Suchergebnisse

Assn. of Justice Counsel v. Canada (Attorney General) is a labour arbitration case. An employer issued a directive requiring employees to be available for overtime work. The union argued that the directive was not a proper exercise of a management rights clause in a collective agreement. But the employer was the government, and the collective agreement also contained a clause forbidding the employer to violate employees' Charter rights. And so the union also argued that the directive violated the employees' rights under section 7 of the Charter. An adjudicator agreed with the union on both grounds. The Supreme Court of Canada held that the adjudicator's decision as to management rights was reasonable, but rejected the union's constitutional argument on the ground that the directive did not affect the employees' section 7 right to liberty. It was therefore unnecessary to consider whether it was consistent with the principles of fundamental justice. In my view, this constitutional holding was probably wrong. Requiring someone to be somewhere at a particular time does affect the liberty interest, both in itself and, if sufficiently demanding of a person's time, through its impact on fundamental personal choices. The Court's reluctance to recognize these points may unnecessarily impede the continued development of the section 7 liberty interest. Moreover, the constitutional holding is inconsistent with the Court's determination that the adjudicator's decision was reasonable. On the facts of Assn. of Justice Counsel, if section 7 of the Charter applied at all, the constitutional issue and the issue of interpreting the collective agreement were essentially the same and should have been resolved the same way.

This article considers the effect of the Canadian Charter of Rights and Freedoms on the rule of spousal incompetency in criminal proceedings. The rule is arguably under-inclusive, in that it is not available to protect opposite-sex couples who are not legally married or same-sex couples; on the other hand, the rule is arguably offensive to the modem conception of marriage. The Charter arguments for each of these positions are considered, and it is submitted that the Charter requires the rule of spousal incompetency, whatever it is, to apply equally to legally married couples, to cohabitants, and to same-sex couples. A rule of spousal incompetency that arguably reconciles the modem conception of marriage with the interest protected by the rule of spousal incompetency is then considered. This rule would make the spouse a competent but not compellable witness for the prosecution. Various considerations of law and policy militate against giving the spouse this decision; the real choice is between maintaining the existing rule of incompetency and making the spouse competent and compellable for the Crown. It is submitted that the arguments on either side of this choice are so evenly balanced that any change should be made by Parliament rather than by the courts.