August 25, 2021

Murphy Battista

Elizabeth Emery’s paper, “A Wrench in the Social Justice Toolbox: Assessing the Constitutional Class Action as a Tool for Addressing Racial Discrimination,” was recently published in the Canadian Class Action Review, Volume 17, Issue 1.

In this paper, Elizabeth provides an overview of racial profiling by police as a form of discrimination that has been recognized as a breach of the Canadian Charter of Rights and Freedoms. She notes that claims for Charter damages are one of the few options available to victims of racial profiling. However, the remedy is seldom used due to financial, social and psychological barriers. This raises the possibility of using class proceedings as a means of improving the accessibility of Charter damages. Elizabeth explains racial profiling and reviews the recognition of racial profiling by Canadian courts as a harm that can be addressed using the framework in place for Charter damages. She reviews the leading Canadian cases on the certification of Charter damages claims and discusses the ongoing uncertainty that persists in this area. Elizabeth argues that class actions are a possible viable solution to address the inaccessibility of Charter damages. She notes the recent certification of a racial profiling case in Quebec (Ligue des Noirs du Québec v Ville de Montréal, 2019 QCCS 3312), but emphasizes the need for clarification of the law of certification to allow for the development of an appropriate and effective legal framework to improve access to justice for victims of racial profiling and discrimination.

Read the full paper here.



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