Legislating Under the Influence: Is the Impaired Driving Act Constitutional?

Introduction

As the Trudeau government sought to fulfill its campaign promise of legalizing cannabis with Bill C-45 (The Cannabis Act), it also introduced a complementary bill to address impaired driving last May. The Impaired Driving Act, or Bill C-46, was introduced by Justice Minister Wilson-Raybould and passed the same week as C-45. The purpose of C-46 is “to simplify the investigation and prosecution of impaired driving offences.”[1] However, it is also an effort to “strengthen the legislative penalties for impaired driving,” which is one of the most common criminal convictions in the country.[2]

C-46 is the criminal or regulatory component of C-45. It criminalizes driving under the influence of drugs, including cannabis. The law replaces the existing framework for impaired driving and stiffens the penalties for driving under the influence of drugs and alcohol. It has two parts: the first part addresses drug-impaired driving offences and proposes a framework for roadside testing of drivers “based on a reasonable suspicion of impairment.” The second part deals with alcohol impaired driving. It makes enforcement more readily available to police officers and penalties for impaired driving are now even steeper[3]

Given the heinous nature of drinking and driving, the bill was expected to receive widespread support and pass without any opposition. However, the bill was characterized as being full of legal ‘holes’ and errors, and was a source of contention between the House of Commons and the Senate.[4] Multiple lawmakers and legal organizations have expressed their concerns about the constitutionality of the bill and its implications. These include the head of the Legal and Constitutional Affairs Committee (Senator Serge Joyal), the Canadian Bar Association, the Canadian Civil Liberties Association, Criminal Lawyers Association and the Indigenous Bar Association.[5] Michael Spratt, a criminal defence lawyer who testified before the Senate, predicted that “[t]he result of this [Bill C-46] is going to be racial discrimination [via police improperly singling out racialized drivers]; clogged courtrooms; and constitutional challenges for the next number of years[.]”[6] While numerous potential Charter violations have been identified, below are some of the concerns most prominently brought up with the legislation: potential violations of section 8, 15 and 10(b) of the Charter, along with additional backlog in the courts.

Despite these concerns, the House of Commons rejected the Senate’s amendments which had removed the contentious provisions. The bill passed with these provisions in place. While parts of the law do not go into effect until December 2018, it is possible that Canadians will see the law’s constitutionality challenged in the courts in the near future.

Infringements on Section 8: Protection against unreasonable search and seizure

Although the Impaired Driving Act is a companion piece to the Cannabis Act, the most notable and contentious provision in it does not involve cannabis. One key provision (320.37.2) in the Impaired Driving Act allows for mandatory alcohol screening, also labeled as random breathalyzer testing. This is where most of the bill’s constitutional issues arise. Beginning in December, “[the] police can require a roadside breath test for any driver.”[7] This means that police officers would no longer need a reasonable suspicion to pull someone over and demand that they partake in a breath test. Additionally, if a driver refuses to complete a test, they would face a criminal charge “with similar penalties to an impaired driving conviction.”[8] This provision was characterized by the government as “the centre piece of this legislation”[9] Despite this, it continues to face criticism over its potential infringement of section 8 of the Charter, which is the right to be secure against unreasonable search and seizure.[10] The government has argued that the provision’s removal would undermine the law’s purpose, and has thus kept it in the legislation.[11]

While officers no longer need a reasonable suspicion to pull a driver over for alcohol impaired driving, they do need one to pull a driver over for drug-impaired driving and ask that they complete a drug test. The inconsistent treatment between drugs and alcohol was a deliberate choice, and the lack of reasonable suspicion required for alcohol-impaired driving is what Senators and legal organizations have taken issue with. Noted constitutional scholar Peter Hogg, however, says that this provision, stipulating no requirement of reasonable suspicion, will survive any constitutional challenge. He believes it would be justified bysection 1 of the Charter which aims to balance individual rights and freedoms against the interests of the community as a whole.[12]

While Hogg may believe the provision would pass constitutional muster, he appears to be in the minority as there is a mountain of opinions that suggest otherwise. Quite notably, Senator Denise Batters commented that “in my five years on the committee, I have never before heard legislation so roundly denounced as unconstitutional.”[13] Other senators supported her opposition to the provision, clarifying that “the experts who testified in committee were almost unanimous in saying that these measures would not pass the constitutional test or the charter test.”[14] In the five months of Senate study, the chamber held thirteen meetings and heard from sixty eight expert witnesses, which was emphasized by the Senate in its substantiation of its opinion.[15] Many of the criminal defence lawyers who testified before the Senate’s Legal and Constitutional Affairs Committee “expressed grave concerns about the Charter implications” of the random breathalyzer testing provision.[16] “Renowned” Professor Don Stuart, along with Senator Marc Gold, have clarified that the Supreme Court has never justified a section 8 violation under section 1.[17]

A Potential Section 15 Violation: Discriminatory Impact on Immigrants and Visible Minorities

There is no specific provision in Bill C-46 that is linked to a clear violation of section 15 of the Charter, which deals with equality rights. However, the impact of the legislation on permanent residents and foreign nationals residing in Canada is far greater than for Canadian citizens. The legislation involved amendments to the Criminal Code which increased the sentence for impaired driving. Following these amendments, the consequences of an impaired driving conviction are even greater for non-citizens.

Impaired driving can be tried as either a summary or an indictable offence. Under the new legislation, the maximum sentence for a summary conviction was increased from 18 months to two years less a day. In addition, the new maximum sentence for an indictment was increased from five years to ten years. These increases are significant on their own, but an indictable conviction for impaired driving would now be considered a ‘serious criminality’ under the Immigration and Refugee Protection Act.[18] A permanent resident or a foreign national with a serious criminality conviction would become inadmissible to Canada, and face the possibility of forced removal. The “draconian” imbalance between the impact of the law for citizens and immigrants was identified months before the bill was passed. The widespread recognition of this imbalance could suggest an apparent violation of section 15.[19]

Further, some experts including Professor Don Stuart, have raised concerns that Bill C-46 may promote racial profiling, which disproportionately affects visible minorities, including members of Indigenous communities. In his testimony before the Senate, Roberto De Luca stated that “random breath testing is not a justifiable limit of Charter rights and would hurt minorities by enabling racial profiling.”[20] Senator Joyal raised similar concerns regarding the law’s impact on Indigenous Canadians[21]. This concern was also articulated at the Senate level, in conjunction with concerns over the constitutionality of random alcohol testing. Senator Raymonde Saint-Germain noted:

Eliminating the requirement to have reasonable grounds for suspicion that the driver has consumed alcohol gives the police officer an arbitrary power that runs the risk of increasing racial profiling. A good number of social science studies prove what most people recognize intuitively: drivers belonging to racial minorities are pulled over more often than their fellow citizens.[22]

Section 15 guarantees the equality rights of all Canadians and protects from discrimination “based on race, national or ethnic origin, colour, religion, sex age or mental or physical disability.”[23] Race and colour are both protected grounds under the provision, and the practice of (arbitrary) racial profiling by the government could violate this.

Bill C-46 in light of R v Jordan

An additional concern with the Impaired Driving Act relates to the possibility of an impaired driving case being thrown out altogether. This is because of the Jordan decision in which the Supreme Court of Canada (SCC) established timelines by which a case must be dealt with in the justice system. The Jordanverdict addresses and protects Canadians’ section 11(b) rights, which guarantees the right to be tried in a reasonable time.[24] If a case is not addressed with the timelines set out by the Jordan verdict, it is dismissed. Senator Batters noted that as a result ofJordan , serious criminal charges “are being stayed because of extreme court delays.”[25] She also argued that impaired driving cases are “one of the biggest gluts of our criminal court system,” further exacerbating the problem which the SCC ruling sought to address. [26] The Canadian Bar Association warned the government that the bill “could compound problems that have resulted from the Supreme Court’s landmark Jordan decision and lead to more charges getting dismissed.”[27]

Other potential Charter violations

Another notable concern with the Impaired Driving Act is its potential infringement of section 10(b) of the Charter, which provides the right “to retain and instruct counsel without delay and be informed of that right.”[28] Some criminal defence lawyers argue that this right is also invoked, in part because roadside testing is usually immediate. Under the previous legislation, drivers were able to refuse the roadside test without the same severity of penalty. Under the new legislation drivers are unable to delay testing to call their attorney, or refuse testing without arrest.[29] Senator Joyal has supported the contention that random roadside testing could infringe section 10(b) of the Charter.[30]

Conclusion

The Impaired Driving Act has received royal assent and parts of the act are currently in effect. The remaining provisions, including mandatory alcohol screening, will come into effect in December, 2018. Although the Justice Minister has expressed confidence in the law’s constitutionality, some remain skeptical.

Senator Joyal, chair of the Senate’s Legal and Constitutional Affairs Committee, has argued that random breath testing is “totally contrary to the Charter. There is no question about that[.]”[31] Whether or not the provision would be saved by section 1 of the Charter remains to be seen. He has suggested that reintegrating the requirement that police officers have a reasonable suspicion “that a driver has alcohol in his or her body before they screen for alcohol” could alleviate the potential violations of sections 8, 9 and 10(b) of the Charter. [32] His comments came months before the bill was passed, yet they were ignored. As it stands, the law has the potential to violate sections 8, 9, 10(b) and 15 of the Charter. Given the volume and source of criticisms of the bill, Canadians may see the law’s constitutionality up for debate in the courts in the near future.

[1] Debates of the Senate, 42nd Parl, 1st Sess, Vol 150 Issue 160 (22 November 2017), at 1500 (Hon. Raymonde Saint-Germain).

[2] Jacqueline Bart and Annsley Kesten, “Canada’s new impaired driving laws tougher on immigrants” The Lawyer’s Daily 19 July 2018, online [Canada’s new impaired driving laws tougher on immigrants]

[3] Debates of the Senate, 42nd Parl, 1st Sess, Vol 150 Issue 214 (4 June 2018), at 2050 (Hon. Denise Batters).

[4] Cristin Schmitz, “Joyal says impaired driving bill violates Charter, is ‘full of holes’; Senators worried Bill C-46 will overburden courts” The Lawyer’s Daily 07 March 2018, online, https://www.thelawyersdaily.ca/articles/6051/joyal-say s-impaired-driving-bill-violates-charter-is-full-of-holes- senators-worried-bill-c-46-will-overburden-courts> [Joyal says impaired driving bill violates Charter]

[5] Ibid.

[6] Cristin Schmitz, “Random breath testing coming to Canada Dec. 18; counsel foresee Charter attacks ‘very early on’” The Lawyer’s Daily 21 June 2018, online [Random breath testing coming to Canada Dec. 18]

[7] Brian Platt, “Canada’s impaired driving laws just got a huge and controversial overhaul – here’s what you should know” National Post 21 June 2018, online [Canada’s impaired driving laws just got a huge and controversial overhaul]

[8] Ibid.

[9] Brian Platt, “Senators vote to remove random roadside testing from impaired driving bill” National Post24 May 2018, online Senators vote to remove random roadside alcohol testing from impaired driving bill]

[10] Canadian Charter of Rights and Freedoms, s 8, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c11.

[11] Platt, “Senators vote to remove random roadside alcohol testing from impaired driving bill,” supranote 9.

[12] Schmitz, “Joyal says impaired driving bill violates Charter” supra note 4.

[13] Debates of the Senate, 42nd Parl, 1st Sess, Vol 150 Issue 214 (4 June 2018), at 2050 (Hon. Denise Batters).

[14] Ibid at 2110 (Senator Boisvenu). [15] Ibid at 2050 (Hon. Denise Batters).

[16] Ibid.

[17] Debates of the Senate, 42nd Parl, 1st Sess, Vol 150 Issue 214 (4 June 2018), at 2050 (Hon. Denise Batters).

[18] Anti Balakrishnan, “Stricter impaired driving laws could impact immigrants, lawyers say” Law Times 2 July 2018, online

[19] Ibid.

[20] Duggan, “Bar association warns impaired driving bill will compound court pressures,” supra note 1.

[21] Debates of the Senate, 42nd Parl, 1st Sess, Vol 150 Issue 160 (22 November 2017), at 1510 (Senator Joyal).

[22] Ibid at 1500 (Hon. Raymonde Saint-Germain).

[23] Canadian Charter of Rights and Freedoms, s 15(1), Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c11.

[24] Canadian Charter of Rights and Freedoms, s 11(b), Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c11.

[25] Debates of the Senate, 42nd Parl, 1st Sess, Vol 150 Issue 214 (4 June 2018), at 2050 (Senator Batters)

[26] Ibid.

[27] Duggan, “Bar association warns impaired driving bill will compound court pressures,” supra note 1.

[28] Canadian Charter of Rights and Freedoms, s 10(b) Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c11.

[29] Schmitz, “Random breath testing coming to Canada Dec. 18” supra note 6.

[30] Schmitz, “Joyal says impaired driving bill violates Charter” supra note 4.

[31] Ibid.

[32] Ibid.

Failing to Provide the Necessaries of Life: Freedom of Conscience and Religion, Parental Choice and Children’s Rights

Introduction

David and Collet Stephan were convicted in April 2016 of failing to provide the necessaries of life (Criminal Codes 215(2)(b)) to their son Ezekiel, who died of meningitis in March 2012.[1]

A family friend and nurse had suggested to the Stephans that Ezekiel was presenting with symptoms of meningitis and that he should see a doctor.[2] After conducting some research on the internet, the Stephans concluded that Ezekiel likely had viral meningitis, and not the more serious bacterial variation of the disease.[3] They decided to treat Ezekiel with olive leaf extract, garlic, echinacea and various other natural supplements rather than taking him to a medical doctor.[4]

The Crown’s theory was that the Stephans’ opposition to Western medicine made them unwilling to access appropriate medical care when Ezekiel’s life was in danger.[5] The Stephans deny this accusation. They claimed that Ezekiel did not appear to be in need of medical care until the period immediately before his death at which time they sought emergency medical assistance.[6]

After the Stephans lost their initial appeal to the Alberta Court of Appeal, David Stephan posted on Facebook that his conviction set a dangerous precedent for parents in Canada – if they did not parent as the government saw fit, then they could face criminal prosecution.[7]

What rights do parents have when it comes to making critical medical decisions for their children who are too young to make decisions for themselves?

Balancing Rights

Case law has always recognized that parents can and should make decisions for their children. They are presumed to be in the best position to make decisions in their child’s best interests.[8] Parent do not, however own their child. A child is an individual with rights.[9]

In the case B (R) v Children’s Aid Society of Metropolitan Toronto involving the right of a parent to refuse a life- saving blood transfusion for their infant child, the Supreme Court of Canada said that choosing medical treatments for one’s child is a “fundamental aspect” of freedom of religion.[10] However, the Court also said, like all rights in the Charter, freedom of religion is not absolute. Section 2(a) of theCharter protects freedom of conscience and religion. The purpose of this section is to “prevent interference with profoundly held personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being .”[11] A belief based on conscience receives equal protection to religious beliefs.[12]

Freedom of religion has been litigated extensively, while conscience has received relatively little attention. For this reason, the cases referenced in this article deal primarily with religion, however, these decisions regarding religion would, in all likelihood, be applicable to conscience as well.

While one is free to hold any religiousbelief , religious practices following from such beliefs that “impact on the fundamental rights and freedoms of others” can be restricted.[13] Children have the right to life, liberty, and security of person under section 7 of the Charter. The section 2(a) rights of the parent are not allowed to override these. [14]

The government has parens patriae jurisdiction – the government is the protector of its citizens. Based on this principle, the state may intervene to protect children when their lives are in jeopardy and to protect their well- being.[15]

Failing to Provide “the Necessaries of Life”

The offence that the Stephans were charged with was failing to provide the necessaries of life.[16] This is a criminal negligence offence. Parents are duty-bound to provide the necessaries of life to their children under the age of 16.[17] “Necessaries of life” are those things that “tend to preserve life.”[18] If the parent makes a marked departure from the level of care that a reasonable person would provide to a child, then they are criminally negligent.[19] This standard does not equate with simply differences in parenting styles. The Crown must show that the parent had “wanton or reckless disregard for the lives or safety of,” the child.[20]

While David Stephan made statements that the offence he was convicted of infringed on his rights to parent his children, this was not the argument that he made in his appeal to the Supreme Court.[21] The standard of “wanton or reckless disregard for the lives or safety of” is clearly connected to the right of the child to life, which is protected by section 7 of the Charter. In the precedent setting B (R) v Children’s Aid Society of Metropolitan Toronto case, the court observed that the right of a parent to make choices about the medical care of their children, in accordance with their section 2(a) right to conscience and religion, cannot infringe on the child’s right to life.[22] The offence of failing to provide the necessaries of life, then, may be a violation of the parent’s rights to freedom of religion and conscience, but it is a justifiable violation.[23]

Conclusion

When it comes to making choices that put a child’s life in danger, the section 2(a) rights to freedom of conscience and religion of the parent do not override the section 7 rights of the child to life, liberty, and security of person.

Cases of refusing medical treatment become more complicated when the child is mature enough to understand the choice being made – in these cases the best interests of the child are weighed against the child’s maturity level and ability to make an independent choice.[24]

[1] R v Stephan, 2016 ABQB 319 at paras 1, 33, 44, 2016 ABQB 319 (CanLII).

In May 2018, the Supreme Court of Canada ordered a new trial for David and Collet Stephan because the instructions given to the jury by the judge at the original trial were not clear enough.

[2] R v Stephan, 2016 ABQB 319 at para 21, ABQB 319 (CanLII).

[3] R v Stephan, 2016 ABQB 319 at paras 21, 43, 2016 ABQB 319 (CanLII). Justice RA Jerke described the difference between viral and bacterial meningitis as follows: “Untreated bacterial meningitis is fatal. It is therefore more dangerous than viral meningitis, but viral meningitis is also very serious. For example, it can cause a person to stop breathing. Viral meningitis is potentially fatal although far less often than bacterial meningitis,” (para 43).

[4] R v Stephan, 2016 ABQB 319 at para 22, 2016 ABQB 319 (CanLII).

[5] R. v. Stephan, 2018 SCC 21 at para 35, 2018 SCC 21 (CanLII).

[6] R v Stephan, supra note 4. See also Lucie Edwardson, “Parents convicted in son’s meningitis death relying on judge’s ‘failed’ jury charge in Supreme Court appeal,”CBC News (15 May 2018) online: < https://www.cbc.ca/news/canada/calgary/collet-david-stephan-su preme-court-canada-appeal-1.4662783>.

[7] Meghan Grant, “’No room for justice’: David Stephan posts tirade after conviction upheld in son’s meningitis death,” CBC News (16 November 2017), online: < https://www.cbc.ca/news/canada/calgary/david-collet-stephan-me ningitis-death-son-failure-provide-necessaries- facebook-1.4404690>. [8] B (R) v Children’s Aid Society of Metropolitan Toronto, [1995] 1 SCR 315 at para 85, 122 DLR (4th) 1 [BR].

[9] BR, supra note 8, at para 85

[10] BR, supra note 8 at para 105.

[11] “Paragraph 2(a) – Freedom of religion,” in Government of Canada, Charterpedia (last updated 28 June 2018), online: < http://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/a rt2a.html>. See R v Edwards Books and Art Ltd, [1986] 2 SCR 713 at 759, 35 DLR (4th) 1; R. v. Big M Drug Mart Ltd, [1985] 1 SCR. 295 at 346, 18 DLR (4th) 321; Syndicat Northcrest v. Amselem, [2004] 2 SCR 551 at para 41, 241 DLR (4th) 1; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 at para 32, [2009] 2 SCR 567 [Hutterian Berthren].

[12] Hutterian Brethren, supra note 11 at para 90; Mouvement laïque québecois v. Saguenay (City), [2015] 2 SCR. 3 at para 70.

[13] BR, supra note 8 at para 107.

[14] BR, supra note 8 at para 113.

[15] BR, supra note 8 at para 88

[16] Criminal Code, RCC 1985, c-C-46, s 215(1).

[17] Criminal Code, RCC 1985, c-C-46, s 215(1); see also R v Stephan, 2016 ABQB 319 at para 5, 2016 ABQB 319 (CanLII).

[18] See R v Brooks (1902), 5 CCC 372 (BCCA)

[19] R v Stephan, 2016 ABQB 319 at para 37, 2016 ABQB 319 (CanLII).

[20] Criminal Code, RCC 1985, c-C-46, s 219(1).

[21] R v Stephan, 2018 SCC 21 (Factum of the Appellant). [22] BR, supra note 8.

[23] BR, supra note 8 at paras 112-113.

[24] A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 SCR 181. See also: The Canadian Medical Protection Association, “Can a child provide consent?,” Duties and responsibilities: Expectations of physicians in practice, (published March 2014, revised June 2016), online: .

Accommodating UNDRIP: Bill C-262 and the future of Duty to Consult

Introduction

In May 2018, Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, passed in the House of Commons and moved on to be considered by the Senate.

The Bill, only 4 pages in length, requires the Government of Canada to take “all measures necessary to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples,” and to develop and implement, in cooperation with Indigenous peoples, a national action plan.[1]

The United Nations Declarations on the Rights of Indigenous Peoples (UNDRIP) was adopted by the United Nations (UN) General Assembly in 2007 with a vote of 144 in favour, 11 abstentions, and 4 votes against. Along with Australia, New Zealand, and the United States, Canada voted against, citing concerns over the compatibility of UNDRIP with Canadian law, in particular the language of “free, prior, and informed consent”.[2] The government feared that the language of UNDRIP would give Indigenous groups a “veto” power and would endanger already settled land claims.[3]

The government has since reversed its course. In 2016, the Minister of Indigenous and Northern Affairs, Carolyn Bennett, announced that Canada fully accepted, without qualification, UNDRIP. She stated that “We (Canada) intend nothing less than to adopt and implement the declaration in accordance with the Canadian Constitution.”[4]

Canadian law recognizes that the Crown has aduty to consult and accommodate Indigenous groups when its actions may affect the rights of that Indigenous group. The duty exists on a spectrum. According to the Supreme Court of Canada, gaining the consent of the Indigenous group affected is only required for “very serious issues”.[5]

What (if any) effect would Bill C-262, particularly the language of “free, prior and informed consent” in UNDRIP, have on the laws of Canada in relation to duty to consult?

The Duty to Consult in Canadian Law

The Crown has a duty to consult and accommodate Indigenous groups when a group’s Aboriginal (existing or potential) or treaty rights may be affected.[6] The duty to consult is triggered where the Crown has actual or constructive knowledge of a potential or existing right that may be affected by its conduct or decision making.[7]

The duty to consult exists on a spectrum, depending on the circumstances of the claim.[8] The Court said in the case Haida Nation v British Columbia (Minister of Forests) (2004) that the government may be required to do as little as give notice to the group affected where the claim is weak, or the infringements on rights are minimal.[9] The Court said that consent would be required only for very serious issues. In a case decided later in the same year as Haida, Taku River Tlingit First Nation v British Columbia (Project Assessment Director), the Court clarified that the Crown is able to fulfill its duty to consult and accommodate even when no agreement has been reached with the Indigenous group, so long as it consults and accommodates in accordance with its fiduciary duty.[10]

The fiduciary obligation of the Crown is to give priority to the claims of Indigenous groups and to take a group’s existing and potential Aboriginal and treaty rights seriously.[11]

UNDRIP

UNDRIP is a list of rights created by the Working Group on Indigenous Populations at the UN and adopted by the United Nations General Assembly (the assembly in which all member states of the UN have one seat and one vote).[12] The UN describes UNDRIP as “minimum standards for the survival, dignity and well-being of the indigenous peoples.”[13]

UNDRIP is a declaration. Unlike a treaty or a covenant, declarations are not signed or ratified by states. Declarations are aspirational and do not legally bind those who support them.[14]

UNDRIP indicates that the state must obtain “free, prior, and informed consent” before adopting legislative or administrative measures that may affect the rights of Indigenous people.[15] It also addresses compensation and redress for land acquisitions by the Crown; forced removals; and the taking of cultural, intellectual, religious, and spiritual property without free, prior, and informed consent.[16]

The term “free, prior, and informed consent,” does not have a settled definition. In particular, whether “free, prior, and informed consent” is equal to a veto power has been a point of contention.[17]

Article 46 of UNDRIP states that nothing in UNDRIP authorizes or encourages, “any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.”[18] Hence, the right to self-determination contained in UNDRIP does not imply a right to separate from the state in which the Indigenous group exists to establish an independent nation-state.

Further, Article 46 states that the human rights and fundamental freedoms of all shall be respected, and that limitations on rights “shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.”[19] This means that the rights contained in UNDRIP may be infringed upon in circumstances where they must be balanced against society’s needs as a whole.

Impact

The approval of Bill C 262 by the Senate itself will not automatically impact the Crown’s existing obligations to consult and accommodate Indigenous people. If the legislation is passed, an Indigenous group would need to bring a new case to the court dealing with the duty to consult. The court will then determine what the Crown’s obligations are considering the new legislation and whether ‘free, prior and informed consent’ displaces, or changes, or even makes no change to the duty to consult.

Assembly of First Nations Chief Perry Bellegarde has said that the right to give consent implies the corresponding right to withhold consent.[20] NDP MP Romeo Saganash who introduced the Bill, however, says that the language of free, prior, and informed consent in UNDRIP does not mean that there is a veto for Indigenous groups.[21] He points out that, “the need to balance the specific collective and inherent rights of Indigenous Peoples with the human rights of all people,” is specifically addressed in Article 46 of UNDRIP.[22] When read in its totality, Saganash argues, it is clear that there is no veto.[23] Saganash maintains that the purpose of the Bill is to make reconciliation a priority for the ruling government and to repudiate colonialism.[24]

There are a variety of ways to interpret international laws in the domestic context.[25] In case of international human rights law, the Canadian courts generally use the values in the human rights document in question to aid them in their contextual approach to interpreting laws.[26] This may push the required consultation and accommodation down the spectrum in favour of Indigenous groups. However, chances are that the duty to consult will not be displaced, should Bill-262 become law. The tradition of balancing the rights of the Indigenous group with the well-being of all of society is present in both current Canadian law and the language of article 46 of UNDRIP.

If free, prior and informed consent is a veto power, then that veto power is likely to be available to Indigenous groups in a situation that would be deemed by the courts to require consent. In the Haida case (2004), the courts recognized consent to be necessary only in the most serious cases. [27] The courts have not yet ruled in any case that the infringement of rights is so serious as to require the consent of an Indigenous group, so it is difficult to imagine what kinds of cases may meet the threshold if the bill becomes law.

Conclusions

If Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, becomes law, there will likely be limited changes to the current Canadian law regarding the duty to consult.

Canadian law recognizes a duty to consult Indigenous groups when their rights may be affected. The duty exists on a spectrum from notifying the group, to, gaining the group’s consent. If Bill C-262 becomes law, the place on the spectrum that a particular case falls may be more favourable to the Indigenous group.

The courts in Canada have not found the need for consent in any cases so far. If Bill C-262 becomes law, it is difficult to say what threshold would need to be met for consent to be required.

[1] Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, 1st Sess, 42nd Parl, 2018, cl 4, 5 (as passed by the house of commons 30 May 2018).

[2] Gloria Galloway, “Ottawa drops objections to UN resolution on indigenous consent,” The Globe and Mail (24 April 2017) online: < https://www.theglobeandmail.com/news/politics/ottawa-drops-obj ections-to-un-resolution-on-indigenous- consent/article34802902/>.

[3] Gloria Galloway, “Ottawa drops objections to UN resolution on indigenous consent,” The Globe and Mail (24 April 2017) online: < https://www.theglobeandmail.com/news/politics/ottawa-drops-obj ections-to-un-resolution-on-indigenous- consent/article34802902/>; CBC News, “Canada endorses indigenous rights declaration,” CBC News (12 November 2010) online: < https://www.cbc.ca/news/canada/canada-endorses-indigenous-righ ts-declaration-1.964779>. [4] “Fully Adopting UNDRIP: Minister Bennett’s Speech At The United Nations” Northern Public Affairs Magazine (11 May 2016) online: .

[5] Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 24, [2004] 3 SCR 511 [Haida].

[6] Haida Nation, supra note 2 at para 35; Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69 at para 34, [2005] 3 SCR 388. See alsoBeckman v Little Salmon/Carmacks First Nation [2010] 3 SCR 103, in which the majority found that the duty to consult is an implied term in regard to all rights in modern, comprehensive treaties that specifically call for consultation with regards to particular rights and not others.

[7] Haida, supra note 2 at para 35; Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 at para 31, [2010] 2 SCR 650.

[8] Haida, supra note 2 at para 37.

[9] Haida, supra note 2 at paras 43-45.

[10] Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74 at para 22, [2004] 3 SCR 550.

[11] R v Sparrow, [1990 1 SCR 1075 at 1119, 56 CCC (3d) 263.

[12] “United Nations Declaration on the Rights of Indigenous Peoples,” UNDESA Division For Inclusive Social Development Indigenous ,Peoples online: .

[13] Ibid. [14] Government of Canada Glossary of Terms – human rights, sub verbo “declaration”.

[15] UNDRIP, supra note 9, art 29.

[16] UNDRIP, supra note 9, art 10-11, 28.

[17] For a discussion of the various interpretations of the term “Free, prior, and informed consent,” see Cathal M Doyle, Indigenous Peoples, Title to Territory, Rights and Resources: The Transformative Role of Free Prior and Informed Consent (New York: Routledge, 2015).

[18]UNDRIP, supra note 9, art 46.

[19] UNDRIP, supra note 9, art 46.

[20] Jorge Barrera, “Status Indians to disappear in 50 years unless First Nations move beyond Indian Act: Perry Bellegarde,” CBC News (11 June 2018) online: < https://www.cbc.ca/news/indigenous/status-indian-act-perry-bel legarde-afn-campaign-1.4701123>.

[21] Romeo Saganash, “Act on Declaration of Indigenous Rights, It’s the Next Step to Reconciliation,” The Tyee (28 May 2016), online: < https://thetyee.ca/Opinion/2016/05/28/Next-Step-Reconciliation />.

[22] Romeo Saganash, “Act on Declaration of Indigenous Rights, It’s the Next Step to Reconciliation,” The Tyee (28 May 2016), online: < https://thetyee.ca/Opinion/2016/05/28/Next-Step-Reconciliation />.

[23] Romeo Saganash, “Act on Declaration of Indigenous Rights, It’s the Next Step to Reconciliation,” The Tyee (28 May 2016), online: < https://thetyee.ca/Opinion/2016/05/28/Next-Step-Reconciliation />. [24] See Romeo Saganash, “UN Declaration on the Rights of Indigenous Peoples: Crucial Need for a Principled Legislative Framework,” (18 April 2016), online: < http://romeosaganash.ndp.ca/documents>.

[25] For a discussion, see: Azeezah Kanji, “Applying International Law in Canadian Courts: A Pocket Guide for the Perplexed” Canadian Lawyers for International Human Rights (1 January 2015), online: .

[26] Baker v Canada, [1999] 2 SCR 817 at paras 69-70, 174 DLR (4th) 193.

[27] Haida Nation, supra note 2 at para 24.

The Senate’s amendments to the Cannabis Act: Just a ‘sober second thought’ or high on power?

The Canadian Senate has long been the object of criticism from Canadians and lawmakers alike[1]. Since its inception, politicians have sought to reform the upper chamber, and Senate reform has repeatedly appeared in the House of Commons.[2] Others have wondered why we even have a Senate, regarding it as a rather useless institution, or one that rewards political loyalty. Under the Harper government, Canadians read about the infamous Senate scandal, reaffirming the chamber’s negative stereotypes. However, under the Trudeau government, Canadians are reading about the Senate even more frequently, and for important reasons.

The Senate’s significant involvement in Bill C-45, the Cannabis Act, has brought the chamber’s role into the forefront. Following on his election promise, Prime Minister Trudeau’s government has introduced Bill C-45, which will legalize cannabis in Canada. With over forty proposed Senate amendments to the bill, C-45 is the most amended bill the Senate has dealt with in this government. Some of the amendments touched on key features of the legislation, presenting the government with unexpected opposition from the upper chamber.

For years, the Senate was criticized for being a mere ‘rubber stamp’ on legislation. Now, the Senate is being criticized for being too involved in the legislative process, and for stalling or even obstructing legislation altogether. Is the Senate acting beyond its mandate? Could the Senate’s recent actions be unconstitutional?

The Senate’s Function, Design and Constitutional Mandate

For a bill to become law in Canada, it must be passed by both the House of Commons and the Senate, regardless of where it originates. A bill must be passed by both chambers in the same form for it to receive Royal Assent and subsequently become law.[3] Upon receiving and reviewing bills, the Senate has the option of passing a bill without amendments, proposing amendments to a bill, defeating it, or choosing not to proceed with a bill altogether. If it chooses not to proceed with the bill, “it dies on the order paper without ever being actually defeated[.]”[4]

Purpose of the Senate

The Senate performs an important legislative function, even though it is often overlooked. As the chamber of ‘sober second thought,’ the Senate was designed to “provide complementary review of governments bills before they become the law of the land.”[5] The Senate’s core function has been described as “complement[ing] the work of the House of Commons through sober second thought” which reviews, analyzes and amends legislation. [6] It is also intended to serve as a counterweight to majoritarianism, providing checks and balances where needed.[7]

Interestingly, the purpose and function of the Senate is not mentioned anywhere in the Constitution Act, 1867. Despite its unwritten nature, the Fathers of Confederation had clear intentions for the chamber. George Brown, one of the founding ‘Fathers’, described the upper house as an independent body that “would be in the best position to canvass dispassionately the measures of this house [the legislative assembly] and stand up for the public interest in opposition to hasty or partisan legislation.”[8]

The Supreme Court clarified the role of the Senate in making Canadian law in the Reference re Senate Reform. In this case, the government asked the Court a number of questions about the role of the Senate, the method of appointing Senators, as well as how the Senate could legally be reformed. The case established what amending procedures in the Constitution should be used to reform or even abolish the upper chamberIt also reiterated that the appointment of senators, rather than their election, was a very deliberate choice by the Fathers of Confederation which serves to “prevent Senators from overstepping their role as a complementary legislative body[.]”[9]

While it is crucial that the Senate be more than a ‘rubber stamp’ for legislation it is widely understood that it is also not its job to arbitrarily reject legislation either. Senators must fulfil their legislative duty of analysing and amending legislation, “with the recognition that the Senate does not have a democratic mandate to override the executive and the duly elected House of Commons.”[10] The Senate does have the power to reject legislation, however this power is sparingly invoked. Since the Second World War, fewer than five bills have been rejected by the Senate. [11]

Senate Process for Approval of Bills

Bills that reach the Senate are read and voted on three times before being sent back to the House of Commons for final approval. Before the third reading, the bill also goes to a committee, where it is studied in detail. The committee can call on experts and those who may be more directly affected by the bill to provide input on the proposed legislation. It can suggest amendments to the bill before sending it back to the Senate, which can make further amendments before the final vote. If the bill passes this vote, it gets sent back to the House of Commons. The House may accept or reject the amendments made by the Senate. The bill then goes back to the Senate for approval.

The Senate’s Mandatory Deference to House

The Senate is one of the three branches of Parliament, the other two being the House of Commons and the Executive. Under the Canadian convention of ‘responsible government,’ the executive branch and the Senate are responsible to the House of Commons, which is in turn responsible to the Canadian people. The House governs on the people’s behalf by introducing and passing legislation.

The Senate convention about not overriding the House is particularly important with bills that are part of an elected party’s campaign. When presenting such bills the government can be seen as legislating on Canadians’ behalf (as this is what the government of the day was elected on). As such, the convention is that the Senate should not stand in the way of the people’s chamber. After all, the Senate is widely regarded as a complementary chamber, not a combative or competitive one.[12] The idea of the Senate supporting legislation that was born out of a campaign promise forms a Westminster convention.[13] This convention holds that “senators do not defeat Bills implementing promises made in campaigns won by the government party.”[14] The Senate should not defeat bills “or insist on amendments that would have the effect of gutting pledges made during an election campaign.”[15] Senators have recognized the importance of maintaining a bill’s ‘core.’ In 2014, Senator Joan Fraser reiterated that if the government has a mandate from the people to proceed with a measure, we may amend its technicalities, but we will not oppose it root and branch, however wrong we may think it is[.]”[16] In addition, Senator Jack Austin, former leader of the Government in the Senate, reiterated the importance of abiding by the wishes of the Commons. “Senators are keenly aware that, as a parliamentary institution which studies legislation originating in a house of elected representatives, senators must treat with respect the wishes of the government of the day as embodied in the other place.”[17]

Trudeau’s Reformed Senate: Legislative and Constitutional Implications

Senate Reform has been on the agenda of many Canadian governments, including the current and previous governments. Both the Harper and Trudeau governments vowed to make changes to the Senate, however, as the Supreme Court of Canada (SCC) confirmed in the Reference re Senate Reform case, many of Harper’s proposed reforms required constitutional amendments and were therefore abandoned. The Trudeau government has succeeded in implementing a modest reform to the Senate, requiring no constitutional amendments. This came in the form of modifying the appointment process.

Previously, the Governor General would appoint a senator to the chamber, on advice of the Prime Minister. These senators took on the party of the sitting prime minister and subsequently voted with that party. Under the Trudeau government the process changed. An Independent Advisory Board reviews applications of interested senators, and provides its recommendations to the prime minister. The prime minister then makes his/her selections from these recommendations. In addition, appointments are no longer made on a partisan basis, as Prime Minister Trudeau has vowed to have an Independent Senate. New senators are brought on as an independent meaning they do not sit in any formal party caucus (like the Conservative senators, for example) and they are not considered loyal to any of the federal political parties. Taking on the name of the Independent Senators Group (ISG), these senators are not obligated to vote along any party lines.[18]

Following this model, the prime minister may appoint senators who are sympathetic to or even members of their political party. Questions arise as to whether that the upper chamber can really be independent, as voting along partisan lines continues. For example, Conservative Party Leader Andrew Scheer was accused of encouraging the Conservative senators to do whatever it takes to sabotage theCannabis Act.[19] In addition, some have accused Independent Senators of simply supporting the government on all its legislation.[20] However, senators’ votes on legislations, regardless of their party affiliation, do not always adequately represent the dialogue and deliberations that take place in reviewing legislations pending before the Senate.

Before Trudeau’s Senate reform, the Senate appeared to be less engaged in the amendment process. Across numerous Canadian governments, the average percentage of bills that the Senate amended was around 7%.[21] In the last two years of the Harper government, the Senate amended only one of sixty-one bills it received from the House. The reformed Senate has been far more active in its legislative amendments, leading some politicians to argue that the chamber is over involved and sabotaging the legislative process.[22] Of the forty-four bills it has received since the Trudeau reform, the Senate has “successfully” amended ten, and the number of amendments made to these bills is higher than ever. [23]

Looking beyond the antics of some senators and the final vote count on bills, the amendments being made to legislation in the Senate tell an important story.

The Changing Role of the Senate: Bill C-45

Recently, the Senate was called upon to consider Bill C-45, the Cannabis Act. This bill, introduced in May 2017, would make cannabis legal for consumption and even allow for limited home growth. The bill was also an election promise made in October 2015. After all three readings at the committee stage, the Senate sent back Bill C-45 to the House with over forty amendments – an astonishing number.[24]Although most of the amendments were regarded as minor, and quickly accepted by the House, the House rejected a dozen significant amendments. One controversial amendment would have allowed the provinces to prohibit the home cultivation of cannabis. The subsequent Senate vote on keeping this amendment was very narrow: 45 to 35 senators decided against it.[25] It is worth remembering that this is only one of a dozen crucial amendments that the Senate made to the bill, all of which were rejected by the House. In addition, the passing of C-45 before the parliamentary recess was not a certainty. Some senators wanted to insist on keeping the amendments that were rejected by the House, and others wanted to stall the bill altogether.

Although many notable amendments were not accepted by the House of Commons, the Senate’s work on C-45 was crucial. For example, upon Senate criticism about the lack of Indigenous consultation on the bill, the Minister of Indigenous Affairs promised to establish a dialogue with Indigenous communities on cannabis. [26] Having more agency since the reform, the Senate has raised more concerns about legislation, to which the House of Commons has answered. The number and nature of the amendments made to the Cannabis Act indicate a more active and empowered Senate. This has important implications in both the political and legal context and presents the need for the chamber to recall what their role is and the importance of abiding byconstitutional conventions that mandate its need for deference to the House. Convention suggests that the House is the superior chamber, and it is the Senate’s unwritten mandate to ultimately defer to the Commons. Further, in the Reference re Senate Reform, the Court felt that the lack of a textual procedure or resolution for deadlock between the two houses indicates that the Fathers of Confederation felt that the will of the people, manifested in the House of Commons, takes precedence over the will of the Senate.[27]

The Senate is not a fully independent chamber yet, as some senators continue to sit in party caucuses. However, the commitment to independence made by Prime Minister Trudeau has given more senators the ability to focus on crafting better legislation, rather than engaging in partisan antics in the upper chamber. Ultimately, the Senate should complement or enhance the work of the House, rather than impede it.

Conclusion

Although the Senate conceded on the Cannabis Act and voted with the government, the passing of C-45 reminds us that the new, Independent Senate is not taking its job lightly. The upper chamber is crucial to ensuring that the bills being passed are sound and free of constitutional loopholes. It appears to be taking its legislative duties more seriously since Trudeau’s reform. However, the Senate should not forget where its mandate comes from, nor get carried away with its powers.

Recalling how one of our Fathers of Confederation described the upper chamber, the Senate should be “calmly considering the legislation initiated by the popular branch, and preventing any hasty or ill-considered legislation which may come from that body, but it will never set itself in opposition against the deliberate and understood wishes of the people.”[28] It is important as the Senate moves into this new phase of independence and increased agency that it maintains its commitment to quality legislation, as well serving the government of the day, and in turn the Canadian people.

[1] Jason Fekete, “How to solve a problem like the Senate” 19 June 2015, online

[2] Reference re Senate Reform, 2014 SCC 32 [2014] at para 17, 1 SCR 704 [Senate Reform Reference]

[3] Canada, The Senate, How a Bill Becomes Law, 14 June 2017, online [How a Bill Becomes a Law]

[4] Paul G. Thomas, “Comparing the Lawmaking Roles of the Senate and the House of Commons” in Serge Joyal, Protecting Canadian Democracy: The Senate You Never Knew (McGill-Queen’s University Press, 2003) at 172-173.

[5] Senator Peter Harder, “Complementarity: The Constitutional Role of the Senate of Canada” 12 April 2018 at 2, online [Complementarity: the Constitutional Role of the Senate of Canada].

[6] Ibid at 4, Peter Harder, “On cannabis Bill Senate must defer to Canadians’ democratic will” Policy Options April 2018, online

[7] Harder, “Complementarity: The Constitutional Role of the Senate of Canada” supra note 3 at 2.

[8] Janet Ajzenstat, “Bicameralism and Canada’s Founders: The Origins of the Canadian Senate” in Serge Joyal,Protecting Canadian Democracy: The Senate You Never Knew (McGill-Queen’s University Press, 2003) at 5.

[9] Senate Reform Reference supra note 2 at 59.

[10] Chris Montgomery, “Senators should be careful about how the dissent,” Policy Options March 2018, online

[11] Harder, “Complementarity: The Constitutional Role of the Senate of Canada” supra note 3 at 37.

[12] Paul G. Thomas, “Comparing the Lawmaking Roles of the Senate and the House of Commons” in Serge Joyal, Protecting Canadian Democracy: The Senate You Never Knew (McGill-Queen’s University Press, 2003) at 189.

[13] Harder, “Complementarity: The Constitutional Role of the Senate of Canada” supra note 3 at 4.

[14] Harder, “On cannabis Bill Senate must defer to Canadians’ democratic will” supra note 4.

[15] Ibid.

[16] Debates of the Senate, 41st Parl, 2nd Sess, Vol 149 Issue 131 (4 February 2014) at 1700 (Speaker Noël A Kinsella)

[Debates of the Senate 2014]

[17] Debates of the Senate, 37th Parl, 3rd Session, Vol 141 Issue 11 (18 Feburary 2004) at 17 (Speaker Dan Hays) < https://sencanada.ca/en/content/sen/chamber/373/debates/011d b_2004-02-18-e>

[18] Senator Mary Jane McCallum, “Modernizing the Senate: the benefit of partisanship taking a backseat,” Hill Times 11 June 2018, online

[19] Kyle Duggan, “Trudeau accuses Sheer of playing Senate games to try to slow down pot bill,” iPolitics13 June 2018, online [Trudeau accuses Sheer of playing Senate games to try to slow down pot bill]

[20] Rachel Aiello, “Trudeau says Senate reform ‘on the right track,’ blames Conservatives senators for delays”Hill Times 27 June 2017, online

[21] C.E.S. Franks, “The Canadian Senate in Modern Times” in Serge Joyal, Protecting Canadian Democracy: The Senate You Never Knew (McGill-Queen’s University Press, 2003) at 172 [The Canadian Senate in Modern Times].

[22] Duggan, “Trudeau accuses Scheer of playing Senate games to try to slow down pot bill,” supra note 17.

[23] Senator Grant Mitchell, “Key Senate Changes to the Transportation Bill Possible Under new Independent Model” Senate of Canada 13 June 2018, online [24] Kyle Duggan, “Cannabis bill sails through crucial Senate third reading vote” iPolitics 07 June 2018, online

[25] Kyle Duggan, “Homegrow battle left independent wondering if Senate position on post taken seriously” iPolitics 20 June 2018, online https://ipolitics.ca/2018/06/20/homegrow-battle-left-in dependent-wondering-if-senate-position-on-pot-taken-seriously/

[26] John Paul Tasker, “Will the Senate pass the cannabis bill tonight? No one knows for sure” CBC 07 June 2018 online

[27] Senate Reform Reference supra note 10 at 59.

[28] Confederation Debates, 1865 Debates, February 6, 1865, quoted in Reference re Senate Reform,supra note 7 at 58.

Two options for pay equity: complete compensation or no laws at all

On May 10, 2018, the Supreme Court released two decisions about challenges to pay equity laws in Quebec.[1] Several unions challenged two provisions in the pay equity laws claiming they violated equality rights under section 15 of the Canadian Charter of Rights and Freedoms.[2] Only one of the challenges was successful. As a result, companies in Quebec now have to compensate female workers for periods of time where they were underpaid relative to male workers. But the Supreme Court’s ruling may have implications for other provinces that want to follow suit.

Background

Quebec is one of only two provinces in Canada (Ontario is the other) that require pay equity in the private and public sectors. Other provinces only have pay equity for public sector jobs. In Quebec and Ontario, all companies, public and private, must pay employees equally for work of equal value. In Quebec, the Pay Equity Act,[3] passed in 1996, sets out the process for making sure that companies do this.

The right to equal pay for work of equal value had existed since 1975 in Quebec’sCharter of Human Rights and Freedoms.[4] But the right only guaranteed equal pay for employees working in the same workplace. So women were denied equal pay when, for example, there were no male colleagues to compare them to. The Pay Equity Act, passed in 1996, fixed this by giving a remedy for such workplaces. Despite its purpose of fixing wage discrimination, it faced two court challenges.

The first challenge concerned delay in putting pay equity into effect. When the Act came into force in 1997, there was no method for deciding on proper pay in situations with no male workers to compare with. The Act therefore created a Pay Equity Commission to conduct necessary research and create a method for finding the right male workers to compare with.[5] But this took time, and the rules for deciding proper wages did not come into effect until 2005—eight years later. The Pay Equity Act also allowed for a further two-year grace period, which meant that pay equity did not come into effect until 2007.[6] This meant that after the Pay Equity Act came into force, women in some workplaces continued to be underpaid for a whole decade while they waited for their claims to be resolved. The unions challenged the section of the Pay Equity Act that allowed for a grace period.

The second challenge came after Quebec changed the Pay Equity Act in 2009. The Government of Quebec had found that many companies were not following the rules. Before the change in 2009, the Pay Equity Act required companies to maintain continuous pay equity. Quebec replaced this requirement with mandatory audits that occurred only every five years.[7] When an audit found unequal pay, companies did not have to compensate women for failing to pay them up to that point—they only had to change the pay from that point on. The Act forced women to accept unequal pay between audits. The unions challenged the sections that excused companies from compensating for past wage discrimination.

Equality Rights under the Charter

The basis for the challenges was equality rights under section 15 of the Charter. As courts have interpreted it, section 15 prevents governments from creating a law that either “burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating … disadvantage.”[8]

Canadian courts currently use a two-step test to determine whether a law violates section 15.[9] First, the law must create a distinction based on a ground such as those listed in section 15 of the Charter. Second, the law must create a distinction, based on a ground that has a negative or adverse impact on the affected group. In looking at a potential breach, courts will not look at negative attitudes toward a group. They will instead focus on how the law affects the group regardless of the attitude behind it.

Equality rights, like most rights in theCharter , are primarily negative rights. Negative rights prevent the government from acting in certain ways. For example, section 15 of the Charter prevents the government from discriminating against people based on certain characteristics, such as race, sex, or religion. Negative rights are contrasted with positive rights, which require the government to take action to achieve specific results.

Delayed access to pay equity is justifiable

Applying equality rights to the grace period, the Supreme Court said that the grace period violated women’s equality rights. This was because the delay in putting pay equity into effect meant that wage discrimination continued for longer. The law was saved, however, because even though it violated section 15 the Supreme Court thought that the violation was acceptable under of section 1 of the Charter. The delay was justifiable because the government of Quebec wanted to find a more effective solution to the problem of pay inequity.

Lack of back pay is not justifiable

The Supreme Court also found that the sections about back pay were unconstitutional and invalid. These were the sections that excused companies from compensating women for past wage discrimination.

The Supreme Court said that the way thePay Equity Act addressed wage inequality “perpuate[d] the pre-existing disadvantage of women.”[10] Although without the Pay Equity Act there would be no laws at all that address wage inequality in the private sector, the Supreme Court still found that the Act created a disadvantage for women. The Supreme Court said that for the law to be valid, it would have to not only fix the issue of pay inequity, but also force companies to compensate women for past pay inequity. This failure to provide back pay for past wage discrimination violated section 15 of the Charter.

Some of the judges disagreed with this view and would have upheld the law as valid. Their minority opinion pointed to the nature of section 15 as a negative right and said that the majority’s decision essentially created a positive obligation for the government to obtain a specific result (pay equity, in this case). As the Pay Equity Act does not widen the wage gap between men and women, the minority said that the law “does not perpetuate pre-existing disadvantages.”[11] The Pay Equity Act has the purpose of narrowing the wage gap, but does so less completely. The minority said that this did not make the law unconstitutional.

The Future of Pay Equity

These two cases do not impose a freestanding obligation on all provinces to achieve pay equity in the private sector. But they do impose obligations on any province that chooses to address pay equity through legislation. That is, a province with no pay equity laws cannot be challenged in court for not having such a law. But once it creates a law, there may now be certain standards that its law must reach.

For the eight provinces that have not yet created pay equity laws for the private sector, these two cases may cause some hesitation in introducing pay equity legislation. This is because the Supreme Court has now given its vision of what pay equity should look like, and it is a vision that may be costlier than what some provinces are willing to implement. Provinces that want to move step by step towards pay equity without drastic changes may be put off from even trying. This could mean that introducing pay equity in the private sector could take longer. Traditionally, when a law provides a clear benefit in comparison to a situation with no law at all, legislatures are free to adopt whatever method they wish for providing that benefit. This may no longer be the case.

[1] Quebec (Attorney General) v Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 [Alliance]; Centrale des Syndicats du Québec v Quebec, 2018 SCC 18 [Centrale].

[2] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[3] SQ 1996, c 43.

[4] SQ 1975, c 6, s 19.

[5] Pay Equity Act, supra note 3, s 114.

[6] Ibid, s 38.

[7] Alliance, supra note 1 at para 2.

[8] Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 at para 20, [2015] 2 SCR 548.

[9] Ibid at paras 18-20.

[10] Alliance, supra note 1 at para 33.

[11] Ibid at para 68.

SCC clarifies freedom of religion, gives law societies license to limit it

On June 15, 2018, the Supreme Court of Canada released a highly-anticipated pair of decisions: Law Society of British Columbia v Trinity Western University[1] and Trinity Western University v Law Society of Upper Canada.[2] These also happened to be the last two decisions of former Chief Justice Beverley McLachlin’s career on Canada’s highest court. The Supreme Court upheld the decisions of law societies in British Columbia (B.C.) and Ontario, both of which had refused to approve Trinity Western University’s law school. The proposed law school is an evangelical Christian law school that requires its students to sign a code of conduct. The Supreme Court addressed two important constitutional issues:

1. What does freedom of religion protect? 2. When can administrative bodies such as law societies, acting under government authority, breach Charter rights?

The Supreme Court upheld the government’s broad power to define and act in the public interest. It also limited the scope of protection for freedom of religion.

Background

Trinity Western University (TWU) is a private evangelical Christian university in B.C. All students at TWU have to sign a code of conduct (known as the Community Covenant) that sets rules for student behaviour. One of the rules is that students cannot have sexual relations outside of marriage between a man and a woman. The Supreme Court found that this rule was grounded in evangelical Christian belief.

TWU wanted to open a law school. For their graduates to be able to practice law, it needed approval from the provincial law societies in Canada. Law societies get their power from government, including the power to decide who can practice law in their province.[3] According to the laws which give them this power, law societies must act in the public interest.[4] The public interest is a very broad concept and what it requires depends on the particular context.

The law societies in B.C. and Ontario decided not to approve TWU’s law school. Their view was that TWU’s code of conduct would have made it difficult for LGBTQ students to attend. They also felt it would go against the public interest to approve a law school that set up such barriers. Because the B.C. law society did not approve TWU’s law school, the B.C. government did not allow TWU to start operating it. TWU claimed that the law societies’ decisions violated their Charter-protected right to freedom of religion, as their code of conduct—the basis for rejecting the law school—was based on evangelical Christian beliefs. Students interested in attending TWU’s law school also claimed a belief in the importance of studying in an environment where other students would act in accordance with their beliefs. TWU asked the courts in B.C. and Ontario to review the law societies’ decisions. TWU won in B.C. at the Court of Appeal and lost in Ontario—both decisions ended up at the Supreme Court of Canada.

The Decisions

The Supreme Court upheld the decisions of both law societies. The cases turned on three issues: the purpose of law societies, the definition of religious freedom, and how the law societies balanced their purpose and the Charter protected freedom of religion against each other. Law societies must act in the public interest—this includes protecting the rights and freedoms of citizens and ensuring that lawyers act competently and with integrity.[5] When they make decisions that affect Charter rights, law societies’ decisions must not affect those rights any more than is necessary to meet the law societies’ objectives. Law societies, like other government bodies, have a fair amount of leeway in making decisions. A decision does not have to be the same one that a court would make, but it has to be reasonable. That is, courts that review decisions of law societies will only overturn them if they are not within a range of outcomes that a reasonable decision- maker could have made.

TWU’s freedom of religion was infringed, but not significantly

The Supreme Court said that the law societies infringed the religious freedom of the TWU community under section 2(a) of the Charter. To show that the law societies infringed religious freedom, TWU had to first demonstrate 1. A sincere belief in a religious practice or doctrine, and 2. That they were prevented from acting on that belief in a manner that is more than trivial.

Here, the Supreme Court found that the TWU community had a sincere belief that studying in an environment where everybody follows the same rules of conduct is better for spiritual development. In this case, the code of conduct provided the rules for everybody to follow. The Supreme Court also found that the law societies’ denial of TWU’s law school prevented TWU from acting on that belief in the context of a law school. The Supreme Court found this to be a non-trivial infringement.

Although freedom of religion was infringed in this case, the Supreme Court said it did not deserve as much protection as courts had given it in previous cases. This was for two reasons. First, TWU’s mandatory code of conduct is not absolutely required by its religious beliefs. For evangelical Christians, studying law in a religious environment governed by certain rules is preferred, but not necessary, for spiritual growth. This, the Supreme Court found, made the limit on freedom of religion less serious, and thus less worth protecting.

Second, the Supreme Court noted that the code of conduct would restrict LGBTQ individuals from enrolling at TWU. Despite the fact that attending TWU is optional (as other law schools are available), the Supreme Court found that restriction created a harmful effect. The harmful effect also made freedom of religion less worth protecting in this case.

Public interest outweighs freedom of religion

Because the law societies’ decisions infringed TWU’s religious freedom—even if the infringement was not significant—the law societies still had to balance religious freedom with the law societies’ objectives. This required the law societies to consider whether there were other possibilities which could better protect religious freedom while still accomplishing their objectives. The courts also had to consider how serious the limit on religious freedom was when compared with the benefits of meeting the law societies’ objective of protecting the public interest.

Here, given TWU’s proposal to open a law school, the law societies were faced with only two possibilities: either to give or deny accreditation of students from TWU to their law societies. The Supreme Court said that the law societies acted reasonably, because their decisions to reject the law school were a reasonable balance of the Charter-protected right to freedom of religion and their duty as law societies to protect the public interest. This was both because religious freedom was not greatly limited by their decisions and because the benefits of achieving the law societies’ objectives were significant.

The Supreme Court ruled that the decisions of the law societies significantly advanced the objectives of maintaining equal access and diversity in the legal profession and preventing harm to the LGBTQ community. It also said that approving TWU’s law school would have weakened public confidence in the justice system. This is because the public might have seen the law societies as approving or condoning the restriction of LGBTQ individuals from the legal profession. TWU argued that the law societies’ mandates did not allow them to consider anything other than the competency of potential graduates. But the Supreme Court said that law societies had the discretion to define “public interest” to include these other considerations.

Because the benefits of the decisions—maintaining equal access and diversity and preventing harm—outweighed the negative impacts on freedom of religion, the law societies’ decisions were reasonable. Conclusion

The Supreme Court’s decisions may have offered a preview of how it will approach future cases involving freedom of religion. The reasoning in the TWU case suggests that when the government limits Charterrights while pursuing public interest-related goals, such as equality or non- discrimination, the courts will not scrutinize the government’s objectives too closely, but will largely defer to the government’s framing of the issue. This is especially so where the government tries to advance a particular view or value by excluding or withholding support (financial or otherwise) from those holding other views.

One such other case involves the federal government’s Summer Jobs Program, which offers grants to employers to employ students during the summer. This year, the federal government added a condition for employers to receive the grant. Employers had to check a box indicating that the job and the employer’s core mandate respected the values of the Charter, including, controversially, “reproductive rights.”[6] This was done to allow the government to withhold funding from groups that advocated against abortion.[7] Using the reasoning from the TWU cases, it seems likely that a court would weigh the government’s goal of protecting Charter values more heavily than an employer’s right not to affirm those values. In other words, a court will uphold the right of the government to deny funding to a religious group that does not affirm a woman’s right to abortion.

[1] 2018 SCC 32.

[2] 2018 SCC 33.

[3] Legal Profession Act, SBC 1998, c 9, s 14.

[4] Ibid, s 3.

[5] Ibid. [6] Amanda Connolly, “Canada summer jobs program will no longer fund anti-abortion, anti-gay groups” (15 December 2017), Global ,News online: .

[7] Ibid.

Carbon Tax Showdown: Who Holds the Power?

Introduction

As a way to reduce greenhouse gas emissions, the Government of Canada will impose a carbon tax beginning in 2019. Producers of carbon emissions will be forced to pay an amount per tonne of carbon emitted. This cost would be passed on to consumers in the form of raised prices on goods such as gasoline. The idea behind this strategy is that consumers of fossil fuels – carbon – such as oil and gas, will be motivated to find ways to reduce their consumption if they have to pay more for usage. [1]

The federal tax will only apply to those provinces who do not have their own carbon tax or cap-and-trade system in place to reduce carbon emissions. Some provinces such as Alberta have already imposed their own taxes, and others are planning to do so.

Other provinces are unwilling to implement a carbon tax and have questioned whether the federal government has the authority to implement the tax. TheConstitution Act, 1867splits powers between the provincial and federal governments(through the division of powers).[2]If either the federal or the provincial governments legislate in an area that is outside their jurisdiction, then the law will be found to be unconstitutional.

Manitoba was one of the initial opponents to the tax and conducted a legal inquiry to determine whether or not they could succeed in challenging the federal government’s authority to implement the tax. The result of that inquiry was that the federal government would likely succeed, convincing the province that it should implement its own tax. [3]

Saskatchewan has launched a legal challenge to the authority of the federal government to impose the tax. It claims that the federal government does not have the jurisdiction to impose the tax on provinces. Interestingly, the newly elected Ontario government seems to be of the same view. And that provinces recently elected premier, Doug Ford, has indicated he will scrap their cap-and-trade system. Saskatchewan has brought forward a constitutionalreference caseto the Saskatchewan Court of Appeal, asking the question: The“ Greenhouse Gas Pollution Pricing Actwas introduced into Parliament on March 28, 2018 as Part 5 of Bill C-74. If enacted, will this Act be unconstitutional in whole or in part?”[4]

Can the federal government impose its current carbon tax plan over provincial opposition? Is a federally enforced carbon tax, intended to curb greenhouse gas emissions, unconstitutional as claimed by Saskatchewan[5]and Ontario[6]?

Canada’s Plan to Reduce Carbon Emissions

The federal government introduced the Greenhouse Gas Pollution Pricing Act (GGPP) in March 2018.[7]This Act provides the framework for the federal carbon levy, which will take effect in 2019. The Act prices carbon at $20.00 per tonne in 2019, which is an increase of $10.00 per tonne from current rates. This amount will increase to $50.00 per tonne in 2022.[8]The bill includes a ‘backstop’ feature, meaning that the levy will only be imposed in provinces that do not have their own carbon tax plan in place.[9]The backstop provision is significant because it acknowledges that the tax is not universally applied, in the way that taxes like the general sales tax (GST) are. It encourages provinces to have their own carbon tax plans in place. Further, the backstop feature makes it appear as though the federal government will approve whatever carbon tax a province imposes, so long as the province has such a scheme in place.

It is clear that consumers will be paying more to put gas in their cars and to heat their homes as of 2019. Exactly how much they will be paying though is unclear because each province may impose its own tax, at its own rate. For example, Alberta’s carbon tax is based on a progressive model, meaning that it will increase overtime. In Alberta, the carbon tax rose to $30.00 per tonne in 2018, raising the carbon tax on gasoline up to 6.73 cents per litre, from 4.49 cents per litre. The tax increased by 50 cents per gigajoule for natural gas – the most common source of fuel for heating homes in Alberta.[10]Manitoba has imposed a tax based on a flat rate model, meaning that the price of carbon in that province will remain at $25.00 per tonne.[11]It will not be progressive, as the federal and the Alberta taxes are. Its decision to implement a flat tax came after learning that it would not succeed in a legal challenge to the federal tax.[12]

Carbon Tax and Jurisdiction: Can the federal government force Saskatchewan to take on the tax?

The Reference to the Saskatchewan Court of Appeal will be determined based on the federal government’s constitutional jurisdiction to impose a carbon tax on the provinces. The province has its own comprehensive plan to reduce emissions in place, however its noncompliance with the federal framework may be worthy of the court’s consideration. To determine whether the federal tax is constitutional, one must look to sections 91 and 92 of the Constitution Act, 1867.

The jurisdictional dispute is about who has the authority to make legislation concerning the environment. Neither the federal nor provincial governments have exclusive control over the environment according to the Constitution as neither the environment nor climate change are explicitly mentioned in sections 91 or 92.Either level of government can make laws that impact the environment as long as they do so through powers that the Constitution gives them.[13]

Federal powers

The Constitution Act, 1867 grants the federal government several powers such as the POGG power and the criminal law power that enable it to implement or enforce the carbon tax. These are in addition to its taxation powers, outlined in Section 91 (23) of the Constitution.

National Concern – the POGG Power

The federal government can make laws on matters that are of national concern because of its authority to govern under the “Peace Order and Good Government (POGG) power”.[14]If greenhouse gas emissions are considered a national concern, then it is within their authority to legislate and tax on the issue.

In R v Crown ZellerbachCanada Ltd, a majority of the Supreme Court of Canada found that pollution of the ocean was a matter of national concern.[15]Therefore, the federal government could use its POGG power to create laws against the dumping of substances (including wood waste) into coastal waters. [16]Some academicsargue that courts are likely to find that, like marine pollution, greenhouse gas emissions are an issue of national concern that the federal government has the power to regulate.[17] Therefore, it is likely the carbon tax would be deemed constitutional if imposed on Saskatchewan because reducing greenhouse gas emissions is an issue of national concern and imposing a carbon tax is an effective way of reducing them.

Criminal Law

While the criminal law power may not be relevant to the federal government’s ability impose the tax, it is worth remembering that it has this power available to it for the enforcement of the tax.

The federal government may also be able to rely on its power to pass criminal laws in order to limit and reduce greenhouse gas emissions.[18]In R v Hydro-Québec, the Supreme Court of Canada clarified that the federal government could use its criminal law power for the purpose of protecting the environment.[19]In that case, the Supreme Court found that the federal government could restrict the release of toxic substances into the environment and enforce penalties for non- compliance.

More recently, the Federal Court of Appeal in Syncrude Canada Ltd v Canada (AG) (2016) concluded that the federal government could use its criminal law power to require that diesel fuel in Canada contain at least two percent renewable fuel.[20]The Court found that limiting greenhouse gas emissions from fossil fuels to protect human health and the environment is a valid criminal law purpose.[21]

It appears then that the federal government does have significant power to impose a carbon tax on the provinces.

Provincial powers

Provincial governments can also rely on several powers granted to them in the Constitution Act, 1867to reduce greenhouse gas emissions. Provinces have their own taxation powers, in addition to their jurisdiction over property and civil rights, outlined in section 92(2) of the Constitution.[22]

Property and Civil Rights

Provinces may charge a levy or place a limit on greenhouse gas emissions through their authority over property and civil rights and matters of a local and private nature.[23]The Ontario High Court of Justice, in R v Lake Ontario Cement Ltd, found that those provincial powers allow a province to make laws regulating emitting “contaminants” into the environment.[24]In addition, provincial governments have the power to regulate industries such as mining, forestry, oil and gas, construction, and manufacturing.[25]The provinces may use that power to set restrictions on those industries for the purpose of environmental protection.[26]

The federal government’s taxation power does not disable provinces from implementing their own taxes, however they cannot evoke their own taxation powers as a way to evade federal taxes.

Conclusion

While the federal and provincial governments both have a jurisdictional claim to the ‘environment,’ it is clear the federal government is acting within its jurisdiction through its imposition of a carbon tax. Given the federal government’s POGG powers, it seems likely that it can impose the tax on the provinces. therefore neither Saskatchewan nor Ontario appear to have a strong case for opposing it.

The federal government’s Bill C-74, theGreenhouse Gas Pollution Pricing Act, will likely pass scrutiny by the courts. The feedback from Manitoba’s legal inquiry suggests that the bill can withstand a legal challenge brought by one or more provinces.[27]This means that the federal government’s carbon tax will likely be found to be constitutional, because it is within the federal government’s jurisdiction to establish it. Further, the opinion offered in the inquiry by University of Manitoba law professor Bryan Schwartz, suggested that the backstop function of the federal carbon tax – the feature that allows the federal government to impose their carbon tax on those provinces who do not have their own carbon tax or cap-and-trade system- “should be accepted as part of ‘cooperative federalism.’”[28]

Any decision made by the courts on the validity of a federal carbon tax will likely leave room for both levels of government to play a role in regulating greenhouse gases. [29]This approach would align with the Supreme Court’s statement in Hydro-Québecthat environmental protection is “an international problem, one that requires action by governments at all levels.” [30]Both levels of government are committed to reducing carbon emissions, and the issue of jurisdiction should not serve as a barrier to this important goal. This leaves Saskatchewan with the option to either incorporate some kind of carbon tax into its pre-existing tax plan, or be subject to the federal government’s federal tax scheme.[31]Whether or not a carbon tax will be effective in reducing emissions and meeting the Paris Conference commitments remains to be seen, but it appears likely that Saskatchewan and Ontario will have to get on board with the tax (regardless).

[1]Dennis Mahoney, The Law of Climate Change in Canada, student ed (Toronto: Thomson Reuters, 2015) at 15:20.60. 10-15:20.60.20; Andrew Leach, “The economic cost of carbon policy” Macleans(19 June 2016), online: , http://www.macleans.ca/economy/economicanalysis/the-economic-c ost-of-carbon-policy/>; Canada’s Ecofiscal Commission, “The Way Forward: A Practical Approach to Reducing Canada’s Greenhouse Gas Emissions” (April 2015) at 32, online: .

[2]Constitution Act, 1867 (UK), 30 & 31, c 3, reprinted in RSC 1985, Appendix II, No 5, ss 91, 92, 132Constitution [ Act, 1867].

[3]Jason Markusoff, “Saskatchewan is launching a court reference that just might kill the carbon tax”, Macleans(25 April 2018) online:

[4]Ibid.

[5]D.C. Fraser, “Saskatchewan turns to high court on constitutionality of carbon tax law”, Regina Leader-Post(25 April 2018), online:

[6]Paula Loriggio, “Ford determined to scrap Ontario’s ‘disastrous’ cap-and-trade system: spokesman”iPolitics (13 June 2018), online

[7]Fraser, “Saskatchewan turns to high court on constitutionality of carbon tax law” supranote 5.

[8]Ibid.

[9]Bryan P. Schwartz, “Legal Opinion on the Constitutionality of the Federal Carbon Pricing Benchmark and Backstop Proposals” (6 October 2017), online: Government of Manitoba

[10]Andrea Ross, “Here’s how Alberta carbon tax increase will affect you in 2018”,CBC (28 December 2017), online;

[11]Fraser, “Saskatchewan turns to high court on constitutionality of carbon tax law,”supra note 5. [12]Ibid.

[13]Shi-Ling Hsu & Robin Elliot, “Regulating Greenhouse Gases in Canada: Constitutional and Policy Dimensions” (2009) 54:3 McGill L J 463 at 480-481; Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1 SCR 3 [Friends of the Oldman River Society].

[14]Constitution Act, 1867,supranote 2, s 91. See generally Peter W Hogg, Constitutional Law of Canada, vol 2, 5th ed (Toronto: Thomson Reuters, 2007) (loose-leaf 2010 supplement), ch 17 at 17.1, 17.3-17.4 [Hogg, Constitutional Law of Canada]

[15][1988] 1 SCR 401 at 436-438.

[16]Ibid.

[17]Peter Hogg, “Constitutional Authority over Greenhouse Gas Emissions” (2009) 46:2 Alta L Rev 707 at 516; Nathalie Chalifour, “The feds have every legal right to set a carbon price”, iPolitics Insights (4 October 2016), online: [Chalifour, “The feds have every legal right”]. But see Hsu & Elliot, supra note 13at 494-495. Maura Forest, “Saskatchewan launches constitutional challenge of federal carbon tax” National Post(25 April 2018), online

[18]Constitution Act, 1867, supra note 2, ss 91(27); Hogg, “Constitutional Authority”, supra note 17 at 512-515; Chalifour, “The feds have every legal right”, ibid. But see Hsu & Elliot, ibid at 492.

[19][1997] 3 SCR 213 [Hydro-Québec].

[20]2016 FCA 160.

[21]Ibid at paras 42, 49-50. [22]Constitution Act, 1867, supranote 2 ss 92(2).

[23]Constitution Act, 1867, ibid, ss 92(13), (16); Hsu & Elliot,supranote 13 at 480, 486-487; R v Lake Ontario Cement Ltd (1973), 35 DLR (3D) 109 [Lake Ontario Cement Ltd].

[24]Lake Ontario Cement Ltd, ibid at 116.

[25]Constitution Act, 1867, supra note 2, ss 92(5), 92A, Hsu & Elliot, supra note 13 at 480, 487.

[26]Constitution Act, 1867, ibid, ss 92(10); Hsu & Elliot, ibid at 487; Friends of the Oldman River Society, supra note 13 at 68.

[27]Stephen Hui, ibid; Nathalie Chalifour, “Can Trudeau keep his carbon tax out of court?”, iPolitics Insights (24 September 2016), online: .

[28]Markusoff, “Saskatchewan is launching a court reference that just might kill the carbon tax”, supranote 12.

[29]Hsu & Elliot, supra note 12 at 481; Hydro-Québec, supra note 19 at para 131; 114957 Canada Ltée (Spraytech) v Hudson (Town), 2001 SCC 40; Friends of the Oldman River Society, supra note 13 at 63-65.

[30]Hydro-Québec,supra note 19 at para 127.

[31]Saskatchewan has their own plan to reduce carbon emissions in place, however there is no taxation component to this plan. Saskatchewan, Government of Saskatchewan, Prairie Resilience: A Made-in-Saskatchewan Climate Change Strategy, December 2017 An End to Mandatory Minimum Sentences?

Imagine a college student returning from a spring-break trip to Seattle with one joint (cannabis) who is arrested for importing a controlled substance, convicted, and sentenced to 7 years in prison. The Supreme Court of Canada considered these hypothetical facts in R v Smith, a 1987 case where the mandatory minimum sentence of 7 years for importing a controlled substance was found to be unconstitutional because it violated the right to be free from cruel and unusual punishment by the government.[1] Mandatory minimum sentences continue to plague the criminal justice system because they are often found to be unfair. Those accused of crimes with mandatory minimum sentences have no recourse other than to challenge the Criminal Code sections as unconstitutional – this in spite of the current government’s promise to review them.

Senator Kim Pate said in April 2018 that she would introduce a bill into the Senate that would allow judges to decide whether or not to apply a mandatory minimum when sentencing an offender.[2] The Senator’s move comes in response to the criticisms against mandatory minimum sentences and the current government’s lack of action to review them, despite the topic being on the federal agenda since 2016.[3]

When an accused person is found guilty, a sentencing judge cannot change mandatory minimum time that the offender must serve in jail if that mandatory minimum is included in the Criminal Code section. The judge must comply with the sentence, regardless of the offender’s circumstances. Mandatory minimum sentences have always been used for some offences, such as murder. However, the number of offences for which they were required was significantly increased under the Harper government on the basis that they would decrease crime and deter repeat offence.[4] There is little evidence to support these assumptions.[5] Their increased use has been criticized for adding to the backlog of cases in the courts and for reducing the discretion of judges to consider the individual circumstances of an accused person. This restriction of discretion is contrary to sentencing principles.[6]

Many mandatory minimum sentences are being challenged in the courts using section 12 of the Charter of Rights and Freedoms, which states that “everyone has the right not to be subjected to any cruel and unusual treatment or punishment”[7] because some mandatory minimum sentences are not proportional to the offences for which an accused is sentenced. In other words, sending a college student to jail for 7 years for crossing the border with a single joint (perhaps their first) has been challenged as being more than excessive and a cruel and unusual punishment.

Background

Most mandatory minimum sentences are for drug offences, impaired driving, firearms offences, and sexual offences involving children. Some mandatory minimum sentences depend on the circumstances of the offence: the age of victims, use of firearms, repeat offending, type of drug (for drug offences), or location of incident (e.g. school). For example, in the case of impaired driving, the mandatory minimum sentence increases with repeat offences. For a first offence, the mandatory minimum punishment is a fine of not less than $1,000; for a second offence, imprisonment for not less than 30 days; and, for each subsequent offence, imprisonment for not less than 120 days.[8] Other mandatory minimum sentences apply in all circumstances, such as those related to child pornography and sexual violations against children.[9] According to a Statistics Canada report, supporters of mandatory minimum sentences believe they deter potential offenders: simply having the mandatory minimum in place emphasizes the seriousness of the offence and thus provides a deterrent. The view is that potential offenders will think twice about committing the offence because they know the government takes that offence seriously and because there are severe penalties attached to it. Supporters also suggest mandatory minimum sentences prevent re-offending because they keep the offender in prison longer.[10] They have suggested that mandatory minimum sentences result in more predictable sentences and more consistency because they reduce differences in sentencing that result from race, gender, or economic status.[11]

There is little evidence, however, that mandatory minimum sentences are successful in deterring potential offenders or reducing re-offence (save for some evidence of a deterrence effect for impaired driving[12]).[13] And while sentences might be more consistent, there is some evidence that mandatory minimum sentences can result in overly harsh penalties and that longer stays in incarceration can increase rather than deter recidivism.”[14]

Critics of mandatory minimum sentences say that they clog the courts. Offenders have no incentive to plead guilty for offences where they cannot be offered a reduced sentence in exchange for their plea.[15] Instead, many offenders opt to go to trial in the hope that they will be found not guilty. The trial takes up court time, and may include a time-consuming and complex Charter challenge against the mandatory minimum sentence for breaching section 12 of the Charter. The time these challenges take up has become increasingly important in light of a Supreme Court of Canada ruling last year that put strict maximums on the time a case could take to go through the courts.

Mandatory minimum sentences have also been criticized because they are contrary to the principles of sentencing.[16] The Criminal Code states that the fundamental principle of sentencing is proportionality which means a sentence should reflect both the “gravity of the offence and the degree of responsibility of the offender.”[17] A trial judge should be able to weigh the evidence, the facts and the circumstance of the accused – they are in the best position to appreciate all the circumstances of the case. Mandatory minimum sentences reduce the judge’s discretion to consider individual circumstances as a prescribed amount of jail time is pre- determined. This results in longer sentences for more people, which can financially strain the justice system. More discretion in sentencing would allow judges to more effectively tailor sentences and for example, assign “community-based sentences” (like community service, or probation), which are currently unavailable if an offence carries a mandatory minimum sentence of imprisonment, even when the accused person presents no danger to the community.”[18]

The Charter Challenge – Cruel and Unusual Punishment

Shortly after the Charter was passed in 1982, the Supreme Court of Canada (SCC) found a mandatory minimum sentence of 7 years unconstitutional in the case of R v Smith.[19] The offence was for importing any quantity and any type of illegal narcotic. The Court decided that the punishment appropriate for Mr. Smith, given the circumstances of his offence – he was caught importing seven and a half ounces of cocaine and had prior drug convictions. However, the Court decided, that the sentence would be too severe for a hypothetical first-time offender who was a college student returning from a winter break trip to the USA with a single joint.[20] Therefore, the Court struck down that part of the Criminal Code because it was a breach of section 12 of the Charter.

After Smith, and several unsuccessful challenges to mandatory minimums at the Supreme Court of Canada,[21] the Court struck down two more mandatory minimum sentences using section 12 of the Charter.[22] In R v Nur in 2015, the Supreme Court struck down a sentence of 3 years (5 years for a second offence) for possessing a prohibited or restricted firearm because it would be grossly disproportionate for people committing the offence through a licence infraction – for example, they forgot to renew their firearms licence for a few days.[23] A mandatory minimum sentence would not allow the judge to take that fact into consideration in sentencing the offender. In R v Lloyd in 2016, the Supreme Court struck down a sentence of 1 year for possession of a controlled substance with intent to traffic. The Court said that the sentence would be too severe for an addicted person who is only sharing the substance with their similarly-addicted spouse. Further, the mandatory minimum sentence would not allow judges to lower the sentence when the offender had completed an addiction program and become sober before trial.[24]

Since 2016, there have been more than 25 cases where a lower court (a provincial court) has struck down a mandatory minimum sentence because it is considered “cruel and unusual punishment.”[25]

For a mandatory minimum sentence to violate section12 it must be grossly disproportionate to the offence – grossly disproportionate means “more than merely excessive.”[26].[27] In the Smith case, the sentence was found to be grossly disproportionate for a hypothetical college student in possession of a single, perhaps even a first, joint.[28] Therefore, it was a breach of section 12 of theCharter.

Once a breach of the Charter is established, the government must provide a rationale for its legislation Charter and the Court then uses section 1, the justification section of the Charter to determine whether the Charter breach is reasonable. In the case of mandatory minimum sentences, it has been difficult for the government to show that the imposition of a mandatory minimum sentence for the purpose of deterring other potential offenders is a minimal impairment of the right not to be subjected to cruel and unusual punishment.[29] There are other ways to deter the public from committing crimes than those which impose long, often unnecessary sentences on all offenders who commit the crime regardless of circumstances.[30]

Conclusions

Mandatory minimum sentences are criticized for clogging the courts, for being contrary to principles of sentencing, and for breaching section12 Charter rights. There is little by way of evidence to justify using them. They appear to be on the way out either through continued rulings by courts who find they violate section 12 of the Charter or by legislation such as that being proposed by Senator Pate to give judges discretion as to whether or not to use them.

Not all mandatory minimum sentences will be ruled unconstitutional, because not all of them result in grossly disproportionate sentences. Mandatory minimum sentences such as those used to deter drunk driving, do serve some purposes when used appropriately and in the right circumstances.. The increase in the use of mandatory minimum sentences for the unverified purpose of deterring crime however, appears to have created greater problems than it has solved.

Given the backlog of cases in the courts, and the need for trial within a reasonable time as well as the unreasonable nature of some mandatory minimum sentences, it appears to be high time something was done about them. Senator Pate’s proposal to introduce a bill giving sentencing judges discretion regarding mandatory minimums will hopefully serve to address some of these issues.

[1] R v Smith, [1987] 1 SCR 1045, 40 DLR (4th) 435 [Smith cited to SCR].

[2] The Canadian Press, “Sen. Kim Pate to introduce bill aimed at mandatory minimum penalties”, CBC News (10 April 2018), online: < http://www.cbc.ca/news/politics/kim-pate-mandatory-minimum-pen alties-1.4613214>.

[3] Sean Fine, “Mandatory-minimum sentencing rules unravelling into patchwork”, The Globe and Mail (4 march 2018), online: < https://www.theglobeandmail.com/news/national/mandatory-minimu m-sentencing-rules-unravelling-into- patchwork/article38205652/>.

[4] Ibid.

[5] See Canada, Solicitor General Canada,The Effects of Prison Sentences and Intermediate Sanctions on Recidivism: General Effects and Individual Differences, by Paula Smith, Paul Gendreau & Claire Goggin, catalogue No JS42-103/2002 (Ottawa: Public Works and Government Services Canada 2002); Canada, Department of Justice Canada, Mandatory Minimum Penalties: Their Effects on Crime, Sentencing Disparities, and Justice System Expenditures, by Thomas Gabor & Nicole Crutcher, rr2002-1e (Research and Statistics Division, Department of Justice Canada, 2002); Canada, Statistics Canada, Mandatory minimum penalties: An analysis of criminal justice system outcomes for selected offences, by Mary Allen, Catalogue no. 85-002-X (Ottawa: Statistics Canada, 29 August 2017) at 3.

[6] R v Nur, 2015 SCC 15 at para 44, [2015] 1 SCR 773 [Nur].

[7] Canadian Charter of Rights and Freedoms, s 12, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[8] Criminal Code, RC C 1985, c C-46, s 255(1) Criminal[ Code].

[9] Canada, Statistics Canada, Mandatory minimum penalties: An analysis of criminal justice system outcomes for selected offences, by Mary Allen, Catalogue no. 85-002-X (Ottawa: Statistics Canada, 29 August 2017) at 3.

[10] Ibid.

[11]Ibid.

[12] See Lawrence W Sherman, “Police Crackdowns: Initial and Residual Deterrence” (1990) 12 Crime and Justice 1; Faye E Taxman & Alex Piquero, “On preventing Drunk Driving Recidivism: An Explanation of Rehabilitation and Punishment Approaches” (1998) 26:2 Journal of Criminal Justice 129; Daniel S Nagin, “Deterrence and Incapacitation” in Michael Tonry, ed, The Handbook of Crime and Punishment (New York: Oxford University Press, 1998) 345.

[13] See Canada, Solicitor General Canada,The Effects of Prison Sentences and Intermediate Sanctions on Recidivism: General Effects and Individual Differences, by Paula Smith, Paul Gendreau & Claire Goggin, catalogue No JS42-103/2002 (Ottawa: Public Works and Government Services Canada 2002); Canada, Department of Justice Canada, Mandatory Minimum Penalties: Their Effects on Crime, Sentencing Disparities, and Justice System Expenditures, by Thomas Gabor & Nicole Crutcher, rr2002-1e (Research and Statistics Division, Department of Justice Canada, 2002); Canada, Statistics Canada, Mandatory minimum penalties: An analysis of criminal justice system outcomes for selected offences, by Mary Allen, Catalogue no. 85-002-X (Ottawa: Statistics Canada, 29 August 2017) at 3.

[14] Canada, Statistics Canada, Mandatory minimum penalties: An analysis of criminal justice system outcomes for selected offences, by Mary Allen, Catalogue no. 85-002-X (Ottawa: Statistics Canada, 29 August 2017) at 3.

[15] Sean Fine, “Mandatory-minimum sentencing rules unravelling into patchwork”, The Globe and Mail (4 march 2018), online: < https://www.theglobeandmail.com/news/national/mandatory-minimu m-sentencing-rules-unravelling-into- patchwork/article38205652/>.

[16] R v Nur, supra note 6 para 44.

[17] Criminal Code, supra note 7, s 718.1.

[18] Elizabeth Sheehy & Isabel Grant, “Senator Kim Pate’s bill freeing judges from the constraints of mandatory minimum sentences will help address over incarceration and court delays, ” Policy Options (8 May 2018), online: .

[19] Smith, supra note 1.

[20] Ibid at 1053

[21] R v Luxton, [1990] 2 S.C.R. 711, 58 CCC (3d) 449; R v Goltz, [1991] 3 SCR 485, 67 CCC (3d) 481; R v Morrisey, 2000 SCC 39, [2000] 2 SCR 90; R v Latimer, 2001 SCC 1, [2001] 1 SCR 3; R v Ferguson, 2008 SCC 6, [2008] 1 SCR 96.

[22] Nur, supra note 6; R v Lloyd, 2016 SCC 13, [2016] 1 SCR 130 [Lloyd].

[23] Nur, supra note 6.

[24] Lloyd, supra note 22.

[26] Smith, supra note 1 at 1073; Nur, supra note 6 at para 39.

[27] Nur supra note 6 at para 56.

[28] Smith, supra note 1.

[29] See Smith, supra note 1; Nur supra note 6; Lloyd, supra note 22. [30] Smith, supra note 1 at 1080

A Jury of Whose Peers?

On February 9th, 2018, Gerald Stanley was acquitted of second degree murder and manslaughter in the shooting death of Colten Boushie, an Indigenous man. Following the not guilty verdict by a jury, Boushie’s family, as well as Indigenous leaders, pointed to the underrepresentation of Indigenous people on the jury as an instance of systemic racism against Indigenous people in the justice system[1]. Boushie’s family and others have stated that they have lost confidence in the criminal justice system. They have called for reform to the way juries are selected.[2]

Chief of the Six Nations of the Grand River, Ava Hill, says that where an Indigenous person is involved in a case, she believes there should be Indigenous people on the jury.[3] Her comments were in reference to the case of Peter Khill, a white man accused of killing Jon Styres, an Indigenous man from Ohsweken (a village on Six Nations of the Grand River reserve land). At jury selection, potential jurors were asked a question related to their bias and three potential jurors were excused.[4]

If the justice system does not appear to be fair, it is difficult for Indigenous people to have faith in it.[5] Beyond being underrepresented on juries,[6] Indigenous people are also over-represented in incarcerated populations. As of March 2015, according to the annual report from the Office of the Correctional Investigator, Indigenous people comprise 4.3% of the Canadian population although they account for 24.4% of those incarcerated.[7] Those who call for reform to jury selection to increase representation of Indigenous people on juries argue that representative juries are able to be more impartial, and to decide verdicts that are more fair. They make a direct link between representativeness and fairness.

The Supreme Court recognized the relationship between representativeness and fairness on juries in the Kokopenace case.[8] However, the Court noted that representativeness was not necessary for a fair verdict. Justice Moldaver, writing for the majority of justices, cited the following statement from Justice McLachlin, as she then was, in R. v. Biddle[9]:

To say that a jury must be representative is to confuse the means with the end. I agree that representativeness may provide extra assurance of impartiality and competence. I would even go so far as to say that it is generally a good thing. But I cannot accept that it is essential in every case, nor that its absence automatically entitles an accused person to a new trial.[10]

The Court remarked that there is a notable lack of evidence that jurors of the same race as the accused [or complainant/deceased] are necessary to have the jury act fairly and impartially.[11]

Improving representation of Indigenous people on juries may be achieved through two potential legal avenues: the courts, and the Parliament. The Charter of Rights and Freedoms in the Canadian Constitution protects the right of an accused to be tried by a jury; but does it offer any assistance to those making calls for more representative juries? The Prime Minister has said that underrepresentation of Indigenous people is a problem; will his recently introduced criminal justice system reform bill improve representation of Indigenous people on juries?

A Backgrounder – The Jury Selection Process The process of selecting a jury varies by province. Each province prepares a jury roll according to its own legislation. This is a list of all eligible jurors which can be selected, for example, by using health care card records or driver’s license records. When there is a need for a jury, a number of the people on the jury roll, selected at random, are sent notices to attend jury selection. At jury selection, jurors are selected by defence counsel and the crown prosecutor from those who attend. A person who attends jury selection may be selected or refused in a number of ways:

1. For cause challenge: If a lawyer for the accused or for the Crown can convince the trial judge that there is widespread bias in the community and that some jurors may be unable to set aside this bias to act impartially, then the judge may ask, or allow the lawyer to ask, each potential juror a set list of questions.[12] Two jurors (or potential jurors, if no jurors have been selected yet) are tasked with deciding whether or not to reject the juror based on their answers to the questions.[13] A “for cause” challenge may include questions related to racial bias.[14] 2. Peremptory challenge: A peremptory challenge allows a lawyer to exclude a potential jury member without giving a reason. When an individual is selected from the jury roll, the crown prosecutor, or the defence may challenge the appointment of that juror. Depending on the severity of the crime, the Crown and the defence will have between 4 and 20 peremptory challenges available each, as determined by the Criminal Code.[15] If a peremptory challenge is used, a prospective juror is dismissed from serving on the jury. This simply means that a lawyer can look at a potential juror, and without asking that juror anything, dismiss them. Many criminal justice commentators claim that peremptory challenges can be misused to exclude members of the jury based on characteristics such as race, or gender.[16] The jury in the Stanley case was comprised of all white- appearing jurors. In the selection of this jury all Indigenous-appearing potential jurors were excluded using peremptory challenges.[17] There was no race-based “challenge for cause” to identify potential racial bias.[18]

The Charter of Rights on Juries and Representation

The right to be tried by a jury is guaranteed in s. 11(f) of the Charter of Rights and Freedoms:

Any person charged with an offence has the right

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment. [19]

The Supreme Court was asked to consider jury representatives in the case of R v Kokopenace. In that case, the court interpreted section 11 (f) to include only a limited need for the jury to be representative. The Court ruled that the jury roll from which a jury is selected should, “represent, as far as possible and appropriate in the circumstances, the larger community.”[20] It should legitimize the jury’s role as the “conscience of the community” and promote public trust in the criminal justice system.[21]

The Court also found that this requirement of representativeness only extends to the jury roll (the list of people who can be asked to attend jury selection).[22] The government must make reasonable efforts to “(1) compile the jury roll using random selection from lists that draw from a broad cross-section of society, and (2) deliver jury notices to those who have been randomly selected.”[23] The jury roll and the final make-up of the jury are not required to be perfectly representative.[24] The Supreme Court has said that using Charter section 11(d) which requires independent and impartial jury, is the wrong vehicle for righting the history of discrimination Indigenous people have faced and the estrangement of Indigenous people from the justice system.[25]

Is jury representativeness an equality rights issue?

There has been an attempt to use section 15, equality rights, to address jury representation at the Supreme Court. In the Kokopenace case in 2015, the accused, who was Indigenous, argued that because the jury in his case did not include any visibly Indigenous person he was being treated differently than other people who were not Indigenous and whose juries were all white. This, he argued, was a violation of his equality rights under the Charter of Rights and Freedoms.

The Court dismissed the claim because Kokopenace was not able to show that he experienced a disadvantage as a result of the composition of the jury.[26] Showing that a difference in treatment creates a disadvantage that perpetuates prejudice is a necessary part of the test for proving discrimination using section 15 of the Charter.

An Issue for Parliament

There is nothing in the law at this time that requires a jury to be representative, so long as the jury roll is properly arrived at. Prime Minister Justin Trudeau and Federal Justice Minister Jody Wilson-Raybould have both made statements in response to calls to action on jury reform.[27] Prime Minister Justin Trudeau stated in Parliament that underrepresentation of Indigenous people on juries is a problem.[28]

The federal government recently introduced new legislation to, among other things, get rid of peremptory challenges to prevent the dismissal of potential jurors based on grounds such as race or sex.[29] However, removing peremptory challenges (challenges to the appointment of a juror without giving a reason) may not be a particularly successful strategy for improving representation of Indigenous people on juries and/or addressing the disproportionate incarceration of Indigenous people by the legal system in Canada.

Removing peremptory challenges will produce a number of results:

While defence lawyers can no longer exclude Indigenous- appearing jurors in cases where the victim is Indigenous, where the accused is Indigenous or of another minority group, defence counsel cannot use their peremptory challenges hoping to have a potential juror selected who appears to be of the same identity group as the accused;[30] Where a juror “is disinterested, appears biased or shows animus towards the accused,” the defence counsel has no ability to challenge a juror;[31] If a lawyer performs an internet and social media search of the names on the jury roll and discovers that the potential juror is posting on social media in a manner that suggests they may not be able to act impartially, the lawyer cannot challenge their appointment;[32]

Doing away with peremptory challenges will mean that the only way to exclude a potential juror from serving on the jury, once deemed eligible, is through a “for cause” challenge – that is, a challenge where there is concern about, for example, racial bias.

It is useful to note that the Ontario Court of Appeal ruled in the case of R v Gayle, that peremptory challenges cannot be used by the Crown for “racial purposes.”[33] While this ruling is not binding on courts outside of Ontario, it can still be persuasive on courts in other jurisdictions. If the crown prosecutor or defense counsel appear to have racial motivations for their use of their peremptory challenges, the other side can raise this with the judge. The federal bill fails to address the larger problem that there is a lack of Indigenous people available for selection from the jury roll.[34] If there were more Indigenous people on the jury roll, peremptory challenges could not be used as effectively to exclude Indigenous jurors.[35]

Another challenge to improving Indigenous representation on juries is one that was identified in a report on Indigenous peoples and juries in Ontario – that many Indigenous people mistrust the criminal justice system and are reluctant to participate. Episodes of systemic discrimination in the criminal justice system and child welfare system have resulted in mistrust among many Indigenous people in the justice system as a whole and with the jury system in particular[36]

The elimination of peremptory challenges by the federal government, therefore, would be a limited step in addressing the underrepresentation of Indigenous people on juries.

Conclusions

Those calling for reform to the jury selection process argue that in order for the criminal justice process and verdicts to be fair juries should be representative of the community. Indigenous people are underrepresented on juries, although they are over-represented in incarcerated population. This has contributed to a lack of confidence in the criminal justice system among Indigenous communities.

There are two avenues that can be pursued, the courts and the Parliament, to improve the representation of Indigenous people on juries. Neither have thus far been particularly successful. While Kokopenace was unsuccessful in his section 15 claim based on the specific facts of his case, it appears the door remains open for a section 15 challenge to the construction of the jury roll. This may be the avenue through which representation is increased. There would first, however, need to be research done to establish that lack of representation affects impartiality and trial fairness. Without this evidence, a section 15 claim is likely to fail.

The federal government is currently taking only a limited step towards increasing representation of Indigenous people on juries, however it has made statements that representation on juries is an issue that it is willing to address.[37]The government may yet address more fulsomely the issue of underrepresentation of Indigenous people on juries and over- incarceration.

[1] Global News, “Boushie family pushing for changes to the way jurors are selected after Gerald Stanley acquittal”, Global News (12 February 2018), online: .

[2] Global News, “Boushie family pushing for changes to the way jurors are selected after Gerald Stanley acquittal”, Global News (12 February 2018), online: .

[3] Dan Taekema, “Chief of Six Nations calls for Indigenous jury members as trial with echoes of Colten Boushie case begins”, CBC News (10 June 2018), online: < http://www.cbc.ca/news/canada/hamilton/jon-styres-peter-khill- trial-colten-boushie-1.4698209>.

[4] Dan Taekema “Prospective jurors in Peter Khill trial questioned about potential racial bias”, CBC News (11 June 2018), online < http://www.cbc.ca/news/canada/hamilton/peter-khill-jury-select ion-1.4701156>.

[5] Steven Penney, Professor of Law at the University of Alberta, in Colin Perkel, “No shortage on jury-fix ideas over the decades, but reform elusive”, CTV News (13 February 2018), online: < https://www.ctvnews.ca/canada/no-shortage-on-jury-fix-ideas-ov er-the-decades-but-reform-elusive-1.3801638>.

[6] Joe Friesen, “Justice Minister Wilson-Raybould concerned about low number of Indigenous people on juries”, The Globe and Mail (4 February 2018), online: < https://www.theglobeandmail.com/news/national/justice-minister -wilson-raybould-concerned-about-low-number-of-indigenous- people-on-juries/article37850722/>.

[7] Canada, Office of the Correctional Investigator, Annual Report of the Office of the Correctional Investigator 2014-2015

[8] R v Kokopenace, 2015 SCC 28 at para 50, 2 SCR 398 [Kokopenace]; R v Williams, [1998] 1 SCR 1128 at para 46, 159 DLR (4th) 493 [Williams].

[9] R. v. Biddle, [1995] 1 S.C.R. 761, 123 DLR (4th) 22.

[10] Kokopenace, supra note 8 at para 70.

[11] Kokopenace, supra note 8 at para 52.

[12] R v Find, 2001 SCC 32 at para 32, [2001] 1 SCR 863.

[13] For more information on the “for cause” challenge, see: Alberta Law Reform Institute, “Criminal Jury Trials: Challenge for Cause Procedures” (2007) Alberta Rules Of Court Project, online: < https://www-alri-ualberta-ca.login.ezproxy.library.ualberta.ca /docs/cm01220.pdf>.

[14] R v Williams, supra note 8 at para 2.

[15] Criminal Code, RSC 1985, c C-46, s 634(2).

[16] CBC News, “’Easy fix’ that could prove no fix: Saskatoon lawyer disappointed with move to end peremptory challenges”, CBC News(30 March 2018), online: < http://www.cbc.ca/news/canada/saskatchewan/peremptory-challeng es-criminal-justice-system-bill-1.4600190>.

[17] Kent Roach, “The Urgent Need to Reform Jury Selection after the Gerald Stanley and Colten Boushie Case”, University of Toronto Faculty of Law (28 February 2018), online: .

[18] Kent Roach, “The Urgent Need to Reform Jury Selection after the Gerald Stanley and Colten Boushie Case”, University of Toronto Faculty of Law (28 February 2018), online: .

[19] Canadian Charter of Rights and Freedoms, s 11(f), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[20] R v Sherratt, [1991] 1 SCR 509 at 525, 63 C.C.C. (3d) 193 [Sherratt].

[21] Kokopenace, supra note 8 at para 55; Sherratt, supra at note 20 at 523-5, 63.

[22] Kokopenace, supra note 8 at para 2.

[23] Kokopenace, supra note 8 at para 2.

[24] Kokopenace, supra note 8 at para 2.

[25] Kokopenace, supra note 8 at para 64.

[26] Kokopenace, supra note 8 at para 128.

[27] Tonda Maccharles, “Liberals to propose jury selection changes after meeting with Colten Boushie’s family”, The Star (13 February 2018), online: .

[28] Amanda Connolly, “Colten Boushie verdict: Lack of Indigenous jurors reduces confidence in courts, Jagmeet Singh says”, Global News (13 February 2018), online: .

[29] Kathleen Harris, “Liberals propose major criminal justice changes to unclog Canada’s Courts”, CBC News (29 March 2018), online: < http://www.cbc.ca/news/politics/liberal-crime-justice-reform-1 .4598480>.

[30] Aidan Macnab, “Stanley acquittal should not lead to scrapping peremptory challenges, say criminal lawyers: More indigenous people on jury rolls would improve system”, Canadian Lawyer (14 February 2018), online: .

[31] Aidan Macnab, “Stanley acquittal should not lead to scrapping peremptory challenges, say criminal lawyers: More indigenous people on jury rolls would improve system”, Canadian Lawyer (14 February 2018), online: .

[32] Brian Pfefferle, “Why an all-white jury in Gerald Stanley trial is possible,” CBC News (29 January 2018), online: < http://www.cbc.ca/news/canada/saskatoon/boushie-jury-selection -opinion-battleford-saskatchewan-1.4505592>.

[33] R v Gayle, [2001] 201 DLR (4th) 540 at para 66; 154 CCC (3d) 221 (Ont Ca). [34] Aidan Macnab, “Stanley acquittal should not lead to scrapping peremptory challenges, say criminal lawyers: More indigenous people on jury rolls would improve system”, Canadian Lawyer (14 February 2018), online: .

[35] Aidan Macnab, “Stanley acquittal should not lead to scrapping peremptory challenges, say criminal lawyers: More indigenous people on jury rolls would improve system”, Canadian Lawyer (14 February 2018), online: .

[36] Ontario, Ministry of the Attorney General, First Nations Representation on Ontario Juries: Report of the Independent Review Conducted by The Honorable Frank Iacobucci (Toronto: Ministry of the Attorney General, 2013) at para 27.

[37] Kathleen Harris, “Liberals review jury selection process after Boushie case uproar”, CBC News (12 February 2018), onlind: < http://www.cbc.ca/news/politics/jury-selection-diversity-indig enous-1.4531792>.

“Free the Beer” case falls flat at Supreme Court

On March 19th, 2018, the Supreme Court of Canada released its decision in R v Comeau[1]—known popularly as the “Free the Beer” case. (A summary of the facts and issues can be found here.) Though commentators speculated that the case could dramatically reduce trade barriers in Canada, this hope fizzled after the Supreme Court’s decision. Provinces remain free to place some restrictions on liquor and other goods even if they limit the movement of goods between provinces. In this case, the Supreme Court allowed New Brunswick to continue its monopoly over all liquor in the province.

Provincial Court Decision

Comeau originated from a challenge to a ticket issued for bringing too much beer into New Brunswick from a Quebec liquor store. The RCMP stopped Gerard Comeau when he drove into New Brunswick with 354 cans of beer and 3 bottles of liquor—well in excess of the 16 cans he was allowed.

Mr. Comeau challenged this ticket in court. A judge in New Brunswick initially cancelled the ticket. He ruled that since a section of the Constitution—Section 121 Constitution Act, 1867 states that all goods must “be admitted free” between provinces—that imposing a fine for importing liquor from one province to another was unconstitutional.[2] The judge found that New Brunswick’s Liquor Control Act violated section 121 because it prohibited the possession of liquor bought outside of New Brunswick.

The central issue in the case was how to interpret the words “admitted free” in section 121. The prosecution and defence offered competing interpretations. The prosecution claimed that section 121 only prohibited tariffs and duties, and not regulations with other purposes. The defence claimed that section 121 prohibited all barriers to interprovincial trade, regardless of the purpose of the barrier. In other words, there should be free trade between the provinces, according to the words in the section. The judge preferred the defence’s interpretation, relying on new historical evidence about what the framers of the Constitution intended. Supreme Court Decision

The Supreme Court was again asked to interpret the meaning of section 121 and the parties again presented two competing interpretations. The Supreme Court instead chose a third interpretation of its own making. In a unanimous decision, the Supreme Court said that section 121 “prohibits laws that in essence and purpose restrict trade across provincial boundaries.”[3] This means that a law must do two things for the courts to strike it down:

1. It must make it harder, more expensive, or impossible to trade goods across a provincial border. This can be through surcharges, tariffs, outright prohibitions, and so on. 2. The restriction of trade must be its primary That is, limiting trade between provinces must be the main reason a province created the law. This includes goals such as raising revenue through tariffs, protecting local industry by limiting outside products, and punishing other provinces by limiting their exports. On the other hand, if the law restricts trade but has another main goal, such as protecting the health of its citizens, then section 121 will not apply.

In other words, a law must have a restrictive effect and a restrictive purpose. This marks a shift from earlier interpretations of section 121. The Supreme Court had earlier interpreted section 121 to prohibit laws that only had the effect of introducing tariffs. The analysis the Supreme Court used focused only on effect and not on purpose.

The Supreme Court then applied this test to the law which resulted in Mr. Comeau’s ticket. New Brunswick’sLiquor Control Act clearly restricted trade, as it created a penalty for having beer from outside the province. But the Supreme Court described the purpose of the act as enabling public supervision of the sale and use of alcohol in the province.[4] So, while the act in effect restricts cross-border trade, this is not its primary purpose.

What does this mean?

The Comeau decision largely maintains the status quo. Striking down the section of the New Brunswick Liquor Control Act would have led to many challenges on all sorts of legislation across Canada, including liquor control legislation in other provinces. Many provinces breathed a sigh of relief. But the decision may still affect the way provinces can regulate trade. Before Comeau, it was clear that provinces could not impose tariffs on goods travelling between provinces. For example, Alberta tried to tax out-of-province beer in 2016. An Ontario brewery took them to court and won.[5] After Comeau, such taxes may now be acceptable if they are part of a scheme where restricting trade is only a minor purpose. For example, Alberta’s current scheme has the effect of restricting out-of- province trade, but has the purpose of protecting and promoting smaller breweries in Alberta. This law might be valid because of an acceptable, non-restrictive purpose.

The Comeau decision may have also made section 121 of the Constitution redundant. The analysis the Supreme Court set out now seems identical to the analysis for figuring out whether a law violates the division of powers. Section 91(2) of the Constitution Act, 1867 already prevents provinces from creating laws for the main purpose of interfering with trade between provinces. But a new case in the works questions this. British Columbia recently launched a lawsuit against Alberta over Alberta’s Preserving Canada’s Economic Prosperity Act, which would allow Alberta to restrict exports of oil products (more information can be found here). British Columbia claims the act is invalid because it violates section 91(2)and because it violates section 121.[6] This case may soon decide how much sections 121 and 91(2) overlap.

[1] 2018 SCC 15 [Comeau]. [2] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5.

[3] Comeau, supra note 1 at para 106.

[4] Ibid at para 124.

[5] Derek James From, “Steam Whistle granted injunction against Alberta’s protectionist beer tax” (16 May 2016), Calgary ,Herald online: .

[6] British Columbia (Attorney General) v Alberta (Attorney General) (22 May 2018), Calgary 1801 – (ABQB) (Statement of Claim) .