Martha Jackman
Professor, Faculty of Law, Common Law Section University of Ottawa
- Ottawa ON
Martha Jackman specializes in constitutional law, with a particular focus on issues relating to women and other marginalized groups
Media
Biography
Biographie
Martha Jackman, B.A. (Queen’s), LL.B. (Toronto), LL.M. (Yale), est une spécialiste du droit constitutionnel. Elle s’intéresse également aux problèmes juridiques liés à la protection des femmes et des groupes défavorisés. Elle publie principalement dans le domaine des droits socio-économiques ainsi que de l'égalité et la Charte canadienne. Elle comparaît régulièrement en matière de droit constitutionnel et de politique sociale devant des commissions des droits de la personne, des regroupements de juristes et de juges ainsi que des comités parlementaires et ses compétences sont recherchées en matière de contentieux constitutionnel. Elle est membre du Conseil de direction de l’Association nationale femmes et droit et ancienne membre du Conseil de direction des Fonds d’action et d’éducation juridiques des femmes ainsi que du Comité des droits à l’égalité du Programme de contestation judiciaire du Canada.. En 2007, on lui a décerné la médaille du Barreau du Haut-Canada, un honneur attribué chaque année à des juristes ayant grandement contribué à la profession. En 2015 elle a mérité les Prix ‘Les Assises’ de l’Association du barreau canadien.
Industry Expertise
Areas of Expertise
Accomplishments
Touchstone Award, Canadian Bar Association
2015
Law Society of Upper Canada Medal
2007
University of Victoria Law Students Society First Year Teaching Award
2004
Augusta Stowe-Gullen Affirmative Action Medal, Awarded by the National Capital Committee on the Advancement of Learning Opportunities for Women
2001
Marion Porter Prize, Awarded by the Canadian Research Institute for the Advancement of Women for the most significant feminist research article from a journal or anthology
1996
Education
Yale Law School
LL.M.
1988
University of Toronto, Faculty of Law
LL.B.
1985
Queen's University
B.A.
1981
Affiliations
- National Steering Committee National Association of Women and the Law/Association nationale Femmes et Droit : Member (Co Chair 2012 - )
- Journal of Law and Equality : Member of the Editorial Advisory Board
- Law Society of Upper Canada : Member
- Association des juristes d’expression française de l’Ontario : Member
- National Association of Women and the Law : Member
Links
Languages
- English
- French
Media Appearances
Beware the spin in charter challenge to public health care
Regina Leader-Post
2016-09-20
Since the inception of medicare in Canada, opinion polls in all parts of the country consistently show that a vast majority of Canadians believe in equal access to health care based on need, not ability to pay...
Martha Jackman: B.C. medicare case argues for wrong prescription
Our Windsor
2016-09-15
Since the inception of medicare in Canada, opinion polls in all parts of the country consistently show a vast majority of Canadians believe in equal access to health care based on need, not ability to pay.
Yet this is precisely what is at stake in the Charter challenge against medicare taking place in the B.C. Supreme Court this week. Dr. Brian Day, one of the founders of the Cambie Surgery Centre, is contesting restrictions on doctors working in the public health system from also charging “extra fees” that would be paid for privately — out-of-pocket by patients or through private health insurance...
P.E.I. abortion rights group to sue province for not providing access to procedure
Toronto Star
2016-01-05
Martha Jackman, a constitutional law expert, said it will be difficult for the province to argue that it shouldn’t provide an insured medical service more than two decades after the Supreme Court of Canada found the country’s abortion law unconstitutional.
“This is an absolutely meritorious claim and I can’t imagine that it wouldn’t be successful,” said Jackman, a law professor at the University of Ottawa.
“Abortion is a medically necessary service that only women use and the fact that it is unavailable in P.E.I. is clear sex discrimination.”...
Ontario's temporary refugee health program 'illegal', ex-OHIP lawyer says; 'You don't have the authority to pay for something without a legislative basis'
Ottawa Citizen
2014-01-24
Brodkin said he checks frequently to see if applicable legislation or regulations have been introduced - but they have not. "I don't know if the majority of our population is concerned about this. I am concerned about democracy and ensuring the government comply with fundamental principles of democracy." Martha Jackman, a constitutional law expert at the University of Ottawa's faculty of law, said the federal government has violated international human rights obligations by reducing refugee health coverage, and that the province arguably had a moral obligation to step in...
Canadian Women’s Minister Takes Abortion-Vote Fire
We News
2012-10-12
"There’s been a whole series of backbencher/private member’s bills that have been tabled really attempting to reopen the [abortion] issue," said Martha Jackman, a constitutional law expert at the University of Ottawa and the Chair of the National Association of Women and the Law.
"This really represents a political campaign as much as a law reform campaign by the religious right on the way to recriminalizing abortion," said Jackman...
... or is he?
National Post
2012-01-14
The Supreme Court of Canada has clearly affirmed the constitutionality of the Canada Health Act. The suggestion that the Canadian constitution gives the federal government no role in health policy is wrong as a matter of law. The vast majority of Canadians strongly support the national, publicly funded, health-care system Roy Romanow has worked hard to defend. It is Prime Minister Harper, not Roy Romanow, who is out of touch on the issue of healthcare reform...
Spend national capital on achieving greatness
Telegraph-Journal
2010-10-14
Canadian Charter specialist Martha Jackman has been named the keynote speaker for an anti-poverty summit to be held Friday and Saturday in Moncton, sponsored by the non-profit group Common Front for Social Justice. The third summit of its kind entitled "Poverty: A Violation of Human Rights" is a two-day event beginning at noon on Friday at the Moncton Lions Community Centre. Jackman specializes in the area of constitutional law, with a particular focus on the Canadian Charter, equality and socio-economic rights. She joined the Faculty of Law at the University of Ottawa in 1988...
Spending limits promote free political expression
The Ottawa Citizen
2010-01-29
Columnist David Warren's ideological leaps of logic always amaze, but his claim that the U.S. Supreme Court's striking down of campaign spending limits on free speech grounds "attacks the contemporary lobbying system" defies belief.
Not surprisingly, our anti-Charter prime minister also invoked freedom of expression in his unsuccessful Charter attack on election spending limits in Canada.
The U.S. decision simply means that corporations and other "special interests" in the U.S. can spend as much as they want to influence election outcomes, through lobbying or otherwise.
In its decision in the 2004 Harper v. Canada case, the Canadian Supreme Court noted that "Canadians view third party spending limits as an effective means of advancing electoral fairness."
Spending limits promote, rather than undermine, freedom of political expression for all Canadians, not just for those with the deepest pockets...
What happens next if PM loses vote on coming budget?...
Toronto Star
2009-01-23
If the person who was prime minister prior to the dissolution of the House has not yet resigned and it is unclear which party or parties could gather sufficient support from MPs to lead a government after a fresh election, the governor general may let that person try to govern until it is made clear he or she does not enjoy the support of the House. In a minority situation, the prime minister cannot claim to have "won" a right to govern. At best, he or she can claim to have the right to try to sustain the confidence of the House...
See the bigger picture for health care
The Ottawa Citizen
2007-05-15
Letter-writer Martha Jackman writes that "a second Chaoulli-type challenge in Ontario is, fortunately for us all, unlikely to succeed."
Although most of us would like to keep the current system of Canadian public health insurance if possible, what may be truly unfortunate for us in the long term is to fail to understand the bigger picture of health care requirements of the coming decades. Health care takes decades to change in any meaningful way, and if we are to be prepared to meet the needs of the population past 2010 including technology, pharmaceuticals, long-term care, new diagnostic methods and treatments and sufficient provider numbers, then significant changes must start now...
Research Grants
Reconceiving Human Rights Practice for the New Social Rights Paradigm
Community-University Research Alliance Program, Social Sciences and Humanities Research Council of Canada
2009 - 2015
The project explores the conceptual and practical foundations for a new community-based human rights approach to poverty and inequality in Canada.
Reconceiving Human Rights Practice for the New Social Rights Paradigm
Community-University Research Alliance Program, Social Sciences and Humanities Research Council of Canada
2008 - 2009
Letter of Intent funding awarded to prepare an application for a second five-year CURA project.
Social Rights Accountability Project
Community-University Research Alliance Program, Social Sciences and Humanities Research Council of Canada
2004 - 2009
The project examines domestic and international mechanisms and norms for holding Canadian governments accountable for policies and actions affecting the enjoyment of socio-economic rights.
Intergovernmental Relations in Public Health Project, Advancing Theories, Frameworks, Methods and Measurements in Health Services Special Competition
Canadian Institutes of Health Research
The project examines inter-provincial dimensions and policy challenges in the area of public health in Canada.
Poverty, Equality and Health
Foundation for Legal Research
2004 - 2007
The project considers issues of poverty, access to health and the right to health care through a substantive equality framework.
Articles
The Future of Health Care Accountability: A Human Rights Approach
Ottawa Law Review2016
The paper argues that there is an urgent need in Canada for a human rights approach to health care accountability. Taking as its starting point that health care decision-making must respect Canadian Charter and international human rights guarantees, the paper contends that accountability mechanisms, both in relation to the overall performance of the health care system and individual access to care, must be designed to reflect and reinforce these fundamental human rights principles, not only as a matter of domestic and international legal obligation, but in order to be effective. To make this case, the paper first provides a brief overview of the concrete steps governments have taken towards implementing the various accountability reforms that have been put forward in Canada over the past twenty years. It then considers the implications of the absence of a human rights approach to health care accountability, particularly for those whose needs are least well served within the current system. The paper goes on to suggest that what is required, moving forward, is not only the recognition that health care is a fundamental right, but the creation of institutions and mechanisms capable of enforcing that right at both the access to care and system performance levels. The paper points to the Alternative Social Charter as one possible model for achieving effective accountability within the health care system: a critical reform for the future of health and human rights in Canada.
Rights Based Strategies to Address Homelessness and Poverty in Canada: The Charter Framework
Advancing Social Rights in Canada2014
This chapter explores the extent to which a domestic constitutional framework exists for a rights-based approach to housing and anti-poverty strategies in Canada, compatible with, and informed by, international human rights law and jurisprudence. Particular attention is paid to four Canadian constitutional provisions: 1) the commitment to provide public services of reasonable quality to all Canadians, under section 36 of the Constitution Act, 1982; the right to life, liberty, and security of the person, under section 7 of the Canadian Charter of Rights and Freedoms; the right to equal protection and equal benefit of the law, under section 15 of the Charter; and Canadian governments’ obligation, under section 1 of the Charter, to balance and limit rights in a manner that is reasonable and demonstrably justifiable.
Charter Equality at Twenty: Reflections of a Card-Carrying Member of the Court Party
National Journal of Constitutional Law2006
On the twentieth anniversary of the Canadian Charter's equality guarantees, the author reviews the record of Charter litigation as a means to redress inequalities in Canada and concludes that it is mixed at best. Far from undermining Canadian democracy, the Charter provides an important and legitimate avenue for challenging growing social inequities. Yet, low income litigants invoking the Charter have met with limited success due to a series of presumptions, including that social policy is beyond the legitimate purview of the courts, and that the state is neutral in its dealings with the poor. All in all, the author suggests, the relationship between rights and democracy is far more nuanced than the Charter critics argue, and the real question is not whether the Charter and the so-called Court Party are destroying democracy, but rather how the Charter's equality rights can inform and contribute to further strengthening the underlying values of our democratic system.
Section 7 of the Charter and Health-Care Spending
The Fiscal Sustainability of Health Care in Canada2004
This paper address three questions relating to section 7 of the Canadian Charter in the health care context: whether section 7 guarantees a right to refuse unwanted health care; whether it establishes a right to receive care; and whether it guarantees the right to provide health care services. The implications of the section 7 requirement that deprivations of life, liberty or security of the person must be “in conformity with the principles of fundamental justice” is also considered. In the individual treatment setting, principles of fundamental justice can be met by ensuring that patients participate fully in decisions about their own care. In the policy and regulatory setting, fundamental justice can be met by ensuring that decisions relating to health care services are publicly debated before implementation. To ensure meaningful participation at the individual level, health care providers may need to spend more time with patients. At the institutional level, increased accountability of decision-making may also be more time-consuming and therefore more costly. However, such expenditures are likely to be outweighed by the savings achieved through more effective health care decisions.
Constitutional Rhetoric or Social Justice? Reflections on the Justiciability Debate
Social Justice and the Constitution - Perspectives on a Social Union for Canada1992
The Ontario government’s initial efforts to put a social charter on the Canadian constitutional reform agenda were welcomed by poverty rights advocates across Canada, who lamented the absence of explicit reference to social rights in the 1982 Charter. However, no government seems prepared to support the entrenchment of anything stronger than a declaration of good intentions. The chapter challenges conventional arguments relating to positive versus negative rights; judicial competence and the pursuit of rights as a mechanism for social change, that underlie the prevailing critique of justiciable social rights. It concludes that, by rejecting the justiciablity of social rights, Canada’s First Ministers have lost a precious opportunity to transform the Charter into a more faithful reflection of the social values and aspirations which the vast majority of Canadians share.
