A Backgrounder On Reference Cases In Canadian Law

This morning the Supreme Court of Canada rejected the concept of a national securities regulator. They did this under the authority of s. 53 of the Supreme Court Act whereby the Federal government can directly refer to the SCC a question of law or facts concerning the constitutionality of proposed legislation. The Provinces too have similar provincial legislation permitting a Reference to their respective appellate courts. 

On a Reference, answers to the questions posed by the government are not legally binding but due to practice have become so. Typically, the government referring the matter heeds the Court's decisions and either re-draft the legislation to conform to the precepts set out by the Court or return to the negotiating table if it is a matter of social or political policy. Thus, matters referred are issues of public importance, which require the speedy process of a Reference to receive timely input on the viability of proposed legislation before it is enacted.

Such a procedure to determine the correctness of legislation is not a tool broadly used in common law countries. Both the United States and Australia have found such a pre-vetting tool unconstitutional. England has a modified version through the use of advisory opinions.

The International Court of Justice will hear issues on reference. However, this practice has been criticized by many international experts. The procedure been used to garner support for controversial political issues without full support of the international community including the countries directly involved. A list of such reference cases can be found here.

Canada, on the other hand, has successfully used the Reference process for controversial issues. In 1981, the SCC determined, on Reference from three Provinces, the format of the patriation of the Constitution from the UK. As a result, the Federal government could not amend the constitution without unanimity. The provinces and the Federal government returned to the negotiating table, resulting in major changes to the Charter, including the addition of the s.33 "notwithstanding clause." This modification gave the provinces the power to override the application of certain sections of the Charter, including the fundamental freedoms, if such sections conflicted with provincial legislation. This later permitted the PQ government in Quebec to re-enact all of their provincial legislation with the override protection.

The Federal government has also used the Reference mechanism politically when it referred the hypothetical issue of Quebec secession in 1998. The decision, which determined a province could not unilaterally secede, also suggested that if a province had a popular mandate to do so, the Federal government had an obligation to negotiate on the issue.

Thus, we return to today's Reference with perhaps a better understanding of the process and the import of the decision. The SCC has decided, through a division of powers analysis, that a national securities regulator is inconsistent with our Constitution Act. Not doubt, this decision will do as References have done in the past, send the Federal government back to the drawing table and negotiating table, in an effort to implement, albeit in a different manner, their political intentions. The end result may prove, in the long run, to be the best result for Canada.

Testifying Behind The Veil: The Human Factor

Yesterday I discussed the background to the N. S. case, which has recently been argued, on appeal, before the Supreme Court of Canada. The case is significant for two reasons: it raises the issue of conflicting Charter rights and how this conflict should be approached by the courts and it raises the issue of whether or not a witness in a criminal case is permitted to wear a face covering veil during testimony.

The second issue has broader implications in the public arena as it highlights the clash between traditional religious practices and the modern world, where identity and privacy seem to shrink in the public spotlight. In the age of mass communication, with over 500 million users of Facebook, the idea of masking one's identity, for whatever reason, appears to be not only redundant but also unacceptable.

Legally, such a stance seems to be against precedent as seen in the 2009 Supreme Court of Canada Alberta v. Hutterian Brethran of Wilson Colony case, wherein the Court upheld provincial legislation which required photographic driver licence identification even though such requirement conflicted with the religious precepts of the Brethren. Such picture identification was rationally connected to the real and pressing concerns of safety and security.

Politically too, keeping one's identity private is not acceptable as in the recent decision by the Federal Government to require the removal of face covering veils when fulfilling citizenship requirements, particularly when taking the citizenship oath. This decision does not appear to be decided on the basis of security and safety but, according to Immigration Minister Jason Kenney, on the basis that the "public declaration that you are joining the Canadian family ...must be taken freely and openly." 

In that backdrop, we return to the N. S. case and the decision of the Ontario Court of Appeal written by the Honourable Mr. Justice Doherty for the panel. In the decision, Justice Doherty perfectly sets out the issues at stake "in human terms": 

N.S. is facing a most difficult and intimidating task.  She must describe intimate, humiliating and painful details of her childhood.  She must do so, at least twice, in a public forum in which her credibility and reliability will be vigorously challenged and in which the person she says abused her is cloaked in the presumption of innocence.  The pressures and pain that complainants in a sexual assault case must feel when testifying will no doubt be compounded in these circumstances where N.S. is testifying against family members.  It should not surprise anyone that N.S., when faced with this daunting task, seeks the strength and solace of her religious beliefs and practices. 

M---d.S. is facing serious criminal charges.  If convicted, he may well go to jail for a considerable period of time.  He will also wear the stigma of the child molester for the rest of his life.  In all likelihood, the mere fact that charges have been laid has led many within his family and community who are aware of those charges to look at M---d.S. in a very different way. 

M---d.S. is presumed innocent.  His fate will depend on whether N.S. is believed.  In a very real sense, the rest of M---d.S.’s life depends on whether his counsel can show that N.S. is not a credible or reliable witness.  No one can begrudge M---d.S.’s insistence that his lawyer have available all of the means that could reasonably assist in getting at the truth of the allegations made against him.    

What is really being impacted by this case, which has now taken on national proportions, legally, politically, and socially, is the lives of two people. Certainly, the public's interest in the outcome of the case is valid. This is even more so considering the number and type of intervener's in the SCC case: the Ontario Human Rights Commission, the Criminal Lawyer's Association, the Women's Legal Education and Action Fund, and the Muslim Canadian Congress, to name but a few. However, we must not forget the "human terms" or human factor, which requires us to contemplate the life-changing possibilities of this ruling.

The Charter And The New Alberta Impaired Drivings Laws: Going Beyond Driving Is Privilege

Our discussion of the tabled Alberta impaired driving rules continues with a look at the legal arguments which may be available under the Charter. At first glance, it appears the case law shuts down any Charter argument based on a review of a myriad of cases, across the provinces, upholding similar legislation.

Even the Alberta Court of Appeal, in the 2003 Thomson case, comes down strongly in favour of this kind of provincial legislation. Thomson upholds the legislation, despite division of powers arguments and claims of Charter violations under s.7, s. 11(d), and s.13, on the basis the legislation is valid provincial legislation, which is purely administrative in nature and therefore imposes a civil sanction as opposed to a criminal penalty. Furthermore, driving, as a licensed regime, not essential to a person's liberty interest, is a privilege and not a right under s.7. Finally, there is great public interest in preventing "carnage on the highways" from drinking and driving.

Despite the above authorities, I would suggest there are still valid Charter claims, which can be brought before a Court depending on the facts of a particular case. As touched upon in yesterday's blog, the automatic, immediate, and indefinite suspension of a driver's license of an offender charged with impaired driving under the Criminal Code as a result of the new scheme, could result in heavy burdens on the administration of justice to have impaired/over 80 cases heard in a speedy manner.

Other provincial legislations place a time limit on these roadside provincial suspensions: typically the maximum suspension is 90 days. The Alberta legislation suspends the licence until the criminal matters are disposed, a time period dependent on the timeliness of the trial. Thus, an unreasonable delay argument under s.11(b) of the Charter may result in those cases where the criminal justice system is unable to provide a timely trial. It may be safely argued that considering the escalating time limited suspensions elsewhere, depending on if the matter is a first offence, a trial may be unreasonably delayed if not heard within 7 days, thirty days, sixty days, and in the most serious scenarios, ninety days. 

There are many factors a court must consider in deciding whether a trial has been unreasonably delayed due to the Charter. Certainly, pursuant to the Askov case, systemic delay is a primary consideration. Other factors include Crown delay in preparing the matter ready for trial and prejudice to the accused. A lengthy licence suspension, can be highly prejudicial to an accused who may require the licence for employment or who lives in a rural area, where public transit is unavailable. In certain circumstances, albeit fact dependent, a Charter delay claim may be successful. As suggested in the previous blog, such a claim could cause the government to prioritize impaired driving cases over more serious crimes, resulting in inappropriate allocation of public resources.

Another Charter argument, more difficult to argue, but again, depending on an appropriate fact situation, should be argued, is a violation of s. 7 rights. Although, the weight of the authorities appears to be against rearguing the issue, the Supreme Court of Canada, in recent cases such as in PHS Community, Gosselin, and Khadr, have expanded the definition of right to liberty under s.7.

Indeed, starting as early as a decade ago, in the 2000 Blencoe case, the SCC has, cautiously and incrementally, moved toward a much more expansive definition by not restricting the definition of liberty to "mere freedom from physical restraint." Liberty may be restricted when the government interferes in an individual's right to make "profoundly personal choices" which impact their independence, self-worth, and self-identity as a person.

As stated in Gosselin, such liberty interests are triggered by an individuals' interaction with the justice system in the broadest way, such as any "adjudicative context." This would include the administrative scheme under whose authority the licence is suspended.

It can, therefore, be argued that a driver's licence for an adult in today's world is a rite of passage from adolescence to adulthood and is integral to an individual's identity and self-worth. The independence a licence bestows upon an individual is not about mere movement from place to place, but includes highly personal choices of where one can move and at what time. Consider the great impact a loss of license has upon the cognitive disabled and the elderly and the argument becomes even more cogent.

The legislation is therefore vulnerable to Charter rights. Tomorrow, I will discuss other areas of legal concern, outside of the pure Charter arena.

The Occupy Movement and The Government's Right to Allocate Public Space

Justice can move at a dizzying pace: since Friday, the Occupy movements in Victoria, Vancouver, and Toronto have been ordered by the Courts to obey municipal law and take down their tents. The issue, at least according to B.C. Supreme Court Justice Schultes who granted the Victoria injunction, is the government's right to allocate public space. 

In his oral reasons for granting the extraordinary injunctive remedy, Schultes concluded the City of Victoria, by requesting the order, was "within its rights to mange public spaces in the public interest" and is "free to come to the conclusion that any encampment, wherever and however situated in the square, is not in keeping with the best public use of that space." 

In a previous post from November 4 on Creating A Positive Out Of A Negative, I suggested that the BC Supreme Court in Victoria (City) v. Adams created a Charter right to shelter. Adams involved very specific evidence of a lack of shelter beds for the homeless, causing the homeless to erect a Tent City in a public park. In that case, the Court found an infringement of s.7 right to life, liberty and security of the person as a result of the lack of shelter. In the Court's view, the case was not about property rights. Nor was it about the right to camp in public spaces. It was about human dignity and self-fulfillment of the homeless, who had no alternative but to sleep in temporary shelters in a City park.

How does the Occupy movement situation differ? Although homelessness and poverty does appear to be a theme in the Occupy movement, it is certainly not the reason why all of the members are living in tents in a public space. Certainly the movement would be unable to produce the same kind of evidence as in Adams, which was persuasive in its breadth and depth. Does that mean the case is all about property rights, which is not Charter protected?

Schultes's reasons may provide an answer. By framing the issue as one of public allocation, Schultes was no doubt referring to the Supreme Court of Canada Committee for the Commonwealth of Canada case decided in 1991. There, the members of the Committee were handing out their propaganda at an airport contrary to airport regulations. The Committee members argued their s.2(b) freedom of expression rights were infringed. Although the Court agreed the freedom was infringed, they were split on various issues of the case. One of the issues discussed was the special use, if any, of governmental property as public space.

According to the Court, public space should not be treated like private property as the government held the property for the benefit of the public. Indeed, in Adams, Madam Justice Ross found the public included the homeless. However, the SCC cautioned on a formulistic view of a "public forum" analysis and preferred a contextual approach involving the balancing of the interests of the individual and the interests of the government. Thus, in Chief Justice Lamer's (as he then was) view when expression is restricted in a public place, the legal analysis must examine the

interest of the individual wishing to express himself in a place suitable for such expression and that of the government in effective operation of the place owned by it".

As it is public lands, Lamer, C.J. found it is the "citizens above all who have an interest in seeing that the properties are administered and operated in a manner consistent with their intended purpose."

What does this mean for the Occupy movement? This means as stated by Justice Brown, in granting injunctive relief to the City of Toronto, that "protestors have ample means left to express their message, including continued use of the park (but no structures or "midnight hours"), and other Torontonians can resume their use of the park" too. Therefore, the right to freely express oneself does not include exclusive use of the space chosen to do it. In other words, there is room in the sandbox for everyone.

In the end, isn't that a good thing? The more the merrier and the more who will hear the message to be conveyed.

Blog Update: The Limits Of Expression

In the November 19 blog entitled A Message Of Tolerance, I discussed the most recent decision by Alberta Provincial Court Judge Bascom to quash a University of Calgary trespass notice against William Whatcott for handing out anti-gay literature on campus. This case is an intersection of two current controversies surrounding freedom of expression: expression on campus and hate speech. 

Although wilfully promoting hatred under s. 319 of the Criminal Code infringes s.2(b) freedom of expression rights under the Charter, it is a justifiable infringement under s.1. In both the Keegstra case and the Zundel case, the Supreme Court of Canada recognized the expressive content of hate speech, albeit repugnant. It is under the s.1 analysis, wherein the Court determines if limiting the expression in a particular instance is justified, where the balancing of expression against Charter values of multiculturalism, equality, and human dignity occur. In this context, expression can and has been limited, particularly where such expression reaches criminal proportions.

However, it is in the non-criminal arena of human rights codes where the line between protection and limitation is not clearly drawn. Criminal hate offences require proof of a high level of subjective mens rea or fault element. Hate speech violations under the human rights codes do not require such a high level of intent, which is at the core of the issue in the other Whatcott case, now under reserve at the Supreme Court of Canada.

Similarly, the Boission v. Lund case, set to be heard at the Alberta Court of Appeal on December 7, raises the spectre of hate speech and limits to expression. There too the extent to which non-criminal hate speech can be restricted by human rights codes will be considered.

The other issue of interest, freedom of expression on campus, I have discussed in two previous postings: the November 8 blog on The Pridgen Case and Freedom Of Expression On Campus and the November 9 blog on Freedom of Expression in the Classroom. The Alberta Court of Appeal has reserved decision on the Pridgen case.

However, the ability of a University to restrict free expression, no matter how ugly, is a current issue, with Campus Pro-Life groups across Canada fighting against university prohibitions of their graphic anti-abortion campaigns. Currently, the Calgary group has a judicial review pending in the Alberta Queens Bench as of April 2011. Calgary, Carleton, Victoria and Guelph have all banned the clubs on campus.

Even university marching bands are not immune as the Queen's University marching band's explicitly discriminatory material against women has resulted in a suspension of the band's activities.

Although the intersection of expression and intolerance is not surprising, what is of interest is the locus operandi or the commonality of place, of this intersection: the university campus. As a result, how the Courts will determine expression limits on campus has just become even more complex.