The disappearance of migrants, which has reached preoccupying high numbers in recent decades, is related both to the particular vulnerability of migrants traversing dangerous migratory routes and to the high degree of impunity that characterizes investigation and search efforts required. This article argues that the disappearance of migrants at the hands of non-state actors in contexts of systematic impunity and in situations where the state had knowledge or should have had knowledge of a serious risk of such disappearance, but failed to act to prevent it, can be considered to have occurred with the acquiescence of the state. Thus, given that all further elements of the definition of enforced disappearance have been satisfied, this factual situation qualifies as an “enforced disappearance” for the purposes of international human rights law. Key to this demonstration is the concept of knowledge, which is an essential component of acquiescence. This article not only addresses the normative framework of acquiescence and its interpretation by international and regional human rights bodies, including how it relies on the element of state knowledge, but it also examines the extent to which this factor is critical to understanding states’ due diligence obligations to prevent, investigate, and sanction human rights obligations, including disappearances. In order to better understand the factors that should be taken into consideration while assessing a state‘s knowledge of migrant disappearances, including in the context of systematic impunity, it is then suggested to borrow from the international criminal law test related to the concept of “constructive knowledge” and to the doctrine of command responsibility. These considerations should inform a test for assessing whether disappearances of migrants occurring in contexts of systematic impunity can be considered as having been known by the state and as having occurred with its acquiescence and, thus, as constituting “enforced disappearances” under international human rights law.

Human dignity plays an important role in the international legal order, and references to the principle can be found in various international human rights instruments. Its meaning, however, remains an object of avid discussion due to the impossibility of finding a precise and timeless way of defining the concept. In this article, we argue that acknowledging inherence as an element of human dignity gives extrinsic legal recognition to an intrinsic human condition and tends to expand human dignity’s influence. Vagueness — or openness — in defining the concept provides for a dynamic and evolutionary understanding of human dignity, and, coupled with the idea of inherence, these characteristics represent tools for universalization and adaptation of the concept to new circumstances. These findings are based on a review of philosophical discussions of the idea of human dignity, followed by an analysis of how it is addressed in international legal instruments and international jurisprudence and identification of its recurrent elements. We defend the view that the vagueness of its definition does not mean that its content is impossible to identify in particular circumstances. Scholars and institutions can have a concrete sense of the meaning of human dignity even though its substance may admit new elements as new social demands emerge. In our view, the essential meaning of human dignity is founded on the influence of the whole body of human rights as well as on its particular connection to the rights of social minorities, in which human dignity is emphasized because of the material precariousness of such groups under social systems that subject them to discriminatory treatment.

Canada’s National Housing Strategy (NHS) commits the government to eliminating chronic homelessness and promises that realizing the right to housing is a key objective. In this article, we explore how the Canadian government could realize the right to housing in the context of eliminating chronic homelessness. We argue that it is helpful to look at how other jurisdictions have successfully reduced homelessness. In this article we examine Finland and Scotland’s approaches because they offer certain similarities in how homelessness is addressed, yet they also differ, most crucially in how they understand the right to housing. We argue that both of these jurisdictions offer important lessons for Canada to draw on as it seeks to reduce long-term homelessness.

In 2016, the Canadian Human Rights Tribunal found that Canada’s management of child welfare discriminates against First Nations children. The First Nations Child and Family Caring Society, one of the complainants, maintains a web-based campaign called “I Am A Witness,” providing details on the hearings and legal materials and asking visitors to act towards ending discrimination against First Nations children. What does it mean to bear witness to such discrimination? The concept of “witnessing” circulates through Indigenous oral traditions, communication and media theories, and the common law. This article explores the I Am A Witness campaign, arguing that as it evokes various theories of witnessing and builds public awareness of legal processes, it shifts spaces of and perspectives on legality beyond Western categories, creating a public that is enabled to bear witness to, and respond to, ongoing injustices against Indigenous peoples.

Between 2002 and 2017, Canadian lawmakers sought to redress the pervasive levels of discrimination, harassment, and violence experienced by transgender and/or non-binary people by adding the terms “gender identity” and/or “gender expression” to federal, provincial, and territorial human rights instruments. This paper tracks the complex, iterative ways in which antidiscrimination protections are brought to life outside courts and tribunals. Using Ontario’s publicly-funded English language secular school boards as a case study, we examine how the introduction of explicit human rights protections on the basis of “gender identity” and “gender expression” in 2012 worked to produce a series of responses across the education sector. Given that “gender identity” and “gender expression” remain legally undefined terms in the Ontario Human Rights Code, and only provisionally defined by Ontario Human Rights Commission (OHRC) policy, we argue that school boards constitute important actors engaged in constructing the meanings of these terms in policy and practice. In decentering courts and tribunals in our analysis, we aim to uncover the everyday practices of parallel norm-making taking place in the education context. These everyday practices shape how we collectively understand the meaning of “gender identity” and “gender expression.” By carefully tracking these post-legislative developments, which rarely make their way into reported decisions, we suggest that human rights law reforms might open up space for the emergence of norms that allow people to do gender in a variety of ways.

This article explores the inequality inhering to low-wage migrant labour and critically evaluates the current capacity of human rights law to account for and address this inequality. This article uses two recent human rights tribunal decisions as case studies through which to conduct this examination: PN v FR, 2015 BCHRT 60, and OPT v Presteve Foods Ltd, 2015 HRTO 675. While these cases establish the positive role of human rights law in accounting for the wider context in which inequality impacts on migrant labour, this role is also inherently limited by the purpose, scope, and function of the Tribunals. This article will identify and discuss issues illustrated in the cases that are reflective of deeper systemic and structural inequalities attending low-wage migrant labour, including: the underlying reasons motivating low-wage labour migration; the legal regulations governing migrant workers’ status and employment conditions; and, the racialization of migrant workers.

This paper considers the role that litigation might play in ending the human rights crisis of solitary confinement in Canada while also examining the relationship of prisoner rights litigation to broader, anti-carceral social movements. The paper proceeds in four parts. The first section provides a brief overview of the widespread use of solitary confinement in Canada’s federal prisons and in provincial and territorial jails. Next, current litigation seeking an end to solitary confinement in the federal prisons system is located in the context of a long history of prisoner rights litigation in both the US and Canada. The third section considers the possibilities and challenges of pursuing prisoner rights litigation with broader critiques of the carceral state in mind. The paper ends with examples of anti-carceral lawyering efforts and identifies some elements of a prison abolitionist lawyering ethic.

For the first time since the introduction of the Canadian Charter of Rights and Freedoms, Canada is in an armed conflict with an insurgency that has actively recruited Canadians and directed them to use or promote violence against Canada. In the result, the Canadian government may ask its soldiers to target and kill fellow Canadians abroad or to assist allies in doing so. This situation raises a host of novel legal issues, including the question of “targeted killing.” This matter arose for the United Kingdom in 2015 when it directed the use of military force against several Britons believed to be plotting a terrorist attack against the United Kingdom from abroad. This incident sparked a report from the British Parliament highlighting legal dilemmas. This article does the same for Canada by focusing on the main legal implications surrounding a targeted killing by the Canadian government of a Canadian citizen abroad. This exercise shows that a Canadian policy of targeted killing would oblige Canada to make choices on several weighty legal matters. First, the article discusses the Canadian public law rules that apply when the Canadian Armed Forces deploy in armed conflicts overseas. It then analyzes international law governing state uses of military force, including the regulation of the use of force (jus ad bellum) and the law of armed conflict (jus in bello). It also examines an alternative body of international law: that governing peacetime uses of lethal force by states. The article concludes by weaving together these areas of law into a single set of legal questions that would necessarily need to be addressed prior to the targeted killing of a Canadian abroad.

The role played by ritual in the field of human rights has not been widely remarked or analysed. Here I argue that the triumph of human rights as the predominant language for making social justice claims in the international sphere is partly attributable to the power of certain linguistic and embodied rituals. I suggest that these rituals veil the material factors at stake when human rights are invoked internationally, obscuring the relationship between neoliberalism, material inequality, and human rights. I compare the vision of justice propounded through the rituals of human rights with that proposed by the peasants’ movement, Vía Campesina. Vía Campesina’s vision is grounded in material realities and confronts neoliberal policies head on. I consider how it unsettles the rituals of human rights, and whether it can be preserved in the form of a UN Declaration on the rights of peasants.

This article argues that Canada’s policy of refusing extraterritorial electoral constituencies within its borders does not protect its territorial sovereignty or add any protection against foreign interference in its domestic affairs. Rather, its main effect is to alienate thousands of dual or foreign nationals residing in Canada by preventing them from being directly represented in their home state’s national assembly or legislature and, in some cases, from exercising their only voting rights.

Quantitative analyses have the potential to contribute to transitional justice mechanisms, via empirical evidence supporting the memory of victims, allocating proportional responsibility among perpetrators, determining legal responsibility, and supporting historical memory and clarity. However, most data available in transitional justice settings are incomplete. Conducting quantitative analyses relying solely on what is observable and knowable leads to not only incomplete but often incorrect analytical results. This can harm rather than contribute to transitional justice mechanisms. This article outlines different types of data, the ways in which observable data, on their own, are insufficient for most quantitative analyses of interest, presents these limitations via a case study from Syria, and introduces statistical methods to overcome these limitations.

This article examines Canada's federal Live-in Caregiver Program (LCP) from the perspective of international human-rights and labour norms pertaining to the protection of migrant workers. Showing that the current legal framework of the LCP restricts migrant caregivers from effectively exercising a range of human and labour rights, the author argues for the removal of the labour (im)migration program's unnecessary structural obstacles and proposes a reformulation of the LCP under the principles and guidelines of the International Labour Organization's Multilateral Framework on Labour Migration, in order to transform this controversial labour policy into a decent work opportunity.