just as it does to other governments in Canada. The second school of thought argues that the Charter should not apply to First Nations governments because it is an imposition of western liberal values on their governments that could limit their self-governing authority. Proponents of this view assert that recognition of Aboriginal and treaty rights in the Constitution should entitle First Nations to develop their own rights practices, consistent with Aboriginal laws and customs. A third school of thought suggests that there may be alternatives between accepting the Charter as it is and rejecting it altogether. Two options have been advocated by this school. One option is for the Charter to apply with a caveat that it be done in a manner that is consonant with traditional Aboriginal laws and customs. The other option is that a parallel Aboriginal Charter of Rights and Freedoms be developed that better reflects Aboriginal traditions on rights. While this debate has been ongoing, the Government of Canada and some First Nations have entered into self-governing agreements that acknowledge the application of the Canadian Charter to those particular governments. This thesis concludes that there is no easy resolution to the debate, that it may take the courts to resolve the issue in law, and this outcome itself may be unsatisfactory to First Nations communities.

This thesis examines the discourse surrounding the debate over whether the Canadian Charter of Rights and Freedoms ought to apply to First Nations governments in Canada. This is a constitutional and legal grey area at present because Section 32 of the Canadian Charter of Rights and Freedoms stipulates that this constitutional document applies to the federal, provincial and territorial governments, but does not mention Aboriginal governments. The lack of constitutional clarity on this issue has generated a debate involving three schools of thought. The first school proposes that the Charter ought to apply to First Nations governments just as it does to other governments in Canada. The second school of thought argues that the Charter should not apply to First Nations governments because it is an imposition of western liberal values on their governments that could limit their self-governing authority. Proponents of this view assert that recognition of Aboriginal and treaty rights in the Constitution should entitle First Nations to develop their own rights practices, consistent with Aboriginal laws and customs. A third school of thought suggests that there may be alternatives between accepting the Charter as it is and rejecting it altogether. Two options have been advocated by this school. One option is for the Charter to apply with a caveat that it be done in a manner that is consonant with traditional Aboriginal laws and customs. The other option is that a parallel Aboriginal Charter of Rights and Freedoms be developed that better reflects Aboriginal traditions on rights. While this debate has been ongoing, the Government of Canada and some First Nations have entered into self-governing agreements that acknowledge the application of the Canadian Charter to those particular governments. This thesis concludes that there is no easy resolution to the debate, that it may take the courts to resolve the issue in law, and this outcome itself may be unsatisfactory to First Nations communities.

The purpose of this thesis is to assess the impact of the EU Charter of Fundamental Rights (the Charter) on the employment relationship. The Charter has long been praised for its inclusion of socio-economic rights alongside traditional civil and political rights. It might have been thought, therefore, that the Charter would be a particularly potent tool in the employment context, characterised as it is, by the continuous interaction between economic and social rights. However, to draw an analogy from George Orwell's Animal Farm, although 'all rights are equal, some rights are more equal than others'. Not only does the Charter distinguish between 'rights' and 'principles', but the EU Court of Justice (CJEU) seems actively to prioritise the Charter's economic freedoms over the social rights. This thesis focuses on the consequences of this variable geometry for the regulation of the employment relationship. In particular, it examines the widening gap between contractual autonomy/business freedom as a fundamental right found in article 16 of the Charter and the employment rights contained in the Solidarity Title. Of particular concern from an employee's perspective is the decision of the CJEU in the case of Alemo-Herron and its progeny. In a series of highly deregulatory judgments, the CJEU has found that the employee-protective aim of the relevant legislation was incompatible with the employer's freedom to conduct a business. At the same time, the CJEU has been reluctant to invoke the Charter's employment rights to give an employee-friendly reading to legislation. The effect of this divergence for the employment relationship is explored in two ways. On a micro level, the thesis looks to the very practical or 'day to day' influence of fundamental rights at various stages in the life cycle of the employment contract. It addresses the relationship between individually agreed employment terms and fundamental rights sources. The macro level considers the broader question of the effect of fundamental rights on the EU's (or the State's) ability to regulate the employment relationship more generally. It is demonstrated that there may be a systemic problem with fundamental economic freedoms being prioritised over social rights, namely the employment provisions of the Charter.

Using the contemporary example of same-sex marriage, the author uses his first-hand experience as a Member of Parliament to examine the "dialogue" theory of Charter of Rights and Freedoms politics and decision-making role of legislators. The dialogue between courts, legislatures and Canadians is robust and having a significant impact on public policy in Canada. However, many of those in the legislature are either unaware or uninterested in this changing fact of Canadian policy making. This is particularly troubling given the power MPs have when voting in the House of Commons on an issue of equality rights in the House of Commons in a free vote - as was the case in the issue at the centre of this thesis, the issue of same-sex marriage.

Using the contemporary example of same-sex marriage, the author uses his first-hand experience as a Member of Parliament to examine the "dialogue" theory of Charter of Rights and Freedoms politics and decision-making role of legislators. The dialogue between courts, legislatures and Canadians is robust and having a significant impact on public policy in Canada. However, many of those in the legislature are either unaware or uninterested in this changing fact of Canadian policy making. This is particularly troubling given the power MPs have when voting in the House of Commons on an issue of equality rights in the House of Commons in a free vote - as was the case in the issue at the centre of this thesis, the issue of same-sex marriage.

Thesis (Ph. D.)--Carleton University, 1992. / Also available in electronic format on the Internet.

<p> The adoption of the Canadian Charter of Rights and Freedoms has marked a revolutionary change to our legal and political institutions and practices. While parliament used to have the final say in defining the details and limits of the rights of Canadians, the Supreme Court is now the ultimate arbiter of our rights as it has the authority to determine the meaning of the Charter and decide when legislation contradicts the letter and spirit of the Charter. The question of whether the entrenchment of the Canadian Charter of Rights and Freedoms and the subsequent practice of Charter-based judicial review are beneficial developments to our political culture is the topic of this dissertation. I argue that entrenched Charters of rights in general, and the Canadian Charter of Rights and Freedoms in particular, are unnecessary in mature democracies which already have adequate institutions and practices which protect rights. My central claim is that Charters of rights and judicial review are not only unnecessary, but they are also fundamentally undemocratic; Charters and judicial review limit the ability of citizens, acting through their democratic representatives, to make important decisions concerning rights.</p> <p> First I explore Jeremy Waldron's rights-based critique of Charters of rights and judicial review to argue that Charters and judicial review are undemocratic and then defend Waldron's critique against three major arguments which claim that Charters and judicial review do not necessarily conflict with our commitments to democracy and might also be mandated by our democratic principles. Then I explore two major consequentialist arguments supporting Charters of rights and judicial review: the "tyranny of the majority" argument, and the institutional argument. I critique these two influential arguments and conclude that the fear of the "tyranny of the majority" is an exaggerated fear based on simplistic conceptions of "majorities" and "minorities" which does not recognize the limits of majority rule within a parliamentary democracy, while the institutional argument is based upon questionable assumptions of voter and legislative motivations and behaviour. Finally, I argue that Charters of rights and judicial review might subtly undermine our commitments to democracy by reinforcing unrealistic attitudes concerning rights and cynicism toward democratic politics. Furthermore, I argue that Charters of rights and judicial review imply that there are "correct answers" and moral expertise concerning rights debates which also undermine our commitment to democracy. Finally, I offer some democratic alternatives to Charters of rights and judicial review which could help protect rights without having the democratic illegitimacy of Charters and judicial review.</p> / Thesis / Doctor of Philosophy (PhD)

Note:

In the context of Canadas Kindergarten to Grade 12 education system and given the Canadian Charter of Rights and Freedoms, there is a growing body of jurisprudence which reflects ongoing debates about who should ultimately maintain control of the formal and informal curriculum in our schools. In these cases, debates about curricular battles play out through rights conflicts, which our courts are required to resolve. These conflicts typically involve claims relating, directly or indirectly, to fundamental freedoms such as freedom of religion and freedom of expression as well as claims associated with the right to equality.<p>In this thesis, I aim to offer a critical assessment of the relevant body of jurisprudence. My critique draws on the theoretical work of Rob Reich and Jeremy Waldron. Reich suggests that our best hope of understanding and resolving the curricular struggles related to the control of childrens education requires a balanced approach whereby we attempt to reconcile the educational interests of three primary actors: parents, the state and children. Building on Reichs conceptualization of the different interest holders, I identify a fourth stakeholder, namely, teachers, who have interests which are germane to our analysis because these interests raise issues connected to curricular control and childrens education. In my analysis, I apply Reichs matrix of interests to the extant body of jurisprudence to ascertain whether or not our courts are alive to the different interest holders in its treatment of cases involving conflicts of constitutional rights. I also want to know whether the interests of the four stakeholders overlap or conflict with another. Finally, I want to know how these interests are conceptualized by the court and whether this conceptualization is consistent with, or differs from, the one offered by Reich. <p>Waldrons work offers analytical clarity for how we might better understand and resolve conflicts of rights, including conflicts involving constitutional rights claims. He maintains that rights conflicts are fundamentally about conflicts of duties and that we are likely to have more success reconciling conflicts of rights when we conceive of these conflicts in this manner. Applying Waldrons strategy for reconciling rights conflicts to the cases in my study, I posit that we can make sense of the reconciliation process by examining the duties associated with the rights in question. Although our courts do not explicitly draw on Waldrons theoretical framework in their legal analysis, I maintain that, generally speaking, what our courts do is consistent with a Waldronian analysis of conflicts of rights. <p>In my conclusion, I note that the jurisprudence considered initially seems to focus exclusively on two key guiding values: liberty and equality. Yet, a closer examination of the case law reveals a concern for two other important meta values, namely, efficiency and community. Furthermore, the notion of children as rights bearers poses special challenges. We might treat older children as rights claimants, on their own terms, because of their capacity to advance certain projects and to engage in certain commitments. Yet, the exact moral and legal status, for example, of a six- or seven-year old is still uncertain. Finally, I recognize that a rights only version of what happens in our schools provides only a partial account of educational reality. Other values such as duty, love, friendship and compassion are needed to furnish a richer and more nuanced account of morality for our school communities.

In the context of Canadas Kindergarten to Grade 12 education system and given the Canadian Charter of Rights and Freedoms, there is a growing body of jurisprudence which reflects ongoing debates about who should ultimately maintain control of the formal and informal curriculum in our schools. In these cases, debates about curricular battles play out through rights conflicts, which our courts are required to resolve. These conflicts typically involve claims relating, directly or indirectly, to fundamental freedoms such as freedom of religion and freedom of expression as well as claims associated with the right to equality.<p>In this thesis, I aim to offer a critical assessment of the relevant body of jurisprudence. My critique draws on the theoretical work of Rob Reich and Jeremy Waldron. Reich suggests that our best hope of understanding and resolving the curricular struggles related to the control of childrens education requires a balanced approach whereby we attempt to reconcile the educational interests of three primary actors: parents, the state and children. Building on Reichs conceptualization of the different interest holders, I identify a fourth stakeholder, namely, teachers, who have interests which are germane to our analysis because these interests raise issues connected to curricular control and childrens education. In my analysis, I apply Reichs matrix of interests to the extant body of jurisprudence to ascertain whether or not our courts are alive to the different interest holders in its treatment of cases involving conflicts of constitutional rights. I also want to know whether the interests of the four stakeholders overlap or conflict with another. Finally, I want to know how these interests are conceptualized by the court and whether this conceptualization is consistent with, or differs from, the one offered by Reich. <p>Waldrons work offers analytical clarity for how we might better understand and resolve conflicts of rights, including conflicts involving constitutional rights claims. He maintains that rights conflicts are fundamentally about conflicts of duties and that we are likely to have more success reconciling conflicts of rights when we conceive of these conflicts in this manner. Applying Waldrons strategy for reconciling rights conflicts to the cases in my study, I posit that we can make sense of the reconciliation process by examining the duties associated with the rights in question. Although our courts do not explicitly draw on Waldrons theoretical framework in their legal analysis, I maintain that, generally speaking, what our courts do is consistent with a Waldronian analysis of conflicts of rights. <p>In my conclusion, I note that the jurisprudence considered initially seems to focus exclusively on two key guiding values: liberty and equality. Yet, a closer examination of the case law reveals a concern for two other important meta values, namely, efficiency and community. Furthermore, the notion of children as rights bearers poses special challenges. We might treat older children as rights claimants, on their own terms, because of their capacity to advance certain projects and to engage in certain commitments. Yet, the exact moral and legal status, for example, of a six- or seven-year old is still uncertain. Finally, I recognize that a rights only version of what happens in our schools provides only a partial account of educational reality. Other values such as duty, love, friendship and compassion are needed to furnish a richer and more nuanced account of morality for our school communities.