Court Orders Canadian Government to Bring Abdelrazik Home
On June 4, 2009, Federal Court Justice Russell Zinn ordered the government to take immediate action to repatriate Abousfian Abdelrazik, a Canadian citizen who has been stranded in Sudan since 2004. Abdelrazik had charged the government with “procrastination, evasiveness, obfuscation and general bad faith” in dealing with his application for an emergency passport.[1] The government maintains that the only thing stopping Abdelrazik from leaving Sudan is that his name is on a United Nations list of al-Qaeda associates.[2] Justice Zinn did not agree entirely with Abdelrazik’s assessment, but he did find that there had been “a course of conduct and individual acts that constitute a breach of Mr. Abdelrazik’s rights which the [government has] failed to justify.”[3]
Justice Zinn made it clear that a Canadian’s Charter rights are not dependent on moral character or political beliefs. The question of Mr. Abdelrazik’s sympathy or support for Al-Qaeda cannot be a factor in determining if his Charter rights were violated.[4] Justice Zinn stated that the only relevant issue in this case is whether Abdelrazik’s constitutional right to enter and leave Canada (as guaranteed bysection 6(1) of the Charter) was violated. If there is a breach of that right, the court must consider whether that breach is saved by section 1 as a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society (the Oakes test).[5]
In his 107-page judgment, Justice Zinn presents a detailed analysis of eleven acts and omissions by the federal government which, according to Abdelrazik, formed a pattern that constitutes a breach of hisCharter right to enter Canada.[6] Justice Zinn found that “the only reason that Mr. Abdelrazik is not in Canada now is because of the actions of the Minister on April 3, 2009.”[7] On that date, Abdelrazik was scheduled to fly out of Khartoum. Financially destitute, Abdelrazik had scraped together the money for airfare, based on the promise that Canada would provide him with an emergency passport. The government failed to follow through on the promise, citing the prerogative power to grant or deny passports under section 10.1 of thePassport Order.
The government maintained that it was under no positive obligation to facilitate Abdelrazik’s Charter right to enter Canada. Justice Zinn did not agree: “where a citizen is outside Canada, the Government of Canada has a positive obligation to issue an emergency passport to that citizen to permit him or her to enter Canada; otherwise, the right guaranteed by the Government of Canada in subsection 6(1) of the Charter is illusory.”[8]
Justice Zinn acknowledged that Passport Canada has the prerogative authority to deny the issuance of a passport under section 10.1 of the Passport Order, but “whenever a citizen may be denied passport privileges, there is a mechanism in place that provides the citizen with procedural fairness and natural justice…. There is no suggestion that the Minister followed this process.”[9]
The government is obligated to justify a prima facie breach of Charter rights pursuant to section 1 of the Charter.[10] Rather than justifying the breach, the government denied that there was a breach. In the absence of a government justification, Justice Zinn considered whether the determination that Abdelrazik poses a danger to national security constitutes a justifiable limitation of his section 6(1) mobility right. Zinn concluded that it was not a justifiable limitation. Therefore, the breach could not have been justified, even if the government had so argued.[11]
Because the Canadian government denied Abdelrazik’s Charter right to enter Canada, he is entitled to a remedy under Charter section 24(1). To effect that remedy, the government was ordered to make travel arrangements for Abdelrazik within 15 days of the judgment. Furthermore, Justice Zinn ordered that the government must ensure that Abdelrazik appears before him in an Ottawa courtroom on July 7, 2009 at 2:00 p.m.[12]
The judgment prompted immediate reaction during question period in the House of Commons on June 5, 2009. Four times, Minister of Justice Rob Nicholson was asked about the government’s plan to comply with the order. He replied that “because this is a very extensive ruling, we are looking at it very carefully. We are reviewing all aspects of the decision and we will make a decision in due course.”[13]
The minister’s comments leave the door open to speculation as to whether the government will comply with the court order or appeal the decision, as it did in response to a similar Federal Court ruling in Khadr v. Canada[14] just last month.[15]
Further Reading
Jim Young, “’Kafkaesque’ Abdelrazik Saga Raises Mobility Rights Question” Centre for Constitutional Studies (12 May 2009).
[1] Abdelrazik v. Canada (Minister of Foreign Affairs and Attorney General), 2009 FC 580, at para. 2. [2] Ibid. at para. 3. [3] Ibid. at para. 7. [4] Ibid. at para. 12. [5] Ibid. at para. 61. [6] Ibid. at para. 62. [7] Ibid. at para. 148. [8] Ibid. at para. 152. [9] Ibid. at para. 155. [10] Ibid. [11] Ibid. at para. 154. [12] Ibid. at para. 73. [13] House of Commons, Hansard (5 June 2009) at 1140. [14] 2009 FC 405. [15] Joanna Smith and Tonda MacCharles, “Government will Appeal Omar Khadr Order” The Toronto Star (8 May 2009). Independence of Attorney General Raised in Alberta Plea Agreement Case
On May 28, 2009, the Alberta Court of Appeal heard a Crown appeal from a Provincial Court decision[1]which held that an accused’s Charter rights were violated when the Attorney General revoked a plea bargain with the Crown.[2] The court’s decision is pending. At the heart of the dispute is the extent of the Attorney General’s independence from judicial review and the Attorney General’s right to revoke plea agreements.
On September 2, 2006, Olga Nixon struck the Andriashek family car with her mobile home in an intersection near the town of Andrew, killing the mother and father and injuring their seven-year-old son. Ms. Nixon was charged with two counts of impaired driving causing death, one count of impaired driving causing bodily harm, and parallel counts of dangerous driving causing death and causing bodily harm.”[3]
In May 2008, the Crown prosecutor and Ms. Nixon’s counsel agreed that Ms. Nixon would plead guilty to careless driving and pay an $1800 fine, substantially less than the potential prison sentence she faced if convicted for impaired driving causing death.[4] On June 25th, one day before Ms. Nixon was to plead guilty, the Attorney General’s office revoked the plea agreement and decided to proceed to trial, following review of the case by several members of the Ministry of Justice.[5]
Abuse of Process?
In Provincial Court, Ms. Nixon argued that the revocation of the plea agreement was an abuse of process by the Crown which violated her section 7 Charter right not to be deprived of life, liberty and security of the person “except in accordance with the principles of fundamental justice.”[6] The Crown contended that the agreement was validly repudiated “because the accused can be restored unprejudiced to her original position” and because if the agreement had been implemented it would have brought “the administration of justice into disrepute.”[7]
The abuse of process doctrine traditionally was a narrow doctrine which allowed the court to stay criminal proceedings if compelling the accused to stand trial would violate the principles of fundamental justice. InR. v. O’Connor, a unanimous Supreme Court of Canada opened the door for an accused to invoke the abuse of process doctrine as a breach of their section 7 individual rights, rather than focussing on the integrity of the justice system as a whole.[8]
In Krieger v. Law Society of Alberta, the Supreme Court acknowledged the independence of the Attorney General from judicial review, subject to the abuse of process doctrine.[9] The Court favourably quoted from a B.C. Court of Appeal decision: “The independence of the Attorney General, in deciding fairly who should be prosecuted, is also a hallmark of a free society.”[10] The Court went on to say, “To subject [decisions regarding who to prosecute] to political interference, or to judicial supervision, could erode our system of prosecution.”[11]
In this case at hand, Provincial Court Judge Ayotte found that when the Attorney General exercises discretion to initiate criminal proceedings, such discretion will be open to judicial review.[12] (Thus, when the Attorney General declines to initiate criminal proceedings, the decision will be outside the jurisdiction of the court.)
The court also ruled that Ms. Nixon bore the burden of showing on a balance of probabilities that the Crown had violated her section 7 rights by abuse of judicial process.[13] Relying on Ontario’s Crown Policy Manualregarding resolution discussions, Justice Ayotte stated that the Attorney General would be justified in revoking the plea agreement on the grounds that it would bring the administration of justice into disrepute only if the Crown prosecutor’s decision to make the plea agreement was not “reasonably defensible.”[14]
In concluding that the Crown prosecutor’s decision to make the plea bargain was “reasonably defensible,” Justice Ayotte focused on the breath samples taken from Ms. Nixon at the scene of the accident and the “fine line” between careless driving and dangerous driving. The court found that the prosecutor reasonably concluded that the breath samples could not be admitted at trial, and that the lack of eyewitnesses would make a dangerous driving conviction less likely.
As a result, the plea agreement was “reasonably defensible” and did not bring the administration of justice into disrepute. Ms. Nixon’s claim that herCharter rights were violated by the Attorney General’s abuse of process was upheld and the plea agreement was restored as a remedy under section 24 of the Charter.
Lobbying the Attorney General: Political Interference?
Judge Ayotte also dealt with Ms. Nixon’s claim that political interference had led to the Attorney General’s decision to revoke the plea agreement. He found there were “totally inappropriate” efforts by the victims’ relatives to influence the prosecution, including: threats to involve Mothers Against Drunk Driving, letters to the Attorney General, and threatening to call in Premier Stelmach’s intervention as “a friend of the family.”[15] In Krieger, the Supreme Court stated: “It is a constitutional principle in this country that the Attorney General must act independently of partisan concerns when supervising prosecutorial decisions.”[16] Here, Justice Ayotte determined there was “absolutely no evidence” of political interference in Ms. Nixon’s case.[17]
The Alberta Court of Appeal has not yet ruled on the Crown’s appeal of the Provincial Court decision.
Further Reading
“Crown Prosecutors’ Policy Manual”Alberta Justice (15 January 2009).
[1] R. v. Nixon, 2008 ABPC 20. [2] Renata D’Aliesio, “Court to rule on attorney general’s right to quash plea agreements” Edmonton Journal(28 May 2009). [3] Supra note 1 at para. 2. [4] Ibid. at para. 4. [5] Ibid. at para. 5. [6] Ibid. at para. 6. [7] Ibid. at para. 17. [8] Ibid. at paras. 8-9; [1995] 4 S.C.R. 411. [9] Ibid. at para. 1; [2002] 3 S.C.R. 372 [Krieger]. [10] Krieger, at para. 32; Re Hoem and Law Society of British Columbia (1985), 20 C.C.C. (3d) 239 (B.C.C.A.) at 254. [11] Ibid. [12] Supra note 1 at para. 12. [13] Ibid. at para. 13. [14] Ibid. at para. 19. [15] Ibid. at para. 21. [16] Krieger, at para. 30. [17] Supra note 1 at para. 21.
Senate Bill Would Preserve Citizenship Oath to the Monarchy, “Notwithstanding” Charter Challenges
New citizens of Canada are required to swear an oath that includes the promise to “be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors.”[1] Most citizens are born in Canada, so they never have occasion to reflect on the meaning on these words. And the vast majority of new citizens, whatever the words of the oath might mean to them, make no objection to this ceremonial step to naturalization. Still, there are some who have strong beliefs and convictions on the meaning of the oath, and feel that having this wording foisted upon them infringes their Charter rights. The issue has been before the courts, but has yet to be definitively settled.
Senator Hugh Segal seems to worry that the citizenship oath is vulnerable to ongoing litigation. On February 10, 2009, he introduced Bill S-225, An Act to Amend the Citizenship Act.[2] His private member’s bill would insert a provision to retain the citizenship oath notwithstanding sections 2 and 15 of the Charter. If it passes into law, it would mark the first time the Parliament of Canada has employed the section 33 Charter override clause, the “notwithstanding clause.” With this change to the law, the oath would be required despite any court decision that might find it contrary to the specified Charter rights. This constitutional override would expire after five years, in accordance with section 33(3); to keep it would require a new vote of Parliament.
The Citizenship Oath in Jeopardy?
Toronto lawyer Charles Roach, who immigrated to Canada in 1955, has been leading the charge against the citizenship oath. He contends that the oath violates all of his fundamental freedoms (as set out in section 2) and his equality rights guaranteed by section 15 of theCharter .
Roach lost his first court challenge 15 years ago,[3] but decided to re-open the matter in 2005 as a class action suit involving several others who are philosophically, politically or religiously opposed to pledging allegiance to Queen Elizabeth or the monarchy in general.
In 2007, Judge Belobaba of the Ontario Superior Court of Justice heard a motion from the government to strike out Roach’s application for a class proceeding. Judge Belobaba held that recommencing litigation is “neither frivolous nor vexatious,” considering the passage of time, the newly developed arguments and the new group of litigants.[4] He also referred to dissenting judicial opinion and academic literature that lent merit to the arguments against imposing the oath on all new citizens.[5]
Judge Belobaba pointed out that “there is nothing in the Constitution Act that requires a Canadian oath of citizenship or that a new citizen must swear allegiance to the Queen.”[6] He went on to refer to the example of Australia (another Commonwealth nation) that requires new citizens to make only a “pledge of commitment” to “Australia and its people … and laws.”[7]
On January 23, 2009, the Ontario Superior Court dismissed Roach’s application for class action certification. Nonetheless, Judge Cullity made it clear that the door to individual proceedings has not been closed.[8] The court made no ruling on the merits of the Charter arguments. Notwithstanding Clause to the Rescue?
During debate on April 10, 2008, Senator Segal said that he would make no comment on the validity of the court cases seeking to strike down the citizenship oath.[9] Yet he maintained that “the core symbols of our citizenship, the core institutions of our society and the values they reflect and defend are not just another list of negotiable preferences to be chopped up in court challenges.”[10]
It seems unlikely that Parliament will pass Bill S-225 and thus invoke section 33 of the Charter. Aside from the Quebec National Assembly, which protested the Charter in the years after it first came into effect by routinely employing the “notwithstanding clause”, the clause has been used just three times. Parliament has never used the clause.[11]
Senator Segal addressed the reluctance of Parliament to employ section 33:
The phobia around the use of the ‘notwithstanding’ clause is narrow-minded and, in my humble view, anti-democratic. The phobia has the effect of gutting the careful balance negotiated in 1982 between courts and elected parliaments, assemblies and legislatures of Canada. That balance was endorsed by this chamber, the other place and nine legislatures, assemblies or provincial parliaments at the time. Honourable senators, I do not suffer from that phobia.[12]
On May 28, 2009, Senator Fred Dickson reported to the Senate that he had been in discussions with Senator Segal and that debate on second reading was expected to resume the next week.[13]
Further Reading
Notwithstanding Clause, Centre for Constitutional Studies. Peter Lougheed, Why a Notwithstanding Clause?,Centre for Constitutional Studies.
[1] Citizenship Act, RSC 1985 c C-29, s 24. [2] 2nd Sess, 40th Parl, 57-58 Elizabeth II, 2009. [3] Roach v Canada [1994] 2 FC 406. [4] Roach v Canada (2007), 86 OR (3d) 101 at paras 24, 25, 34. [5] Ibid. at paras 15-20. [6] Ibid. at para 8. [7] Ibid. [8] Roach v. Canada (2009) CanLII 7178 at para 83. [9] Senate of Canada, Hansard (10 April 2008) at 1510. [10] Ibid. [11] Hogg, Peter W, Constitutional Law of Canada, 4th ed, (Toronto: Thomson Carswell) at chapter 36.2. [12] Supra, note 9. [13] Senate of Canada, Hansard (28 May 2009) at 1550.
Court Affirms Morgentaler’s Standing in Constitutional Challenge
Seven years ago, Dr. Henry Morgentaler launched a constitutional challenge of government provision of services under New Brunswick’sMedical Services Payment Act,[1] specifically, the exclusion of funding for abortions not certified as “medically required,” and the requirement that those abortions be “performed in an approved hospital facility.” Morgentaler claims that a denial of funding erects a barrier to medical services that violates women’s section 7 Charter rights to life, liberty and security of the person.[2] Until now, the matter had been unable to proceed because the province had challenged Morgentaler’s standing to bring this issue before the courts.[3]
Standing, or locus standi, is the right of an individual to participate in a case, based on the individual’s connection to the matter at hand. A person who is directly impacted by a Charter violation may be granted standing on the authority of section 24(1) of the Charter, which reads:
Anyone whose rights or freedoms as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
In this case, it is the rights of Morgentaler’s patients, rather than Morgentaler himself, that are claimed to have been infringed or denied. For Morgentaler’s case to proceed through the New Brunswick courts, he must be able to lay claim to “public interest” standing because he cannot claim that his own Charter rights have been directly infringed. Indeed, a series of Supreme Court of Canada cases, known as “the standing trilogy,” [4]developed the concept of public interest standing and establishes three questions that a court must consider before granting it to a litigant. The court has summarized these questions as follows: First, is there a serious issue raised as to the invalidity of legislation in question? Second, has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity? Third, is there another reasonable and effective way to bring the issue before the court?[5]
In the Medical Services Payment Act case, the New Brunswick Court of Appeal said that “the answer to the first question is dependent upon the court’s assessment of the applicant’s chances of success. That exercise necessarily requires a consideration of the pleadings to determine whether, as a matter of law, the applicant’s challenge is founded on a theory that could prevail at trial.”[6]
With regard to the second question, the court noted that the province concedes that Morgentaler has a “genuine interest” in the impugned legislation and is also “directly affected” by its provisions.[7]
The court focused the bulk of its analysis on the third question, namely, whether there is a reasonable and effective way to bring the issue before the court other than the one chosen by Morgentaler. The court concluded that “the prohibitive cost of litigation and the intimate and private nature of the decision to terminate a pregnancy” effectively prevents the young women who are directly affected by the legislation from bring the matter before the courts.[8] Thus the province’s appeal was dismissed and Morgentaler’s standing in the case was reaffirmed.
The province may appeal the decision to the Supreme Court. According to a spokesperson for Dr. Morgetaler, such an action would be a delaying tactic that will succeed only if the appeal process outlives Morgentaler, who is already 86 years old.[9]
Further Reading
Martha Peden, The Twentieth Anniversary of Regina v. Morgentaler, Centre for Constitutional Studies (4 March 2008) [1] RSNB 1973, c M-7. [2]2009 NBCA 26 at para 1. [3] “Morgentaler clinic worker says N.B. government ‘waiting for him to give up’” CBCnews.ca (25 May 2009). [4] Thorson v Attorney General of Canada, [1975] 1 SCR 138; Nova Scotia Board of Censors v McNeil, [1976] 2 SCR 265; Minister of Justice (Can.) v Borowski, [1981] 2 SCR 575. [5] Canadian Council of Churches v. Canada, [1992] 1 SCR 236 at 22. [6] Supra note 2 at para 10. [7] Ibid at para 11. [8] Ibid at para 59. [9] Supra note 3.
R. v. L.L.S.: Unreasonable Strip-Searches and the Charter
In R. v. L.L.S. the Alberta Court of Appeal considered the remedies available when Charter rights have been infringed.[1]
The facts of the case arose when police were called to the Crisis Unit at the Northeast Community Health Centre in Edmonton. The infant daughter of a seventeen year old woman was seized by the Crisis Unit because the mother was deemed too intoxicated to care for her child.[2] Police were called to the scene, where they witnessed the woman exhibiting “strange behavior” such as attempting to urinate on the floor.[3] The subsequent events resulted in the mother being charged with two counts of criminal mischief and one count of assaulting a police officer.
The first charge of mischief arose when the appellant deliberately set off the sprinkler system in the hospital, resulting in the emergency ward being closed for two weeks.[4] The second charge of mischief arose when, after being placed in a police car, the appellant kicked out the windshield.[5]
After the two incidents of alleged criminal mischief the appellant was detained at the police station where she was to be strip-searched.[6] When asked to remove her clothes, the appellant proceeded to throw her clothes at the attending officer before inserting her bracelet into her rectal cavity.[7] When the officer attempted to stop her, the seventeen-year-old punched her in the face, resulting in the third charge.[8] The trial judge found the defendant guilty on both counts of criminal mischief.[9] However, the court ruled that the strip- search was not justified and that it was a violation of Charter section 8 (unreasonable search and seizure).[10]
The Supreme Court of Canada ruled in R. v. Golden that strip- searches cannot be conducted as a matter of routine.[11] Furthermore, because of their “inherently humiliating and degrading nature,” they must be founded upon “reasonable and probable grounds.”[12] No evidence or argument had been placed before the trial judge in L.L.S. to support such an invasive procedure. Section 24(1) grants a trial judge discretion in providing a remedy where a defendant’sCharter rights have been violated.[13] Based upon what the trial judge termed “a very strong temporal connection” between the unjustified strip search and the assault, the court opted to provide the “extraordinary” measure of staying the assault charge.[14]
On appeal, the young woman’s lawyer argued that the two counts of mischief should also be set aside. However, under the standard of review to which appeal judges must adhere, a trial judge’s discretionary selection of a Charter remedy should not be interfered with unless there is an error of law.[15] After reviewing the facts of the case, it was clear to the Court of Appeal that there was no link between the strip-search and the mischief charges, so it would be inappropriate to provide a stay of all charges. The appeal was therefore dismissed.[16] [1] 2009 ABCA 172. [2] Ibid. at para. 2. [3] Ibid. at para. 3. [4] Ibid. at paras. 3, 4, 7. [5] Ibid. at para. 5. [6] Ibid. at para. 6. [7] Ibid. [8] Ibid. [9] Ibid. at para. 8. [10] Ibid. at para. 9 [11] 2001 SCC 83. at para 90. [12] Ibid. [13] Supra note 1 at paras. 11-12. [14] Ibid. at paras. 10, 16. [15] Ibid. at para. 11. [16] Ibid. at para. 18.
Democracy in Alberta: Perspectives on the Role of the Government Caucus
Authors: Anna-May Choles and Ken Dickerson[1] Debate in the Alberta legislature over Bill 48, the Crown’s Right Against Recovery Act,[2] has raised questions about parliamentary democracy in Alberta. On May 25, 2009, Liberal Justice Critic Kent Hehr questioned the Minster of Health, Ron Liepert, about a lack of consultation with the medical community on provisions that would let the government sue convicted criminals for the health care costs of their crimes.[3] In response Liepert said: Mr. Speaker, in our particular caucus we have 72 members. When a department proposes a change in policy, we take it to caucus. Caucus is responsible for ensuring that their constituents are supportive of what we are proposing. That’s the process we have always followed and will continue to follow.[4]
The Government Caucus and Democratic Discourse
Responsible and representative government is fundamental to Canadian democracy.[5] Members of the various houses are elected to represent the views and the needs of Canadian citizens in the legislature; to be the democratic voice of the people.[6] In public debate over Bill 44, the controversial Human Rights, Citizenship and Multiculturalism Amendment Act, Premier Ed Stelmach and other ministers have emphasized the role of the Conservative caucus in legislative development. In a statement to the press about Bill 44, Stelmach said: “the bill reflects a good discussion in caucus.”[7] In discussions over the same bill, the Minister of Culture and Community Spirit, Lindsay Blackett, said: “The rule of the caucus is the rule of the day.”[8] Caucus, the meeting of all the members of a political party sitting in the legislature, is an integral part of the parliamentary system of government. Caucus defines the policy agenda of the party in the legislature; the government caucus can determine the agenda of the entire government.[9] However, caucus meetings are traditionally secret, held away from political adversaries and the media.[10] Discussions in caucus meetings are not disclosed to the public. It is in caucus that legislators “make the views of their constituents known, set parliamentary strategy and decide party policy.”[11] Caucus meetings allow legislators to convey their constituents’ views and needs to the caucus at large, so those views and needs can be integrated into government policy. Some observers suggest that Premier Stelmach’s leadership is focused more on the internal politics of the Conservative party than on the interests or wishes of Albertans at large.[12] When a party has a large majority of seats in the legislature, it can claim a strong popular mandate. However, a strong mandate may leave the government caucus struggling with transparency and democratic responsiveness, as was experienced by Frank McKenna’s Liberals in New Brunswick and Gordon Campbell’s Liberals in British Columbia.[13] The constitutional principle of responsible government requires cabinet ministers be held accountable to the legislature for their actions and for the actions or omissions of their departments. Indeed, the legislature provides an important political and governmental forum. This is part of a process one might refer to as “deliberative democracy.” This process emphasizes the communicative and deliberative elements of the democratic process. The deliberative elements of democracy are most strongly reflected by the legislature “conducting its business in a manner that gives all citizens a sense that their views and interests were taken into account in its decisions.” Such a process enables the public to be involved and invested in the processes of government. [14] Like Stelmach, premiers Campbell and McKenna struggled with the balance between caucus and the legislature, given that their caucuses made up the vast majority of the legislature. Nevertheless, secret caucus meetings are not the same as legislative debate. Legislative debate is public, it is recorded in Hansard and it is available to the public. The media can write freely about what is said in the legislature and who says it. Secret caucus meetings cannot replace the open and transparent democracy of a legislative debate. Democracy in Canada and Alberta
According to the preamble to theConstitution Act, 1867, Canada’s constitution is to be “similar in principle to that of the United Kingdom.” The Supreme Court of Canada has interpreted this language to include representative and constitutional democracy.[15] Indeed, the Court has interpreted democracy to be “a fundamental value in our constitutional law and political culture … the sense of the supremacy of the sovereign will of a people.”[16] The concentration of power, especially in the office of the premier or prime minister, presents a “real and present danger to the democratic capacity of parliamentary governments.”[17] Caucus-based democracy, however vigorous, cannot make up for a shift in power from the legislature toward the cabinet and the premier. Legislative debate is public, so it is democratic in a way that closed caucus meetings can never be, even when all the people in the meeting are democratically elected. Hehr’s objections to the Conservative government’s lack of consultation point to deeper issues.[18] Public consultation is rooted in responsible government. The Stelmach government’s limited external consultation over Bill 44 may have contributed to opposition from parents’ groups, teachers’ associations, and civil liberties associations.[19] There have been similar concerns about a lack of consultation with healthcare associations over Bill 48 and Bill 46, the Gunshot and Stab Wound Mandatory Disclosure Act,[20] which makes it mandatory for healthcare professionals to report to police when they treat someone with the gunshot or stab wound. Question period is integral to deliberative democracy. The purpose of question period is to “seek information from ministers and call the government to account for its actions.”[21] It is the role of the opposition to question the government, its decisions and its policy. Liepert’s response to Hehr’s question hints at a troubling willingness to treat question period as unnecessary for Albertan democracy. [1] Anna-May Choles is a student in the Faculty of Law, University of Alberta. Ken Dickerson is Program Manager at the Centre for Constitutional Studies. The authors’ views do not necessarily reflect those of the Management Board and staff of the Centre for Constitutional Studies. [2] 2nd Sess., 27th Leg., Alberta, 2009. [3] Legislative Assembly of Alberta, Alberta Hansard (25 May 2009) at 1205. [4] Ibid. [5] Michael Whittington and Richard Van Loon,Canadian Government and Politics: Institutions and Processes (Toronto: McGraw-Hill Ryerson Ltd.,1996) at 121. [6] Ibid. at 498. [7] Trish Audette, “Stelmach’s unmoved as teacher’s vow to fight parental rights measure” Calgary Herald(21 May 2009). [8] Trish Audette, “Proposed changes to Alberta’s human rights laws to include sexual orientation”Edmonton Journal (28 April 2009). [9] Supra note 4 at 360-361. [10] Craig Forcese and Aaron Freeman, The Laws of Government: the Legal Foundations of Canadian Democracy (Toronto: Irwin Law, 2005) at 316-317. [11] Inside Canada’s Parliament, Library of Parliament (2002) at 28. [12] Sheila Pratt, “Stelmach’s government shifts from left to right” Edmonton Journal (19 May 2009). [13] John DeMount, “McKenna Re-elected” Macleans (25 September 1995); “The Premier’s Biography”Province of British Columbia (undated). [14] Peter Russell Two Cheers for Minority Government: The Evolution of Canadian Parliamentary Democracy (Toronto: Emond Montgomery Pub. Co., 2008) at 172-174. [15] Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 at para. 100. [16] Reference re Secession of Quebec [1998] 2 S.C.R. 217 at para. 61. [17] Supra note 13 at 101. [18] Supra note 2. [19] Anna-May Choles, “Bill 44 Finishes Second Reading, Inches Closer to Amending Alberta’s Human Rights Law”Center for Constitutional Studies (22 May 2009). [20] 2nd Sess., 27th Leg., Alberta, 2009. [21] Supra note 9 at 396.
Has There Been Meaningful Dialogue Between the Courts and Parliament over Medical Marijuana?
Last week, the federal government responded to the Federal Court of Appeal decision inCanada (Attorney General) v Sfetkopoulos.[1] In 2008, the court declared unconstitutional the federal regulation that restricted each grower of medical marijuana to servicing only one client. The government responded by bringing in a new regulation to increase the number to two. Users of medical marijuana complain that the changes are insignificant, and predict that nominal amendments will simply force another court to make a more detailed ruling.[2] The government’s minimal response to a constitutional ruling casts new light on the theory of “Charter dialogue.”
“Charter dialogue” describes how courts interact with elected representatives. Typically, when a law is struck down as unconstitutional, the enacting body will respond by amending the law to bring it within the bounds of the constitution. A law may also be enacted with language that justifies any infringement of Charter rights. However, as Supreme Court of Canada Chief Justice McLachlin wrote in Sauvé v Canada, “the healthy and important promotion of a dialogue between the legislature and the courts should not be debased to a rule of ‘if at first you don’t succeed, try, try again.’”[3]
Further Reading Ken Dickerson, “Top Court Says: Hands Off My (Medical) Stash!” Centre for Constitutional Studies (23 April 2009).
[1] 2008 FCA 328. [2] “New medical marijuana rules too strict, users say”, National Post (26 May 2009). [3] [2002] 3 S.C.R. 519 at para.17.
What Good Are Charter Rights to a Canadian Facing the Death Penalty Abroad?
Canada eliminated the death penalty in 1976, but Canadians still face constitutional questions regarding capital punishment. In United States v Burns,[1] the Supreme Court of Canada ruled that it is an infringement on the section 7 Charter right to life, liberty and security of the person to extradite a citizen to another nation to face the threat of execution. It is less clear to what extent the government is constitutionally obliged to make efforts to repatriate citizens facing the death penalty abroad.
Mohamed Kohail is a Canadian citizen who is facing the prospect of decapitation by sword in Saudi Arabia. For the past two years, Kohail has been in a Saudi jail while appealing a conviction for his part in a schoolyard brawl that resulted in the accidental death of another student. In a letter to Prime Minister Harper, Kohail made a direct and impassioned plea for the Canadian government to intervene on his behalf. Government officials claim to have responded with diplomatic efforts.[2]
Kohail’s situation is reminiscent of William Sampson, another Canadian citizen who sought the aid of the Canadian government while under sentence of death in a Saudi jail. Mr. Sampson has been highly critical of what he sees as the Canadian government’s lack of assertive action to repatriate Canadian’s in foreign prisons.[3] He attributes his eventual release to the mediation of the British government.[4]
Sampson is generally regarded by Canadians to be innocent of wrongdoing, however there are others, such as Ronald Allan Smith a convicted murderer on death row in Montana, who have fewer sympathizers. Officials speaking for the Government of Canada have on several occasions publicly stated that the government has no duty to assist Smith. On November 1, 2007, then Minister of Public Safety, Stockwell Day, said, “We will not actively pursue bringing back to Canada murderers who have been tried in a democratic country that supports the rule of law.”[5],
On January 31, 2008 the Parliamentary Secretary to the Minister of Foreign Affairs, Deepak Obhrai, told Parliament, “In cases where Canadians face the death penalty abroad, the Government of Canada, on a case by case basis, based on what is in the best interest of Canada, will continue to consider whether to seek clemency.”[6]
In March of 2009, the Federal Court decision inSmith v Canada[7] affirmed that the government has a duty to continue to seek clemency for Mr. Smith. The duty is based on a fair application of an existing government policy to seek clemency for all citizens facing capital punishment abroad. The court ruled that, while the government is free to change its policy, it may not single out any one citizen as unworthy of government support.
The Federal Court chose not to rule on section 7 Charter grounds because it could not identify any new government policy that would attract constitutional scrutiny, and “Charter questions should not be determined hypothetically.”[8] However, the court did suggest that if there was sufficient evidence that government officials were acting in a manner that jeopardized a citizen’s chances for clemency, by signalling approval or acquiescence with the carrying out of an execution, then Charter rights could come into play.[9]
Shortly after the Smith decision, the Federal Court ruled in Khadr v Canada that “the principles of fundamental justice obliged Canada to protect [a citizen imprisoned abroad] by taking appropriate steps to ensure that his treatment accorded with international human rights norms.”[10] While this case does not directly address the issue of capital punishment, it does raise the question of what positive steps the Canadian government must take to protect its citizens from punishments that do not accord with international human rights norms.
While Canada’s Department of Foreign Affairs reports that it is continuing to seek clemency for Mohamed Kohail, there have been allegations that Deepak Obhrai, Parliamentary Secretary to the Minister of Foreign Affairs, covered up evidence that Kohail had been tortured into confessing.[11] This could raise the questions of whether Canada has unconstitutionally acquiesced in human rights abuses. Meanwhile the death sentence hangs over Kohail’s head and may be carried out any day without prior notice.[12] Further Reading
Jim Young, “Kafkaesque” Adelrazik Saga Raises Mobility Rights Question, Centre for Constitutional Studies(12 May 2009).
Jonathan Maryniuk, Extradition, Deportation and Section 7 of the Charter, Centre for Constitutional Studies(August 2008).
[1][2001] 1 SCR 283. [2] Sidhartha Banerjee, “Canadian sentenced to die pleaded for PM’s aid” The Globe and Mail (21 May 2009). [3] “Canadian government failed me: Sampson” CBCnews.ca (7 November 2003). [4] Steve Maich, “I begged to confess” Macleans (31 October 2005). [5] Hansard (1 Nov 2007) at 1435 (Hon. Stockwell Day). [6] Hansard (31 Jan 2008) at 1820 (Hon. Deepak Obhrai). [7] 2009 FC 228. [8] Ibid at para 50. [9] Ibid at para 53. [10] 2009 FC 405 at para 75. [11] “Harper Conservatives cover up torture allegations by Canadian facing the death penalty in Saudi Arabia” Newsroom of the Liberal Party of Canada (20 May 2009). [12] Adam St. Patrick, “Chop Chop Square” The Walrus (May 2009). Supreme Court Dismisses Afghan Detainee Appeal
On May 21, 2009 the Supreme Court of Canada denied application for leave to appeal in Amnesty Canada International, et al v Chief of the Defence Staff for the Canadian Forces, et al.[1] The ruling effectively upholds aDecember 2008 decision by the Federal Court of Appeal which held that during the armed conflict in Afghanistan, the Canadian Charter of Rights and Freedoms does not apply to the detention of non- Canadians by the Canadian Forces, or to their transfer to Afghan authorities, even if the detainees face a “substantial risk” of torture.[2]
In November 2007, the Federal Court granted Amnesty International Canada and the B.C. Civil Liberties Association standing to seek judicial review of the Canadian Forces’ practice of releasing detainees to Afghan security forces.[3] The two organizations stated they initiated the litigation to “ensure that Canadian Forces are not complicit in the violation of human rights.”[4] The Federal Court dismissed the application for judicial review in March 2008.[5]
The March 2008 decision interpreted section 32(1) of the Charter such that non-Canadians detained by Canadian Forces in Afghanistan do not enjoy the benefit of Charter protection for their rights. The court relied on R v Hape, in which the Supreme Court “ruled that the Charter does not generally apply to the actions of police officers investigating Canadian citizens overseas.”[6] Writing for the majority in Hape, Justice LeBel stated: “it is a well- established principle that a state cannot act to enforce its laws within the territory of another state absent either the consent of the other state or, in exceptional cases, some other basis under international law.”[7]
The applicants argued that the Afghan government had “implicitly consented to an extension of Canadian jurisdiction on its soil.”[8] However, the Federal Count found that Canadian Forces were acting in support of Afghan sovereignty; they had not been granted jurisdiction by the Afghan government.[9]
The applicants also proposed that theCharter applies to detainees on the basis that Canadian Forces had “effective military control of the person,” a line of reasoning which has been advanced in European and British case law.[10] The court rejected the argument on the grounds that Afghanistan is governed by a legitimate, internationally recognized government, a situation different than that faced in previous Canadian military deployments in Somalia and the former Yugoslavia.[11]
Relying on Justice LeBel’s statement in Hape – that “deference [to foreign states’ laws] ends where clear violations of international law and fundamental human rights begin”[12] – the applicants contended that theCharter should apply to Afghan detainees because the substantial risk of torture they faced violated international law. The Federal Court rejected this reasoning, stating that “it cannot be that it is the nature or quality of the Charter breach that creates extraterritorial jurisdiction, where it does not otherwise exist.”[13]
The majority in Hape did, however, “leave open the possibility that, in a future case, participation by Canadian officers in activities in another country that would violate Canada’s international human rights obligations might justify a remedy under s. 24(1) of the Charter because of the impact of those activities on Charter rights in Canada.”[14] Nevertheless, the Federal Court stated that it is “difficult to see how the conduct of the Canadian Forces in Afghanistan that is in issue in this case would have an impact on Charter rights in Canada.”[15]
In the Federal Court of Appeal, Amnesty International and the BCCLA argued that the Supreme Court decision inCanada (Justice) v Khadr,[16] released after the Federal Court ruling, “confirmed that Hape did indeed find that the Charter applied extraterritorially in respect of fundamental human rights violations at international law.”[17] However, the Federal Court of Appeal distinguished Khadr on the grounds that Omar Khadr is a Canadian citizen as opposed to “foreigners, with no attachment whatsoever to Canada or its laws, held in [Canadian Forces] detention facilities in Afghanistan.”[18] The Federal Court of Appeal ultimately upheld the lower court decision.
A panel of three Supreme Court judges (Chief Justice McLachlin, and Justices Abella and Rothstein) ruled on the organizations’ application for leave to appeal the Federal Court of Appeal decision.[19] The Supreme Court did not, as is normal practice, give reasons for dismissing the application; its refusal to hear the case, however, does not necessarily mean the Court thinks the lower court rightly decided the case.[20]
Grace Pastine, the Litigation Director of the BCCLA believes the Supreme Court denied the leave to appeal “because of a lack of facts about specific cases,” which she states is a result of the federal government’s refusal to grant access to counsel.[21] The BCCLA believes the Supreme Court’s decision means that Canadian law on human rights protection for detainees will remain out of step with our allies in Afghanistan.[22] The United States Supreme Court has ruled repeatedly that detainees in U.S. facilities in Guantanamo Bay and Afghanistan have recourse to American courts.[23]
Alex Neve, Secretary General of Amnesty International Canada, is “hopeful that a future case with more specific facts will force the courts to address this issue.”[24] Further Reading
Daina Young, “How Far Does the Charter Reach?” Centre for Constitutional Studies (13 Nov 2007).
Daina Young, “Supreme Court Rules on Application of the Charter Overseas” Centre for Constitutional Studies (19 June 2007).
Daina Young, “The Canada-Afghan Detainee Agreement” Centre for Constitutional Studies (2 April 2007).
[1] “Judgments in Leave Applications”Supreme Court of Canada (21 May 2009). [2] 2008 FCA 401. [3] Daina Young, “How Far Does the Charter Reach?” Centre for Constitutional Studies (13 Nov 2007); 2007 FC 1147. [4] “Decision by the Supreme Court to dismiss leave to appeal Afghanistan prisoners’ case puts protection in limbo” British Columbia Civil Liberties Association (21 May 2009). [5] 2008 FC 336. [6] Daina Young, “Supreme Court Rules on Application of the Charter Overseas” Centre for Constitutional Studies (19 June 2007); 2007 SCC 26. [7] 2007 SCC 26, at para. 65. [8] Supra note 5 at para. 152. [9] Ibid. at para. 158. [10] Al Skeini et al. v. Secretary of State for Defence, [2007] UKHL 26; Rasul v. Bush, 542 U.S. 466 (2004);Omar et al. v. Secretary of the United States Army et al., 479 F. 3d 1 (D.C. Cir. 2007); Banković v. Belgium, (2001) 11 BHRC 435, 2001–XII Eur. Ct. H.R. 333 (GC) and Issa v. Turkey (2004) 41 EHRR 567. [11] Supra note 5 at paras. 204-06. [12] Supra note 7 at para. 52. [13] Supra note 5 at para. 311. [14] Supra note 7 at para. 101. [15] Supra note 5 at para. 326. [16] 2008 SCC 28. [17] Supra note 2 at para. 8. [18] Ibid. at para. 14. [19] Supra note 1. [20] Hogg, Peter W., Constitutional Law of Canada, 2008 Student ed., (Toronto: Thomson Carswell) at 256. [21] Supra note 4. [22] Ibid. [23] Paul Koring, “Supreme Court refuses detainee appeal” Globe and Mail (21 May 2009). [24] Supra note 4. Federal Bill C-8 Legislates Matrimonial Property Rights on First Nations Reserves
Bill C-8, An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves,[1] was introduced in the House of Commons on February 2, 2009, and is currently being debated at second reading. The proposed legislation would give First Nations authority to enact laws related to the interests and rights of spouses and common-law partners in family real property. In the interim, federal provisional rules would apply until a First Nation has its own laws in force.[2]
The division of powers set out in the Constitution Act, 1867, authorizes the provinces to legislate in respect of private property and the federal Parliament to legislate in respect of First Nations’ reserve lands.[3] Applying this division of jurisdiction in the 1986 decision Derrickson v Derrickson, the Supreme Court of Canada found that the provisions of British Columbia’s Family Relation’s Act could not be applied pursuant to a divorce to determine the division of matrimonial real property on Aboriginal reserves because the matter falls under federal jurisdiction.[4] Bill C-8 is the second parliamentary attempt to fill this legislative gap.[5]
Aboriginal communities throughout Canada have expressed various concerns over the bill. A press release from the Native Women’s Association of Canada (NWAC) and the Assembly of First Nations (AFN) states that “[a]ll Bill C-8 does is force families into provincial courts. This is not a solution. For many families it’s unaffordable and it will also force families in remote communities to endure long waiting periods before their case can be heard.”[6] Furthermore, it is claimed that the bill “ignores community-based approaches already developed by many First Nations to deal with matrimonial reservation property.”[7]
Constitutional objections to the bill are based upon a perceived failure of the federal government to adequately consult First Nations peoples during the drafting of the bill. The Nishnawbe Ask Nation of James Bay, Ontario claims that the bill “directly affects reserve land rights of nearly all first nations in Canada. Therefore the federal government is under a constitutional fiduciary duty to consult, accommodate, and seek the consent of First Nations.”[8]
The federal government’s duty to consult and accommodate First Nations peoples was first established inHaida Nation v British Columbia.[9] The duty arises when the Crown knows, or reasonably ought to know, that there exists a potential Aboriginal right that may be adversely affected by government action.[10] However, in clarifying this duty, the Alberta Court of Appeal in R v Lefthand found that the when a executive legislative body is obliged to consult with Aboriginal bands, it is not bound to follow the recommendations of the band council.[11] “The right to be consulted is not a right to veto.”[12]
The federal government contends that during 2006-07 there was “a comprehensive consultation process” that engaged the Native Women’s Association of Canada and the Assembly of First Nations.[13] In contrast, The Nishnawbe Ask Nation claims that, “to date there has been no serious effort to consult First Nations.”[14] The NWAC, the AFN, and the Union of BC Indian Chiefs (UBCIF) support the claim that there has been insufficient consultation.[15]
Further Reading
Daina Young, “R. v. Lefthand: Limits on Duty to Consult” Centre for Constitutional Studies (undated). Daina Young, “R. v. Douglas: The Duty to Consult” Centre for Constitutional Studies (undated). [1] 2nd Sess, 40th Parl 2009. [2] Supra note 3 at sections 7 and 17. [3] Constitution Act, 1867 ss 91(24), 92(13). [4] [1986] 1 SCR 285. [5] Bill C-8 is the reincarnation of Bill C-47 which died on the order paper when the 39th Parliament was dissolved. [6] Native Women’s Association of Canada, “NWAC, AFN and AFN Women’s Council Unite to Oppose Bill C8 on Matrimonial Real Property” (14 May 2009). [7] Nishnawbe Ask Nation, “NAN Grand Chief Demands Withdrawal of Federal Legislation on Matrimonial Real Property” (15 May 2009) [8] Ibid. [9] 2004 SCC 73. [10] Ibid at para 35. [11] 2007 ABCA 206 at para 39. [12] Supra note 8 at para 48. [13] Indian and Northern Affairs Canada. [14] Supra note 6. [15] The Union of BC Indian Chiefs, ”UBCIC Opposes Conservative’s Bill C-8 Matrimonial Real Property” (19 May 2009).