Oakes Test
The Oakes test was created by the Supreme Court of Canada in the 1986 case of R v Oakes.[1] The test interprets section 1 of the Charter of Rights and Freedoms, which states that rights are guaranteed, “subject only to such reasonable limits . . . as can be demonstrably justified in a free and democratic society.”[2] This means that the government must establish that the benefits of a law outweigh its negative impact—that is, its violation of a Charter right.
R v Oakes
In R v Oakes, the police caught the accused, Oakes, with hashish oil and cash. They charged him with possession for the purpose of trafficking under theNarcotic Control Act (NCA).[3] He claimed that the drugs were his own and that he did not intend to sell them. At that time, under section 8 of the NCA, anyone found with illegal drugs was presumed guilty of trafficking. Usually, the Crown must prove guilt beyond a reasonable doubt, but under the NCA it was up to the accused to prove that he was not guilty. This is called a “reverse onus”.
Oakes challenged the law, arguing that it violated the presumption of innocence guaranteed by section 11(d) of the Charter. The Supreme Court found that this right had been violated. They then had to consider whether the government could justify this violation using section 1.
The Test
The Court in R v Oakes created a two-step balancing test to determine whether a government can justify a law which limits a Charter right.
1. The government must establish that the law under review has a goal that is both “pressing and substantial.” The law must be both important and necessary. Governments are usually successful in this first step.
2. The court then conducts a proportionality analysis using three sub-tests. a. The government must first establish that the provision of the law which limits aCharter right is rationally connected to the law’s purpose. If it is arbitrary or serves no logical purpose, then it will not meet this standard. b. Secondly, a provision mustminimally impair the violated Charter right. A provision that limits a Charter right will be constitutional only if it impairs the Charter right as little as possible or is “within a range of reasonably supportable alternatives.”[4] c. Finally, the court examines the law’sproportionate effects. Even if the government can satisfy the above steps, the effect of the provision on Charter rights may be too high a price to pay for the advantage the provision would provide in advancing the law’s purpose.
In Oakes itself, the court considered that combatting the public health and safety risk created by narcotics was a pressing and substantial goal. However, the Court ruled that a “reverse onus,” where an accused is presumed guilty of drug trafficking unless he proves otherwise, was not rationally connected to this goal.[5] The Court found that it would be irrational to presume an intention to traffic narcotics when an accused only possessed a small amount of drugs. Having failed this first step, the court did not consider step 2 (b) or (c), and the law was “struck down,” that is, declared unconstitutional.
Legacy
The Oakes test is employed every time the government tries to defend a restriction on the Charter rights of Canadians. Some legislation has passed the test. For example inR v Keegstra,[6] the Supreme Court held that a law against hate speech was a reasonable and justifiable limit on section 2(b) of the Charter, freedom of expression. The test provides a mechanism for the courts to balance, on the one hand, the government’s ability to achieve its goals and, on the other, the protection of individual rights. This balancing test is now considered a cornerstone of Canadian constitutional law.
[1] R v Oakes, [1986] 1 SCR 103, 1986 CanLii 46 (1986) [Oakes].
[2] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 1.
[3] Narcotic Control Act, RSC 1970, c N-1.
[4] Oakes, supra note 1 at 46.
[5] Oakes, supra note 1 at 142.
[6] R v Keegstra, [1990] 3 SCR 697, 1990 CanLii 24 (SCC).
“Purging” Facebook of Threats and Hate Speech: Is this Constitutional?
Introduction Two women in Manitoba have been charged with uttering threats and public incitement of hatred for their Facebook comments, posted in response to the vandalism of one woman’s car.[1] The women blamed the vandalism on on-reserve “Indians” and agreed to perform a “purge” involving Budweiser and shotguns.
But don’t we have free speech in Canada? Isn’t freedom of expression in the Charter of Rights and Freedoms? How can these criminal charges be constitutional?
Section 2(b) – Freedom of Expression
The Charter of Rights and Freedoms protects freedom of expression, including speech, in section 2(b):
2. Everyone has the following fundamental freedoms: b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.[2]
Expression includes “any activity or communication that conveys or attempts to convey meaning.”[3]Expression may take many forms – speech, writing, gestures and painting for example.
Like all Charter rights, freedom of expression is not absolute. Limits on rights, as acceptable in a “free and democratic society,” are allowed.[4] When there is an infringement of a right, the court uses a test, as developed in the case of R v Oakes (1986), to decide if the infringement is justified.[5] For example, in the 2009 case of Alberta v Hutterian Brethren of Wilson Colony, the Supreme Court decided that it was justifiable to infringe the freedom of religion of the Hutterian Brethren by requiring them to have their photographs taken for a driver’s licence, which was against their religion. According to the Court, this was because photos on driver’s licenses had important purposes, such as identification. Uttering threats
The offence of uttering threats occurs when a person, “in any manner, knowingly utters, conveys or causes any person to receive a threat (a) to cause death or bodily harm to any person; (b) to burn, destroy or damage real or personal property; or (c) to kill, poison or injure an animal or bird that is the property of any person.”[6]
Section 2(b) of the Charter does not protect all forms of expression – violence as a form of expression is not protected, [7] nor are threats of violence.[8] The government is not infringing on one’s right to free expression when they make it illegal to punch someone, even if that individual did it to “express” their anger.
Threats of violence are treated in the same way as physical violence because both undermine the rule of law.[9] Violence and threats of violence undermine the freedom of others to act and express themselves as they choose.[10]
Threats of violence are not protected expression. The fact that uttering threats is prohibited by the Criminal Code is not a violation of the Charter right to freedom of expression.
Public Incitement of Hatred
The offence of public incitement of hatred occurs when a person, “by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace.”[11] This is different than the charge of uttering threats because the offender who publicly incites hatred is not actually making a threat; they are conveying messages that could encourage others to engage in disruptive behaviour.
Section 2(b) of the Charter protects the content of all expression, even if it is distasteful or unpopular.[12]In order to determine whether the offence of public incitement of hatred is a justifiable infringement on freedom of expression, the first step is to determine what harm the offence seeks to mitigate.[13] Hate speech harms the sense of dignity and self- worth of a target group and can have a persuasive impact on gullible people. It can cause social tensions and harmful behaviour by encouraging others or inciting others to hatred and violence.[14]
Criminalizing the public incitement of hatred is an infringement on the right of people to express themselves freely, but this infringement has been found to be justified because of the profoundly negative effects that public incitement of hatred has on society. The government is justified in making it a criminal offence and it is therefore, constitutional.
Conclusion
The Constitution protects freedom of expression in Canada, but it does not protect violence, uttering threats of violence, or public incitement of hatred.
The women in Manitoba who have been charged with uttering threats and public incitement of hatred on Facebook can argue that they did not actually make a threat, that they did not make comments against an identifiable group, that their comments will not incite hatred, or that their comments were not really public. Those will be difficult arguments to make but they are free to make them.
What they cannot argue is that their freedom of expression, as protected in the Charter of Rights and Freedoms, gives them the right to expression that leads to violence and hatred against an identifiable group of people. The Constitution of Canada, and specifically theCharter of Rights and Freedoms, does not protect that type of expression.
[1] “2 women charged with uttering threats over ‘shoot a Indian’ posts,” CBC News (31 July 2018), online: < https://www.cbc.ca/news/canada/manitoba/flin-flon-denare-beach -rcmp-charges-1.4768782?cmp=rss>.
[2] Canadian Charter of Rights and Freedoms, s 2(b), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
[3] Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 SCR 877, 159 DLR (4th) 385; Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927, 58 DLR (4th) 577[Irwin Toy].
[4]Charter, supra note 2 s 1.
[5] R v Oakes, [1986] 1 SCR 103, 26 DLR (4th) 200.
[6] Criminal Code, RCC 1985, c-C-46, s 264.1(1).
[7] R v Keegstra, [1990] 3 SCR 697, 61 CCC (3d) 1 [Keegstra]; R v Zundel, [1992] 2 SCR 731, 75 CCC (3d) 449 [Zundel]; Irwin Toy, supra note 3.
[8] RWDSU v Dolphin Delivery Ltd, [1986] 2 SCR 573 at 588, 33 DLR (4th) 174; Greater Vancouver Transportation Authority v Canadian Federation of Students – British Columbia Component, 2009 SCC 31 at para 28, [2009] 2 SCR 295; Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at paras 107-108, [2002] 1 SCR 3, R v Khawaja, 2012 SCC 69 at para 70, [2012] 3 SCR 555 [Khawaja].
[9] Khawaja, supra note 8 at para 70.
[10] Khawaja, supra note 8 at para 70.
[11] Criminal Code, supra note 6 s 319(1).
[12] Irwin Toy, supra note 3 at para 42. [13] Keegstra, supra note 7 at 744.
[14] Keegstra, supra note 7 at 746-749.
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:
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. Alberta v UFCW 401 (2013): Highest Court Upholds Union’s Constitutional Freedom of Expression at Picket Line
Introduction
When union members are on strike they engage in all sorts of activities at a picket line, including taking pictures and recordings of all those present. Can unions take pictures of people crossing a picket line without their permission? As decided by the Supreme Court of Canada (SCC) in its November 15, 2013 ruling Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401 (UFCW 401),[1] they can because unions are guaranteed freedom of expression under section 2(b) of theCanadian Charter of Rights and Freedoms.[2]
In its first case dealing with the Charter right to freedom of expression in 1989, the SCC interpreted freedom of expression broadly; an activity was covered so long as it was non-violent and “attempts to convey meaning.”[3] In UFCW 401 the SCC found capturing images to be a meaningful activity since it was a vital tool for the union to express its position during the strike. Therefore, the law forbidding the collection and use of such images without permission, the AlbertaPersonal Information Protection Act (PIPA),[4] is unconstitutional because it is an unreasonable limit to the Union’s freedom of expression. But to give the government time to amend the law and not leave Albertans without a personal information protection law, the Court allowed the law to remain in force for up to one year.
Facts
Employees of Edmonton’s Palace Casino, members of the United Food and Commercial Workers local 401 (UFCW 401), picketed on site during a 305-day lawful strike. The Union took film footage and photographs of patrons, managers and replacement workers crossing the picket line, as well as any individuals in the camera’s line of sight. To pressure those who crossed or were about to cross to respect the picket line, a nearby sign informed those individuals that their images may be placed on a website (www.casinoscabs.ca). One manager’s image was used, in a way intended to be humorous, on a poster and in internal union communication to keep up the strikers’ morale.
A few of the individuals who were photographed were unhappy and complained to the Alberta Information and Privacy Commissioner (AIPC), claiming that the Union violated PIPA by collecting their personal information without their consent.
Procedural History
The case went first to an adjudicator appointed by the AIPC. Because there was no exemption in PIPA that allowed a union to collect, use or disclose personal information without consent, the adjudicator ordered UFCW 401 to stop collecting images and to destroy the ones it already had. The adjudicator agreed that the Union collected the images for an expressive purpose which fell under the protection of section 2(b) of the Charter (freedom of expression), but she was prevented from deciding questions of constitutional law by theAdministrative Procedures and Jurisdiction Act.[5]
UFCW 401 then challenged the law at Alberta’s Court of Queen’s Bench. There, the Court ruled that the Union’s activity was for an expressive purpose, and that PIPA’s efforts to limit this activity violated the Union’s right to freedom of expression.[6] The Court also determined that this limitation was not reasonable.
The Alberta government appealed this decision to the Alberta Court of Appeal; that Court ruled likewise. It found that PIPA’s limitations violated UFCW 401’s right to expression in order to support its labour relations and collective bargaining.[7] The government then appealed to the SCC.
Issues
The issues examined by the SCC were as follows:
(1) Is the Union’s use of film and photography during the lawful strike considered an expressive activity that deserves protection under section 2(b)?;
(2) If so, does PIPA violate section 2(b) by restricting the Union’s ability to collect, use or disclose personal information without consent during that strike?; and
(3) If there is a violation under PIPA, is it a reasonable limit to the Union’s right that can “be demonstrably justified in a free and democratic society” as stated in section 1 of the Charter?
Decision
In a unanimous decision, the SCC concluded that PIPA’s total ban on UFCW’s freedom of expression in recording picket line images is unconstitutional. Since the Act’s restriction of this activity is disproportionate to the benefits it seeks to promote in protecting personal information, it also could not be saved by section 1 of the Charter. Therefore, the Court declared the legislation invalid, but allowed a period of one year for the legislature to change it.
Analysis
Expressive Activity The Court affirmed that filming and photographing at a picket line during a lawful strike is part of a union’s freedom of expression. To record people crossing a picket line has meaning. It is done to try to persuade people to support the strike, or at least discourage people from doing business with the employer. Film and photographic images can also be used to inform the public about the strike, bring the labour dispute into the public realm, ensure the safety of union members, and boost morale and solidarity.
PIPA’s Restrictions
The Court found that PIPA’s purpose was to give people greater control over their personal information. “Personal information” is information about an identifiable person, even if it is widely known and not private.[8] While exemptions in the legislation exist for artistic or journalistic purposes, as a general rule organizations (including unions) cannot collect, use or disclose personal information without consent.[9] Since no exemptions applied for UCFW 401 to advance its interests in a labour dispute by capturing picket line images, the legislation violates its 2(b) freedom.
Section 1
If the government could show that section 7(1) of PIPA is a ‘reasonable limit’ to UCFW 401’s 2(b) freedoms under section 1 of the Charter, the legislation could stand. Under the Oakes Test, the SCC found that PIPA had a pressing and substantial objective to allow individuals control over who had their personal information and how widely it could be used. The SCC also found that PIPA’s procedures were rationally connected to its objective of protecting personal information connected to individual autonomy and dignity.
However, the Court determined that the beneficial effect of the legislation comes at the cost of the Union’s constitutional right to freedom of expression. It noted that, “PIPA deems virtually all personal information to be protected regardless of context.”[10] While not all union activity that is expressive would prevail over such legislation, the SCC emphasized that in the context of labour relations the freedom of expression is of fundamental importance.
Freedom of expression in a labour dispute is directly related to workers’ associational freedoms to promote common interests and influence their working conditions. In legitimate labour relations contexts, the protections given by both 2(b) and the freedom of association in 2(d) contribute to an individual worker’s self-identity, worth, and ability to withstand an employer’s economic power in relation to their vulnerability.[11] In addition, the SCC recognized that unions and their rights to associate and bargain collectively have a role to play in the Canadian economy and society.
Therefore, the SCC decided that the law was unconstitutional because it disproportionately “imposes restrictions on a union’s ability to communicate and persuade the public of its cause, impairing its ability to use one of its most effective bargaining strategies in the course of a lawful strike.”[12]
Significance of the Ruling
Alberta’s government must now draft new constitutionally compliant legislation. It must weigh the interests of individuals who want to protect their personal information with a union’s freedom of expression in a labour relations context.
The SCC’s ruling was a victory for both the UFCW 401 and the labour movement. It recognizes the historical and contemporary importance of unions for individual workers in labour relations, and it accordingly protects unions’ freedom of expression from legislation that seeks to limit it.
The decision impacts groups other than unions that have the right to associate. The Union’s lawyer noted “it is a very important decision for not just trade unions, but any kind of public organization or people’s organization.”[13] When a group’s freedom of expression is limited by similar legislation, the courts will look at the context of the communication in weighing the benefit of it against the disadvantages of it for the group. She hopes that the new legislation will not restrict any group’s ability to freely communicate its views about public events or politics.
[1] Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401, 2013 SCC 62 [UFCW 401].
[2] Canadian Charter of Rights and Freedoms. Part I of the Constitution Act, 1982, being Schedule B of the Canadian Act 1982 (UK), 1982, c 11, s 33.
[3] Irwin Toy v Quebec, 1 SCR 927.
[4] Personal Information Protection Act, SA 2003, c P-6.5 [PIPA]
[5] Administrative Procedures and Jurisdiction Act, RSA 2000, c A-3. Section 11 of theAct specifies that unless a regulation has been made, an administrative body does not have jurisdiction to rule on constitutional matters. The province of Alberta had not delegated jurisdiction to the AIPC to determine questions of constitutional law.
[6] United Food and Commercial Workers, Local 401 v Alberta (Information and Privacy Commissioner), 2011 ABQB 414. https://www.canlii.org/en/ab/abqb/doc/2011/2011abqb415/2011ab qb415.html
[7] United Food and Commercial Workers, Local 401 v Alberta (Attorney General), 2012 ABCA 130.
[8] PIPA, supra note 4 s 1(1)k.
[9] Ibid, s 7(1). [10] UFCW 401, supra note 1 at para 25.
[11] Ibid at para 32.
[12] Ibid at para 37.
[13] Alberta’s Personal Information Protection Act Struck Down by Supreme Court of Canada” Canadian Press (15 November 2013) online: Huffington Post
Quebec (AG) v A (2013): Rights and Obligations of Quebec Common Law Partners
Introduction
On January 25, 2013 the Supreme Court of Canada ruled[1] that the exclusion of common law partners from the Civil Code of Quebec[2] does not violate the right to equality guaranteed under section 15 of theCanadian Charter of Rights and Freedoms (Charter).[3] The Civil Code of Quebec governs the legal duties and rights of married and civil union spouses[4] upon their separation.[5] In Quebec (AG) v A, the Supreme Court did not extend the benefits and obligations of the Civil Code of Quebec to common law partners in order to respect their freedom to choose not to marry.[6] The following Featured Court Ruling summarizes the judgment, and it highlights the ongoing evolution of the section 15 test used by courts to analyze discrimination claims.
Facts The Parties
A and B were in a common law relationship from 1995 to 2002.[7] They met in A’s home country, Brazil, in 1992. At that time, A was a 17 year old student, and B was a wealthy 32 year old business owner. In 1995, A moved to Canada to continue a relationship with B. During the seven years A and B cohabitated, A had three children. On at least two occasions, A told B that she wanted to be married, but B refused because he did not believe in the institution of marriage. The relationship ended in 2002, and A began proceedings seeking custody of the children, spousal support, a lump sum support payment, and use of the family home. A also notified the Quebec Attorney General that she intended to challenge several provisions in the Civil Code of Quebec.[8] A claimed that some of the provisions were discriminatory because they did not give the same benefits and obligations to common law partners as those given to married and civil union spouses.[9]Quebec (AG) v A only deals with the constitutional challenges to the Civil Code of Quebec.[10]
The Civil Code of Quebec
The Civil Code of Quebec governs the legal duties and rights of married and civil union spouses upon their separation, but the legislation completely excludes common law couples.[11] A argued that the outright exclusion of common law couples from the legislation violated theCharter right to equality guaranteed under section 15.[12] She challenged the Civil Code of Quebec provisions relating to three separate issues: (1) spousal support, (2) division of property, and (3) compensatory allowance.[13]
Article 585 of the Civil Code of Quebec states: “Married and civil union spouses…owe each other support.”[14] The Quebec legislature introduced this article to acknowledge that people who marry or enter into a civil union create a social and economic partnership. When couples breakup, one spouse may require support from the other to maintain a comfortable lifestyle.[15] Spousal support is not available to common law spouses under the Civil Code of Quebec.[16]
Article 414 of the Civil Code of Quebec states: “Marriage entails the establishment of a family patrimony consisting of certain property of the spouses regardless of which of them holds a right of ownership in that property.”[17] According to this article, both spouses in a marriage or a civil union have a right to the family property, even if one spouse has the legal title. In common law relationships, however, each spouse only has a right to property that he or she can prove is his or her own.[18]
Article 427 of the Civil Code of Quebec defines compensatory allowance as money or property given to one spouse by the other as compensation for increasing the value of the spouse or the property during a marriage or civil union.[19] Common law couples are not eligible for compensatory allowance under theCivil Code of Quebec.[20]
Procedural History
In 2009, a Quebec Superior Court judge dismissed A’s constitutional challenge to the Civil Code of Quebec.[21] The trial judge ruled that the legislation did not discriminate against common law partners. For the discrimination claim, A had to prove (1) the legislation drew a distinction between common law partners and married or civil union spouses, and (2) the distinction deprived A of a benefit or imposed a burden that was a result of stereotypical or prejudicial attitudes.[22] The judge ruled that the legislation did draw a distinction between common law partners and married or civil union spouses. However, this distinction protected people’s freedom of choice, and this did not impose a burden or deny a benefit to common law couples.[23] A appealed this decision to the Quebec Court of Appeal, claiming her right to equality under section 15 of the Charter had been violated.[24] In 2010, the Quebec Court of Appeal unanimously ruled[25] that article 585 (spousal support) of theCivil Code of Quebec[26] violated section 15 of theCharter (right to equality), and that it was not justified under section 1 of the Charter.[27] The Court of Appeal justices disagreed about the appropriate remedy. Justices Dutil and Giroux ordered a declaration of invalidity for article 585, but stated that the declaration should be suspended for 12 months without an exemption for A.[28] Justice Beauregard stated that article 585 should be applied immediately to common law spouses.[29] The Court ruled that the other sections of the Civil Code of Quebec, relating to the division of property and compensatory allowance, did not violate section 15 because the legislature wanted to preserve people’s freedom to choose to marry or to enter into a civil union.[30] In other words, if a couple chooses to live in a common law relationship, obligations associated with division of property and compensatory allowance should not be imposed upon common law couples as if they were married or in a civil union.
A appealed the Quebec Court of Appeal decision to the Supreme Court of Canada for two reasons: (1) A wanted multiple articles of theCivil Code of Quebec declared unconstitutional, and (2) A wanted an immediate remedy – that is, A wanted article 585 (spousal support) to apply immediately to common law couples.[31] B and the Attorney General of Quebec also appealed the decision to the Supreme Court, arguing that the provisions in theCivil Code of Quebec dealing with spousal support, division of property, and compensatory allowance were constitutional.[32]
Issues
The Supreme Court of Canada considered the following issues:
1. Does the exclusion of common law spouses from theCivil Code of Quebec violate the right to equality guaranteed under section 15 of the Charter?[33] 2. If so, is the violation justified under section 1 of the Charter?[34]
3. If the violation is not justified under section 1 of the Charter, what is the legal remedy for the claimant?[35]
Decision
1. A 5-4 majority of justices on the Supreme Court of Canada (Justices Abella, Deschamps, Cromwell, Karakatsanis, and Chief Justice McLachlin) ruled that theCivil Code of Quebec violated the right to equality guaranteed in section 15 of the Charter.[36] Justice LeBel (writing for himself, and Justices Fish, Rothstein, and Moldaver) wrote the dissent, and determined there was no violation of section 15. In other words, the dissent determined that theCivil Code of Quebec was constitutional.[37]
2. Even though a majority of justices ruled that theCivil Code of Quebec violated section 15 of the Charter, Chief Justice McLachlin ruled that the violations were justified under section 1 of the Charter.[38] As a result of the Chief Justice’s ruling, the majority of the Supreme Court of Canada (Justices LeBel, Fish, Rothstein, and Moldaver and Chief Justice McLachlin) determined that theCivil Code of Quebec was constitutional.[39] Justice Abella ruled that none of the Civil Code of Quebec provisions in question were justified under section 1 of theCharter. [40] Justices Deschamps, Cromwell, and Karakatsanis ruled that article 585 of theCivil Code of Quebec was not justified under section 1 of the Charter, but the remaining provisions in question were justified.[41]
3. A’s appeal was dismissed, and no remedy was necessary.
Court’s Analysis
Issue 1: Does the exclusion of common law spouses from the Civil Code of Quebec violate section 15 of theCharter ? Section 15 in Withler v Canada (AG)
In 2011, the Supreme Court of Canada modified the test used to establish a violation of section 15 of theCharter.[42] Withler v Canada (AG) involved a challenge by spouses of deceased members of the Civil Service and the Canadian Armed forces.[43] The claimants alleged that specific legislative provisions governing survivor benefits violated their right to equal treatment under section 15 of theCharter .[44] The Supreme Court ruled that a section 15 claim requires two steps:
1. The legislation must create a distinction based on enumerated or analogous grounds, and
2. The distinction must create a disadvantage by perpetuating prejudice or stereotyping.[45]
The first step of a section 15 analysis is largely a comparative exercise.[46] Claimants assert that they are being deprived a benefit or forced to incur a burden based on an enumerated or analogous ground.[47]Enumerated grounds are the personal characteristics listed in section 15 of the Charter, such as age, sex, and religion.[48] Analogous grounds are not written in section 15 of the Charter but they may arise over the course of time.[49] They are similar to those grounds that are enumerated because analogous grounds are also based on personal characteristics that people cannot change or are “changeable only at an unacceptable personal cost.”[50]
Prior to Withler v Canada (AG), claimants were required to find a group to be compared to in order to establish that there was a distinction in the way that the claimant group and the other group were treated.[51] This group was referred to as the “comparator group.” The Withler v Canada (AG) judgment noted that there were problems with the comparator group analysis and therefore concluded that it is “unnecessary to pinpoint a particular group that precisely corresponds to the claimant.”[52] Following the ruling in Withler v Canada (AG), the first step of the section 15 analysis no longer requires a comparator group analysis. It is satisfied if a distinction has been established based on an enumerated or analogous ground.[53]
The Supreme Court lessened the emphasis on “comparator groups” because such a rigid analysis does little to achieve substantive equality.[54] Section 15 of the Charter has long been recognized as a tool to achieve substantive equality as opposed to formal equality.[55] Whereas formal equality refers to the idea that persons who are similarly situated should be treated the same, substantive equality acknowledges that “identical treatment may frequently produce serious inequality.”[56] As a result, substantive equality requires the courts to examine the impact of a law on the claimants rather than to engage in a comparative exercise that might deny them the opportunity to address that impact.[57]
The second step of the section 15 analysis requires an examination of the “social, political, economic and historical factors concerning the group.”[58] This is to assist with determining the impact of the alleged discriminatory act on that group. In R v Law, a Supreme Court judgment dealing with a discrimination claim under section 15 of the Charter, four contextual factors were identified: (1) pre-existing disadvantage, (2) correspondence with actual characteristics, (3) impact on other groups, and (4) the nature of the interest affected. [59] R v Kapp, another case dealing with section 15 of the Charter, came after R v Law and addressed the issue of whether all or only some of the contextual factors needed to be addressed.[60] R v Kapp did not eliminate the contextual factors but it made clear that not all of the factors must be considered. This decision was arrived at because it became too difficult for claimants to address all of the contextual factors.[61] The Court in Withler v Canada (AG) followed the R v Kapp decision and noted that the contextual factors used to examine the alleged discrimination are varied with every case, making it easier for complainants to argue their case.[62]
Majority’s Analysis of Section 15 in Quebec (AG) v A
Justice Abella, Justice Deschamps (writing for herself and Justices Cromwell and Karakatsanis), and Chief Justice McLachlin wrote separate judgments, but they all agreed that the Civil Code of Quebec violated A’s right to equality as guaranteed under section 15 of the Charter.[63] The exclusion of common law partners from the spousal support provisions of the Civil Code of Quebec was discriminatory.[64]
The first step in the section 15 test established in Withler v Canada (AG) was followed by the majority. The majority ruled that the Civil Code of Quebec creates a distinction between married or civil union spouses and common law partners by providing economic protection for individuals in formal unions but not for common law spouses.[65] The distinction is based on marital status, a recognized analogous ground.[66]
However, the majority and the dissent interpreted the second step of the section 15 analysis differently. Justice Abella noted that for a law to be discriminatory, it does not have to perpetuate prejudice or stereotypes.[67] For Justice Abella, prejudice and stereotypes are examples of discriminatory attitudes. If a section 15 analysis is focused solely on attitudes, it may fail to catch a law that has discriminatory effects.[68] For instance, Justice Abella acknowledged that unmarried persons were historically considered to have adopted a lifestyle less worthy of respect than that of married persons, and this is clearly a discriminatory attitude based on prejudice and stereotypes. Evidence offered to the Court, however, suggests that public opinion has changed, such that common law couples are no longer viewed negatively. Nonetheless, the legislation has discriminatory effects because it does not provide the same benefits and obligations to common law partners as those given to married and civil union couples. Justice Abella’s interpretation of the second step of the section 15 test is less concerned with discriminatory attitudes (i.e. prejudice and stereotypes) and more focused on examining the negative effects of the law on the group.[69]
Justice Deschamps, agreeing with Justice Abella, ruled that prejudice and stereotyping are not necessary for a section 15 analysis. Specifically, Justice Deschamps agreed that common law couples have suffered historical disadvantage, but society has largely changed its attitude towards common law relationships. Additionally, there is no evidence that the legislature intended to discriminate against common law couples; however, intention is irrelevant because discrimination can result from the effect of a law or practice rather than from the deliberate intention to discriminate. In this case, the Civil Code of Quebec does in fact discriminate because it perpetuates the historic disadvantage suffered by common law spouses.[70]
Chief Justice McLachlin also agreed with Justice Abella’s section 15 analysis. Specifically, the Chief Justice ruled that perpetuating prejudice and stereotyping are not necessary for a discrimination claim because a section 15 analysis requires a broader contextual approach.[71] The focus of the analysis needs to be on establishing negative effects on the complainant group.
Dissent’s Analysis of Section 15 in Quebec (AG) v A
Justice LeBel (writing for himself and Justices Fish, Rothstein, and Moldaver) dissented on the section 15 analysis by finding that the Civil Code of Quebec did not violate A’s right to equality. The dissent agreed with the majority that the Civil Code of Quebec draws a distinction based on marital status, a recognized analogous ground. However, contrary to the majority judgment, the dissent argued that the distinction drawn by the legislation did not violate the guarantee of substantive equality because the distinction is neither prejudicial nor stereotypical.[72]
Justice LeBel ruled that prejudice can exist in two ways: (1) if a law promotes a view that an individual is less capable or worthy of recognition as a human being or (2) if a law establishes a hierarchy between different groups of people.[73]
Addressing the first point, Justice LeBel noted that common law couples were historically viewed negatively and as less deserving of recognition; however, establishing a past history of discrimination is insufficient. The dissent ruled that a claimant must also show that the prejudicial attitude continues. Common law couples in Quebec are not currently viewed negatively by the public or legislation. As a result, the Civil Code of Quebec is not prejudicial because it does not promote the view that common law spouses are less worthy of respect. Addressing the second requirement for establishing prejudice, Justice LeBel determined that the Civil Code of Quebec does not favour one type of union over another. Everyone, including common law spouses, can be subject to the benefits and obligations in the Civil Code of Quebec provided they consent to marriage or a civil union. This fact demonstrates that the legislation does not prioritize one type of relationship.[74]
Justice LeBel ruled that a law discriminates based on stereotypes if the law is premised on personal traits or circumstances that do not correspond to the individual needs, capacities, or merits of the claimant.[75] In this case, the Civil Code of Quebec is premised on the belief that people have free will, and can therefore choose to be married or enter into civil unions. If free will and autonomy were shown to be non-existent, then the Civil Code of Quebec would discriminate based on stereotypes. Justice LeBel noted that there was no evidence suggesting that freedom of choice did not correspond to the reality of the claimant. As a result, theCivil Code of Quebec does not stereotype.[76]
Issue 2: Is the violation of section 15 justified under section 1 of the Charter?
Like all Charter rights, the right to equality is not absolute. Section 1 of the Charter allows rights to be limited.[77] Once a court finds that aCharter right or freedom is violated by a piece of legislation, as in this case, it must then consider the arguments put forward by the Government about the reasonable and justifiable nature of that legislation. To determine whether theCivil Code of Quebec reasonably violated the right to equality, the five justice majority performed a section 1 analysis.[78] Justices Abella and Deschamps and Chief Justice McLachlin each wrote a separate judgment. The dissent, finding no violation of section 15, did not perform a section 1 analysis.[79]
A section 1 analysis asks two questions:
1. Is the objective sufficiently important?
The objective served by the legislation must be sufficiently important to infringe a constitutionally guaranteed right or freedom. To prove that the objective is sufficiently important, the Government must demonstrate that the objective relates to concerns which are pressing and substantial in a free and democratic society.[80]The objective of the Civil Code of Quebec is to preserve people’s freedom to choose to marry, to enter into a civil union, or to live as a common law couple.[81] The five justice majority agreed that preserving freedom of choice is a sufficiently important objective to limit the constitutional right to equality.[82]
2. Is the limit proportional to the objective?
The limit on the freedom must be proportional to the objective of the legislation. Three questions are asked to determine proportionality: (A) Is the legislation rationally connected to the legislation’s objective? (B) Does the legislation limit the constitutional right or freedom as little as possible? (C) Do the benefits of the objective outweigh the negative effects of limiting a constitutionally protected freedom?[83]
A. Rational Connection
The five justice majority agreed that the legislation was rationally connected to the objective of preserving people’s freedom of choice. The Civil Code of Quebec, and all the benefits and obligations associated with it, only governs people if they choose to marry or enter into civil unions. The legislation requires people to make an active choice, and this is consistent with the objective of enhancing autonomy.[84]
B. Minimal Impairment
The minimal impairment requirement of the proportionality test requires the legislation to only minimally limit the right to equality while still achieving its objective. Justice Abella ruled that the Civil Code of Quebecfails the minimal impairment part of the proportionality test because of the outright exclusion of common law couples.[85] Under the minimal impairment branch, the government must “explain why a significantly less intrusive and equally effective measure was not chosen.”[86] Justice Abella ruled that a suitable alternative to the current Civil Code of Quebec would be a presumptively protective scheme.[87] Under this alternative, common law couples would automatically have the same benefits as married and civil union couples. If common law couples did not want these benefits and obligations, they would have the ability to opt-out of the scheme. A presumptively protective scheme protects economically vulnerable partners and preserves freedom of choice.[88]
Justice Deschamps agreed with Justice Abella, and she ruled that article 585 (spousal support) of theCivil Code of Quebec is not minimally impairing.[89] Specifically, Justice Deschamps noted that because common law couples are completely excluded from the spousal support provisions, without any exceptions, this is sufficient to rule that the legislation fails the minimal impairment test.[90]
Unlike Justice Abella, Justice Deschamps distinguished between article 585 (spousal support) and the articles dealing with the division of property.[91] For Justice Deschamps, spousal support is granted to one spouse as recognition that people in common law relationships become dependent on one another. Common law couples often have “no real control” over this interdependence; it is something that simply occurs with time.[92] On the other hand, couples who acquire property together must do it deliberately. Justice Deschamps argued that it would be unfair for the Government to impose laws that demand common law couples to share property when that was clearly not their intention.[93] Because of this, Justice Deschamps ruled that the provisions dealing with division of property were minimally impairing.
Chief Justice McLachlin ruled that all of the articles in question satisfy the minimal impairment test. A presumptively protective scheme would not achieve the government’s objective. A presumptive scheme makes decisions for people, regardless of their individual choices. Free will and autonomy would not be respected if a presumptively protective scheme was to be applied to common law couples.[94]
C. Benefits of the Objective and Negative Effects
Under a presumptively protective scheme, Justice Abella determined that freedom of choice would be preserved without any violation of the right to equality. As a result, Justice Abella ruled that preserving freedom of choice did not outweigh the negative effects of exposing economically vulnerable people to serious harm.[95]
With respect to article 585, Justice Deschamps agreed with Justice Abella. For the remaining provisions, however, Justice Deschamps ruled that the benefits of the objective do outweigh the negative effects. Legal measures exist for common law partners to divide property, such as making a claim for unjust enrichment and entering into a formal union, such as marriage or a civil union. Because other options exist, preserving choice outweighs the violation of the right to equality.[96]
Chief Justice McLachlin determined that the legislature’s decision should be respected when it enacts laws that address social and policy concerns. That being noted, the negative effects of the legislation did not outweigh the benefits of the objective such that the Civil Code of Quebec should be ruled unconstitutional.[97]
Issue 3: What is the remedy for the claimant?
Five justices (Justices LeBel, Fish, Rothstein, and Moldaver and Chief Justice McLachlin) ruled that theCivil Code of Quebec was constitutional, and therefore, A’s right to equality under section 15 was not violated. A’s appeal was dismissed.
Significance of the Ruling
The Supreme Court of Canada has struggled with establishing a framework for assessing discrimination claims since its first case on section 15 of the Charter in 1989, Andrews v Law Society of British Columbia.[98] Courts must address claims of discrimination in a uniform manner while avoiding an overly rigid test that can produce injustice. While earlier Supreme Court judgments tried to create a unified approach,[99]the Quebec (AG) v A case clearly demonstrates that the Court remains divided because the individual justices applied the section 15 test differently.[100] Specifically, it is unclear whether a claimant must prove prejudice or stereotyping in order to prove that a distinction based on a protected ground is discriminatory. If the test were more clearly stated, there would be greater clarity and unanimity from the Court. As a result ofQuebec (AG) v A, lower courts do not have a clear guiding principle for section 15 claims, and, most likely, the Supreme Court will be asked in the future to explain and modify the test for discrimination yet again.[101]
The 5-4 majority of the Supreme Court ruled that theCivil Code of Quebec was constitutional because it did not unjustifiably discriminate against common law couples.[102] Considering that the Court did not think it appropriate to extend the benefits of theCivil Code of Quebec to common law partners, it always remains within the power of the Quebec legislature to amend the legislation. Following the release of the Quebec (AG) v A decision, Quebec Justice Minister Bertrand St-Arnaud said the Quebec Government was not ruling out legislative reform.[103]
Additionally, this judgment may prompt other provincial legislatures to reconsider the common law benefits currently being offered in their own provinces. British Columbia, for example, recently amended its family law legislation.[104] Under the new legislation, British Columbia couples who live together for two years now have all of the same legal rights as married spouses.[105] Quebec’s and British Columbia’s legislation relating to common law spouses represents two extremes. On the one hand, Quebec has totally excluded common law partners from the rights given to married couples. On the other hand, British Columbia has given identical rights to common law and married couples. As of right now, Alberta has adopted a middle of the road approach. For example, common law partners in Alberta who separate have rights similar to married couples concerning spousal support, but the same is not true for division of property. Upon separation, common law spouses are only entitled to the property that he or she owns, whereas married couples’ property is divided equally between the partners.[106] As society’s perception of what constitutes a traditional family continues to evolve, changes in the legislation seem inevitable.
[1] Quebec (AG) v A, 2013 SCC 5 [Quebec].
[2] Arts 401-30, 432-33, 448-84, 585Civil Code of Quebec [CCQ].
[3] Canadian Charter of Rights and Freedoms, s 15, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] (“[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability,” s 15(1)).
[4] A civil union is a legal contract between partners that is recognized by the government as conferring all or some of the rights conferred by marriage, but without the implicit historical and religious meaning associated with marriage. Individuals who wish to form a civil union are subject to the same rules as people who wish to marry.
[5] CCQ, supra note 2.
[6] Ibid; Quebec, supra note 1 at paras 358, 438, 449; A common law relationship is where two people live together as a couple without being married or in a civil union.
[7] As is typical in family law cases, the parties were not referred to by their real names.
[8] CCQ, supra note 2.
[9] Ibid. [10] Quebec, supra note 1; CCQ, supra note 2.
[11] Ibid.
[12] Charter, supra note 3.
[13] CCQ, supra note 2.
[14] Ibid, art 585.
[15] Quebec, supra note 1 at paras 80, 86.
[16] CCQ.
[17] Ibid, art 414.
[18] Justice Quebec, De facto spouses, online: Justice Quebec.
[19] Art 427 CCQ.
[20] CCQ.
[21] CCQ, supra note 2; A v B, 2009 QCCS 3210, 67 RFL (6th) 315
[22] Ibid at para 211.
[23] Ibid at paras 222, 272, 283.
[24] Charter, supra note 3.
[25] A v, B 2010 QCCA 1978
[26] Art 585 CCQ.
[27] Charter, supra note 3, ss 1, 15(1).
[28] A v B, supra note 21 at para 155. [29] Ibid at para 199.
[30] Ibid at para 60; CCQ, supra note 2; Charter, supra note 3.
[31] CCQ, supra note 2.
[32] Ibid.
[33] Ibid; Charter, supra note 3.
[34] Ibid, s 1 (“[t]he Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” s 1).
[35] Ibid.
[36] CCQ,supra note 2;Charter , supra note 3; Quebec, supra note 1 at paras 357, 382, 415.
[37] Ibid at para 281; Charter, supra note 3; CCQ, supra note 2.
[38] Ibid; Charter, supra note 3, ss 1, 15; Quebec, supra note 1 at para 415.
[39] Ibid at paras 281, 415; CCQ, supra note 2.
[40] Ibid; Quebec, supra note 1 at para 380; Charter, supra note 3, s 1.
[41] Art 585 CCQ;Quebec , supra note 1 at para 383; Charter, supra note 3, s 1.
[42] Ibid, s 15.
[43] Withler v Canada (AG), 2011 SCC 12, [2011] 1 SCR 396 [Withler]
[44] Charter, supra note 3; Withler, supra note 44 at para 1.
[45] Ibid at para 30; Charter, supra note 3.
[46] Withler, supra note 44 at para 62.
[47] Ibid; Constitutional Keywords, Analogous grounds, Centre for Constitutional Studies.
[48] Charter, supra note 3.
[49] Ibid; Miron v Trudel, [1995] 2 SCR 418 Miron[ ]
[50] Corbiere v Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203 at para 60
[51] See especially Auton (Guardian ad litem of) v British Columbia (AG), 2004 SCC 78, [2004] 3 SCR 657
[52] Withler, supra note 44 at para 63.
[53] Ibid.
[54] Ibid at para 55.
[55] See Andrews v Law Society of British Columbia, [1989] 1 SCR 143Andrews] [
[57] See Lovelace v Ontario, 2000 SCC 37 at para 53, [2000] 1 SCR 950
[58] Withler, supra note 44 at para 39.
[59] Charter, supra note 3; Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497 Law[ ]
[60] Ibid; R v Kapp, 2008 SCC 41Kapp ][
[61] Kapp, supra note 61.
[62] Ibid; Withler, supra note 44 at para 43.
[63] Quebec, supra note 1 at paras 357, 382, 415; CCQ, supra note 2; Charter, supra note 3.
[64] CCQ, supra note 2.
[65] Ibid; Quebec, supra note 1 at para 357.
[66] Miron, supra note 50.
[67] Quebec, supra note 1 at 325.
[68] Ibid at para 327.
[69] Ibid at para 357.
[70] Ibid at paras 382, 385; CCQ, supra note 2.
[71] Quebec, supra note 1 at paras 416, 418. [72] Ibid at para 281; CCQ, supra note 2; Charter, supra note 3.
[73] Quebec, supra note 1 at para 243.
[74] Ibid at paras 244, 248-49, 255-56; CCQ, supra note 2.
[75] Quebec, supra note 1 para 201.
[76] Ibid at paras 269, 271-72; CCQ, supra note 2.
[77] Charter, supra note 3, s 1.
[78] R v Oakes, [1986] 1 SCR 103, 26 DLR (4th) 200 [Oakes]
[79] Quebec, supra note 1 at para 281.
[80] Oakes, supra note 79.
[81] CCQ, supra note 2.
[82] Quebec, supra note 1 at paras 358, 394, 435.
[83] Oakes, supra note 79.
[84] Quebec, supra note 1 at paras 359, 394, 400, 438.
[85] CCQ, supra note 2; Quebec, supra note 1 at para 360.
[86] Ibid at para 362.
[87] CCQ, supra note 2; Quebec, supra note 1 at para 360.
[88] Ibid.
[89] CCQ, supra note 2; Quebec, supra note 1 at para 395.
[90] Ibid at para 399. [91] Ibid at para 382.
[92] Ibid at para 403.
[93] Ibid at para 403.
[94] Ibid.
[95] Ibid at para 379.
[96] Ibid at paras 401-06.
[97] Ibid at para 449.
[98] Law, supra note 60; Charter, supra note 3.
[99] Andrews, supra note 56;Law , supra note 60; Kapp, supra note 61; Withler, supra note 44.
[100] Quebec, supra note 1.
[101] Ibid; Charter, supra note 3.
[102] Quebec, supra note 1; CCQ, supra note 2.
[103] Rhéal Séguin, “Despite top court ruling, Quebec open to changing spousal-support law” The Globe and Mail (25 January 2013), online: The Globe and Mail
[104] Justine Ma & Jesara Sinclair, “Common-law couples as good as married in B.C.” CBC News (19 March 2013), online: CBC News
[105] Family Law Act, SBC 2011, c 25.
[106] Alberta Human Services, Alberta’s Adult Interdependent Relationships Act and you, online: Alberta Justice and Solicitor General
Saskatchewan (Human Rights Commission) v Whatcott (2013): Anti-Gay Flyers Violate Hate Speech Prohibitions
Introduction
On February 27, 2013, the Supreme Court of Canada ruled that Saskatchewan’s hate speech prohibitions are constitutional.[1] Hate speech prohibitions limit freedom of expression and religion as guaranteed under section 2(b) and 2(a) of the Canadian Charter of Rights and Freedoms (Charter), respectively.[2] The right to free expression and religion conflicts with the right to equality, as guaranteed under section 15(1) of the Charter.[3] When Charter rights conflict, courts strive to strike an appropriate balance between them. The following Featured Court Ruling demonstrates the process whereby courts reconcile competingCharter rights in the context of hate speech prohibitions. Additionally, by clearly defining “hatred” in human rights legislation and explaining the purpose of hate speech prohibitions, the Supreme Court of Canada reaffirmed the importance of equality rights.
Facts In 2001 and 2002, Whatcott distributed four flyers in Regina and Saskatoon on behalf of the Christian Truth Activists, a religious group supported by Whatcott. Two flyers, titled “Keep Homosexuality out of Saskatoon’s Public Schools!” and “Sodomites in our Public Schools,” contained graphic comments about the sexual practices of same-sex couples and urged that information on homosexuality be omitted from the school curriculum. The other two flyers, identical to one another, were a photocopy of classified advertisements from a magazine to which Whatcott’s handwritten comments stated that the advertisements are for “men seeking boys.” Four people, who received these flyers at their homes, filed complaints with the Human Rights Commission. They alleged that the flyers promoted hatred against individuals based on sexual orientation, which violated section 14 of theSaskatchewan Human Rights Code.[4] The Human Rights Commission appointed a tribunal to decide the constitutionality of the Saskatchewan Human Rights Codeand to determine if the flyers offended it.[5]
Procedural History
In 2005, the Saskatchewan Human Rights Tribunal concluded that section 14 of theSaskatchewan Human Rights Code was constitutional, and that all of Whatcott’s flyers violated section 14 by exposing homosexuals to hatred.[6] The Tribunal prohibited Whatcott from distributing more flyers and ordered him to pay compensation in the amount of $2500 to one complainant and $5000 to each of the other three complainants.[7] Whatcott appealed the decision to the Saskatchewan Court of Queen’s Bench on the basis that his constitutional guarantees to freedom of expression and religion were violated.[8]
In 2007, the Saskatchewan Court of Queen’s Bench affirmed the Tribunal’s findings.[9] Whatcott appealed this decision to the Saskatchewan Court of Appeal, again arguing a violation of his Charter freedoms.[10] In 2010, the Saskatchewan Court of Appeal ruled that the Tribunal and Saskatchewan Court of Queen’s Bench erred by isolating certain passages of the flyers for analysis, as opposed to viewing them in context. As a result, the Saskatchewan Court of Appeal ruled that the flyers did not meet the definition of “hatred” and did not violate section 14 of the Saskatchewan Human Rights Code.[11] The Saskatchewan Human Rights Commission appealed the decision to the Supreme Court of Canada, arguing that section 14 is constitutional and Whatcott violated the section.[12]
Issues
The Supreme Court of Canada considered the following issues:
1. What is the definition of “hatred” in section 14(1)(b) of the Saskatchewan Human Rights Code?[13]
2. Does section 14(1)(b) of theSaskatchewan Human Rights Code infringe freedom of expression as guaranteed under section 2(b) of the Charter?[14]
3. If so, is the infringement justified under section 1 of the Charter?[15]
4. Does section 14(1)(b) of theSaskatchewan Human Rights Code infringe freedom of religion as guaranteed under section 2(a) of the Charter?[16]
5. If so, is the infringement justified under section 1 of the Charter?[17]
6. If section 14(1)(b) of theSaskatchewan Human Rights Code is constitutional, are the flyers discriminatory per this section?[18]
7. If the flyers are discriminatory, what remedy are the complainants entitled?
Decision The Supreme Court of Canada ruled that “hatred” in hate speech prohibitions must be objectively interpreted to determine whether a reasonable person would view the expression as exposing a vulnerable group to discrimination.[19] The Supreme Court also ruled that theSaskatchewan Human Rights Codeviolates both freedom of expression and religion, but that both limitations were justified under section 1 of the Charter.[20] Finally, the Court found that two of the four flyers violated section 14(1)(b) of theSaskatchewan Human Rights Code, and the two people who received these flyers were entitled to compensation. The other two flyers, which were the photocopies of classified advertisements, did not contain expression that satisfies the definition of “hatred,” and the people who received these flyers were not entitled to compensation.[21]
Court’s Analysis
Issue 1: What is the Definition of “Hatred” in Section 14(1)(b) of the Saskatchewan Human Rights Code?
Saskatchewan human rights legislation prohibits hate publications. Section 14 of the Saskatchewan Human Rights Code states: “No person shall publish or display…any representation…(b) that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.”[22] One of the listed prohibited grounds is “sexual orientation.”[23]
When interpreting section 14(1)(b) of the Saskatchewan Human Rights Code, Saskatchewan courts have consistently defined “hatred” by following the approach set out inR v Taylor.[24] R v Taylor was one of three hate speech cases ruled on by the Supreme Court in 1990.[25] In that case, the Court considered whether section 13(1) of the Canadian Human Rights Act violated freedom of expression as guaranteed under section 2(b) of the Charter.[26] Chief Justice Dickson, writing for the majority of the judges of the Court, stated that the section in question did violate section 2(b) but was justified under section 1 of the Charter.[27] Furthermore, the Chief Justice noted that “hatred” is defined as “strong and deep-felt emotions of detestation, calumny and vilification.”[28]
The legislation that was challenged by Taylor was different than the legislation being challenged by Whatcott; however, the Court in Whatcott’s case ruled that the definition of “hatred” from R v Taylor is still applicable in a modified format.[29]
In Whatcott’s case, the Court determined that in assessing whether a particular form of speech has violated the hate speech provision in Saskatchewan’s human rights legislation, a court must consider the following three elements:
1) Courts must objectively apply hate speech prohibitions. Judges must set aside their personal opinions and consider what a reasonable person, who is aware of the relevant context and circumstances, would think.[30]
2) “Hatred” is restricted to extreme emotions described by the words “detestation” and “vilification.” “Hatred” does not include merely offensive and hurtful expression.[31]
3) Courts must focus on the effect of the expression and not the intentions of the author. Courts consider whether a reasonable person, viewing the expression objectively and with knowledge of the circumstances, would consider the expression as exposing the members of the group to discrimination.[32]
Issue 2: Does Section 14(1)(b) of theSaskatchewan Human Rights Code Infringe Freedom of Expression?
Section 2(b) of the Charter guarantees everyone “freedom of thought, belief, opinion, and expression.”[33]All activity that conveys or attempts to convey a meaning has expressive content.[34] Section 2(b) of theCharter protects almost all forms of expressive content, no matter how distasteful or offensive the ideas are to the general public. Section 2(b) of the Charter does not, however, protect violence or threats of violence.[35] As a result, hate speech is protected by section 2(b) of the Charter because it conveys a meaning and, therefore, has expressive content. By prohibiting hate speech, the Saskatchewan Human Rights Codeviolates freedom of expression.[36]
Issue 3: Is the Infringement of Freedom of Expression Justified?
Like all Charter rights, freedom of expression is not absolute.[37] Section 1 of the Charter allows rights to be infringed if the limitation is reasonable and justifiable.[38] Section 1 of the Charter reads: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”[39]Once a court finds that a Charter right or freedom is violated by a piece of legislation, courts must then consider the arguments put forward by the government about the reasonable and justifiable nature of that legislation. In this case, freedom of expression is violated by section 14(1)(b) of the Saskatchewan Human Rights Code. To determine whether section 14(1)(b) reasonably limits freedom of expression, the Court performed a section 1 analysis.[40]
In a section 1 analysis, courts balance competing Charter rights and freedoms.[41] In this case, the two conflicting Charter rights are freedom of expression and the right to equality. While the Court does not explicitly state that freedom of expression conflicts with the right to equality, it must necessarily consider this conflict in its section 1 analysis.[42] Is the objective sufficiently important to infringe a Charter freedom?
The objective served by the legislation must be sufficiently important to infringe a constitutionally guaranteed right or freedom. The Saskatchewan Human Rights Code prohibits hate speech for the purpose of promoting equality, recognizing the dignity of all human beings, and eliminating discrimination. The Supreme Court ruled that these objectives are sufficiently important to limit freedom of expression because hate speech has the potential to expose vulnerable groups to discrimination, ostracism, segregation, deportation, violence, and genocide.[43]
Is the limit on the freedom proportional to the objective?
The limit on the freedom must be proportional to the objective. Three questions are asked to determine proportionality: (1) Is the legislation rationally connected to the objective? (2) Does the legislation limit the constitutional right or freedom as little as possible? (3) Do the benefits of the objective outweigh the negative effects of limiting a constitutionally protected freedom?[44]
1. Rational Connection
Prohibiting expression that exposes vulnerable groups to “hatred” is rationally connected to the objective of reducing discrimination. Additionally, section 14 only prohibits public communication aimed at vulnerable groups that are protected by legislation, such as the disabled and gay people.[45] Private communications that do not target characteristics shared by a vulnerable group are not considered hate speech.[46]
The Court ruled, however, that the words “ridicules, belittles or otherwise affronts the dignity of” in section 14(1)(b) were not rationally connected to the objective of reducing discrimination.[47] These words have been criticized because they make it seem that offensive and insensitive statements count as “hatred.”[48]Preventing offensive statements is not a reasonable limitation on freedom of expression, as discussed above.[49] The Court noted that in previous hate speech cases, Saskatchewan courts have essentially ignored these words, but the Court determined that now was the time to amend the statute.[50] As a result, the Court severed those words from the legislation. The legislation now reads: “that exposes or tends to expose to hatred any person or class of persons on the basis of a prohibited ground.”[51] After the Court made this change, section 14(1)(b) now limits freedom of expression as little as is reasonably possible.[52]
2. Minimal Impairment
Under the minimal impairment branch of the proportionality test, the legislation being examined, section 14(1)(b) of the Saskatchewan Human Rights Code in this case, must achieve its objective while only minimally impairing the Charter right or freedom.[53] Whatcott proposed two alternatives that would impair his freedom of expression less than the Saskatchewan Human Rights Code.[54] The alternatives proposed to the Court were: (1) eliminate hate speech prohibitions and trust the “marketplace of ideas” to balance competing rights, or (2) hate speech should be prosecuted under the Criminal Code, not human rights legislation.[55]
First, the “marketplace of ideas” theory is that open debate with no restrictions is the ideal way for people to ascertain the truth.[56] The search for truth, increased political discourse, and the promotion of individual self-fulfillment are the three underlying purposes of the guarantee of freedom of expression.[57] The Court noted that while the “marketplace of ideas” promotes the search for truth, it also discourages minorities’ participation in political discourse and their self-fulfillment. This is because hate speech makes vulnerable groups appear insignificant and less worthy. As a result, when vulnerable groups reply to hate speech, they will largely be ignored, and therefore less likely to participate in a dialogue with the majority.[58] As a result, the Court ruled that this counterargument to hate speech prohibitions has drawbacks.[59]
Addressing Whatcott’s second argument, the Court found that prosecuting hate speech solely under theCriminal Code raises issues of effectiveness. Specifically, the Court noted that the Criminal Code only prohibits the most extreme forms of hate speech that advocate, justify, or threaten violence. If human rights legislation did not prohibit hate speech, there is a fear that fewer complainants would have access to justice. While dealing with hate speech through criminal law prohibitions would potentially lessen the infringement on freedom of expression, it would do so by sacrificing the effectiveness achieved by theSaskatchewan Human Rights Code.[60]
The Court determined that the legislature does not have to enact the best legislation possible in order to minimally infringe or impair a right. Because reducing discrimination is a complex policy issue, the means chosen by the legislature to remedy the problem are usually respected. If the legislation is one of several reasonable solutions available, the Court must respect the legislature’s decision. After canvassing the possible alternatives, in this case, the “marketplace of ideas” and the existing Criminal Code provisions, the Court ruled that neither one was so superior as to render the Saskatchewan Human Rights Code unreasonable.[61] Therefore, the Court determined that section 14(1)(b) only minimally impairs freedom of expression.
3. Benefits of the Objective and Negative Effects
Finally, the Supreme Court found that promoting equality, respecting human dignity, and reducing discrimination outweigh the negative effects of minimally infringing freedom of expression. The prohibition on hate speech strikes the appropriate balance between respecting freedom of expression and equality rights.[62]
Issue 4: Does Section 14(1)(b) of theSaskatchewan Human Rights Code Infringe Freedom of Religion?
Section 2(a) of the Charter guarantees everyone “freedom of conscience and religion.”[63] A person’s freedom of religion is violated if: (1) a person sincerely holds a religious belief, and (2) the legislation substantially interferes with a person’s ability to act in accordance with that religious belief.[64]
Whatcott argues that the morality of people’s sexual conduct has frequently been discussed and debated by religious groups.[65] The Court did not dispute the claim that Whatcott sincerely holds two religious beliefs: (1) sexual activity engaged in by same-sex couples is harmful; and (2) it is his duty to warn others of the danger.[66]
The Court found that section 14(1)(b) substantially interferes with Whatcott’s ability to share his beliefs with the public. As a result, section 14(1)(b) infringes Whatcott’s freedom of religion.[67]
Issue 5: Is the Infringement of Freedom of Conscience and Religion Justified?
Once a violation of a Charter right or freedom is found, the government then has the opportunity to justify the violating piece of legislation by demonstrating it is a reasonable limit in a free and democratic society.[68]The Court engaged in a section 1 analysis regarding the infringement of freedom of religion by section 14(1)(b) of the Saskatchewan Human Rights Code. This section 1 analysis required the Court to balance freedom of religion and the right to equality.[69]
Is the objective sufficiently important to infringe a Charter freedom? The objective served by the legislation must be sufficiently important to infringe a constitutionally guaranteed right or freedom. As mentioned above, the Saskatchewan Human Rights Code prohibits hate speech for the purpose of promoting equality, recognizing the dignity of all human beings, and eliminating discrimination. The Supreme Court ruled that these objectives are sufficiently important to limit freedom of religion.[70]
Is the limit on the freedom proportional to the objective?
The limit on the freedom must be proportional to the objective. Three questions are asked to determine proportionality: (1) Is the legislation rationally connected to the objective? (2) Does the legislation limit the constitutional right or freedom as little as possible? (3) Do the benefits of the objective outweigh the negative effects of limiting a constitutionally protected freedom?
1. Rational Connection
As explained above, prohibiting expression that exposes vulnerable groups to “hatred” is rationally connected to the objective of reducing discrimination. The Supreme Court ruled that section 14(1)(b) is not concerned with whether the expression at issue is religiously motivated. The author’s intent is irrelevant; what matters is the effect of the expression. If a reasonable person, objectively viewing the expression, would believe that it exposes a vulnerable group to “hatred” and discrimination, then the speech is caught by the legislation.[71]
2. Minimal Impairment
Section 14(1)(b) of the Saskatchewan Human Rights Code must achieve its objective while only minimally impairing freedom of religion. The Supreme Court acknowledges that it is important for people to adhere to their religious beliefs. However, the Saskatchewan Human Rights Code only minimally impairs Whatcott’s ability to follow his religious beliefs. The Court ruled that Whatcott is still free to argue that same-sex sexual activity is harmful and immoral, but he cannot use hate speech to express his religious views.[72]
3. Benefits of the Objective and Negative Effects
This case demonstrates that people’s religious beliefs sometimes conflict with other Charter rights. The Supreme Court balanced these competing Charter rights and freedoms by prohibiting hate speech, regardless whether it is religiously motivated or not. The Supreme Court ruled that section 14(1)(b) is not concerned with whether the expression at issue is religiously motivated. People are free to disagree with same-sex sexual activities, argue for its censorship, and convert others to their viewpoint. The freedom to express religious views is limited only by the requirement that religious views not be conveyed through hate speech. As a result, the Court determined that the infringement of freedom of religion is justified.[73]
Issue 6: Are the Flyers Discriminatory per Section 14(1)(b) of the Saskatchewan Human Rights Code?
The Supreme Court ruled that the flyers titled “Keep Homosexuality out of Saskatoon’s Public Schools” and “Sodomites in our Public Schools” exposed homosexuals to detestation and vilification, both of which fulfill the definition of hatred. These flyers violated section 14(1)(b) of the Saskatchewan Human Rights Code.[74]
The flyers of the photocopied classified advertisements, however, did not contain expression that would cause a reasonable person to believe that homosexuals were being exposed to hatred. As a result, these flyers did not violate section 14(1)(b) of the Saskatchewan Human Rights Code.[75]
By distinguishing between the four flyers, the Court demonstrated the difference between publications that are considered “hatred” and those that are not. Speech that is offensive or distasteful to the public does not satisfy the definition of “hatred.”[76] The “hatred” definition requires a protected group to be exposed to detestation or vilification, and the expression must lead an objective observer to conclude that the group may be subject to discriminatory treatment.[77] The two flyers found to violate section 14(1)(b) of theSaskatchewan Human Rights Code expressly state that homosexuals should be subjected to discriminatory treatment.[78] Alternatively, the two flyers of the photocopied classified advertisements contain offensive expression, but they do not expose homosexuals to hatred or discrimination.[79]
Issue 7: What Remedy are the Complainants Entitled?
Section 31.4 of the Saskatchewan Human Rights Code allows courts to make an order for compensation to people who have been injured by someone’s violation of the Saskatchewan Human Rights Code.[80] As demonstrated above, Whatcott violated section 14(1)(b) of the Saskatchewan Human Rights Code by delivering flyers that promoted the “hatred” of homosexuals.[81] As a result, the two people who received the flyers titled “Keep Homosexuality out of Saskatoon’s Public Schools” and “Sodomites in our Public Schools” were entitled to compensation.[82] The two people who received the flyers of the photocopied classified advertisements were not entitled to compensation because these two flyers did not violate theSaskatchewan Human Rights Code.[83]
Significance of the Ruling
Freedom of expression and equality are protected in the Charter and both are central to a democratic society.[84] Hate speech prohibitions encourage a society where everyone is treated with dignity and respect: two hallmarks of equality. In this case, freedom of expression and religion conflicted with the right to equality, and the Court was forced to strike an appropriate balance between the competing Charter rights and freedoms.
The Court ruled that hate speech prohibitions limit freedom of expression by prohibiting certain kinds of speech from entering the public sphere, but this infringement was justified. Canada prohibits hate speech because certain types of expression make it impossible for vulnerable groups to achieve equality. Importantly, the ruling only prohibits speech that is “likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination.”[85] The Court emphasized that hate speech prohibitions catch a very specific type of speech. People are still free to express opinions on controversial public policy, to debate the legitimacy of censorship, and to argue contrary viewpoints. Hate speech prohibitions violate a constitutionally guaranteed freedom of expression, but the infringement is justified because it creates a more inclusive society, one free from harmful discriminatory practices.
[1] Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11
[2] Canadian Charter of Rights and Freedoms, s 2(a)-(b), Part I of the Constitution Act,1982, being
Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] (“[e]veryone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication,” s 2(a)-(b)).
[3] Ibid, s 15(1) (“[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability,” s 15(1)).
[4] Saskatchewan Human Rights Code, SS 1979, c S‑24.1 [Code] ([n]o person shall publish or display…any representation…(b) that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground,” s 14(1)(b)).
[5] Ibid; Whatcott, supra note 1 at paras 8-9.
[6] Whatcott, supra note 1 at para 10; Code, supra note 4.
[7] Whatcott, supra note 1 at paras 11, 203 (double the compensation was awarded to three complainants because their complaints occurred after section 31.4 of theSaskatchewan Human Rights Code was amended to increase compensation).
[8] Charter, supra note 2.
[9] Whatcott v Saskatchewan (Human Rights Tribunal), 2007 SKQB 450, 162 ACWS (3d) 809
[10] Charter, supra note 2.
[11] Whatcott v Saskatchewan (Human Rights Tribunal), 2010 SKCA 26, 218 CRR 2(d) 145
[12] Ibid.
[13] Ibid.
[14] Ibid; Charter, supra note 2, s 2(b).
[15] Ibid, s 1 (“[t]he Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” s 1).
[16] Code, supra note 4; Charter, supra note 2, s 2(a).
[17] Charter, supra note 2, s 1.
[18] Code, supra note 4.
[19] Whatcott, supra note 1 at para 56.
[20] Ibid at para 206; Code, supra note 4; Charter, supra note 2, ss 1, 2(a)-(b).
[21] Whatcott, supra note 1 at paras 193-94.
[22] Code, supra note 4.
[23] Ibid, s 2(1)(m.01)(vi).
[24] Whatcott, supra note 1 at para 20; Canada (Human Rights Commission) v Taylor, [1990] 3 SCR 892
[25] R v Keegstra, [1990] 3 SCR 697
[26] Canadian Human Rights Act, SC 1976-66, c 33; Charter, supra note 2, s 2(b); Whatcott, supra note 1 at para 21.
[27] Charter, supra note 2, ss 1, 2(b); Whatcott, supra note 1 at para 22.
[28] Taylor, supra note 24 at 928.
[29] Whatcott, supra note 1 at para 55.
[30] Ibid at para 35.
[31] Ibid at para 57.
[32] Ibid at para 58.
[33] Charter, supra note 2, s 2(b).
[34] Irwin Toy Ltd v Quebec (AG), [1989] 1 SCR 927 at para 41
[35] Ibid.
[36] Whatcott, supra note 1 at para 62; Code, supra note 4; Charter, supra note 2, s 2(b).
[37] Ibid.
[38] Charter, supra note 2, s 1.
[39] Ibid.
[40] Code, supra note 4; Charter, supra note 2, s 2(b); R v Oakes, [1986] 1 SCR 103, 26 DLR (4th) 200
[41] Charter, supra note 2, s 1.
[42] Ibid, ss 1, 2(b), 15.
[43] Whatcott, supra note 1 at paras 73, 77; Code, supra note 4. [44] Oakes, supra note 40.
[45] Code, supra note 4.
[46] Whatcott, supra note 1 at paras 79-80, 83-84; Code, supra note 4.
[47] Ibid; Whatcott, supra note 1 at para 92.
[48] Ibid at para 85.
[49] Ibid at para 90.
[50] Ibid at para 88.
[51] Ibid at paras 93; Code, supra note 4.
[52] Whatcott, supra note 1 at para 111.
[53] Code, supra note 4; Charter, supra note 2.
[54] Code, supra note 4.
[55] Whatcott, supra note 1 at para 102; Criminal Code, RSC 1985, c C-46.
[56] Whatcott, supra note 1 at para 103.
[57] Ibid at para 109.
[58] Ibid at para 75.
[59] Ibid at para 104.
[60] Ibid at para 105;Criminal Code, supra note 55; Code, supra note 4; Charter, supra note 2, s 2(b).
[61] Whatcott, supra note 1 at paras 101, 106;Criminal Code, supra note 55; Code, supra note 4.
[62] Whatcott, supra note 1 at para 148.
[63] Charter, supra note 2, s 2(a). [64] Whatcott, supra note 1 at para 155.
[65] Ibid at para 152.
[66] Ibid.
[67] Charter, supra note 2, s 2(a);Code , supra note 4; Whatcott, supra note 1 at para 156.
[68] Charter, supra note 2, s 1.
[69] Ibid, ss 2(a), 15(1); Code, supra note 4.
[70] Ibid; Charter, supra note 2, s 2(a); Whatcott, supra note 1 at para 164.
[71] Code, supra note 4; Whatcott, supra note 1 at paras 58, 143.
[72] Code, supra note 4; Whatcott, supra note 1 at para 163.
[73] Ibid at paras 163-64; Code, supra note 4.
[74] Whatcott, supra note 1 at para 186; Code, supra note 4.
[75] Whatcott, supra note 1 at para 201; Code, supra note 4.
[76] Whatcott, supra note 1 at para 196.
[77] Ibid at para 191.
[78] Ibid at para 192; Code, supra note 4.
[79] Whatcott, supra note 1 at para 196.
[80] Code, supra note 4, s 31.4.
[81] Ibid, s 14(1)(b).
[82] Whatcott, supra note 1 at para 205.
[83] Ibid at para 205; Code, supra note 4. [84] Charter, supra note 2, ss 2(b), 15(1).
[85] Whatcott, supra note 1 at para 59.
Reference re: Secession of Quebec, in Context
Articulating Canada’s Underlying Constitutional Principles, Examining the Right to Self-Determination, Confronting the Court’s Limits in Dealing with Political Matters
In Canada, the federal Government has the power to ask the Supreme Court of Canada for its opinion on a legal question. Although the opinions which follow are not technically binding, they often tackle critical issues in Canadian constitutional law. TheReference re: Secession of Québec (the Secession Reference) is one such reference case, considering questions that arose as a result of the 1995 Québec Referendum. In this Referendum, the people of Quebec voted on the issue of secession from Canada; it very nearly passed.
“Secession” is the act of formally withdrawing from an organisation, in this context the country of Canada. Québécois “separatist” movements advocate different forms of independence, ranging from full to partial secession, where the province would retain some ties to Canada.
The Supreme Court’s opinion reiterated the legality of the reference power and touched on Canada’s most deeply held national values, reaffirming the importance of underlying principles in interpreting the Constitution. The Court’s decision necessitated a thorough analysis of self- determination in international law. It prompted both federal and provincial legislation, as Canada and Québec sought to respond to the framework the decision established. For these reasons, scholars have called the Secession Reference“perhaps the most important decision in contemporary Canadian constitutional law.”[1]
SEPARATISM IN MODERN QUÉBEC: AN OVERVIEW
Early French Nationalism and the Quiet Revolution
The Anglophone-Francophone divide has shaped Canadian politics since the country was a British colony, taking on different forms as society evolved and circumstances changed. For many years before and after Confederation in 1867, French-Canadian nationalism took the form of “ultramontanism” – a school of thought rooted in Catholicism and imported from those who rejected the secular values adopted following the French Revolution. Ultramontanism associated French nationalism with the ideal of a “church-dominated, self-contained society.”[2] This principle, a sectarian one, formed the dominant strand of French nationalism until theQuiet Revolution of the 1960s fundamentally transformed Québec into a secular, socially democratic province.[3] With it, the Quiet Revolution brought a new type of nationalism –Québecois nationalism:
In shedding the strongly ethnic components that defined the earlier nationalism, including its racist elements, the new cement of the nationalism became primarily the territorial element, focused on Quebec.[4]
Québec’s “Mouvement Souverainiste” Gains Traction
Québec’s Movement Souverainiste – which aspired to make Québec its own country – rejected the “tokenism” (superficiality) of past gestures towards respecting the province’s autonomy and spurred the modern separatist movement.[5] Toward the end of the 1960s, le Front de Libération du Québec (FLQ)[6]– a nationalist group advocating separatism through terrorist means – began a series of bombings and kidnappings. These incidents culminated in the October Crisis of 1970, lasting until the arrest of several FLQ members on December 28 of that year.[7]
In 1968, in the midst of this period of growing separatist sentiment, the Parti Québécois (PQ) was founded. The party was led by a former-Liberal Cabinet Minister for Québec’s National Assembly René Lévesque. The PQ advocated a softer form of Quebec separation called sovereignty-association“ ,” which would involve political independence from Canada, but economic association.[8] In 1976, the PQ was elected as province’s the governing party, holding a 41% plurality (more seats than any other party, less than a majority) of seats in the Québec National Assembly.[9]
In 1980, the PQ initiated a referendum campaign, asking the people of Québec whether they wanted the province to negotiate for sovereignty-association with the rest of Canada. In that referendum, 60% of Quebeckers voted against these negotiations.[10] The PQ was re-elected in 1981 but lost in 1985 to the Liberal Party after Lévesque resigned from PQ leadership. Support for political independence remained steady at about 40% throughout that time.[11]
It is important to note that polling data differs drastically depending on which term is used to describe independence, suggesting a high level of uncertainty amongst Québécois.[12]
Québécois separatist sentiments are partially related to the circumstances surrounding the signing of theConstitution Act, 1982. Québec refused to sign theConstitution Act, 1982, feeling that the Charter’s focus on individual rights rather than collective rights weakens its position.[13] Support for separatism agreements increased dramatically when Meech Lake Accord (which was meant to assuage Québec’s Constitution Act, 1982 concerns) failed in 1990.[14] When the Charlottetown Accord, which called for the decentralisation of power among other things, failed via a national referendum, Québécois separatism was further invigorated.[15]
After the PQ was re-elected in 1994, pro-independence sentiments returned to roughly 40%.[16]Meanwhile, the Bloc Québécois – a party contesting in federal elections which began as an advocate for Québec sovereignty – had formed in 1990[17] and won 52 House of Commons seats in the 1993 federal election.[18]
Under PQ leadership, Québec renewed moves towards secession. In 1995, a second referendum asked: “Do you agree that Québec should become sovereign, after having made a formal offer to Canada for a new economic and political partnership, within the scope of the Bill respecting the future of Québec and of the agreement signed on 12 June 1995?”[19]An extremely narrow majority, 50.56% of Quebeckers, voted “no.”[20]
THE SECESSION REFERENCE
Before the 1995 Referendum, An Act Respecting the Future of Québec (“Bill 1”) was introduced in Québec’s National Assembly.[21] This Bill would have given the National Assembly the power to unilaterally declare independence one year after the 1995 referendum.
Guy Bertrand, a lawyer in Québec, sought an order to stop the 1995 referendum on the basis that Bill 1 represented a “virtual constitutional coup d’etat.”[22] He argued in Québec Superior Court that his Charterrights were under threat. While the Court agreed with Bertrand’s argument, it allowed the referendum to proceed, because Quebeckers wished to express themselves on the issue.[23] Following the referendum, Bertrand again went to Québec Superior Court[24], asking the Court to prohibit Québec from pursuing secession via the unilateral means expressed in Bill 1.[25] Justice Robert Pidgeon ruled that a full hearing should be allowed, identifying a number of issues deserving an answer.[26] Using the issues brought forward by Bertrand, in 1996 the Government of Canada utilised the reference procedure to ask the Supreme Court for their opinion. In the Secession Reference, it asked the Supreme Court three questions. Summarised, they were:
1. In Canadian domestic law, is it legal for Québec to unilaterally secede? 2. In international law, is it legal for Québec to unilaterally secede? 3. If questions 1 and 2 conflict, which takes precedence?
The Government of Québec refused to participate in the Secession Reference hearing, criticising the federal government and the Supreme Court’s legitimacy as an “independent arbiter in Canada’s federal system.”[27] Essentially, the Government of Québec saw the Supreme Court, a federal institution, as intrinsically biased towards the federal government. To ensure that the souverainiste perspective was heard, the Supreme Court appointed André Joli-Coeur as a “friend of the court” (amicus curiae) to argue the legal position of the province of Quebec. This ensured that the Court had the opportunity to hear both sides of the issue during the hearing. In addition, several interveners participated in the case: the province of Saskatchewan, the province of Manitoba, the Territories, several First Nations groups, minority rights advocates and Guy Bertrand.[28] Interveners are parties that that are not directly involved in a case that the Court chooses to let participate in the hearings by submitting written or oral arguments.
The Supreme Court rendered its opinion in 1998.[29]
It was argued by Joli-Coeur (the amicus curiae presenting a case in Québec’s stead) that the reference power – the ability of the government to ask the Court for an advisory opinion on matters of law, established in section 53 of the Supreme Court Act[30] – is unconstitutional. As detailed in this article on the reference power, previous cases had dealt with this issue before and again upheld the constitutionality of the reference power. As well, it was argued that the Court would be going beyond its role by answering the reference questions, for various reasons. [31] The Court did not agree with these arguments, viewing the reference questions to be both within the Court’s jurisdiction as a domestic body and of national importance.
THE DECISION: SECESSION REFERENCE SUMMARY
QUESTION 1: Within Canadian law, can Québec Unilaterally Separate?
Recognising that the word “unilateral” could mean various things, the Court interpreted it to mean “to effectuate secession without prior negotiations” with the other provinces and the federal government.[32]
In dealing with this question, the Supreme Court immediately began by reaffirming the importance of underlying constitutional principles as “a necessary part of our Constitution because problems or situations may arise which are not expressly dealt with by the text of the Constitution.”[33] The Constitution of Canada does not speak on the issue of secession, specifically. So, the Supreme Court drew on four relevant constitutional principles within the context of Canada’s historical evolution: federalism, democracy, constitutionalism and the rule of law, and respect for minorities.
The Supreme Court held that underlying constitutional principles “inform and sustain the constitutional text: they are the vital unstated assumptions upon which the text is based.”[34] Underlying principles can aid in linking individual elements of the Constitution together or “breathing life into” the text.[35] The Constitution’s underlying principles form part of our “unwritten constitution” which, though important, is subordinate to the “written constitution.”[36]
The process of applying the above four underlying constitutional principles to the Secession Reference included three steps. First, the Court highlighted how each of these principles figured in Canada’s constitutional development. Second, it described what each principle means in the Canadian context. Third, the principles were applied to the question of unilateral secession.
Where do these underlying principles come from? Canadian Constitutional Development: Relevant Historical Context
The Court included a brief history of Confederation, with an eye to each principle. In particular, the Supreme Court emphasized that Confederation was ademocratic initiative undertaken by elected representatives, not by “Imperial fiat.” Negotiations took place amongst elected representatives and the agreement was passed by each colony’s respective legislature (the Province of Canada representing what is now Québec and Ontario; New Brunswick; Nova Scotia), even though there was no legal requirement to do so.[37] The concept of federalism was crucial to Confederation negotiations and the protection of minorities was recognised as a priority in guarantees given for linguistic and religious groups.[38] The Court emphasized that federalism was the means of “reconcile[ing] diversity with unity;” it was the first step towards building a nation.[39]
Shortly after Confederation, following the first Dominion election where anti-Confederation representatives won a large majority of seats in Nova Scotia’s legislature, there was an attempted secession by Nova Scotia. Nova Scotia appealed to the Imperial Parliament in London, asking to undo the Confederation agreement, but the request was rejected on the grounds that: The neighbouring province of New Brunswick has entered into the union in reliance on having with it the sister province of Nova Scotia; and vast obligations, political and commercial, have already been contracted on the faith of a measure so long discussed and so solemnly adopted …. I trust that the Assembly and the people of Nova Scotia will not be surprised that the Queen’s government feel that they would not be warranted in advising the reversal of a great measure of state, attended by so many extensive consequences already in operation….[40]
So, federalism was a political mechanism for bringing diverse regions together in a union, one which created obligations for each.
Lastly, the British North America Act (now the Constitution Act, 1867)[41] stressed continuity in its preamble, proclaiming “a Constitution similar in Principle to that of the United Kingdom.”[42] Moreover, the gradual process of independence from Britain preserved the rule of law and stability through continued use of legal processes, ensuring legitimacy. Even in 1982, when the Constitution Act, 1982[43] completed Canada’s transition to an independent state, it was seen as imperative to transfer power legitimately through existing legal channels.[44]
Having demonstrated that all four principles have been important to the evolution of Canada since the time of Confederation, the Court discussed each principle separately, to explain its meaning.
Federalism
The Constitution Act, 1867 granted the “federal government sweeping powers which threatened to undermine the autonomy of the provinces.” [45] Yet the Supreme Court has emphasized that, in practice, Canadian politics has respected federalism, suggesting a system of partial federalism.[46] For example, the federal government has the power of disallowance – it can disallow any provincial law – but this power, although once frequently invoked, has not been used since 1944.[47]
Federalism has several purposes. It:
Recognises the diversity of provinces through a sphere of autonomy;[48] “Facilitates democratic participation by distributing power to the government thought to be most suited to achieving the particular societal objective;”[49] and “Facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular province.”[50]
Federalism, the Supreme Court held, creates political units wherein groups that would otherwise be minorities can form a majority within their political unit. It was a response to the political reality that, at the time of Confederation, the four provinces-to-be had markedly distinct cultures which they hoped to protect through autonomy over local matters. The Supreme Court sees federalism as a “central organizing theme” of our Constitution.[51]
Democracy
The Supreme Court described the democracy principle as “a sort of baseline against which the framers of our Constitution, and subsequently, our elected representatives under it, have always operated.”[52] It is an assumed for Canada’s political institutions, even if theConstitution Act, 1867 never explicitly mentions a “democracy principle.”[53]
The Court began its description of the democracy principle by calling it “a political system of majority rule.”[54] Democracy in Canada’s tradition has evolved. The Magna Carta (1215) gave way to the EnglishBill of Rights (1689), which paved the way for the formation of representative government bodies in the colonies, the development of responsible government, and Confederation.[55] Democracy is a vehicle for the expression of self-government, the Supreme Court held; it is concerned with more than just the process of government.[56] The Court referred to a quote from R v Oakes,[57] which articulated several values linked inherent to democracy:[58]
Respect for human dignity Social justice and equality Tolerance for a wide variety of beliefs (pluralism) Respect for cultural and group identity Faith in the institutions of government
The Supreme Court went on to discuss the institutional and individual components of democracy. Institutionally, democracy requires that Members of Parliament and representatives of each provincial legislature be elected by popular franchise (everyone has the right to vote).[59] Individually, citizens have a right to participate in the process.[60]
Finally, democracy interacts with other underlying constitutional principles, the Court said. It explained how the democracy principle relates to the three other underlying constitutional principles: federalism, the rule of law, and protection of minorities. First, federalism means that there can be “different and equally legitimate majorities.”[61] Second, the rule of law is necessary for democracy, creating “the framework within which the ‘sovereign will’ is to be ascertained and implemented.”[62] To be legitimate, democratic institutions have to have a legal foundation. Likewise, “law’s claim to legitimacy […] rests on an appeal to moral values.”[63]
Lastly, democracy requires continuous discussion which requires that the majority “be committed to considering […] dissenting voices.”[64] Respect for minorities works towards preserving the “marketplace of ideas” that is crucial to the process of deliberation, a necessary element of democracy. Significantly, , theConstitution Act, 1982 allows any participant in Confederation to initiate constitutional change, imposing “a corresponding duty on the participants in Confederation to engage in constitutional discussions in order to acknowledge and address democratic expressions of a desire for change.”[65] This duty to negotiate is crucial to the Court’s decision.
Constitutionalism and the Rule of Law
The Court made use of three other reference cases to explain the rule of law: Patriation Reference,Manitoba Language Rights Reference, and Provincial Judges Reference.[66] The rule of law, the Court held, consists of at least three aspects. The first two, taken from the Court’s decision in the Manitoba Language Rights Reference, are:
1. Law is supreme; and
2. The rule of law requires that there be laws and that those laws be created to embody the “normative order” (laws should strive to create a good society).[67]
Thirdly, as laid out in the Provincial Judges Reference:
3. All exercises of public power must “find its ultimate source in a legal rule.”[68]
Constitutionalism is similar to the rule of law, though the two concepts are distinct. Essentially, constitutionalism differs from the rule of law only in that it deals with the Constitution specifically. It “requires that all government action comply with the Constitution” and that all laws do so as well.[69]
The Court offered three, overlapping, reasons to have a Constitution that requires more than a simple majority to amend it:
An added safeguard for human rights and freedoms To ensure that vulnerable minority groups have the institutions and rights necessary to maintain and promote their identities To divide political power between different levels of government[70]
In keeping with these reasons for having a Constitution, the Court denied that a successful province-wide referendum could circumvent constitutional supremacy. Canada is not a system of simple majority rule: constitutional rules define the majority which must be consulted in order to alter the fundamental balances of political power in Canada.[71] The Court held, for that reason, that a significant change to the Canadian political order would require seeking an amendment to the Constitution through the amendment process. The amendment process ensures that there is an opportunity for the constitutionally-defined rights of all parties to be respected and reconciled.[72]
Protection of Minorities
The final underlying constitutional principle that the Court examined was the protection of minorities. In particular, the Court pointed to minority religious education rights, minority language rights, and Aboriginal rights as examples of a constitutional principle emphasizing the protection of minorities. Despite acknowledging that some constitutional provisions “protecting minority language, religion and education rights” were the product of historical compromises, the Court insisted that these compromises nonetheless worked towards a broader principle of protecting minorities.[73]
The protection of minorities would have been important to the Supreme Court’s ruling, had it determined that there was a right for Québec to unilaterally secede. It is worthwhile, for example, to note that part of theSecession Reference hearing concerned Canada’s duty towards its Aboriginal peoples, which might be in jeopardy in the event of unilateral secession. Does the Government of Canada have a fiduciary (“holding in trust” – Aboriginal groups agreed to treaties with Canada, trusting that Canada would protect their interests) duty towards its Aboriginal populations. If Québec were to secede, Canada might have a duty to ensure that Aboriginal groups within the territory of Québec received the same protections that they had in Canada. Because the Court ruled unilateral secession to be illegal, this argument was not discussed in the decision, though it has received scholarly attention. [74]
Application of Underlying Constitutional Principles to Unilateral Secession
Secession is an act which withdraws a group from the “political and constitutional authority of that state,” the Court held.[75] The secession of a province from Canada requires an amendment to the Constitution because it represents a fundamental change in the Constitutional balance of political power. Stated in a different way, “an act of secession would purport to alter the governance of Canadian territory in a manner which undoubtedly is inconsistent with our current constitutional arrangements.”[76]
The Court held that unilateral secession was illegal, which pundits and legal analysts had largely expected.[77] However, it also ruled that the rest of Canada had a “duty to negotiate,” in the event of a referendum demonstrating the political will to secede.[78] How did the Court reach this conclusion, within the context of our Constitution and underlying constitutional principles?
The Duty to Negotiate
The Court began by affirming the importance of referenda as an expression of the democratic will of the people. Though the Court accepted that the Constitution does not itself give direct legal effect to a referendum, the democratic principle demands that “considerable weight” be given to a clear demonstration that the people of a province wish to secede.[79]
The Court qualified the point above by stating, in order for a province to claim that an expression of democratic will has taken place, that there would need to be both a “clear majority” and a “clear question.”[80] Enough of the population would need to vote “yes”, and the reference question would need to be clear enough as to give voters an unambiguous sense of what they are supporting. The Court declared that it would have no role in deciding either of these matters, as only political actors “would have the information and expertise to make the appropriate judgement.”[81]
Moving to another principle, the Court said that federalism also pointed to a duty to negotiate. If, through a referendum, one province clearly renounced the status quo, the rest of the country would have an obligation to respond to that desire. This point was buttressed by the fact that any participant in Confederation can initiate constitutional amendment. The Court held that, if one participant has a right to seek an amendment, the corollary (“flip-side”) of this right is an obligation by all others to come to the negotiating table.[82]
The Court rejected that the federal government and other provinces had a duty to accept secession on the basis of a referendum, negotiating only on details. Forcing other parties to accept secession is illegitimate for two reasons:
1. It would undermine federalism, the rule of law, and the democracy principle for the whole of Canada. Federalism and the rule of law both call for secession to be done via the amendment process stipulated in the Constitution Act, 1982; the democracy principle cannot “trump” both of these. In addition, a right to secession would undermine the democracy principle “in other provinces or in Canada as a whole.”[83] 2. If secession is a legal entitlement, negotiations could not be effective. Québec, if it was able to invoke a right to secession, would have disproportionate power in negotiations.[84]
At the same time, the duty to negotiate requires that the other provinces and the Government of Canada not “exercise their rights in such a way as to amount to an absolute denial of Quebec’s rights.”[85] Still, the Court recognised that negotiations may, legally, fail.[86] The duty to negotiate only asks that negotiations “contemplate the possibility of secession.”[87]
Judicial Boundaries: the Role of the Court in Enforcing the Duty to Negotiate
The Court referred to its decision in the Patriation Reference[88], where it distinguished between the “law of the Constitution” and “theconventions [89] of the Constitution.”[90] Constitutional conventions are enforced by political sanctions; they are not enforced by courts. The Court, further, said that even judicial intervention in the “law of the Constitution” must be limited to within the court’s constitutional role.[91]
The Court ruled that it “has no supervisory role over the political aspects of constitutional negotiations.”[92]Just as it would not determine whether the “impetus for negotiation” (a clear majority and a clear question) had taken place, the courts could not say whether parties to secession negotiations were ignoring other principles or negotiating in good faith.[93] The duty to negotiate is still binding, but the consequences for not doing so carry political, not legal, sanctions. The Court pointed to international ramifications (other countries may not recognise Québec’s statehood if it unilaterally secedes) as an example.[94]
QUESTION 2: In International Law, Does Québec Have the Right to Secede Unilaterally?
The Court was asked to consider the principles of international law. Because the potential secession of Québec asks about the status of a group wishing to become a state, that group’s rights under international law are an important aspect of the situation.
International law has formal sources (treaties) and informal sources (principles of general behaviour that are repeated over time). Canada agrees to abide by the formal laws that it signs onto, meaning that they are binding, even if enforcement is sometimes difficult. Sometimes informal sources of international law (norms) are used to decide disputes as well. If Québec has a right to secede from Canada in treaties and conventions that Canada has agreed to, that would have to be considered against the constitutional duty to negotiate.
So, it was important that the Court answer this question. Three principles of international law were at-issue in the Secession Reference: effectivity, self-determination, and territorial sovereignty.
Effectivity
It was argued that, in the end, international law will recognise effective political realities.[95] Essentially, the idea behind this argument was that, even if secession wasn’t legally completed domestically, that the international community might view it as de facto complete and recognise Québec as a state. Recognition is really the only condition of statehood in the international system: a state is a state if other states say that it is and let it join international organizations.
The principle of effectivity was employed to underpin this claim. Effectivity is a fundamental norm in international law (meaning that it is part of informal international law), the necessary prerequisite for the legal validity of new political situations.
Essentially, effectivity recognises de facto situations. For example, in the United States v. Netherlands (a case heard at the Hague in 1925), the sovereignty of the Netherlands over Isla de Palmas “was recognised against valid title held by the United States because, de facto, the Netherlands had administered the island over previous years.”[96]
The Court did not accept the principle of effectivity, stressing that “the existence of a positive legal entitlement is quite different from a prediction that the law will respond after the fact to a then existing political reality.”[97]
Having dispensed with the effectivity argument, the Court turned to secession in the context of self-determination and sovereignty.
The Interplay between Self-Determination and Sovereignty: Two Central Features of International Law
In international law and politics, “self-determination” is the right of a people to “choose its own political status and to determine its own form of economic, cultural and social development.”[98] The right to self-determination exists alongside territorial sovereignty, however, and doesn’t mean that any group has a right to secede. As is explained below, the right to self-determination is generally actualised internally, not externally.
“Territorial sovereignty” is considered by many to be the fundamental principle of international law. It means that states have the right to protect and administer the area within its borders. Within its territory, a state is “sovereign” – it is supreme, it has independent authority. Territorial sovereignty is the principle that makes acts of aggression (invading another country) illegal, for example.
Secessionist groups often articulate a right to self- determination, while their states express a desire to protect their territorial sovereignty. Sometimes secessionist movements are viewed as legitimate, other times they aren’t. The Court considered whether, for the case of Québec, the right to self-determine should mean a right to secede unilaterally.
The Court listed various sources of international law which endorse the right of self-determination. There were many, including the Charter of the United Nations, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights.[99] Self- determination is a well-established “general principle of international law”[100], but is it applicable to the secession of a province from Canada?
The Court considered the scope of the right to self- determination, distinguishing between internal andexternal self-determination. Internal self-determination is most common and occurs within the structure of the state. A right to external self-determination “arises only in the most extreme of cases and, even then, under carefully defined circumstances.”[101]
This is because self-determination exists in the context of an international system which also values territorial sovereignty as a central organising principle. The Court pointed out that most documents supporting a right to self-determination also contain statements which limit the exercise of that right to an “existing state’s territorial integrity or the stability of relations between sovereign states.”[102] The Court pointed to several examples of this, including: theDeclaration on Friendly Relations and the Declaration on the Occasion of the Fiftieth Anniversary of the United Nations.[103]
International law “places great importance on the territorial integrity of nation states and, by and large, leaves the creation of a new state to be determined by the domestic law of the existing state of which the seceding entity presently forms a part.”[104] However, there are certain defined contexts where external self-determination can be exercised. The Court considered these, finding two. First, there is a right of colonial peoples to break away from the “imperial” power, but that situation isn’t applicable to Québec.[105] Second, if a group is “subject to alien subjugation, domination or exploitation outside a colonial context” they can also exercise a right to external self-determination.[106] Again, Québec is not in this situation.
A third, disputable, circumstance was proposed: “when a people is blocked from the meaningful exercise of its right to self- determination internally.”[107] The Court did not rule on whether this third circumstance was an established standard in international law, finding – at any rate – that Québécois have not been denied access to their government.[108]
The Court found that, except in the case of colonialism, the international right to self-determination is expected to be achieved within the framework of a people’s existing state. If a government represents the whole of the people and treats citizens equally, it is entitled to its territorial integrity under international law. International law does not give Québec the right to unilaterally secede.
QUESTION 3: If there is a Conflict Between Canadian and International Law, Which Wins?
The Court did not find a right to unilaterally secede in either Canadian or international law, so there was no conflict. As a result, the Court did not find it necessary to consider this question.[109]
AFTER THE REFERENCE CASE: EVENTS TO CONSIDER
The Secession Reference dealt with one of Canada’s critical political issues: whether Quebec has the power to make a unilateral decision to leave Canada. This is an issue which did not evaporate after the decision was rendered. As well, because the Supreme Court left it to political institutions to determine the definition of a “clear question” and a “clear majority,” both the National Assembly of Québec and the Parliament of Canada produced legislation in response to the Court’s decision.
Legislative Responses: The Clarity Act and Bill 99
The Parliament of Canada enactedThe Clarity Act in 2000.[110] This Act reaffirms the Court’s finding that secession amounts to a constitutional amendment and also gives the House of Commons the power to determine whether a clear expression of democratic will has taken place. In effect, the federal government gave itself the discretion to decide whether it must take place in negotiations. Part of the Act also demands that the House of Commons say in advance whether a referendum question is clear. [111] The Act does not define what constitutes a “clear majority.” Instead, it only says that the House is required to state whether the (undefined) standard has been met after the fact.
Québec’s National Assembly responded to The Clarity Act with its own legislation in 2000, withAn Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State, dubbed “Bill 99.”[112] Bill 99 says that a “clear majority” is any that meets the 50% + 1 threshold. It also declares that the Government of Québec has sole control to decide the content of a referendum, while affirming other values like Québec’s commitment to aboriginals and territorial integrity.[113] When brought before Québec Court of Appeal in 2007, sections 1, 2, 3, 4, 5, and 13 of “Bill 99,” the heart of the legislation, were ruled unconstitutional.[114]
Essentially, the Clarity Act sets the conditions under which the federal government will negotiate secession with Québec. Bill 99 set different conditions under which the federal government should negotiate secession with Québec, but it isn’t valid any more.
The Secession Reference tackled an issue of utmost importance related to the English-French divide in Canada, contemplating the legal ramifications if Quebeckers had voted to secede in 1995. It is also known for being the first articulation of all four “unwritten” constitutional principles together. As separatist sentiment in Québec continues to simmer today,[115] the Secession Reference decision remains an important element of Canadian constitutional law.
[1] Zoran Oklopcic, “The Migrating Spirit of the Secession Reference in Southeastern Europe” Canadian Journal of Law and Jurisprudence vol 24 no 2 (July 2011), online: Academia.edu.
[2] “Ultramontanism” The Canadian Encyclopedia, online: The Canadian Encyclopedia.http://www.thecanadianencyclopedia.com/articles/u ltramontanism
[3] Claude Bélanger, “The Quiet Revolution” Quebec History, online: Marianopolis College.
[4] Claude Bélanger, Quebec“ Nationalism – The Social Democratic Nationalism: 1945 to Today” Quebec History, online: Marianopolis College.
[5] Supra note 3.
[6] “Front de Libération du Québec” Canadian Encyclopedia, online : Canadian Encyclopedia.
[7] ”The October Crisis” Historica Peace and Conflict, online: Historica.ca.
[8] “Separatism” Canadian Encyclopedia, online: Canadian Encyclopedia.
[9] Ibid
[10]Ibid
[11]Ibid
[12] Maurice Pinard, “The Quebec Independence Movement: From its Emergence to the 1995 Referendum” in Douglas Baer (ed) Political Sociology (New York: Oxford University Press, 2002).
[13] Mathieu Pigeon, “Québec – Canada Relations” McCord Museum, online : McCord Museum.
[14] Ibid
[15] Ibid
[16] Ibid
[17] “Dossiers – Historique” Bloc Québécois, online : Bloc Québécois.
[18] Supra note 8.
[19] “Québec Referendum 1995“ Canadian Encyclopedia, online: Canadian Encyclopedia.
[20] Ibid
[21]Bill Q-1, An Act Respecting the Future of Quebec, 1st Sess, 38th Leg, 1995 (never voted on).
[22] David Schneiderman, ed, The Quebec Decision: Perspectives on the Supreme Court Ruling on Secession (Toronto: James Lorimer & Company Ltd., 1999) at p2.
[23] Ibid at p3.
[24] Bertrand v. Quebec (A.G.), [1995] 127 D.L.R. (4th) 408. [25] Supra note 21 at p4.
[26] Ibid.
[27] Supra note 21 at p6.
[28] Supra note 21 at p7.
[29] Reference re Secession of Quebec, [1998] 2 SCR 217 [Secession Reference].
[30] Supreme Court Act, RSC 1985, c S-26, s 53.
[31] Supra note 28 at para 6-31.
[32] Supra note 28 at para 86.
[33] Supra note 28 at para 32.
[34] Supra note 28 at para 49.
[35] Supra note 28 at para 49-52.
[36] Supra note 28 at para 53.
[37] Supra note 28 at para 35, 36, 39.
[38] Supra note 28 at para 38.
[39] Supra note 28 at para 43.
[40] Cited in supra note 28 at para 42, Colonial Office’s response to then-Premier Howe.
[41] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91, reprinted in RSC 1985.
[42]Supra note 28 at para 44.
[43]Constitution Act, 1982, being Schedule B to the Canada Act 1982(UK), 1982, c 11.
[44] Supra note 28 at para 47. [45] Supra note 28 at para 55.
[46] Ibid
[47] Ibid
[48] Supra note 28 at para 58.
[49] Ibid
[50] Supra note 28 at para 59.
[51] Supra note 28 at para 57.
[52] Supra note 28 at para 62.
[53] Ibid
[54] Supra note 28 at para 63.
[55] Ibid
[56] Supra note 28 at para 64.
[57] R. v. Oakes, [1986] 1 SCR 103 [Oakes].
[58] Supra note 28 at para 64.
[59] Supra note 28 at para 65.
[60] Ibid
[61] Supra note 28 at para 66.
[62] Supra note 28 at para 67.
[63] Ibid
[64] Supra note 28 at para 68.
[65] Supra note 28 at para 69.
[66] Supra note 28 at para 70. [67] Supra note 28 at para 71.
[68] Ibid
[69] Supra note 28 at para 72.
[70] Supra note 28 at para 74.
[71] Supra note 28 at para 75,76.
[72] Supra note 28 at para 76, 77.
[73] Supra note 28 at para 79-82.
[74] See, for example: Jill Wherrett, “Aboriginal Peoples and the 1995 Quebec Referendum: A Survey of the Issues” Library of Parliament, online: Parliament of Canada.
[75] Supra note 28 at para 83.
[76] Supra note 28 at para 84.
[77] Supra note 21.
[78] Supra note 28 at para 88.
[79] Supra note 28 at para 87.
[80] Ibid
[81] Supra note 28 at para 100.
[82] Supra note 28 at para 88, 69; alluded to in para 76, 77.
[83] Supra note 28 at para 91.
[84] Ibid
[85] Supra note 28 at para 93.
[86] Supra note 28 at para 96.
[87] Supra note 28 at para 97. [88]Re: Resolution to amend the Constitution, [1981] 1 SCR 753 [Patriation Reference].
[89]’’Constitutional Keywords – Convention’’ Centre for Constitutional Studies, online : Centre for Constitutional Studies.
[90] Supra note 28 at para 98.
[91] Ibid
[92] Supra note 28 at para 100.
[93] Supra note 28 at para 101.
[94] Supra note 28 at para 103.
[95] Supra note 28 at para 110.
[96]Anne Bayefsky, Self-Determination In International Law : Quebec And Lessons Learned: Legal Opinions(Boston : Kluwer Law International, 2000) at p 338.
[97] Supra note 28 at para 110.
[98] ‘’Self-Determination’’ Unrepresented Nations and Peoples Organization, online” UNPO.
[99] Supra note 28 at para 113-121.
[100] Supra note 28 at para 114.
[101] Supra note 28 at para 126.
[102] Supra note 28 at para 127.
[103] Supra note 28 at para 128-130.
[104] Supra note 28 at para 112.
[105] Supra note 28 at para 132.
[106] Supra note 28 at para 133. [107] Supra note 28 at para 134.
[108] Supra note 28 at para 135, 136.
[109] Supra note 28 at para 147.
[110] Clarity Act, SC 2000, c. 26.
[111] Tom Flanagan, “Clarifying the Clarity Act” The Globe and Mail (8 July 2011), online: The Globe and Mail.
[112] Bill 99, An Act Respecting the Exercise of the Fundamental Rights and Prerogatives of the Québec People and the Québec State, RSQ 2000 c. E-20.2.
[113] Ibid.
[114]Henderson c. Québec (Procureur général), 2007 QCCA 1138.
[115]“Quebec Separatism: Appetite for Independence Endures in Quebec, According to Poll” Canadian Press, online: Huffington Post.
Carter v Canada (Attorney General) (2012): B.C. Court Rules that Ban on Assisted Suicide is Unconstitutional
INTRODUCTION
On June 15, 2012, the Supreme Court of British Columbia rendered its long-awaited decision inCarter v Canada (Attorney General),[1] a case that considers whether a full prohibition on assisted suicide is contrary to the Canadian Charter of Rights and Freedoms.
Under section 241(b) of the Criminal Code, assisting someone to commit suicide is prohibited – a criminal offence. Justice Lynn Smith ruled that this “absolute” prohibition is contrary to two rights guaranteed by theCharter: (1) the equality guarantee in section 15; and (2) the right to “life, liberty and security of the person” in section 7. The prohibition is “absolute” because it does not allow for any exceptions, even in limited circumstances.
The 395-page decision re-opens a debate about assisted suicide that has been considered closed by the Supreme Court of Canada since 1993. In Rodriguez v British Columbia (Attorney General),[2] the Supreme Court considered the constitutionality of the same assisted suicide provision of the Criminal Code and a majority of the Court decided that it did not breach the Charter.
Justice Smith’s decision is sure to be appealed, potentially all the way up to the Supreme Court.
FACTS
The plaintiffs challenged several provisions of the Criminal Code relating to assisted suicide, but the challenge is centred on section 241(b), which states:
Everyone who … (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.[3]
Three different sets of plaintiffs challenged this prohibition of assisted suicide in Carter: 1. Gloria Taylor, who suffers from a fatal, neurodegenerative disease called amyotrophic lateral sclerosis (also known as “ALS”);[4]
2. Lee Carter and her husband Hollis Johnson, who helped Ms Carter’s mother to arrange an assisted death in Switzerland, knowing that providing this assistance could expose them to criminal charges in Canada;
3. Dr William Shoichet, a B.C.-based family doctor who would be willing to participate in physician-assisted dying if it were no longer illegal and he was convinced that it was appropriate medical care in the circumstances; and
The British Columbia Civil Liberties Association was also granted public interest standing in the case as it has a “long-standing interest in matters of patients’ rights and health policy”, and has some involvement in advocacy regarding end-of-life policy.[5]
The case mainly centered on the first plaintiff, Gloria Taylor. As an ALS patient, Ms. Taylor will lose her physical capacity over time, while retaining all cognitive and mental faculties.[6] While she is currently able to live fairly independently, Ms. Taylor wants to know that she can have a physician-assisted death when she is no longer able to move physically and her life becomes unbearable to her.[7] As she stated in her affidavit before the Court:
My present quality of life is impaired by the fact that I am unable to say for certain that I will have the right to ask for physician-assisted dying when that ‘enough is enough’ moment arrives… As Sue Rodriguez asked before me – whose life it is anyway?[8]
Ms. Taylor argued that, in limited circumstances, there should be exceptions to the absolute prohibition on assisted suicide for patients. Her position was that the absolute prohibition contained in the Criminal Codeis contrary to both her right to equality, and her right to life, liberty, and security of the person. The law prevents terminally ill, competent adults, who are well-informed and voluntarily seeking out physician- assisted dying, from receiving such assistance.[9]
ISSUES
The issues for the Court’s consideration were:
1. Is the ban on assisted suicide in section 241(b) of the Criminal Code contrary to section 15 of the Charter, which guarantees the right to equality? a. If so, is the infringement a reasonable limit that is demonstrably justified in a free and democratic society under section 1 of the Charter?
2. Is the ban on assisted suicide contrary to section 7 of the Charter, which guarantees the right to life, liberty, and security of the person except in accordance with the principles of fundamental justice? a. If so, is the infringement a reasonable limit that is demonstrably justified in a free and democratic society under section 1 of theCharter?
3. If there is an infringement of either section 15 or section 7 of the Charter that cannot be justified, what is the appropriate remedy?
DECISION
The Court concluded that the law, which is an absolute prohibition on assisted suicide (i.e. a prohibition without exceptions), is an infringement of Ms. Taylor’s right to equality and her right to life, liberty, and security of the person. The infringement is not justified under section 1 of the Charter. Further, the law is an infringement of Ms. Carter and Mr. Hollis’ right to life, liberty, and security of the person, and this infringement is also not justified.[10] As a result, the Court struck down the law and declared it invalid.[11] However, the Court declared that the applicable sections of the Criminal Code would not be struck down immediately. It gave Parliament one year – a period of time to allow it to respond and enact new laws.[12] In the meantime, Ms. Taylor was granted a “constitutional exemption” – a court order that allows her the option of physician-assisted death under several stipulated conditions without risk of exposing someone to criminal charges.[13]
ANALYSIS
Preliminary Issues for Consideration
Before embarking on a detailed analysis of the issues before it, the Court had to resolve a number of preliminary matters, including:
1. What is meant by the term “assisted suicide”?
2. What is the effect of the Supreme Court of Canada decision on assisted suicide in the Rodriguez case?
What is meant by the term “assisted suicide”?
In this decision, the Court defined “assisted suicide”, or “physician-assisted suicide” as “the act of intentionally killing oneself with the assistance of a medical practitioner who provides the knowledge, means, or both.”[14] “It is closely related to voluntary euthanasia, which is “the intentional termination of the life of a patient by a physician, at the patient’s request, for compassionate reasons.”[15] The term “physician-assisted dying” encompasses both physician-assisted suicide and voluntary euthanasia.
What is the effect of the Rodriguez decision?
The Supreme Court ruled that the Criminal Code ban on assisted suicide is constitutional in the 1993Rodriguez decision. Rodriguez also involved a woman with ALS who wished to obtain a physician-assisted death, and so challenged the constitutionality of the law.
According to the legal rule of stare“ decisis” (which literally translates to “let the decision stand”), cases which involve similar facts and similar legal questions must be decided in the same way. In other words, the Court of British Columbia must follow the earlier decision of the Supreme Court of Canada in a similar case with similar facts and issues. The rule ensures predictability and consistency in the legal system.[16]
However, the Court inCarter decided to revisit the Rodriguez decision and the assisted suicide issue. Why? The Court concluded that it was appropriate for several reasons:
New evidence is available – today, there is significant evidence available from other jurisdictions where assisted suicide is permitted – including evidence regarding the effectiveness of safeguards to protect vulnerable individuals – that was not available to the Supreme Court in 1993 when Rodriguez was decided.[17] The legal principles have evolved – new legal principles have been developed since 1993 dealing especially with the proper approach to interpreting section 7 and the right to life, liberty, and security of the person.[18] In addition, new principles have emerged regarding the proper approach to interpreting reasonable limits under section 1 of the Charter.[19] Several questions still linger after the Rodriguez decision – a number of the legal issues that arise in this case were not conclusively decided in Rodriguez.
The Rodriguez case divided the Supreme Court. A summary of the decision can be found here.
Of the nine judges who heard the case, a majority of five upheld the law prohibiting assisted suicide, ruling that it was constitutional. They reached this conclusion because, although Ms. Rodriguez’s right to security of the person was violated, the infringement was in accordance with the principles of fundamental justice (a concept that will be discussed in more detail in the sections below) because of the sanctity of human life and the need to protect vulnerable individuals.
Four judges of the Supreme Court disagreed. Justice McLachlin (who later became Chief Justice) and Justice L’Heureux-Dubé concluded that the law was an infringement of the section 7 right to life, liberty, and security of the person, and was not justified under section 1. Chief Justice Lamer concluded that it was an infringement of the section 15 equality guarantee (the only member of the Court to address section 15 in detail). Justice Cory agreed largely with Justices McLachlin, L’Heureux-Dube, and Chief Justice Lamer, concluding that law was an infringement of both sections 7 and 15.
Issue #1: Is the Law Prohibiting Assisted Suicide Contrary to the Section 15 Charter Right to Equality?
Section 15 of the Charter guarantees the right to equality. It reads as follows:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
The Arguments of the Parties
The plaintiffs in Carter argued that the law prohibiting assisted suicide infringes the right to equality because it places an extra burden on individuals who are seriously physically disabled.[20] Committing suicide, or attempting to commit suicide, is not (in itself) a crime.[21] However, individuals who suffer from a serious physical disability are not physically capable of ending their lives. Accordingly, Ms. Taylor argued that the Criminal Code prohibition on assisted suicide discriminates against her, and other individuals in a similar situation, on the basis of physical disability.[22]
The Government of Canada argued that because assisted suicide is prohibited for everyone – both able-bodied and physically disabled persons – there is no distinction or discrimination, and thus no infringement of section 15.[23] Canada argued that there are end-of-life choices available to disabled persons that are legal, such as refusing or withdrawing treatment, or declining nutrition and hydration under palliative sedation.[24] Palliative sedation is a currently legal and accepted end-of-life practice. It involves doctor-imposed sedation in order to maintain an individual in a deep state of unconsciousness until the time of death, with or without providing nutrition and hydration.[25] Ms. Taylor argued that there is no ethical or logical reason to distinguish palliative sedation from assisted suicide, while the Government argued that the key distinguishing factor is that with palliative sedation, the doctor does not commit an action that is designed to end the patient’s life.
Has section 15 been infringed in the Carter case?
The Supreme Court decision in Withler v Canada (Attorney General)[26] provides a two-step test to determine whether section 15 has been infringed:
1. Does the law create a distinction based on an enumerated or analogous ground?
2. Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
The Court considered each of these steps in turn:
Step 1: Does the law create a distinction based on an enumerated or analogous ground?
The section 15 equality guarantee protects individuals from discrimination, that is, distinctions made on the basis of “enumerated” or listed grounds (race, national or ethnic origin, colour, religion, sex, age or mental or physical disability) or on the basis of analogous“ grounds.”[27]
The Court concluded that the assisted suicide prohibition does create such a distinction because it places a burden on people with physical disabilities that is not placed on able-bodied individuals.[28] Physically disabled people may not be capable of taking their own lives and are faced with the dilemma of continuing to suffer or exposing another person to criminal charges for assisting them to commit suicide.[29] The Court expressed a concern that “some resolve this dilemma by taking their lives before their illnesses progress to a point where they are no longer able to do so.”[30] Although there are some methods of suicide available to physically disabled individuals, such as palliative sedation combined with refusal of nutrition, the Court concluded that these means of suicide are far more onerous than those available to able-bodied individuals.[31]
Step 2: Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
This step of the test asks whether the distinction is discriminatory. The Court concluded that the distinction is discriminatory because it “perpetuates and worsens” a disadvantage that is suffered by physically disabled persons.[32] The law does not respect the dignity and autonomy of physically disabled persons, as they do not have the same ability to make the deeply personal choice of whether to end their own lives.
Accordingly, the Court concluded that Ms. Taylor had proven an infringement of her right to equality under section 15 of the Charter.[33]
Is the infringement demonstrably justified in a free and democratic society?
The rights and freedoms contained in theCharter are not absolute – they are subject to reasonable limits that can be justified by the Government. Therefore, once a court determines that there has been an infringement of a Charter right, it must then consider arguments by the Government about the reasonable and justifiable nature of the law in question.
According to section 1 of the Charter:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
In order to help the Court determine whether the assisted suicide prohibition is a reasonable limit on the right or freedom in question, it uses a test known as the “section 1” test. The test contains the following steps:
Step 1 – Pressing and substantial objective: Does the legislation have a pressing and substantial objective?
Step 2 – Proportionality: Are the means used to achieve the legislative objectives proportionate in that they do not breach Charter rights more than necessary? The Court uses the following steps to answer this proportionality question: a) Rational Connection: Is there a rational connection between the legislation that is in violation of the Charter and the objectives of the legislation itself? In other words, are the means rationally connected to the objectives? b) Minimal Impairment: Does the infringement minimally impair Charter rights? c) Proportionate Effect: Do the benefits of the legislation outweigh the harms associated with violating the Charter right?
This section 1 test was used by the Supreme Court in the Rodriguez case. There, the Court concluded that, assuming the law prohibiting assisted suicide was a violation of section 15 equality rights, it was justified using this section 1 test.[34] The discussion of section 1 was brief. Strong emphasis was placed on the fact that Parliament should be given significant leeway to address this “contentious and morally laden issue”, and that there was no evidence available to support the effectiveness of appropriate safeguards needed to ensure that vulnerable individuals were protected and decisions were made by the individuals themselves.[35]
As noted above, a trial court would normally be required to follow a decision of the Supreme Court on the basis of the legal rule ofstare decisis. However, the Court in Carter decided to give the section 1 issue a fresh look for several reasons:
The Supreme Court in Rodriguez did not conclusively decide whether the laws prohibiting assisted suicide infringed section 15. Instead, the Supreme Court stated that even if there was a section 15 infringement, it was justified under section 1 of the Charter. However, the discussion overall was brief because the issue did not need to be resolved to reach the decision in Rodriguez – the case was decided on other grounds. New evidence is available regarding the effectiveness of safeguards that was not available to the Supreme Court in Rodriguez. The law regarding the section 1 test has evolved, and is no longer the same as it was when Rodriguezwas decided (as will be discussed in more detail in the section below).
As a result, the Court proceeded through the section 1 test. Step 1: Does the legislation have a pressing and substantial objective?
The first step in the section 1 analysis is to identify the objectives of the legislation and determine whether they are “pressing and substantial” – that is, they must be important enough to justify overriding Charterrights.
Here, the Court concluded that the objective of these provisions in the Criminal Code is to “protect vulnerable persons from being induced to commit suicide at a time of weakness” by ensuring there are criminal consequences for anyone who assists another person with suicide.[36] This objective protects the value of all human life in our society.
In Rodriguez, this objective was ruled to be pressing and substantial. The judge inCarter came to the same conclusion.[37]
Step 2: Are the means used to achieve the legislative objective proportionate?
The second step of the section 1 test involves considering whether the means used to achieve the legislative objectives are proportionate, in that they do not breach Charter rights more than necessary. This step contains sub-parts, which assist a court in coming to its determination.
(a) Are the means rationally connected to the objective?
In Rodriguez, the Court ruled that the law against assisted suicide was rationally connected to the purpose of section 241(b) of the Criminal Code.[38] The judge in Carter came to the same conclusion.[39]
(b) Are the means minimally impairing?
The impairment to rights must be minimal and the law must be carefully tailored so that rights are impaired no more than necessary. In the Rodriguez case, the Supreme Court ruled that the sections in the Criminal Code prohibiting assisted suicide are indeed minimally impairing, because there is no other measure that could be relied upon to fully achieve the purpose of protecting vulnerable people from being coerced or forced into an assisted suicide[40]
However, the Court in Carter focused its analysis on whether there were alternatives to the absolute infringement which would achieve the legislation’s objective, without seriously infringing the Charter rights of people in Ms. Taylor’s situation. The Court concluded that there is an effective alternative – Parliament could prohibit assisted suicide, but allow for exceptions under “stringent conditions.”[41] These conditions would be designed to ensure that assisted suicide would only be available in a situation where the individual is:
An adult; Grievously ill with no chance for recovery; Competent; Non-ambivalent (not susceptible to changing his/her mind); Seeking assisted suicide voluntarily; Fully informed as to their diagnosis and prognosis; Suffering symptoms that cannot be treated through means reasonably acceptable to them; and Not subject to coercion.[42]
The Court had the benefit of new evidence from other international jurisdictions that permit assisted suicide (including Oregon, Washington, the Netherlands, and Belgium) – evidence that was not available to the Supreme Court in Rodriguez. As a result, the Court concluded that the risk that legalizing assisted suicide will harm vulnerable people can be greatly minimized.[43] Because this evidence was new and not available to the Supreme Court whenRodriguez was decided, the Court concluded that it was appropriate to diverge from the decision in Rodriguez on this point.
Accordingly, Justice Smith concluded that since a less drastic means of preventing vulnerable persons from being induced to commit suicide was available to the Government, the legislation was not minimally impairing. In other words, the legislation failed on this point.
(c) Are the benefits of the legislation proportionate to the harms that result from the violation of theCharter right?
The last stage of the proportionality test involves weighing the benefits of the legislation against the harms imposed by the violation of a Charter protected right. Justice Smith emphasized that this step in the section 1 analysis had evolved since the Rodriguez decision. Following the Supreme Court’s decision in Alberta v Hutterian Brethren of Wilson Colony,[44] the key question at this step is a broad one (broader than it was when Rodriguez was decided): whether the “benefits of the impugned law are worth the costs of the rights limitation.”[45]
While the law has several benefits – it sends an anti-suicide message to society and upholds the sanctity of every life – it imposes an unequal burden on physically disabled individuals who are “suffering unbearably.”[46] In this way, the law denies autonomy to people such as Ms. Taylor.[47]
Accordingly, the Court concluded that any benefits that flow from the absolute prohibition are not worth the costs of the rights they infringe.[48] The Court took issue with the absolute nature of the prohibition – the fact that it did not allow for any exceptions, even in limited circumstances. As a result, the Court ruled that the prohibition infringes section 15 in a manner that is not justifiable.
Issue #2: Does the Absolute Prohibition Infringe the Right to Life, Liberty and Security of the Person Under Section 7? Section 7 of the Charter states as follows:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Has section 7 been infringed?
Determining whether there has been a breach of section 7 involves a two-part analysis. A court considering a potential section 7 violation must ask:
1. Whether there is a deprivation of the right to life, liberty, or security of the person; and
2. If so, whether the deprivation is in accordance with the principles of fundamental justice.
Step 1: Has there been a deprivation of the right to life, liberty, or security of the person?
Life, liberty, and security of the person are distinct, yet interrelated, concepts. Generally speaking, “life” refers to freedom from fear of death; “liberty” refers to physical freedom and personal autonomy over important life decisions; and “security of the person” refers to freedom from serious state-imposed psychological stress and interference with human dignity. However, the interpretation of each of these terms will vary depending on the specific case.
In Rodriguez, the Court concluded that Ms. Rodriguez’s security of the person interest was affected by the assisted suicide prohibition, because it denied her ability to make a personal choice. The Court emphasized that the ability to make such a fundamental life choice is a component of “security of the person”: “there is no question, then, that personal autonomy, at least with respect to the right to make choices concerning one’s own body, control over one’s physical and psychological integrity, and basic human dignity are encompassed within security of the person.”[49]
Accordingly, it is clear from the Court’s decision in Rodriguez that Ms. Taylor’s right to security of the person was deprived by the law prohibiting assisted suicide.
The Court in Carter also concluded that Ms. Taylor’s liberty interest was engaged through the interference with her personal autonomy and loss of control over her own bodily integrity.[50]
In addition, the Court considered whether the right to life was engaged by the legislation. The decision inRodriguez did not decide this issue.[51] While acknowledging that the essence of the plaintiffs’ claim was centred on the liberty and security of the person interests, the Court concluded that the right to life was also at issue. This is because the effect of the law is potentially to force a disabled individual to make an earlier decision regarding suicide – a person whose physical condition is deteriorating may take their life earlier than they otherwise would because they are still physically capable of doing so and may soon lose that physical ability.[52]
Accordingly, Justice Smith concluded that the law prohibiting assisted suicide deprived Ms. Carter of the right to life, liberty, and security of the person.
Step 2: Is that deprivation in accordance with the principles of fundamental justice?
Section 7 of the Charter is unique in that it contains an internal balancing mechanism: individuals may be deprived of their right to life, liberty, or security of the person, so long as the deprivation is in accordance with the “principles of fundamental justice.”
But, what are the “principles of fundamental justice”? These are legal principles that are considered essential to our society’s notion of justice. For example, it is a principle of fundamental justice that our laws not be arbitrary or overly vague.[53] Over time, the courts in Canada have recognized different concepts as principles of fundamental justice.
At the time Rodriguez was decided, there was one principle of fundamental justice relevant to this case: the principle that a law must not be arbitrary.[54] In other words, a law must be logically related to the law’s goals, and not based on whim or fancy. In Rodriguez, a majority of the Supreme Court concluded that the law prohibiting assisted suicide was not arbitrary. As a result, the majority inRodriguez ruled that the deprivation of Ms Rodriguez’s security of the person was in accordance with the principles of fundamental justice, and so there was no infringement of her section 7 rights.
However, since Rodriguez, the Supreme Court has identified two more principles of fundamental justice. The first is the notion of “overbreadth” – a law should not be more broadly framed than necessary to achieve the legislative purpose.[55] The second is “gross disproportionality” – the idea that a legislative response to a problem (here, the problem of vulnerable people being induced to commit suicide) is so extreme as to be disproportionate to the purpose of the legislation.[56]
In Carter, the Court concluded that the law which absolutely prohibits assisted suicide under any circumstances is too broad because the alternative, a prohibition with limited exceptions, would achieve the same legislative goal – protecting vulnerable people from being induced to commit suicide at a time of weakness.[57] The Court came to this conclusion because the evidence from other jurisdictions which permit assisted suicide under limited conditions, demonstrates that “a system with properly designed and administered safeguards could, with a very high degree of certainty, prevent vulnerable persons from being induced to commit suicide while permitting exceptions for competent, fully- informed persons acting voluntarily to receive physician- assisted death.”[58]
In addition, the Court concluded that the effect of the absolute prohibition on people in Ms. Taylor’s situation was grossly disproportionate to its effect on protecting vulnerable people.[59]
As a result, the Court concluded that because the law is overbroad and grossly disproportionate, the deprivation of life, liberty and security of the person was not in accordance with the principles of fundamental justice, and so Ms. Taylor’s section 7 rights were infringed.
Is the infringement demonstrably justified in a free and democratic society?
In previous cases, the Supreme Court has expressed some doubt about whether an infringement of section 7 canever be justified using section 1 of the Charter.[60] However, this issue did not need to be resolved in this case. The Court concluded that any infringement of section 7 was not justified, for the same reasons that the section 15 infringement was not justified (as discussed in the section above).[61]
Issue #3: What is the Appropriate Remedy?
As the Court concluded that the law prohibiting assisted suicide was an infringement of both section 15 and section 7 of the Charter and that the infringement was not reasonable or justifiable, it then had to determine how to remedy the infringement.
Under section 52(1) of the Constitution Act, 1982, the Constitution of Canada is declared to be the “supreme law of Canada”, and “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” This means that a court has the power to strike down a law that is contrary to the provisions of the Charter.
However, the Court recognized that Parliament – not the court – is responsible for determining how to rectify the Criminal Code in order to ensure that the provisions regarding assisted suicide are consistent with theCharter.[62] This could be done, for example, by allowing for exceptions to the prohibition in limited circumstances. However, any changes must be made by Parliament.
Accordingly, the Court declared the assisted suicide provisions of the Criminal Code to be invalid, but suspended the declaration for one year in order to give Parliament time to rectify and amend the offending law.[63] In other words, the law will remain in effect for one year to allow Parliament to respond.
However, this delay would not help Ms. Taylor, because the absolute prohibition would remain in effect for one full year and this might deny her the opportunity to seek assisted suicide if she decided she needed to do this. So, in a rare move, the Court granted Ms Taylor a “constitutional exemption” in the interim.[64] This means that during the upcoming year Ms Taylor can obtain physician-assisted death, under several conditions. These conditions are detailed, and include a requirement that Ms Taylor makes a written request, that her doctor attests to the fact that she has been fully informed of her diagnosis and prognosis, any available alternative treatment options, informed of the risks of physician-assisted dying, and referred to a palliative care expert for a consultation, in addition to other conditions.[65]
WHAT’S NEXT?
It is unlikely that the decision of the trial Court in British Columbia will be the final word on this issue. The Attorney General of Canada announced on July 13, 2012 that the Government will appeal the Carter ruling to the British Columbia Court of Appeal. The case could be appealed all the way up to the Supreme Court in the coming years.
It will be interesting to see whether the British Columbia Court of Appeal (and potentially the Supreme Court) agree that the situation with respect to assisted suicide in 1993 was so markedly different than the situation today that the issue merits reconsideration.
[1] 2012 BCSC 886 [Carter].
[2] [1993] 3 SCR 519 [Rodriguez].
[3] Criminal Code, RSC 1985, c C-46, s 241(b).
[4] Carter, supra note 1 at 47.
[5] Ibid at paras 45, 99. The parties were also supported by a number of interveners: the plaintiffs were supported by the Farewell Foundation for the Right to Die, the Canadian Unitarian Counsel, and the Ad Hoc Coalition of People with Disabilities who are Supportive of Physician-Assisted Dying. The defendants (the government of Canada) were supported by the Euthanasia Prevention Coalition and the Christian Legal Fellowship (see ibid at para 35).
[6] Ibid.
[7] Ibid at paras 44, 50.
[8] Ibid at paras 54, 56.
[9] Ibid at para 25.
[10] Carter, supra note 1 at para 1.
[11] Pursuant to section 52(1) of the Constitution Act, 1982. [12] Carter, supra note 1 at para 2.
[13] Ibid.
[14] Ibid at para 38.
[15] Ibid.
[16] Ibid at para 900.
[17] Ibid at para 1001.
[18] Ibid at para 1002.
[19] Ibid at para 1003.
[20] Ibid at para 1009.
[21] Ibid at para 1011.
[22] Ibid.
[23] Ibid at para 1075.
[24] Ibid at para 1065.
[25] Ibid at para 200.
[26] 2011 SCC 12, [2011] 1 SCR 396.
[27] Carter, supra note 1 at para 1027.
[28] Ibid at para 1075.
[29] Ibid at para 1042.
[30] Ibid.
[31] Ibid at para 1076.
[32] Ibid at para 1161.
[33] Ibid at para 1162. [34] Rodriguez, supra note 2 at 613-15, cited in Carter, supra note 1 at para 1165. The majority inRodriguez did not conclusively decide whether the laws prohibiting assisted suicide infringed section 15. Instead, the majority of the Court decided that even if they did infringe section 15, the infringement was justified under section 1.
[35] Carter, ibid at paras 1166-67.
[36] Ibid at para 1190.
[37] Ibid at para 1205.
[38] Ibid at para 1208, citing Rodriguez, supra note 2 at 613.
[39] Ibid at para 1209.
[40] Ibid at para 1212.
[41] Ibid at para 1233.
[42] Ibid.
[43] Ibid at paras 1238-41.
[44] 2009 SCC 37, [2009] 2 SCR 567.
[45] Ibid at para 77, cited in Carter, supra note 1 at para 1246.
[46] Carter, ibid at para 1264-65.
[47] Ibid at para 1281.
[48] Ibid at para 1285.
[49] Rodriguez, supra note 2 at 587-589, cited in Carter, supra note 1 at para 1293.
[50] Carter, supra note 1 at para 1303.
[51] Ibid at para 1319. [52] Ibid at para 1322.
[53] Peter W Hogg, Constitutional Law of Canada: 2011 Student Edition (Toronto: Carswell, 2011) at 47.17-47.18.
[54] Carter, supra note 1 at para 1331.
[55] This principle of fundamental justice was first articulated in 1994 in R v Heywood, [1994] 3 SCR 761.
[56] Gross disproportionality was first identified as a principle of fundamental justice in R v Malmo-Levine, 2003 SCC 74, [2003] 3 SCR 571.
[57] Carter, supra note 1 at para 1363-64.
[58] Ibid at para 1367.
[59] Ibid at para 1378.
[60] Ibid at para 1380. The court cited the Supreme Court decisions in Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 SCR 350; and Re: BC Motor Vehicle Act, [1985] 2 SCR 486.
[61] Ibid at para 1383.
[62] Ibid at para 1385.
[63] Ibid at para 1393.
[64] Ibid at para 1411.
[65] Ibid at para 1413. Figueroa v. Canada (2003) – The Right to Vote and Registered Party Status
Prior to the Supreme Court of Canada’s 2003 decision in Figueroa v. Canada,[1] the Canada Elections Act required a registered federal political party to nominate candidates in at least fifty electoral districts. A party that nominated fewer than fifty candidates for a federal election would be de-registered. In losing its registration, it would lose various benefits, including reimbursement of some of its campaign expenses. The Court was split 6-3 in its reasoning, but it was unanimous in finding that the 50-candidate threshold is contrary to the full meaning of the right to vote, as protected by section 3 of the Canadian Charter of Rights and Freedoms.
Effective Representation
All Charter rights, including the right to vote, are given a broad and purposive interpretation by the courts. Section 3 protects more than “the bare right to place a ballot in a box.”[2] Rather, the purpose of the right to vote is “effective representation.”[3] In an earlier decision[4] the Supreme Court determined that effective representation means more than an effective representative in Parliament or a legislative assembly.[5] The Court said effective representation includes the right of every citizen “to play a meaningful role in the selection of elected representatives.”[6] It is not just the composition of Parliament after an election that establishes effective representation. Effective representation also encompasses meaningful participation in the electoral process. Each vote – even for the most unpopular parties and candidates – contributes to “the free flow of diverse opinions and ideas.”[7] Because casting a vote in an election gives voice to perspectives that may not be represented in Parliament, it “has intrinsic value independent of its impact upon the actual outcome of elections.”[8]
50-Candidate Threshold Impedes Meaningful Participation in the Electoral Process
Justice Iacobucci, writing for the majority, disagreed with the Ontario Court of Appeal’s view that a political party only achieves its “essential function” when it shows potential to participate in “governance” after an election.[9] Rather, “participation as a voter is not only about the selection of elected representatives.”[10] Smaller political parties play an essential role in the democratic process. They contribute to the discourse that determines social policy.[11] They draw attention to issues and concerns overlooked by larger parties.[12] For these reasons, parties with fewer than fifty candidates contribute to the effective representation of Canadian voters. Thus, if the 50-candidate threshold harms smaller political parties, it will be contrary to a broad and purposive reading of section 3 of the Charter. The threshold has two distinct effects. First, there is an economic burden. Parties with fewer than fifty candidates do not have the right to issue tax receipts to donors, nor may they retain funds that go unspent during an election campaign.[13] The effect is that smaller parties will be at a disadvantage when it comes to buying advertising space and communicating their policies to the general public.[14]As information about smaller parties is reduced, the right to meaningful participation in the electoral process is diminished. The second effect of the 50- candidate threshold is that party affiliation is not printed on the ballot papers next to the candidate’s name.[15] Because many voters base their voting choices on the policies of parties, rather than individual candidates, the absence of party affiliation on the ballot paper interferes with “the right of each citizen to exercise his or her right to vote in a manner that accurately reflects his or her actual preferences.”[16]
50-Candidate Threshold Not a Justifiable Limit on the Right to Vote
All Charter rights, including the right to vote, are subject to justifiable limits under section 1 of theCharter. The government identified three objectives for limiting the right to vote. Justice Iacobucci saw two of these objectives as pressing and substantial, but all three failed the Oakes test, the established test for reasonable limits on Charter rights. The first objective identified by the government was “the improvement of the electoral process through the public financing of political parties.”[17] The government said it is important to provide a subsidy to encourage a broad base of donations to political parties, but that the public funds must be carefully managed.[18] Justice Iacobucci saw “no connection whatsoever” between the objective of improving the electoral process and the 50-candidate rule.[19] The second part of the objective – to promote fiscal responsibility – is not sufficiently pressing and substantial in this instance to allow for a limitation on a Charter right.[20] The second objective was to protect the integrity of the electoral financing regime.[21] That is, the candidate limit prevents abuse of the electoral financing regime by parties that do not have a genuine interest in participating in the electoral process.[22] Justice Iacobucci found no rational connection between the 50-candidate threshold and this pressing and substantial objective.[23] For reasons already discussed in the definition of “meaningful participation,” Justice Iacobucci said “there is no merit whatsoever to the claim that the failure to satisfy the 50-candidate threshold is evidence that a party has no genuine interest in the electoral process.”[24] The final objective submitted by the government was to ensure that the electoral process is able to deliver a viable outcome for our form of responsible government.[25] The suggestion here is that Canadian democracy functions best with a majority government, so an electoral system that promotes a few larger national parties over many smaller regional or interest based parties is an important objective.[26] Justice Iacobucci found this objective problematic.[27] While Canada has a long history of majority governments, he saw nothing inherently undemocratic or undesirable about minority governments or coalition governments. In fact, such governments may have benefits.[28] Justice Iacobucci concluded by holding out the possibility that some form of legislated differential treatments of political parties could be a reasonable limit on the right to vote, but the 50-candidate threshold is not one of them.[29] Thus the relevant sections in the Elections Act were declared unconstitutional.[30]
Justice LeBel’s Concurring Judgment
Justice LeBel was joined by Justices Gonthier and Deschamps in a detailed set of concurring reasons. They agreed with most of Justice Iacobucci’s analysis. However, they expressed “reservations about the methodology” used by Justice Iacobucci to identify an infringement on the right to vote.[31] Justice LeBel was concerned that the majority decision could establish in effect that any restriction on “ the capacity of a citizen to participate in the electoral process” is a violation of the right to vote.[32] In his opinion, legislation aimed at enhancing “meaningful participation” could possibly “compromise individual participation to a certain extent” without infringing the right to vote.[33] Ultimately, LeBel did not find this to be the case with the 50-candidate threshold rule, but he undertook a thorough analysis of the definition of “meaningful participation.” Justice LeBel stressed that there are many different competing values inherent in the section 3 right to vote. Reconciling these values is no easy task.[34] For instance, “favourable treatment of more broadly based parties does further an aspect of effective representation that can be validly weighed in the balance against the value of individual participation.”[35] The Canadian political system has – for valid reasons – tended to favour“centrist, accommodative parties that are particularly well suited to representing a regionally, linguistically and culturally diverse country.”[36] Thus, there is a “laudable objective” behind the 50-candidate threshold.[37] However, while the legislation may be aimed at a legitimate purpose, it interferes with other valuable objectives. It is particularly unfair to provinces other than Ontario and Quebec, which would never be able to put forward a distinctly regional party.[38] So, in the final balancing of effects, Justice LeBel found that the 50- candidate threshold conflicts with the values of the section 3 right to vote. Jim Young (June 25, 2010)
[1] 2003 SCC 37. [2] Ibid. at para. 19. [3] Ibid. at para. 21. [4]Reference re Prov. Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158. [5] Supra note 1 at para. 25. [6] Ibid. at para. 25, quoting Haig v. Canada [1993] 2 S.C.R. 995 at 1031. [7] Ibid. at para. 28. [8] Ibid. at para. 29. [9] Ibid. at para. 39. [10] Ibid. at para. 44. [11] Ibid. at para. 41. [12] Ibid. at para. 42. [13] Ibid. at para. 48. [14] Ibid. at para. 52. [15] Ibid. at para. 55. [16] Ibid. at para. 57. [17] Ibid. at para. 62. [18] Ibid. at para. 63. [19] Ibid. at para. 64. [20] Ibid. at para. 65. [21] Ibid. at para. 71. [22] Ibid. [23] Ibid. at para. 73. [24] Ibid. at para. 75. [25] Ibid. at para. 79. [26] Ibid. [27] Ibid. at para. 80. [28] Ibid. at paras. 81-82. [29] Ibid. at para. 91. [30] Ibid. at para. 93. [31] Ibid. at para. 95. [32] Ibid. at para. 96. [33] Ibid. at para. 99. [34] Ibid. at para. 132. [35] Ibid. at para. 136. [36] Ibid. at para. 156. [37] Ibid. at para. 172. [38] Ibid. at para. 176.