The Legal Politics of Seussville

This past week, after a seemingly tight but really not so tight Alberta election, the idea of sitting down to a Dr. Seuss book seems, well, almost refreshing. Admittedly, my days of “The Cat In the Hat” are over and perhaps “You’re Only Old Once” is more my speed, but as this week has shown, there is more to Seuss than meets the eye. Certainly, school administrators’ in Prince Rupert, British Columbia deem Dr. Seuss too political to be used in the classroom. In an attempt to create public awareness over an ongoing labour dispute cut short by the B.C. government in Bill 22, the teachers in Prince Rupert have placed the following quote from Seuss’s Yertle the Turtle on T-shirts, signs, and bumper stickers: “I know, up on the top you are seeing great sights, but down here at the bottom we, too, should have rights.” School officials have warned the teachers not to display this quote on school property or in the classroom as such “political messaging” is deemed inappropriate for the classroom. School administrators base their position on previous arbitration decision, which found a teacher’s right to expression was limited by a student’s right to be insulated from political messages.

The April 5, 2012 decision of the British Columbia Labour Relations Board in British Columbia Teachers' Federation v British Columbia Public School Employers' Association tackled the ban on teachers in the Vancouver and Nanaimo school districts from wearing T-shirts and buttons with the following slogans: "Standing up for BC Students," "Proud to be a Teacher," "I (heart) Public Education" and "Kids matter. Teachers Care." The Board declined to rule on the issue, finding the matter, which was essentially one of freedom of expression, was properly an issue for the collective bargaining arbitrator. Of course, this ruling does not bode well for the teachers’ union based on previous rulings of the arbitrator such as in the February 2011 ruling in British Columbia School Employers Association, School district No. 73 v. British Columbia Teachers Federation. In that decision, the arbitrator found the teachers’ freedom of expression under s. 2(b) of the Charter was not violated when the teachers were required to remove black armbands worn by them in the classroom to protest the ongoing labour dispute. Although the employer admitted the removal violated freedom of expression rights under the Charter, the order to remove was justified under s.1 of the Charter as a reasonable limit. Invoking the Oakes test, the arbitrator found the limit was demonstrably justified based on the location of the protest in the classroom before elementary aged children. In support, the arbitrator relied on a comment made by the Supreme Court of Canada in the 2009 decision of Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component that “the likelihood of children being present matters” and that the teachers had ample opportunities, outside of the classroom, to engage in protest. It was, in the arbitrator’s view, reasonable to “insulate” school-aged children from the dispute, which touched directly on their education, during classroom hours.

Interestingly, the arbitrator’s decision was not based upon a previous British Columbia Court of Appeal decision in British Columbia Public School Employers' Association v. British Columbia Teachers' Federation, which recognized the School Boards mandate of “ensuring an open and supportive education environment.” In order to fulfill this mandate, the majority of the Court found, the Board was justified in requiring teachers to refrain from using political messaging in the schools, although the directive in question was overly broad and failed on the Oakes minimal impairment test.

Significantly, Madame Justice Huddart, writing for the majority decision, agreed teachers were not "silent members of society” and went further in stating:The School Boards cannot prevent teachers from expressing opinions just because they step onto school grounds. School grounds are public property where political expression must be valued and given its place… Therefore, in my opinion, the absolute ban of discussion on school property during school hours did not minimally impair teachers' rights. Few places would be more appropriate for a discussion of the need for resources for public schools than a parent-teacher interview dedicated to one child's education. The Supreme Court noted in Pepsi, "[f]ree expression in the labour context benefits not only individual workers and unions, but also society as a whole" (at para. 35). The same holds true for teachers. Their political expression benefits society as a whole even where the concerns arise out of a labour relations dispute.

This decision resonates with my earlier blog posting, Freedom of Expression In The Classroom, in which I discussed freedom of speech in the classroom, albeit not in relation to labour dispute messaging. In posting, I referred to the case of the school teacher Richard Morin, who was disciplined and his contract not renewed after he showed an emotionally charged documentary highly critical of the religious right connection to American politics. Morin took his right to express himself in the classroom to the Prince Edward Court of Appeal, the majority of which upheld not only the teacher’s right to stimulate educative discussion in the classroom by presenting differing viewpoints but also the students’ right:

in a democratic society to have access to free expression by their teachers - encouraging diversity, critical thinking, and vigorous debate ... students have a right to hear this expression and benefit from it...this right of students is fundamental to their being citizens in a truly democratic state and students of that states' educational system.

So whether or not Dr. Seuss has a place in teacher political expression in classroom may be a matter for the Supreme Court of Canada to decide. Until then, I am pulling out my copy of The Lorax, another example of the “Politics of Dr. Seuss” as a reminder that kids have opinions too.

Let’s Talk About: Property Rights & The Canadian Charter of Rights and Freedoms

The Alberta election is heating up and is soon to be decided as Albertans go to the polls on Monday, April 23, 2012. One of the many controversial issues raised by the Wildrose leader, Danielle Smith, is on property rights and the absence of such rights guaranteed in the Charter. Smith, on her Wildrose website, suggests the “fundamental role” of government is the “protection and preservation of property rights.” As part of her platform on this “fundamental” issue is the promise her government would “entrench property rights.” She would do this by implementing an Alberta Property Rights Preservation Act, entrenching “basic property rights in the Alberta Bill of Rights” and spearheading “a national initiative to add property rights to the Canadian Charter of Rights and Freedoms.” 

Really? Are we really to believe that this “pressing” issue of property rights should be shoulder to shoulder in our Charter along with our fundamental freedoms such as freedom of expression, freedom of conscious, and equality rights. Should our preoccupation with individual, political, and democratic rights take a back seat to issues of ownership and possession? What will this mean for our criminal law and the ability of the government to reasonably search and seize property for a criminal investigation? Does the corporeal trump the spirit? Is property, which not everyone has the ability to own, require the special attention and protection of our most Supreme laws? Why should property rights, which were specifically and deliberately left out of the Charter, now be placed back in?

Not that we would ever see the unanimous agreement to do so that is required before the Charter could be amended. Do we need the kind of property rights litigation, which occurs in the United States, where property rights were specifically enshrined in their Constitution and viewed as sacred as life itself? And if we feel we do want this protection, are we prepared for the result. For a good discussion on the history of American Constitution property rights, read the SCC decision in Reference re ss. 193 and 195.1(1)(C) of the criminal code (Man.).

Danielle Smith may have taken a page from her namesake, Adam Smith’s, Wealth of Nations, with a call to protect life, liberty and property but fails to recognize the positive obligation protecting property would place on the government. Thus, we would need a robust and interventionist government, willing to step into the property rights fray. Entrenching property rights would mean not less government but more government, as the Courts would be busy reviewing the government’s ability to regulate and protect the national interest in the name of the economy. Take for instance the issue of natural resources and the role ownership of such resources would play under a property Charter rights scenario.

Canada does in fact have some experience with protection of property rights as section 1(a) of the Canadian Bill of Rights, 1960, the statutory, quasi-constitutional precursor to the Charter, protects “the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law.” While this still enacted statute can still be used to “protect” property rights, the legal interpretation of this right has not provided the protection the Wildrose maintains they can provide if elected. 

But would such entrenchment of property rights really “protect and preserve” an individual’s right to their property as touted by the Wildrose? It is instructive perhaps to look at the case law on property rights in the Bill of Rights. This passage of the Bill of Rights was considered by the Supreme Court of Canada rather recently in the 2003 Authorson case, in which disabled veterans attempted to require the federal government to pay past interest on pension funds despite legislation minimizing Crown liability. The end result of the decision, dismissing the veterans’ claim, was to uphold Parliament’s right to expropriate property without compensation.

Legally, an “entrenchment” of property rights does not in and of itself suggest an individual’s right to property would be absolutely guaranteed. Indeed, considering all of our rights under the Charter are not absolutely protected, any “new” Charter rights would be treated similarly. According to s. 1, all of the Charter rights are subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.  In addition, both Parliament and each provincial legislature, including Alberta, have the authority to enact legislation contrary to the rights guaranteed in the Charter through the Charter notwithstanding provision contained in s. 33.

Therefore, the Wildrose is promising, in a very heated election, something they cannot themselves guarantee. Undoubtedly these are the best promises to make: no one can take them to task for merely promising to try. Interestingly, the Authorson case was written by the then Alberta appointment to the SCC, Justice Major, who is now trying to sort out the MLA compensation debacle. Of course, the proponents of property rights would suggest it is the poor wording of the Bill of Rights, offering property protection in accordance with due process, which is the problem and which can be easily fixed.

But even if the Charter was amended and property rights were absolutely protected as desired by the Wildrose, the question still remains whether or not protecting property rights is in the best interests of Canadians. If we say “yes” to property rights, then we must be prepared for all kinds of litigation overrunning our justice system such as: litigation on the right of the government to tax individuals; litigation on the government’s right to make decisions on natural resources; litigation on intellectual property rights including copyright and access to information; and litigation regarding criminal law and search warrants as discussed in the SCC case of Quebec (Attorney General) v. Laroche. We could even see spill-over litigation in the area of economic rights, which traditionally has been unprotected by the Charter as discussed in the SCC Gosselin case, which could put Canada’s economic health at risk by promoting the financial sovereignty of the individual at the expense of a strong economy and healthy society.

Thus, in the end, we must decide if property rights are worth protecting in our country knowing the possible legal pitfalls, which may ensue. Let’s ensure the next thirty years of Charter litigation promotes our fundamental freedoms as individuals of choice and free will, entitled to respect and dignity, instead of a document weighed down by possessory rights and self-interest.

Are You Listening to This? The Constitutionality of Interceptions of Private Communications In Exceptional Circumstances

Justice Moldaver and Justice Karakatsanis, writing for an unanimous court in the Tse case and their first decision as Justices of the Supreme Court of Canada, found s.184.4 of the Criminal Code, which governs investigatory interceptions of private communications in “exceptional” circumstances, lacking in the constitutionally required safeguards required for such interceptions. According to the Code, “exceptional” circumstances refers to the situation where a peace officer is facing an “urgent” situation whereby he or she is reasonably unable to follow the normal procedures outlined in the Code for such interceptions.

What would these normal procedures require? First, we must step back from the section and pause to consider the context. Section 184.4 is in Part VI (6) of the Criminal Code relating to “invasion of privacy,” or when a peace officer wants to investigate a criminal matter by using an investigative technique involving the surreptitious interception of private communications. In other, more colloquial terms, the police want to “spy” or “eavesdrop” on a targeted individual, whom the police believe on reasonable grounds to be committing or planning to commit a crime. As we know from television and movies, spying is a very high tech activity requiring the most cutting edge devices such as wiretaps accessed by loads of smart looking mechanical equipment found in plain white cube vans with cool looking techies wearing enormous noise-cancelling headphones. Also present is the ubiquitous computer laptop, as today’s savvy cop needs to use the best in order to combat the even technologically savvier criminal.

As great as these techniques look on the big screen, they do not translate well in the constitutional setting; a context, which takes individual rights seriously, and violations of such rights even more seriously. In our Charter, through sections 7 and 8, the state is required to respect the dignity, autonomy, and integrity of the individual as a defining element of individual freedom. However, with this state obligation, as Pierre Trudeau so eloquently stated “there's no place for the state in the bedrooms of the nation,” comes the competing need to protect society from harm through state-sponsored police investigation and protection. It is the judiciary’s role to determine the appropriate balance between these competing rights through a generous and flexible interpretation of the Charter.

As a result, the starting point in the Criminal Code for invasion of privacy is to create an offence where private communication is intercepted by any means. Private communications are any oral, telephone, or radio-based communication made in the context of a reasonable expectation of privacy. Thus, the originator of the communication intended the communication to be made to another person, with an expectation no one else other than the intended receiver would hear it. Any non-consensual interceptions to such private communication are therefore unlawful and contrary to section 184 of the Criminal Code.

There are two exceptions to the rule, wherein the interception is unlawful. One scenario involves the consent to intercept by either the originator or the receiver of the communication. The other scenario, which is of interest in the Tse case, contemplates a lawful interception where the investigators obtained prior judicial authorization to intercept the communications in accordance with the procedure as set out in the Criminal Code. The application to a Judge for such an authorization is described in section 185 of the Criminal Code.

The application procedure is rigorous: it must be made in writing, it must be made before a superior court judge or a designated judge, it must be signed by the provincial Attorney General or the Minister of Public Safety and Emergency Preparedness or a duly authorized agent specially designated in writing, and must be accompanied by a sworn document (affidavit) of the investigating officer. 

In turn, this affidavit, based on the information and belief of the investigator, must include the following information: the facts justifying the authorization should be given; the particulars of the alleged crime; the type of communication to be intercepted; the names, addresses, and occupations, if known, of all the persons intended to be intercepted together with the reasonable grounds to believe such interception may assist the investigation; a description of the place, if known, where the communication is to be intercepted; general description of how the communication will be intercepted; the number of times, if any, such an application for interception has previously been made under the section and the specific details of that prior application; the length of time for which the interception is required; and why other investigative techniques would not likely succeed or why it would be impractical to use other techniques due to the urgency of the situation or if other techniques were tried and failed, what those other investigative techniques were and why they failed to work.

Even if the above procedure is followed to the letter and even if the peace officer has fulfilled all of these pre-requisites, the application Judge, under section 186, must not issue an authorization unless her or she is satisfied that it is in the best interests of the administration of justice to issue the authorization to intercept and that other investigative techniques have been tried and failed, or are unlikely to succeed, or urgency requires this technique.

The steps needed and the information required before an authorization is issued emphasizes the status quo of non-interception and provides a constitutionally permissible exception to the general rule.

Now that we have stepped back from the section at issue in the Tse decision to look at the broader context, we can appreciate the constitutional deficiencies found in s.184.4. First, as earlier discussed, s. 184.4 is an exception to the exception found in s. 185. Section 184.4 permits a peace officer to intercept a private communication in prescribed exigent circumstances where: the peace officer believes on reasonable grounds that an authorization cannot reasonably be obtained and the peace officer believes on reasonable grounds the interception is “immediately necessary” to prevent an “unlawful act” that would cause “serious harm” to person or property and where either the originator of the communication or the receiver of the communication will cause the harm or is the intended victim of the harm. That’s it. There is no requirement for prior judicial authorization. It is the investigator, not an unbiased judicial officer, who makes the determination of the urgency of the situation.

All the safeguards found in sections 185 and 186 seem to disappear as “urgency” trumps “privacy” in s. 184.4.  Not so according to Justices Moldaver and Karakatsanis. In their view, certain aspects of the section pass “constitutional muster” as it provides an appropriately flexible authorization approach in dire or emergency circumstances. However, this appropriate response can only be found by stepping back once again from the section and looking to s.188.  This section contemplates a “stop-gap” authorization, which is issued in urgent situations where an interception is required before there is an opportunity to apply for an authorization under s.185. This “follow-up” authorization must be sought for the s.184.4 situation as soon as is practicable to minimize the time in which a non-authorized interception is at play, thereby maintaining the rigours of the interception exception.

But wait, did the SCC not find s.184.4 invalid and contrary to the Charter? Yes, but in a very limited way, which protects the integrity of the section and signals to the legal community that crime fighting is back on the Agenda with the Charter’s full approval. The constitutional concern with the section is not the lack of judicial approval for an interception, as that judicial-less state would last only for a short time, but it is the lack of notice, which comes after the interception is used, to the intended targets that causes constitutional concern. No notice to those involved means a lack of oversight of the use of police powers. No notice means a lack of disclosure, which in turn means no ability to take the matter before a Judge to determine the appropriateness of the extreme police actions. It is this failure, which the Harper Government has twelve months to rectify. This is an easy fix with the SCC giving explicit instructions on how to comply.

This telling decision, written by new appointments, gives us some insight into the future. The Charter has recently celebrated its 30^th anniversary without much fanfare. This similarly low-key decision reiterates the now familiar Charter values of privacy and oversight but at the same time reinforces the State’s interest to combat crime. The Tse decision appears to provide an interpretation that presumes constitutionality instead of requiring proof of it. It seems to prefer self-referential statutory interpretation as opposed to the trail-blazing early Charter years when Chief Justice Dickson and Madame Justice Wilson wrote sometimes blistering commentaries on the role of the State in protecting Charter rights. Whether or not this is a trend will be seen in the next SCC Charter decision.

Blog Update: The Spy and the Pamphleteer

In previous postings, I have discussed two very different cases now before Canadian courts. The first case concerns William Whatcott, a persistent anti-gay pamphleteer, who is before two different courts connected to his pamphleteering activities. The second case is of Jeffery Delisle, the first person charged with spying under the newly enacted Security of Information Act. Although the two cases are completely unrelated, court decisions in both of these cases were handed down on March 30, 2012.

The first Whatcott case, which is still on reserve before the Supreme Court of Canada, involves the Saskatchewan Human Rights Tribunal’s finding that Whatcott’s anti-gay pamphlets amounted to hate speech. The other Whatcott case, decided on March 30, 2012, is an appeal of the quashing of Whatcott’s trespass charge when he was on University of Calgary lands to hand out his anti-gay literature. The original decision to quash the charge by Provincial Court Judge Bascom can be accessed here.

Just as a refresher, the Supreme Court of Canada Whatcott case is a vitally important decision for the ability of human rights tribunals to uphold the tenants of human rights legislation. It also raises the difficult issue of conflicting Charter rights: in this case the freedom of expression under s.2(b) and freedom of religion under s.2(a) in the context of competing Charter values as found under s.15, which promote respect and tolerance of others in our community.

Although the SCC Whatcott case concerns the constitutionality of the hate speech provision in the Saskatchewan Human Rights Code, the ultimate issue in the case will decide whether or not provincial laws on hate speech must conform with the more stringent hate speech section in the Criminal Code. If so, provincial human rights codes could be essentially redundant, leaving the more difficult to prove Criminal Code sections to safeguard society from the harmful effects of hate speech. Some of the factums filed in support of the SCC argument can be found here.

This SCC decision is of particular interest in Alberta, where provincial election campaigning has touched on the controversy surrounding the Alberta Human Rights Commission and its enforcement of provincial hate speech legislation. The Boisson v. Lund case, also discussed in a previous posting, shares similar issues with the SCC Whatcott. The Alberta Court of Appeal has not as yet released a decision on this case. The controversy in Alberta over this case and the high profile Alberta Human Rights case against journalist Ezra Levant for re-publishing the infamous Dutch “Muslim Cartoon,” has brought repeated calls for abolishing the Alberta Human Rights Commission. The Wildrose Party is campaigning on a platform, which includes abolishing the Commission, instead creating a new Human Rights Division in the Provincial Court of Alberta.

In the other Whatcott case of trespassing on University lands, the case has been so far decided in favour of protecting freedom of expression. In a previous posting, I discussed Alberta Provincial Court Judge Bascom’s stay of trespassing charges against Whatcott on the basis of s.2(b) expression rights under the Charter. On March 30, 2012, the appeal of the decision was heard before Alberta Queen’s Bench Justice Paul Jeffery, who summarily dismissed the Crown appeal and upheld Judge Bascom’s decision. The written reasons for the decision have not, as yet, been released.

Unlike Mr. Whatcott, Jeffery Delisle did not receive a favourable decision on March 30, 2012. Mr. Delisle was refused bail by Nova Scotia Provincial Court Judge Beach and ordered to stay in custody pending his trial. A ban on publication was imposed at the bail hearing and therefore the reasons for dismissing the bail application is unknown. Although Mr. Delisle’s lawyer stated he was “disappointed” albeit not surprised with the decision, there is no word whether or not he will be reviewing the decision in superior court. In the meantime, Mr. Delisle will return to court on May 8, presumably to set a date for trial. Delisle’s lawyer has commented on the case, indicating Delisle is not accused of endangering military troops as a result of his alleged espionage. There is some suggestion Delisle, at the time of the commission of the offence, was heavily into online gaming and had a “computer addiction,” which may have lead to monetary difficulties. For further discussion, read my Spy vs. Spy blog and my blog entitled Let’s Talk About: Diplomatic Immunity. For further reading on the Whatcott cases, read my blogs Law, Literature, and Inherit The Wind, The Road Taken By The Supreme Court of Canada, A Message of Tolerance, Limits of Expression, and Whatcott in The Courts Again.