Alberta and its Physicians Clash Over a Right to Something Besides Striking
On 9 April 2020, the Alberta Medical Association (AMA) filed a lawsuit against the Government of Alberta alleging the Government violated the rights of the AMA and its members by unilaterally terminating a contract between the AMA and the Government.[1] The AMA represents physicians in Alberta, with one of its key roles being to negotiate with the Government on their behalf.[2] They claim the Government of Alberta violated their members’ Charter right to freedom of association.[3] This right protects employees’ ability to bargain collectively with employers – allowing employees to negotiate with employers more effectively.
The Dispute Between the AMA and the Government of Alberta
The AMA’s claim centers on the Government’s decision to unilaterally end the previous operating agreement between the AMA and Government. Provincial governments across Canada sign agreements with medical associations like the AMA which determine pay, working conditions, and other important features of physician life. In Alberta, theAlberta Health Care Insurance Act (“AHCIA”) governs these agreements.[4] In November 2019, with the previous agreement between the AMA and Government expiring, they began negotiating a new agreement.
About a month into the negotiations, the Alberta Government passed the Ensuring Fiscal Sustainability Act.[5] This amended the AHCIA to allow the Minister of Health to terminate agreements made under the AHCIA. This included the agreement with the AMA. And, in February 2020, the Minister ended that agreement.[6] By terminating the agreement with the AMA, the Minister ended the bargaining process. The previous agreement included the right to enter arbitration, allowing an arbitrator to resolve the remaining disagreements. When the Minister terminated this agreement, this option was eliminated.
Section 2(d): Freedom of Association
The key Charter issue raised by the AMA concerns the right to freely associate. They allege that the Government violated this right by unilaterally terminating their previous agreement. The Canadian Charter of Rights and Freedoms guarantees everyone freedom of association.[7] In the 1980s and 1990s, the Court interpreted the freedom of association differently – it did not include the right to bargain collectively or to strike.[8]
Since 2015, the courts have taken a different approach. In a trilogy of cases, the Supreme Court clarified that section 2(d) protects the right to collective bargaining and the right to strike.[9] This means that if a government refuses to bargain with employees as a group, they may be in breach of their Charter rights. Also, since employees have a right to strike, the government cannot force them to keep working. An example of a section 2(d) violation is a 2015 Saskatchewan law which defined “essential” services and barred employees in these services from striking.[10] This violated the employees’ right to strike.
A government action or law violates employees’ freedom of association if it “substantially interferes” with their ability to bargain collectively or to strike.[11] Substantial interference is anything that seriously hinders the employees’ ability to exercise these rights. For example, by barring striking altogether, the Saskatchewan law discussed above substantially interfered with the employees’ right to strike. On the other hand, a law which forces a single wage change does not violate this right.[12] Such a law does not substantially interfere with the employees’ ability to bargain collectively or strike.[13]
The Alberta Medical Association’s Section 2(d) Argument
The Alberta Medical Association claims the Government of Alberta violated their right to freedom of association by terminating their previous agreement, and thus substantially interfering with their right to bargain collectively.
Normally, when collective bargaining breaks down, employees can strike. Section 2(d) protects this right because striking, and the threat of striking, helps employees have roughly equal bargaining power with employers.[14] However, the AMA and its members refuse to strike for ethical and professional reasons. The AMA argues the Government must provide an alternative means of resolving disputes. The previous agreement between the Government and the AMA contained such a mechanism. After 90-days of “good faith” bargaining, the parties would submit to arbitration, where a third-party arbitrator would resolve the dispute. This solution was lost when the Government terminated the previous agreement. As a result, the AMA was left with no mechanism for resolving disputes.
The main issue for the court to decide is whether the Government’s unilateral termination of the previous agreement constitutes a substantial interference with the AMA’s right to bargain collectively. The answer may depend on how the court views the AMA’s decision to not strike. Normally, when the Government removes striking as an option, it must give employees some alternative means of reaching an agreement.[15] Here, it is the AMA, and not the Government, that has removed the option of striking. Whether the Government breached the AMA’s rights may thus depend on whether the Charter requires the Government provide an alternative dispute resolution mechanism.
Recently, the Supreme Court ruled that similar legislation in B.C. was unconstitutional.[16] There, B.C. legislation removed terms from an agreement between the Government and the British Columbia Teachers’ Federation – a group representing school teachers in the province. Much like the Alberta law, the B.C. law unilaterally terminated a prior agreement. The Court found this to be a substantial interference with the teachers’ right to bargain collectively. However, unlike the Alberta law, the B.C. law prohibited future collective bargaining on certain issues entirely. This clearly qualified as substantial interference. The substantial interference test is always “contextual and fact-specific”.[17] The specifics of each scenario may change the outcome dramatically.
Section 1 – Balancing Rights
If the court decides that the Government has violated the AMA and their member’s section 2(d) right to bargain collectively, the Government will have an opportunity to justify its violation. Section 1 of the Charter allows for the balancing of rights. If a government can justify its infringement of a right, the infringement will be allowed. In this case, if the AMA shows that the Government’s actions violated their rights, the Government could in turn try to justify this violation. There are several steps a judge must take to determine if the violation is justified.
One particularly important step is to determine if the violation of the right “minimally impairs” the AMA’s right to freedom of association. For a violation of a Charter right to be justified, the Government’s violation of the right must be the least impairing option that is reasonably possible to achieve the Government’s objective.[18] If the Government can achieve its goal in a reasonable way which impairs the right less, the violation will not be justified. The Government’s objective in terminating the agreement is likely to save Albertans money by paying physicians less.[19] The question at this stage would then be: does unilaterally terminating the agreement achieve this goal in a way which least impairs physician’s right to bargain collectively? The Government will make arguments that it is, the AMA will argue that other methods were available.
Conclusion
By terminating the agreement with the AMA, and denying physicians the opportunity to arbitrate as their previous agreement allowed, the Government of Alberta has forced a difficult choice on the AMA: strike or accept our terms. This leaves physicians the option of legally striking, a decision which would leave Albertans without access to essential healthcare services. Because they refuse to strike for ethical reasons, the AMA is left with no meaningful way to negotiate.
Employees in Canada have a right to bargain collectively with their employers. Governments violate this right when they substantially interfere with employees’ ability to do so. The courts will decide whether leaving the AMA with the choice of striking or accepting the Government’s terms, rather than negotiating an agreement or entering arbitration, violates the AMA’s Charter rights.
[1] See Demi Knight “Alberta Medical Association files lawsuit against provincial government”, Global News (9 April 2020), online:
[2] Alberta Health Care Insurance Act, RSA 2000, c A-20.
[3] Alberta Medical Association (CMA Alberta Division), Dr. Christine Molnar, Dr. Paul Boucher, and Dr. Alison Clarke v Her Majesty the Queen in Right of Alberta (9 April 2020), Edmonton QB (Statement of Claim), online (pdf):
[4] Ibid, s 40.1 [5] Ensuring Fiscal Sustainability Act, SA 2019, c 18.
[6] See OC 039/2020 (2020).
[7] Canadian Charter of Rights and Freedoms s 2(d), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
[8] See Mia Reimers, “Freedom of Association: The Constitutional Limits of Union Rights”,Centre for Constitutional Studies (30 October 2014) online:
[9] See Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1; Meredith v Canada (Attorney General), 2015 SCC 2; Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 [SFL].
[10] See The Public Services Essential Services Act, SS 2008, c P-42.2.
[11] See SFL, supra note 9 at para 78.
[12] But see Manitoba Federation of Labour et al v The Government of Manitoba, 2020 MBQB 92 at paras 307-349.
[13] See Federal Government Dockyard Trades and Labour Council v Canada (Attorney General), 2013 BCCA 371, leave to appeal to SCC refused, [2013] SCCA No. 404.
[14] See SFL, supra note 9 at para 55.
[15] Ibid at para 4.
[16] See British Columbia Teachers’ Federation v British Columbia, 2016 SCC 49.
[17] Health Services and Support-Facilities Subsector Bargaining Assn. v BC, 2007 SCC 27 at para 92. [18] See R v Edwards Books and Art Ltd., 1986 CanLII 12 (SCC) at para 122.
[19] Dean Bennett, “Alberta doctors say a budget figure a deep salary cut when fee changes kick in”, CBC News (28 February 2020), online:
Emergency Powers and the Emergencies Act
* This article is an edited excerpt of “Climate Emergency vs Emergency Powers” by Michael Graham originally published on June 27, 2019.
Emergency Branch: Peace, Order, and Good Government (“POGG”)
The Constitution includes a section called Peace, Order and Good Government that allows Parliament to uphold laws that would ordinarily be unconstitutional because they are outside of Parliament’s listed areas of authority (a.k.a. the provincial areas of authority). Those federal areas of authority, or ‘powers’ are all listed in section 91 of the Constitution and, among others, the list includes powers like currency, navigation, copyrights, the postal service, regulation of trade and commerce, and the military.[1] The ability to make laws under POGG was originally included in the Constitution as a catch all. The intention was that any area of law that was not originally divided between the provinces and Parliament would become Parliament’s responsibility.[2] POGG powers have since been narrowed to three branches of power:
1. Emergency: “the temporary and extraordinary need for national regulation of a particular subject matter”;
2. Residual: “the power to make laws on matters that are not enumerated” in the Constitution;
3. National Concern: “the power to make laws in relation to matters that go beyond local or provincial concerns or interests, and are, due to their inherent nature, concerns of the Dominion of Canada as a whole.”[3]
When the government declares it must act because of an emergency and the appropriate response is outside of its authority, then Parliament can use the emergency branch of POGG to uphold the passing of an ordinarily unconstitutional law.
Use of the emergency branch has been few and far between in Canada’s history. It was first used in 1882 to uphold a Parliamentary foray into prohibition. The Court found that Parliament had the ability to enact prohibition laws with the aim of achieving public order.[4] The word emergency was not actually used until 1923 when matters related to war were determined to almost automatically fall under the jurisdiction of POGG.[5] What are considered emergencies was not summarized until 1946 when the Judicial Committee of the Privy Council listed war, pestilence, drink or drug traffic, and the carrying of arms as examples.[6] But without a specific definition, what might be considered an emergency, and therefore, what powers Parliament has under POGG’s emergency branch remains uncertain.
As it currently stands, there are two requirements for the use of Parliament’s emergency powers to make laws. First, there must be a rational basis for the legislation and second, the legislation must be of a temporary nature.[7] These requirements mean that there has to be a genuine and reasonable belief that an emergency exists, and that the solution presented has a time limit associated with it. The Supreme Court of Canada listed these requirements when deciding whether a law passed by Parliament to combat inflation in the 1970s (that clearly encroached on provincial authority) using the emergency branch, was constitutional.[8] It did not want Parliament to be able to arbitrarily, or indefinitely encroach on the provinces’ powers.
The most notorious use of the emergency powers of POGG is easily identifiable in Parliament’s invocation of theWar Measures Act (“WMA”). Parliament first passed the WMA in response to the onset of World War I.[9] The act granted the Governor in Council the ability to proclaim apprehension or existence of war, stated that such a proclamation was proof of the existence of such conditions, and allowed the Governor in Council to make any orders or regulations they saw fit to maintain the “security, defence, peace, order and welfare in Canada.”[10] The term Governor in Council is used when the Governor General acts on the advice of just the Prime Minister and the Cabinet, as opposed to Parliament as a whole (the Senate and the House of Commons).[11] The WMA also explicitly granted the Governor in Council authority over such matters as censorship of publications, arrest, detention, deportation, and appropriation of property.[12] One of the abuses that resulted from use of the WMA was the internment of individuals who were members of organizations inspired by the Bolshevik Revolution.[13]
The WMA was invoked two more times to deal with WWII and the October Crisis in 1970.[14] All three uses of the WMA have led to claims of human rights violations, notably the internment of Canadians.[15] The WMA was criticized for the sweeping powers that it provided the government, and Parliament sought to remedy this by replacing the WMA with theEmergencies Act (“EA”).[16]
Emergencies Act
In an attempt to remedy the controversies surrounding the WMA and to codify (but not definitively list) its emergency powers, Parliament replaced the WMA with the EA. Both of these acts were possible under the emergency powers of POGG. However, Parliament’s emergency powers cannot be entirely defined or contained within one act of legislation.[17] This means that if there was an emergency or a response that fell outside of the scope of the EA, Parliament would still have the constitutional authority to make laws to handle the emergency. The EA seeks to limit the sweeping powers that the WMA granted, and to quell fears that the government could trample over people’s rights. The EA does this by:
– requiring Parliamentary oversight (both houses of Parliament passing a motion confirming the declaration of an emergency);
– requiring compliance by the Governor in Council with the Charter, the Canadian Bill of Rights and consideration of the International Covenant on Civil and Political Rights; and
– implementing compensation provisions.[18]
The EA permits the Governor in Council to take “special temporary measures” in times of national emergency.[19] A national emergency is a situation that is temporary, urgent and critical, and that endangers the health and safety of Canadians to a point where provinces are unable to deal with it, or that threatens Parliament’s regular ability to ensure the security, sovereignty, and territorial integrity of Canada.[20]
National emergencies are then grouped into four categories: 1. Public Welfare Emergencies: deals with emergencies such as natural disasters, diseases, and pollution;[21]
2. Public Order Emergencies: deals with emergencies because of threats to the security of Canada;[22]
3. International Emergencies: deals with emergencies where the use of force or violence has been threatened or is imminent and involves Canada and one or more other countries;[23]
4. War Emergencies: deals with war or armed conflict for Canada or its allies.[24]
Although Parliament has passed the EA, it has never been used.[25] It appears that either the provinces have been able to handle any emergencies on their own, or that existing laws have been sufficient and the government has not needed to use the powers provided by the EA.
[1] Constitution Act, 1867(UK), 30 & 31 Vict, c 3, s 91.
[2] Patrick J. Monahan, Byron Shaw & Padraic Ryan, Constitutional Law, 5th ed (Toronto, ON: Irwin Law, 2017) at 263. See generally Constitution Act, supra note 1 at ss 91-95 (these sections contain the constitutional distribution of legislative powers).
[3] Legal and Legislative Affairs Division & Parliamentary Information and Research Service, Bill S-7: An Act to deter terrorism and to amend the State Immunity Act, by Jennifer Bird & Julia Nicol, (Legislative Summary), Publication No. 40-3-S7-E (Ottawa: Library of Parliament, 26 April 2010) at 19, n 31.
[4] Russel v The Queen, [1882] 7 AC 829.
[5] Re: Anti-Inflation Act, [1976] 2 SCR 373 at 407, 68 DLR (3d) 452 [Anti-Inflation] (Chief Justice Laskin made note of this when referring to the Fort Frances case). [6] Ontario (Attorney General) v Canada Temperance Federation, [1946] 2 DLR 1 at 5-6, [1946] AC 193; The Constitutional Law Group, Canadian Constitutional Law, 5thed (Toronto: Emond Montgomery Publications Limited, 2017) at 177 (the Judicial Committee of the Privy Council in England was the highest court of appeal in Canada until 1949).
[7] Anti-Inflation, supra note 5 at 423, 427.
[8] Ibid at 380, 392.
[9] Law and Government Division, Emergencies Act, by Peter Niemczak & Peter Rosen, PRB 01-14E (Ottawa: Library of Parliament, 10 October 2001) at 1.
[10] Ibid.
[11] House of Commons, Compendium of Procedure, (online collection of articles ), at Parliamentary Framework.
[12] War Measures Act, 5 George V 1914, c 2, s 6.
[13] Law and Government Division, supra note 9 at 2.
[14] Ibid.
[15] Marjun Parcasio, “The Evolution of theWar Measures Act”, LawNow relating law to life in Canada 43:3 (3 January 2019), online: .
[16] Law and Government Division, supra note 9 at 2.
[17] Monahan, supra note 2 at 267.
[18] Ibid at 9; Emergencies Act, RSC 1985, c 22 (4thSupp), s 58.
[19] Emergencies Act, supra note 18 at preamble.
[20] Ibid, s 3. [21] Ibid, s 5.
[22] Ibid, s 16.
[23] Ibid, s 27.
[24] Ibid, s 37.
[25] Legal and Social Affairs Division & Parliamentary Information and Research Service,Parliamentary Committee Review of Regulations, by Peter Bernhardt & Michael Dewing, (Background Paper), Publication No. 2005-63-E (Ottawa: Library of Parliament, 18 December 2008, revised 4 May 2015) at 5.
Travel Restrictions in a Pandemic: What are your Charter Rights?
The COVID-19 pandemic has modern Canada facing unprecedented challenges. The severity of the crisis has led governments to restrict personal liberties in ways that were unthinkable only a few weeks ago. One of these restrictions is the decision to place limitations on travel. The mobility rights of all Canadians are protected by section 6 of the Charter of Rights and Freedoms [Charter].[1] Though it is an infrequently discussed section of the Charter, the protections afforded by section 6 figure prominently in this era of government- mandated travel restrictions.
Section 6: A Brief Overview Sections 6(1) and 6(2) of the Charter state:
6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right:
1. to move to and take up residence in any province; and 2. to pursue the gaining of a livelihood in any province.
As is clear from the wording, section 6(1) is concerned with international travel whereas section 6(2) is concerned with movement within Canada.
The right to international travel applies only to Canadian citizens.[2] Section 6(1) grants the right to enter, remain in, and leave Canada.[3] However, it is important to note that the right to enter, remain in, or leave Canada does not guarantee that this mobility can be achieved in practice. The section “does not grant the right to enter another country or the right to leave another country” since it “is the authorities of that other country who determine their own entry and exit conditions.”[4] Thus, section 6(1) “does not impose any obligation on the Canadian government to guarantee entry to or exit from another country.”[5] The section merely limits the Canadian government from hampering this mobility through its own action. Thus, “an adult Canadian citizen cannot be forced to stay in Canada and cannot be ordered to return to Canada” by the Canadian government, unless the government can provide a justification for its actions in a court of law, using section 1 of the Charter.[6]
Section 6(2)’s right to “move and take up residence in any province” implies that Canadian citizens have the right to travel freely throughout the country. Canadians have consistently had the right to inter-provincial travel since the adoption of the Charter. Government efforts to stop free travel in Canada are unprecedented and are a clear violation of this section. However, like other sections of the Charter, the government would have the ability to justify its actions to a court, using section 1 of the Charter. It would likely argue that such an infringement was a necessary step to fight the spread of the COVID-19.
It is important to note that section 6 is not subject to section 33, the Charter’s notwithstanding clause. If invoked, the clause allows governments to ignore certain Charter rights. However, when the notwithstanding clause was drafted, mobility rights were determined to be of such fundamental importance that the Charter drafters decided that governments could not override those rights by invoking the clause. In effect, individual mobility rights were given an additional safeguard from government interference. This decision speaks to the significance of freedom of travel in a liberal democracy like Canada.
COVID-19 Related Restrictions on Mobility
The federal government and other levels of government in Canada have initiated various policies that have limited the freedom to travel since the pandemic was declared in early March. These include practical limits on leaving Canada, limits on returning to Canada, and restricting travel within the country.
Limits on leaving Canada
The Canadian government can only control access to its borders. This power allows Canada to limit the ability of citizens to leave the country. However, once people leave the country, it cannot control if they can enter the borders of another sovereign state. Some practical roadblocks to travel are out of the control of the Canadian government, such as the suspension of some commercial airline operations and the closing of international borders by other countries.
However, recent actions by the federal government are adding to Canadians’ inability to leave the country. On March 16, 2020, Canada closed its borders to foreign travelers,[7] exacerbating paralysis of international travel routes to and from Canada. Further, a mutual decision between Canada and the United States to close its border to all but essential travel[8] clearly has the effect of limiting the ability of Canadian citizens to leave the country.
Limits on returning to Canada
There are also practical issues for citizens attempting to return to Canada. Despite Prime Minster Justin Trudeau’s plea for Canadians abroad to “come home,”[9] closed borders and suspended flight routes have hampered the ability of Canadian citizens to do so.
At the time of writing (March 2020), despite the escalation of COVID-19 cases in the country and around the world, Canadian citizens can return to the country: while Canada has closed its borders to foreign nationals, they remain open to citizens and permanent residents.[10] Further, the federal government has begun to work with Canadian airlines to charter flights to repatriate Canadians stranded abroad.[11]
However, the Prime Minister has also conceded that the government is “unlikely to be able to bring everyone home.”[12] In closing Canada’s international borders, the Prime Minister also stated that “[anyone] who has [COVID-19] symptoms will not be able to come to Canada.”[13] This policy choice will have the effect of stranding sick Canadians abroad, with no practical way to return to Canada. Thus, in practice, some Canadians will be not be able to exercise their right to exercise their section 6 right to return to the country.
Restricting Travel Within the Country
The ability for unfettered travel within the country has also been restricted. For example, Nova Scotia began restricting its border on March 23, 2020, where “anyone entering the province will be stopped, questioned and told to self-isolate for 14 days.”[14] The Northwest Territories has closed its borders with only limited exceptions.[15] On March 28, the federal government barred anyone showing symptoms of COVID-19 from boarding domestic flights or intercity passenger trains.[16]Additionally, there has also been speculation that the federal government could invoke the Emergencies Act[17] to impose further inter-provincial travel restrictions throughout the country.[18]
Can the government justify its breach ofCharter mobility rights? The Importance of Section 1
The restrictions on mobility rights by a government in Canada are unprecedented. All these government sanctioned efforts to restrict travel are likely clear breaches of section 6.[19] However, the government can attempt to justify its actions to a court using section 1 of the Charter. In order to justify its actions, any government travel restriction must be reasonable and demonstrably justified in a free and democratic society. If a court decides that the government has made its case for justifying its actions, the breaches will be deemed constitutional. If they do not, then the government would need to stop its travel restrictions because they would be unconstitutional. For this reason, Section 1’s limitation clause is of great importance in ensuring that the government does not overstep when it breaches the section 6 rights of Canadian citizens, but also, allows the government to provide a rationale for a breach in specific circumstances.
In the context of a worldwide public health crisis, there are several arguments that Canadian governments can make to justify a section 6 breach. For example, since unfettered travel is a significant transmission source of COVID-19, the government could justify its breach as a necessary response to cut rates of transmission. This in turn could preserve valuable health care resources and limit the rates of fatality caused by COVID-19. Since the Canadian Constitution allows for the balancing of rights, some “liberties must [occasionally] make way in the pursuit of other legitimate societal objectives, like public health.”[20] Therefore, restrictions on travel freedoms can look insignificant when balanced against a potentially substantial loss of life if they were not enacted. This current crisis speaks to the importance of section 1 of the Charter – in situations where the health and safety of Canadians is at stake, there may be a greater public good that requires the breaching of some individual rights.
Justifying a breach of Canadian’s Charter rights is not an east job for the government. Government action must be pressing, substantial, and have proportionate effects. If the Charter breach is more detrimental than the goals of the policy being enacted, then it will not be upheld. A draconian government action would not to be upheld under section 1 if there was insignificant evidence that it helped to alleviate a pressing issue. For example, an indefinite quarantine order that is backed by no evidence showing that it would be beneficial to health and safety would likely be struck down by a court as unconstitutional.
University of Ottawa law professor Martha Jackman believes that the government’s current approach to restricting travel is justified under section 1, since it is based on the best public health evidence available. She believes that if the restrictions arise because of public health concerns then it would be “quite likely [that they would] be found reasonable by the courts” and upheld.[21] The uncertainty and seriousness of the situation would likely give the government “significant leeway if any of [the travel restrictions] were challenged” in court.[22]
Conclusion
The restrictions on mobility that have been enacted or pondered by governments in Canada are unprecedented. It appears that, on their face, the restrictions breach the Charter’s right to free mobility guaranteed by section 6. Should the government’s actions be challenged in court, section 1 of the Charter would be used to determine whether the breaches can be justified. However, given the extraordinary situation and the continually evolving public health risk posed by COVID-19, it is likely that governments would be given substantial leeway by the courts in restricting mobility rights to attempt to fight the virus, even if Canadians lose their travel related liberties in the short term.
[1] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[2] Canada (Minister of Employment and Immigration) v Chiarelli, [1992] 1 SCR 711.
[3] Divito v Canada (Public Safety and Emergency Preparedness), 2013 SCC 47 at para 18.
[4] Kamel v Canada (Attorney General), 2009 FCA 21 at para 17.
[5] Ibid.
[6] Droit de la famille – 13328, 2013 QCCA 277 at para 40.
[7] Hannah Jackson and Emerald Bensadoun, “Trudeau closes Canadian borders to most foreign travellers amid coronavirus outbreak,” Global News (16 March 2020), online:
[8] Eric Stober, “Canada-US land border closes to all non- essential travel,” Global News (20 March 2020), online:
[9] “’If you’re abroad, it’s time for you to come home’: Trudeau,” CBC News(16 March 2020), online:
[11] Prime Minister’s Office, “Prime Minister announces efforts to bring Canadians home from abroad” Justin Trudeau, Prime Minister of Canada(21 March 2020), online:
[12] Kathleen Harris, “Trudeau says government will do all it can to help stranded Canadians, but concedes some will remain trapped,” CBC News(21 March 2020), online:
[13] Ryan Tumility, “Canada to close borders to most non- citizens, stop ill travellers from boarding inbound flights, PM announces,” National Post (16 March 2020), online:
[14] “Nova Scotia border restricted as of 6am Monday,” The Chronicle Herald(22 March 2020), online: >. [15] Katie Toth, “NWT to close borders to all inbound travel by air, land and port – with limited exceptions,” CBC News (20 March 2020), online: [16] Hannah Jackson and David Lao, “Coronavirus: Canada to ban sick travellers from domestic flights, intercity trains,” Global News (28 March 2020), online: [17] RSC 1985, c 22 (4th Supp). [18] Collen Flood and Bryan Thomas, “In the face of COVID-19, we must understand Canada’s lockdown powers,” The Globe and Mail (16 March 2020), online: >. [19] Brian Hill, “Coronavirus: Could Canada impose strict travel bans? Experts say yes,” Global News (13 March 2020), online: [20] Joseph Arvay and David Wu, “As civil liberties erode, Canada must not allow COVD-19 outbreak to infect the rule of law,” CBC News(26 March 2020), online: [21] Hill supra note 19. [22] Ibid. A Law to Stop Politicians From Lying With an upcoming federal election, Canadians are preparing to decide who deserves their vote. A 2019 poll conducted for The Globe and Mail found that the biggest issue for voters is ethics in government.[1] This concern is not uniquely Canadian either. In the UK, a man sued recently selected Prime Minister Boris Johnson for “misconduct in public office.”[2] The claim against Johnson was that he deliberately misled the public during the EU referendum, and again during the general election, with the claim that “the UK gave the EU £350m a week.”[3] Just how false was this claim? The chairman of the UK Statistics Authority was so appalled that he wrote a letter to Mr. Johnson decrying the “clear misuse of official statistics”.”[4] Nevertheless, a judge refused to let the lawsuit proceed.[5] What if there were a law that prevented politicians from lying? Surely charges levelled under such a statute would assist voters in their assessment of a political candidate’s ethics. Could such a law be constitutionally valid despite encroaching on a politician’s right to freedom of expression, which is protected by section 2 of theCharter ?[6] This article discusses the relevant existing regulations, and previous decisions by the Supreme Court of Canada (“SCC”) about laws regarding democratic fairness, protecting vulnerable groups, and prohibiting false news. Some would argue that we do not need a law of this sort. “Lying about their views is just part of the game that candidates play.”[7] Others would argue that, as a Globe and Mail editorial puts it, “politicians need to be able to speak freely without fear of judicial reprisal.” According to this view, it should be left to the politicians and the media to draw attention to lies, and the voters to determine whom to trust.[8] But laws and courts do regulate speech in a variety of other contexts. For example, food labels have to be truthful about ingredients.[9] Elon Musk found himself in trouble with the U.S. Security Exchange Commission for fraud because of a tweet that suggested Tesla might be going private; he was fined $20M.[10] If we are willing to go this far to protect the interests of potential consumers and shareholders, one would think we would try to protect voters at least equally, if not more. Ad Standards Canada handles the regulation of advertising and is guided by the priorities of truth, accuracy, and fairness.[11] However, the Code the ASC follows explicitly excludes application to political or election advertising.[12] They do not want to “govern or restrict the free expression of public opinion or ideas.”[13] Freedom of Expression The Charter guarantee of freedom of expression protects “freedom of thought, belief, opinion and expression.” The SCC ruled that there are three underlying values guiding its purpose: 1. promotion of the “free flow of ideas essential” to democracy; 2. promotion of the “marketplace of ideas” where truth can be found through the competition of ideas; and 3. the “intrinsic value to the self-realization of both speaker and listener.”[14] If a court finds there has been a restriction on freedom of expression, it must decide if the restriction is justifiable as a reasonable limit in a free and democratic society, a qualifier found in section 1 of the Charter.[15] To determine whether a restriction is a reasonable limit the courts conduct a balancing exercise. They consider the underlying objective of the action (which must have a pressing and substantial reason) and the benefits of the action and weigh those against the harmful effects.[16] If the government can prove these, among other considerations, a limitation of a Charter right is constitutional. The purpose of a law preventing politicians from lying clearly limits freedom of expression; therefore, a section 1 analysis would be required. An older, and unconstitutional law similar to what this article is discussing, lacked the pressing and substantial objective required to restrict a Charter right. Below, this article will explain that law against ‘fake news’, and discuss how a pressing and substantial objective might now exist. Crafting a Law Against Political Lies and Fake News In 1992 the SCC struck down a law that prohibited the publication of any news, statement, or tale that the publisher knew to be false, “and that causes or is likely to cause injury or mischief to a public interest.”[17] The wording of the Criminal Code section as drafted was found to be too broad and, its objective was not pressing and substantial because it lacked any apparent purpose.[18] Our plan to devise a law against lying seems to be off to rough start. However, the SCC did leave us some hope. They did note that “this is not to say that words cannot properly be constrained by the force of the criminal law.”[19] The law “could support criminalization of expression only on the basis that the sanction was closely confined to situations of serious concern.”[20] But perhaps the biggest problem to overcome is determining what constitutes a lie. In 1992, the SCC observed that “the question of falsity of a statement is often a matter of debate, particularly where historical facts are at issue.”[21] Determining the validity of facts is one thing, but it gets even more complicated when we begin to engage in epistemology: “the distinction between justified belief and opinion.”[22] The belief in the science around climate change is a great example. Is human caused climate change the truth if only 97% of scientists agree, or is a unanimous consensus required? A Pressing and Substantial Reason Nevertheless, the SCC has upheld limiting freedom of expression in the past in order to protect a vulnerable group from manipulation. In 1989, the SCC upheld a law that banned advertising directed at children under the age of 13 “for the protection of a group which is particularly vulnerable to the techniques of seduction and manipulation abundant in advertising.”[23] In a 1990 decision where the vulnerable group was high school students, the SCC noted that “even if the message of hate propaganda is outwardly rejected, there is evidence that its premise of racial or religious inferiority may persist in a recipient’s mind as an idea that holds some truth.”[24] They also found that they should not “overplay the view that rationality will overcome all falsehoods in the unregulated marketplace of ideas.”[25] The SCC historically seems more willing to uphold laws that limit Charter rights when the law is to protect a vulnerable group. Voter Vulnerability Have voters become a vulnerable group? With the rise of fake news, the growing difficulty of fact checking, and increased manipulation through the use of personal data and foreign interference, the electorate appears to be growing more and more vulnerable by the day. In 2004 the SCC decided that limits on third party spending for election advertising are a constitutionally valid limitation on freedom of expression.[26] The SCC found multiple reasons why spending limits are a pressing and substantial concern; notably, promoting “equality in the political discourse” and ensuring “that voters have confidence in the electoral process.”[27] By promoting accessibility and fairness in the electoral system, confidence is bolstered; these outweigh the limit on “unlimited political expression.”[28] In balancing the effects of spending limits, the court emphasized a previous finding that “[P]rotecting the fairness of referendum campaigns is a laudable objective that will necessarily involve certain restrictions on freedom of expression” (emphasis in original).[29] The majority of the court drew on the vulnerability of voters. They emphasized that voters “must be presumed to have a certain degree of maturity and intelligence,” however, if third party advertising seeks to systematically manipulate voters, they may be seen as more vulnerable.[30] The SCC upheld limiting freedom of expression for electoral fairness again in 2007, this time in the name of informational equality. The SCC upheld a law banning the publication of election results from the East coast prior to the closing of polls on the West coast.[31] The law prevented “the perception of unfairness created when some voters have general access to information that is denied to others.”[32] The SCC recalled from their earlier decision on third party spending that “ensuring that all voters receive the same information where possible” was an important objective.[33] One could argue that as long as everyone is receiving the same lies, voters are being ensured access to the same information. However, the issue becomes the voters’ ability to educate themselves on what is the truth and what is a lie; which as we have seen is an increasingly arduous task. In the past the court has voiced concern for the vulnerable groups of “the young and the less educated – those segments of the population who are least able to inform themselves … and to protect themselves.”[34] But perhaps the biggest hope comes from a recent Federal Court decision that required ‘Product of Israel’ labels to be removed from wines made in the West Bank.[35] The Court found that Canadians need to have accurate information about the origin of products in order to express their political views through purchasing.[36] Otherwise, their Charter right to freedom of expression would be limited.[37] It seems plausible then that the courts could uphold as constitutional a law that prevents politicians from lying in order to ensure that voters have access to accurate information, because like expressing political views through purchasing, voting is a protected form of freedom of expression.[38] Conclusion Creating a law that prevents politicians from lying would be extremely difficult. It would need to be narrow, specific, and could not handcuff politicians unduly in the pursuit of truth and democracy. Not to mention, it could only catch undisputable facts. But we already regulate lies when it comes to things like food labelling, commercial advertising and publicly traded companies, and in Alberta the United Conservative government is creating a war room to counter “lies and misinformation” about the energy industry.[39] Why not a law that prohibits politicians from lying?. The SCC has limited freedom of expression multiple times in the past in order to uphold objectives in the furtherance of democracy, and in order to protect a vulnerable group from manipulation. With today’s ubiquitous dissemination of fake news and politicians’ falsehoods, voters may well be a group deserving of such protection. [1]Robert Fife & Steven Chase “Canadians view ethics in government as paramount issue in fall election, poll shows”, The Globe and Mail(16 June 2019), online: [2]Michael Holden “British judges quash prosecution of PM candidate Johnson over Brexit campaign claim”, The Globe and Mail (7 June 2019), online: [3]“Brexit: Boris Johnson ordered to appear in court over £350m claim”, BBC (29 May 2019), online: [4]“Is that politician lying? In a democracy, only you can decide”, Editorial, The Globe and Mail (29 May 2019), online: [5]Holden, supra note 2. [6]Constitution Act, 1982, s 2(b), being Schedule B to the Canada Act 1982 (UK), 1982, c11. [7]CM Melenovsky, “Not All Political Lies Are Morally Equal” (2018) 49:2 J Social Philosophy 294 at 296. [8]“Is that politician lying? In a democracy, only you can decide”, supra note 4. [9]Michael Skapinker “Should politicians get lying privileges?” Opinion, Financial Times (3 June 2019), online: [10] Ibid. [11]Elizabeth Keith “This Legal Loophole Actually Allows Canadian Politicians To Lie In Their Election Campaigns”, Narcity (14 April 2019), online: [12]Ad Standards, “The Canadian Code of Advertising Standards” (July 2019), online: Ad Standards [13]Ibid. [14]R v Keegstra, [1990] 3 SCR 697 at 802 – 804, 117 NR 1 [Keegstra]. [15]Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927 at 979, 58 DLR (4th) 577 [Irwin Toy]. [16]R v Oakes, [1986] 1 SCR 103 at 138 – 140, 26 DLR (4th) 200; Dagenais v Canadian Broadcasting Corp, [1994] 3 SCR 835 at 887, 120 DLR (4th) 12. [17]R v Zundel, [1992] 2 SCR 731, 95 DLR (4th) 202 [Zundel]; Criminal Code, RSC 1985, c C-46, s 181. [18]Zundel, supra note 17 at 764, 776 (see also 744-746 for a history of s 181). [19]Ibid at 774. [20]Ibid at 776. [21]Ibid at 747. [22]Oxford English Dictionary, (Online: Oxford University Press, 2019) sub verbo “epistemology”. [23]Irwin Toy, supra note 15 at 987. [24]Keegstra, supra note 14 at 747-748. [25]Ibid at 763. [26]Harper v Canada (Attorney General), 2004 SCC 33 [Harper]. [27]Ibid at para 92. [28]Ibid at para 120-121. [29]Ibid at para 121. [30]Ibid at para 80. [31]R v Bryan, 2007 SCC 12 [Bryan]. [32]Ibid at para14. [33]Ibid. [34]RJR-MacDonald Inc. v Canada (Attorney General), [1995] 3 SCR 199 at 274, 127 DLR (4th) 1. [35]Sean Fine “Federal Court orders removal of ‘Product of Israel’ labels from West Bank wines”, The Globe and Mail (29 July 2019), online: [36]Kattenburg v Canada (Attorney General), 2019 FC 1003 at para 117 [Kattenburg]. [37]Ibid. [38]Siemens v Manitoba (Attorney General), 2003 SCC 3 at para 41. [39]Michelle Bellefontaine “Alberta energy ‘war room’ to be based in Calgary”, CBC (4 June 2019), online: The Feds and a Conversion Therapy Ban: Mixed Messages and Constitutional Challenges In 2019, the federal government has been inconsistent about a potential ban on conversion therapy even though the practice is harmful and professionally disregarded. This article will pose and attempt to answer a series of questions: What is the ‘therapy’ and why is the government considering a ban? Why has the government been inconsistent in it’s messaging about the practice? And, What are the potential constitutional hurdles to banning conversion therapy in Canada? A Discredited ‘Therapy’ Conversion therapy is the discredited practice of attempting to “stop an individual from being homosexual or transgender”[1] or any other diverse gender or sexual identity. This article will use the label “GSD” [gender and sexually diverse] as an umbrella term to describe anyone with a gender or sexual identity outside of heterosexual and cisgender. Conversion therapy is used to attempt to ‘convert’ GSD people to become heterosexual or cisgender. Conversion therapy was widely practiced in the past when GSD identities were disdained – this lead GSD people or their families to seek ‘therapy’ to turn GSD people ‘normal’ (heterosexual or cisgender). Conversion therapy was “the treatment of choice when homosexuality was thought to be an illness” but the practice has declined as GSD identities have become more accepted in wider society.[2] Nonetheless, it is still practiced. Conversion therapy can have a psychological or religious basis.[3] Common ‘treatment’ techniques include “psychotherapy, psychoanalysis, hormones, and several types of aversion therapy.”[4] A subject can experience deep psychological trauma from these methods even if no physical pain is inflicted. Many survivors of conversion therapy express that they have deep psychological scars from the practice – for example, one survivor called his experiences “soul-crushing torture.”[5] The Canadian Psychological Association stated that conversion therapy does not accomplish it’s goals and “can result in negative outcomes such as distress, anxiety, depression, negative self-image, a feeling of personal failure, difficulty sustaining relationships, and sexual dysfunction.”[6] Thus, conversion therapy is a painful and harmful exercise that does not work – so why has the federal government not banned the practice? Mixed Messages In March 2019, despite acknowledging the practice as “immoral” and “painful,” the federal government said that it would not ban the practice throughout Canada.[7] However, in a June 21, 2019 letter to the Alberta Minister of Justice, the federal government stated that they are “committed to doing everything within [our] jurisdiction to combat conversion therapy” through Criminal Code reforms.[8] There is no doubt that pre-election politics are influencing the federal government’s evolving stance on banning conversion therapy. With a federal election scheduled for October 21, 2019, it is realistic that political parties would attempt to curry favour among GSD Canadians and their allies. What are some reasons the government has been reluctant to ban the discredited practice throughout the country? What constitutional hurdles would the government face if it attempted to ban the practice through criminal law? A Provincial Domain? In March 2019, the federal government’s refusal to outlaw conversion therapy was because they believed that the provincial governments had jurisdiction for the issue through the regulation of health care.[9] While health care is not exclusively in the jurisdiction of the either the federal or provincial governments, on-the-ground delivery of health care is administered by provincial governments. The constitutional authority is found in a number of sections of the Constitution Act, 1867, including the expansive s 92(13)– the control of property and civil rights in the provinces.[10] Since provinces can decide what is and what is not considered health care, the regulation of a discredited practice like conversion therapy is thought to rest with the provinces. Currently, Ontario, Manitoba, and Nova Scotia have enacted bans on conversion therapy.[11] Also, cities such as Vancouver and St. Albert, Alberta have banned businesses from practicing conversion therapy in their municipalities.[12] In Alberta, the previous New Democratic Party Government established a working group to recommend a plan to ban conversion therapy but the new United Conservative government has been noncommittal about whether they will implement any recommendations.[13] Thus, the federal government may desire to leave the banning conversion therapy to the provinces through the regulation of health care. Ottawa may have been fearful that a federal law could encroach on provincial jurisdiction and be struck down for being out of the powers of the federal government. Ottawa was also reluctant to further regulate conversion therapy because they believed that Criminal Code offences already captured many of the criminal acts in the practice. Other “offences such as kidnapping, forcible confinement and assault may apply where a person is forcibly compelled to undergo conversion therapy.”[14] However, pre-election politics and the desire to stop a harmful practice may have led the federal government to consider criminally banning the practice. Criminal Law The federal government has the sole authority to make criminal laws in Canada.[15] The standard test for whether legislative action is a “criminal law” is: The law creates a prohibition, there is a penalty for breaching the prohibition, and the law has a criminal law purpose (“public purpose which can support it as being in relation to the criminal law”).[16] The criminal barring of conversion therapy would need to be found to have a criminal purpose for the federal government to use its criminal law power. Esteemed constitutional scholar Peter Hogg notes that there “is a criminal-law aspect of health,” allowing the federal Parliament to “punish conduct that is dangerous to health.”[17] If the federal government created a criminal law banning conversion therapy, they could justify it as conduct dangerous to the health of GSD persons, and thus arguably with a criminal law purpose. However, if a federal criminal law is enacted, it risks other potential constitutional challenges. At least twoCharter challenges exist. The first is that a ban on conversion therapy is a potential infringement on liberty. Loss of Liberty? Any law that can lead to imprisonment is as a deprivation of liberty, and thus an infringement on s 7 of the Charter unless it is found to be “in accordance with the principles of fundamental justice.”[18] Carissima Mathen, vice-dean of the University of Ottawa Faculty of Law, states that “there is a potential Section 7 challenge [to a conversion therapy ban] on the basis that the law is just too blunt a tool and you’re putting people at risk of imprisonment in ways that are fundamentally unfair.”[19] Of course, it is impossible to know whether an infringement on liberty would be in accordance with the principles of fundamental justice without first seeing a law. Much would depend on what exactly was prohibited, who was targeted, and what the penalty was. If a ban was comprehensive, it may be harder to justify than a narrower ban against minors undergoing the ‘treatment.’ If those seeking conversion therapy were targeted as well as providers, it may also be harder to justify. As with any infringement on liberty, a law with jail time could be subject to a s 7 Charter challenge which would depend on the details of the law. Even if the ban was found to breach the Charter, the government would get the chance to justify the law under s 1 by arguing that the benefits to outlawing conversion therapy outweigh any Charter infringement. The question becomes, could the law as drafted be sold as a reasonable limit on rights, demonstrably justified in a free and democratic society? Freedom of Religion An outright ban on conversion therapy could also infringe the freedom of religion guaranteed by s 2(a) of theCharter . Conversion therapy is often practiced in religious settings by people who believe that their religion is incompatible with GSD identities. Freedom of religion allows individuals to “be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates” if the religious practices “do not injure his or her neighbours.”[20] Arguably, a ban could not apply to recipients who actively choose to participate in conversion therapy because of their deeply held religious beliefs. Daniel Lerner, a Toronto criminal defence attorney, states that he could see a freedom of religion argument from individuals who believe that a ban would stop them from exercising their religious beliefs.[21] Without a draft law, it is difficult to speculate whether religious rights would be infringed. However, it is a possible route for a religious person who wants to try and change their sexuality or gender identity to challenge a federal ban. It remains to be seen how the courts would handle such a challenge, or how much significance would be given to the harmful nature of the practice. Conclusion It is likely that a debate about banning conversion therapy in the Criminal Code will be part of the political gamesmanship of the upcoming federal election campaign. The federal Liberals have sent mixed messages, the federal New Democrats have called for a ban on conversion therapy throughout Canada,[22] and Conservative leader Andrew Scheer says that he will “wait and see” before taking a position on a conversion therapy ban.[23] If after the election, a law banning conversion therapy is enacted there are several potential constitutional challenges. This includes assessing if the law is in federal jurisdiction and if the ban infringes an individual’sCharter rights. However, it is important to note that even if a Charter breach is found, the government can try and justify the law under s 1 of the Charter. What is clear is that conversion ‘therapy’ is a discredited and harmful practice. The provinces are slowly banning the practice through regulation of health, but there has been no federal ban because of constitutional concerns. As the federal election campaign politics heats up, the issue will likely be discussed, and a ban could follow the election. Thus, the potential regulation of conversion therapy in Canada has been slow, fraught with mixed messages, and has several constitutional hurdles. Time will tell if the harmful effects of the practice will outweigh the uncertain constitutional status and lead the federal government to action. [1] Devinn Larsen, “Striving for Change: California’s Attempt to Outlaw Conversion Therapy” (2019) 50:2 McGeorge L Rev 285 at 286. [2] Douglas C Halderman, “The Practice and Ethics of Sexual Orientation Conversion Therapy” (1994) 62:2 Journal of Consulting and Clinical Psychology 221. [3] Ibid. [4] MJ MacCulloch & MP Feldman, “Aversion therapy in Management of 43 Homosexuals” (1967) 2 British Medical Journal 594. Aversion therapy commonly uses the technique of showing pictures of men or women that the subject finds sexually desirable and then inflicting pain, such as electroshock therapy, in an attempt to ‘train’ the subject not to be attracted to a member of the same gender. [5] Peter Gajdics, “I experienced ‘conversion therapy’ – and it’s time to ban it across Canada,” Maclean’s (6 June 2018), online: [6] Canadian Psychological Association, “CPA Policy Statement on Conversion/Reparative Therapy for Sexual Orientation” (2015), online (pdf): Canadian Psychological Association [7] Hannah Thibedeau, “Ottawa looking at Criminal Code reforms to deter ‘shameful’ conversion therapy,” Canadian Broadcasting Corporation (9 July 2019), online: [8] Ibid. [9] Perlita Stroh, “Ottawa rejects plans for nationwide conversion therapy ban,” Canadian Broadcasting Corporation (23 March 2019), online: cbc.ca/news/canada/the-national-< conversion-therapy-federal-petition-1.5066899> [Stroh]. [10] Peter W Hogg, Constitutional Law of Canada (2017 Student Edition) (Toronto: Thompson Reuters, 2017) at 32-2 [Hogg]. [11] Stroh supra note 9. [12] Ibid.; Phil Heidenreich, “St. Albert City Council unanimously passes motion to crack down on conversion therapy” Global News(8 July 2019), online: [13] Phil Heidenreich, “Email from Alberta health minister offers mixed message on conversion therapy group’s status,” Global News(7 June 2019), online: [14] Stroh supra note 9. [15] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91(27), reprinted in RSC 1985, Appendix II, No 5. [16] Reference re Validity of Section 5(a) Dairy Industry Act, [1949] SCR 1 at 50. [17] Hogg supra note 10 at 18-12.1. [18] Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [19] Mark Gollom, “Federal ban on conversion therapy could face constitutional hurdles,”Canadian Broadcasting Corporation (10 July 2019), online: [21] Gollom supra note 19. [22] New Democratic Party of Canada, “NDP: Let’s Put an End to Conversion Therapy” (4 August 2019), online: [23] Rachel Browne, “Andrew Scheer will ‘wait and see’ before taking stance on Liberal plan for conversion therapy ban,” Global News (10 July 2019), online: Jewish Holidays, Federal Elections, and Court Decisions! Oh My! Chani Aryeh-Bain, Conservative Party candidate in the upcoming federal election in the Toronto riding of Eglinton-Lawrence, and Ira Walfish, political activist, both adhere to an Orthodox Jewish faith and strictly follow religious holidays.[1] The date of the upcoming federal election, October 21, happens to coincide with the Jewish holiday of Shemini Atzeret. Aryeh-Bain and Walfish requested of Canada’s Chief Electoral Officer (CEO) that the date of the election change. They believed the date infringes their religious, democratic, and equality rights under theCharter .[2] The challenge resulted in an initial denial by the CEO, a Court decision which required re-determination, and the CEO’s ultimate decision to keep the election date on October 21 – or Shemini Atzeret – despite the Charter implications for Aryeh- Bain and Walfish. A Jewish Holiday and a Federal Election Shemini Atzeret is at the end of the Jewish holiday period of Sukkot. The holiday “has no distinctive ritual,” so it is often associated as a day of rest at the end of the Sukkot period, which was historically a time of pilgrimage.[3] Work is not permitted on the day of rest.[4] In 2019, Sukkot will fall on a date of election advance polling (October 14, 2019) and Shemini Atzeret falls on election day itself (October 21, 2019).[5] Shemini Atzeret is not practiced by all who hold the Jewish faith – in fact, it is one holiday that has “baffled” some Jewish people because it is not understood or faithfully followed by all.[6] Orthodox Jews are the religious group who most often adhere to the strict rituals of Shemini Atzeret – it is estimated that the there are 75,000 people in Canada that practice an Orthodox Jewish faith.[7] Thus, in exercising their faith Orthodox Jews do not work on Shemini Atzeret. This has important consequences as observant Jewish people are prohibited from “writing, driving… using any electronic devices such as televisions, computers and phones… [or] voting, volunteering or otherwise participating in election campaigns.”[8] When Ms. Aryeh-Bain won the Eglinton-Lawrence Conservative Party nomination on April 14, 2019, she “was immediately concerned about the impact of the election date with Shemini Atzeret, and the effect it would have on her campaign.”[9] She wrote to Elections Canada Chief Electoral Officer (“CEO”) Stéphane Perrault on April 18, requesting that the election date move to October 28 because, in her words, “having Jewish candidates and voters disadvantaged runs contrary to their rights to equality under theCharter of Rights and Freedoms.”[10] In addition, there were more than 140 letters from the Canadian public to Elections Canada asking the CEO to consider moving the date so observant Jews could fully participate in the election process.[11] While federal election dates are pre-set (subject to Parliament dissolving early) on the third Monday of October in the fourth calendar year,[12] the CEO of Elections Canada has discretion to recommend changing the election date to the next day (October 22) or the following Monday (October 28).[13] There is precedent for moving an election because of conflict with Shemini Atzeret. In 2007, Ontario moved their provincial election from October 4 to October 10 because the original date fell on Shemini Atzeret and was deemed to negatively effect observant Jews.[14] CEO Perrault denied Ms. Aryeh-Bain’s request to change the election date. In a letter dated May 7, 2019, Perrault says that it is “unfortunate” that the election date falls on Shemini Atzeret and that it “may have an impact” on her candidacy, but he reiterated that “Elections Canada does not choose election dates.”[15] However, CEO Perrault vowed to find ways to “ensure that the next general election will be as accessible as possible to electors who may not vote on election day in observance of Jewish holidays.”[16] Ms. Aryeh-Bain and Mr. Walfish then sought judicial review of Elections Canada’s decision, asking the Federal Court to re- evaluate the administrative agency’s determination. The Federal Court: Give us Reasons In Aryeh-Bain v Canada (Attorney General),[17] McDonald J of the Federal Court required CEO Perrault to reconsider his decision. As CEO of Elections Canada, Perrault is the administrative decision maker – as such, his decision would often be given deference. However, when an administrative decision engages Charter rights – in this case democratic rights, religious freedoms, and equality rights – there must be a proportionality analysis weighing the Charter protections with the objectives of the Act that is being administered.[18] This means that a standard of review of reasonableness – the administrative decision maker’s decision will stand if it falls within a range of reasonable outcomes – will be applied if consideration is given to the Charter values at issue. Justice McDonald’s judgment focuses primarily on section 3 of the Charter – democratic rights. According to the Supreme Court of Canada (“SCC”), the “central purpose of s 3 is to ensure the right of each citizen to participate meaningfully in the electoral process.”[19] In 2003, the SCC said that a meaningful role in the electoral process enables each citizen of Canada to have a “certain level of participation in the electoral process.”[20] Ms. Aryeh-Bain argued that her right to meaningful participation in the electoral system was infringed because she could not vote, campaign, or advise others to campaign on her behalf on Shemini Atzeret. Mr. Walfish argued that his rights to campaign and vote were also infringed by his inability to campaign or vote on Shemini Atzeret or the other Jewish holidays during advanced polling. They both argued that their religious freedoms and equality rights guaranteed by the Charter were not being adequately considered, and the infringement of these rights should warrant moving the election date. McDonald J ordered CEO Perrault to reconsider his decision not to move the election date, and to provide new reasons for his decision. She stated that there was an “absence of evidence of the CEO’s consideration of the Charter values at play” and instead the reasons he provided only focused on “operational or logistical concerns in changing the election date.”[21] She believed that he did not truly consider the option of moving the election date, even though it is available to him in the Elections Act to request a change. The Judge ruled that the Court could not defer to the administrative decision maker – the CEO – because he did not “provide any explicit or implicit evidence of proportionate Charter balancing.”[22] Thus, for procedural fairness to be given, CEO Perrault was required to reassess his decision and consider the Charter impacts of the election date on Ms. Aryeh-Bain, Mr. Walfish, and other observant Jews throughout Canada. The CEO Gives His Reasons On July 29, CEO Perrault responded with a decision – he had reconsidered the election date, decided not to advise that the date be moved, and provided reasons. Perrault stated that he “carefully considered the impact of holding the election on October 21 on the ability of observant Jews to participate in the electoral process” and concluded that it was not in the interests of the Canadian public to advise that the date be moved.[23] Perrault says that he recognizes “that this situation engages [Aryeh-Bain and Walfish’s] Charter rights to freedom of religion, to equality, and to vote and to be qualified for membership in the House of Commons.”[24] However, long-standing preparations by Elections Canada, identification of polling locations, and a potential conflict with Nunavut municipal elections were the reasons for his decision to keep election day on October 21.[25] Perrault noted that Elections Canada was engaging in campaigns to try and limit the impacts of the polling dates on Orthodox Jewish Canadians. Noting that significant Jewish population are only located in 36 of the 338 federal ridings, Elections Canada has devised “local solutions” in these 36 ridings. These include: Increasing staff at advanced polls in ridings where more than 1% of the population is Jewish; Require a community relations officer to work with local Jewish communities; Reaching out to local Jewish organizations, such as synagogues, to highlight voting options available on days that are not holidays; Hold meeting with candidates to provide them with information for alternate voting options; Increase frontline staff at Elections Canada returning offices to answer questions; and, Launch an information campaign designed to inform Jewish Canadians of different options to vote.[26] CEO Perrault, however, noted that “there is no such thing as a perfect election day, especially in a country as diverse as Canada.”[27] With this, he decided that he would recommend keeping the election polling day on October 21, 2019. Conclusion Thus, it appears that the federal election date will go ahead as planned on October 21. The saga of the federal election, the Jewish holiday, and the court decision did create a public conversation about how to balance important civic events with deeply held religious conflicts. While it can be difficult to find a perfect time for an election in a country as diverse as Canada, it is important to try and include as many Canadians as possible. For this reason, there have been calls to amend the Elections Act in the future to move the fixed election date to a period with fewer religious conflicts, such as in June.[28] However, in 2019, Canada’s general election period will proceed through a period of Jewish religious significance. It remains to be seen how much of an impact this will have on candidates like Ms. Aryeh-Bain and voters like Mr. Walfish. [1] Catharine Tunney, “Elections Canada recommends keeping Oct. 21 election date” (29 July 2019), online:Canadian Broadcasting Corporation< cbc.ca/news/politics/chief- electoral-election-date-orthodox-jewish-1.5228581>. [2] Canadian Charter of Rights and Freedoms, ss 2(a), 3, 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [3] Ari L Goldman, Being Jewish: The Spiritual and Cultural Practice of Judaism Today (New York: Simon & Schuster, 2000) at 135-136. [4] Ibid. This belief is derived from the biblical passage: “On the eighth day you shall hold a solemn gathering; you shall not work at your occupations” (Numbers 29:35). [5] Aryeh-Bain v Canada (Attorney General), 2019 FC 964 at para 13 [Aryeh-Bain]. [6] Carla Naumberg, “Figuring out what Shemini Atzeret is. Finally” (28 September 2017), online:Jewish Standard [7] Aryeh-Bain, supra note 5 at para 8. [8] Chief Electoral Officer of Canada, Decision of the Chief Electoral Officer: Date of General Election (29 July 2019), online (pdf):Election Canada [9] Aryeh-Bain, supra note 5 at para 17. [10] Ibid. [11] Ibid at para 21. [12] Canada Elections Act, SC 2000, c 9, s 56.1. [13] Ibid, s 56.2. [14] Heather MacIvor, “Chief Electoral Officer told to reconsider federal election date” (26 July 2019), online: The Lawyer’s Daily< thelawyersdaily.ca/articles/14025/chief- electoral-officer-told-to-reconsider-federal-election-date- heather-macivor?article_related_content=1> [MacIvor]. [15] Aryeh-Bain, supra note 5 at para 28. [16] Ibid. [17] Ibid. [18] Ibid at para 36; Doré v Barreau du Québec, 2012 SCC 12 at para 54. [19] Frank v Canada (Attorney General), 2019 SCC 1 at para 26; Figueroa v Canada (Attorney General), 2003 SCC 37 at paras 25-26. [20] Ibid. [21] Aryeh-Bain, supra note 5 at para 61. [22] Ibid at para 63. [23] CEO decision, supra note 8 at 1. [24] Ibid at 3. [25] Ibid at 5-7. [26] Ibid at 9. [27] Ibid at 10. [28] MacIvor, supra note 14. The Military Exception: SCC affirms no right to a trial by jury for military members Introduction The Supreme Court of Canada (“SCC”) ruled that members of the Canadian military charged with ordinary civilian crimes do not have the Charter right to a trial by jury if their charge is covered by section 130(1)(a) of the National Defence Act (“the Act”), which requires trials for Armed Forces personnel be heard in the military justice system.[1] Previous cases had stated that members did have a right to a jury trial for some offences. R v. Stillman has restored clarity in the military justice system after conflicting rulings created questions surrounding military members’ legal rights. The SCC confirmed that an exception built into the section 11(f) Charter right to a trial by jury was a valid use of the federal government’s constitutional power over militaries. The Charter and an Individual’s Legal Rights When Facing a Criminal Charge The Charter provides a list of general legal rights an individual has when they are charged with an offence. Generally, section 11 has the purpose of protecting the liberty and security interests of the individual being accused of a crime.[2] Some of the specific rights in this section include the right to know what crime you are being charged with, the right to be presumed innocent until proven guilty, and the right to not be put on trial a second time for an offence after having been found innocent of committing that offence.[3] The issue in Stillman revolved around section 11(f), the legal right to a trial by jury. This right entitles an accused who is facing at least 5 years in prison the right to a trial by jury as opposed to a trial in which a judge alone determines the outcome.[4] The SCC recognized that the right to receive a trial by jury of peers is an important right and a cornerstone of Canada’s criminal justice system. [5] Juries serve two important purposes: 1. They protect the accused by giving him or her the benefit of a trial by peers 2. They provide a vehicle for public education about the criminal justice system and imports the weight of community values into trial verdicts[6] However, the right to a trial by jury is not absolute.[7] In fact, the right has a built-in exception for military persons. The Charter right states that the right applies to any person charged with an offence “except in the case of an offence under military law tried before a military tribunal”. A hearing in front of a military tribunal differs from a civilian jury trial. Instead of a jury of 12 members of the public, a military hearing can consist of a jury and a five- person military panel. The Case Background Several Armed Forces members were accused of offences under the Criminal Code and other federal laws. These offences included sexual assault, forgery and other serious civil offences. All of these offences carried a maximum punishment of at least 5 years’ imprisonment. As a result, all of the members asserted their right to a trial by jury.[8] They argued that the military exception should not apply as they were charged with ordinary civilian offences and not offences related to their roles as military personnel. The Act contains the Code of Service Discipline (“CSD”) which establishes the core features of the military justice system and includes a list of offences. Section 130 of the Act allows for the creation of “service offences”. These are ordinary civilian offences that, when committed by military members, become military offences under the CSD. [9] Once a civilian offence is classified as a service offence, military tribunals will have the jurisdiction to hear the matter.[10] As the SCC discussed, the military justice system operates parallel to the civilian justice system. The military requires their own system in order to “assure the maintenance of discipline, efficiency and morale of the military”.[11] It was noted that Canadian military law has never used jury trials. There are multiple reasons for the military exception to the right to a jury trial: Militaries must be in a state of readiness; Militaries must be in a position to enforce internal discipline effectively and efficiently (including overseas); Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct[12] The military exception recognizes and affirms the need for a separate military justice system tailored to the needs of the military.[13] Issue The question the Supreme Court of Canada was tasked with answering was whether a serious civil offence that qualified as a service offence should properly be considered an “offence under military law”, thereby engaging the military exception. If the military exception was engaged, trials would be held by military tribunal. Members of the Armed Forces would not be entitled to a jury trial. Arguments The military members argued that the military offence should only apply to offences that ordinary citizens are not subject to, such as “spying for the enemy”. Service offences should not to be caught by the exception.[14] The members argued that there must be “military nexus” between the offence and the military in order to call it a military offence. Essentially, the offence must be committed in their duties as military members in order to qualify as a military offence. The Crown argued that the military exception was a valid use of the federal government’s constitutional power over the military.[15] They further argued that a service offence imported into the CSD is no less of a military offence than spying on the enemy.[16] Outcome The majority of the Supreme Court of Canada agreed with the Crown. They held that there is no difference between “pure military offences” in the CSD and those that are imported under service offences. Just because an offence can be classified as a civilian offence does not preclude it from also being classified a military offence.[17] The Supreme Court further stated that the military exception in the Charter was not limited in scope. Had Parliament intended for the exception to only apply to pure military offences in the CSD, they would have written the exception in that manner. Instead, the exception is broad and covers service offences.[18] The SCC also rejected the “military nexus” argument. There are offences within theNational Defence Act that are considered pure military offences but can also be committed by ordinary civilians, such as stealing. As such, a nexus is not required and would create inconsistencies in the application of military justice.[19] The majority seemed to find little disconnect between an individual’s work as a member of the military and his or her personal life. They stated that when a military member commits a civilian crime, even outside his or her military role , it has an impact on discipline, efficiency and morale.[20] As such, the military exception applies to service offences despite the fact that member may not have been performing any military duties at the time of the offence. Two Supreme Court Justices did not agree with the five-judge majority. Justices Rowe and Karakatsanis found that there must be a connection between the military and the circumstances of the offence in order to apply the military exception and deny the right to a jury trial.[21] To them, “offence under military law” refers to an offence that is connected to the military and could have a direct affect on discipline, efficiency and morale of the service. Without this connection, the importing of service offences into the military exception goes too far and is a violation of the individual’s Charter protected right to a trial by jury.[22] Conclusion Stillman has clarified the role of the military justice system after conflicting decisions regarding the reach of the military exception. The SCC confirmed that military members charged with ordinary civilian crimes that qualify as service offences do not have the Charter right to a trial by jury. A troubling aspect of this decision is the lack of separation between the military and the people who serve in it. The SCC noted that the actions of military members, even outside of their work, have an impact on discipline, efficiency, and morale of the Armed Forces. As such, their profession requires that they are held to a high standard in all their actions, and their alleged offences should be assessed by other military personnel. Other professions, despite holding members to an equally high standard with respect to professional duties, do not limit the Charter right to a trial by jury when members face criminal charges. For example, a doctor who commits a crime in his or her role as a doctor or personal life will still have access to a trial by jury. This does leave the question of how much an individual’s profession should impact their Charter rights and whether military personnel are being unfairly singled out. [1] R v Stillman, 2019 SCC 40 [Stillman]. [2] Department of Justice, “Section 11 – General: legal rights apply to those ‘charged with an offence’” (17 June 2019), online: Government of Canada [3] Canadian Charter of Rights and Freedoms, s 11, Part I of the Constitution Act, 1982, being schedule B to the Canada Act 1982 (UK), 1982 c 11 [Charter]. [4] Ibid, s 11(f). [5] Stillman, supra note 1 at para 25. [6] Ibid at paras 27-28. [7] Ibid at para 29. [8] Ibid at para 5. [9] Ibid at para 2. [10] Ibid at para 3. [11] Ibid at para 2. [12] Ibid at para 36. [13] Ibid at para 80. [14] Ibid at para 6. [15] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91(7), reprinted in RSC 1985, Appendix II, No 5. [16] Ibid at para 7. [17] Ibid at para 83. [18] Ibid at para 84. [19] Ibid at paras 96-99. [20] Ibid at para 105. [21] Ibid at para 124. [22] Ibid at para 176. A penny for your thoughts, if we like them: Freedom of Expression on Campus Part 1 The Progressive Conservative Government of Ontario has altered their provincial funding scheme for post-secondary institutions: 60% of funding is now tied to measurements that include the employment and pay rates of graduates.[1] It appears the United Conservative Government of Alberta (“UCP”) wants to implement a similar system to ensure that taxpayers are getting the optimal return on their investment. The UCP has promised to measure the tie between provincial subsidies and the “labour market outcomes” of post-secondary education programs.[2] There is growing concern that funding schools based on the job outcomes of its graduates will limit post-secondary institutions’, and professors’ freedom of expression. As Dax D’Orazio, a PhD candidate in political science at the University of Alberta, observed, the “pursuit of truth and knowledge” are compromised when scholars focus on the economic value of their work because “they self-censor, take fewer risks, and imbibe conventions uncritically.”[3] Others fear that policies like this seep in at the student level as well: “students often avoid engagement in extra- curricular activities that appear to be at odds with the system and instead lean towards resume-enhancing, non- contentious forms of expression.”[4] This is because government funding following this policy “encourages students to think of higher education merely as a means to an end (employment), rather than an innate good that provides society with thoughtful and informed citizens.”[5] Does tying government funding to graduates’ job outcomes create an ‘invisible hand’ limiting freedom of expression on post-secondary campuses? Is theCharter guaranteed right to freedom of expression under threat? Freedom of Expression The Charter guarantee of freedom of expression protects “freedom of thought, belief, opinion and expression.” The Supreme Court of Canada ruled that there are three underlying values guiding its purpose: 1. promotion of the “free flow of ideas essential” to democracy; 2. promotion of the “marketplace of ideas” where truth can be found through the competition of ideas; and 3. the “intrinsic value to the self-realization of both speaker and listener.”[6] To decide if a government action violates freedom of expression courts first decide if the restricted activity is expression. An “activity is expressive if it attempts to convey meaning.”[7] Next, a court decides if the purpose or the effect of the government action was to limit freedom of expression.[8] If it was the government’s purpose, there is a violation. If not, a claimant can still prove that an effect of a government action is the restriction of expression.[9] The claimant must prove the effect occurred and show that the restricted activity contributes to one of the underlying values of freedom of expression.[10] If a court finds there has been a restriction on freedom of expression, the final step is to decide if the restriction is justifiable as a reasonable limit in a free and democratic society, a qualifier found in section 1 of the Charter.[11] In order for a restriction to be a reasonable limit there must be: 1. a pressing and substantial reason for the action; 2. a rational connection between the action and the reason for taking it; 3. minimal impairment of the Charter guarantee; and 4. proportional effects – the underlying objective and the benefits of the action must outweigh the harmful effects.[12] If the government can prove these, a limitation of a Charter right is constitutional. Challenging the Effects Could a post-secondary institution challenge this government policy as an unconstitutional violation of their freedom of expression? There is very little activity on post-secondary campuses that is not expressive. A post-secondary institution’s real first step of the legal test would be showing that either the purpose or the effect of the government action is a violation of freedom of expression. The purpose of tying funds to job prospects appears to be increasing return on taxpayer investment. But is one of the effects a limitation of freedom of expression? If an institution can prove that their expression was limited in some way as a result of the government action, the institution would next need to show that said expression contributes to the underlying values of freedom of expression. One example might be if the university was forced to make cut backs in the Arts department, reducing classes offered and research funding, in order to direct the funds to an Engineering department with more favourable graduate employment rates. If a violation of freedom of expression is established, it falls to the government to show that the limitation on expression is justifiable. First, the government would need to show a pressing and substantial reason to base post-secondary funding on job prospects. The rational connection between auditing funding and ensuring return on investment is fairly straightforward. Next, they would need to show that the impairment on freedom of expression is minimal. This would likely depend on how strict funding allocation is. Does the university still get to choose which classes it provides? Does the government decide which programs it wants to fund, or can universities do what they want with the money as long as graduates get jobs? Has there been a real reduction in funding, or are increases in funding only going to the ‘employable’ programs? The final step is a proportionality test. The objective is maximizing return on tax money. Benefits would include an increased likelihood of employment after graduating. Do these outweigh the limitation of freedom of expression on post- secondary campuses? Is Money Power? There is debate surrounding just how influential government funding is for post-secondary institutions. There are those who argue that “provincial governments’ funding patterns not only reveal that education is a governmental objective, but also that the government exercises immense control over universities.”[13] Provinces often limit both tuition rates and allowable annual increases.[14] Alternatively, some believe that government funding for universities is actually dwindling. Post-secondary institutions are operating more like businesses, focusing more on brand management, and becoming increasingly corporatized.[15] The worry is that “those who control the university’s purse strings are the ones with access to speech, determining policies, marketing campaigns and strategic plans, while those who do not are structurally encouraged to remain silent.”[16] In the past, the Supreme Court of Canada (“SCC”) has decided that post-secondary institutions are largely autonomous of government: private actors. Even when a province required government approval of a university program in order for it to receive public funds, and designated funds to meet specific policies, the SCC still decided that the Charter did not apply to university activities.[17] This suggests that a Court might determine that post-secondary institutions are not at the mercy of government. If universities are autonomous, and not reliant on government funding, it will be more difficult for the university to prove that their expression is being limited by the withholding of funds. Conclusion The concern is that with this new funding model, professors with non-conventional, controversial ideas will receive less funding, and maybe even be pushed out from post-secondary institutions. Professors are already struggling with institutional blowback when accused of propounding controversial ideas. University of New Brunswick professor Ricardo Duchesne has retired in the middle of a university investigation into claims that he is a white supremacist.[18] Cambridge rescinded their offer for a visiting fellowship to controversial University of Toronto psychology professor Jordan Peterson in a move Peterson described as “bowing to pressure from students.”[19] When the Supreme Court of Canada decided that universities are generally autonomous from government control, they suggested: “Any attempt by government to influence university decisions, especially decisions regarding appointment, tenure and dismissal of academic staff, would be strenuously resisted by the universities on the basis that this could lead to breaches of academic freedom.”[20] Although the provinces have not taken such direct action yet, it appears that some provinces might be letting the invisible hand of the market do the work for them. Only time will tell if post-secondary institutions will decide to draw a line in the sand and if the Charter will aid in any resistance they mount. To learn more about how funding policies are already changing the freedom of expression landscape on post-secondary campuses, read Part 2 in our series on freedom of expression on campus: with the threat of reduced funding, the Alberta and Ontario governments want campuses to implement freedom of expression policies in line with the Chicago Principles.[21] [1]Emma Graney, “UCP prepares to roll out Ford-flavoured post- secondary changes in Alberta”, Edmonton Journal (6 May 2019), online: [2]Ibid. [3]Dax D’Orazio, “Opinion: UCP promises would imperil free speech”, Edmonton Journal (14 May 2019), online: [4]Sandra Smeltzer & Alison Hearn, “Student Rights in an Age of Austerity? ‘Security’, Freedom of Expression and the Neoliberal University.” (2015) 14:3 Social Movement Studies 352 at 354. [5]D’Orazio, supra note 3. [6]R v Keegstra, [1990] 3 SCR 697 at 802 – 804, 117 NR 1. [7]Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927 at 968, 58 DLR (4th) 577 [Irwin Toy]. [8]Ibid at 971. [9]Ibid at 976. [10]Ibid. [11]Ibid at 979. [12]R v Oakes, [1986] 1 SCR 103 at 138 – 140, 26 DLR (4th) 200; Dagenais v Canadian Broadcasting Corp, [1994] 3 SCR 835 at 887, 120 DLR (4th) 12. [13]Franco Silletta, “Revisiting Charter Application to Universities” (2015) 20 Appeal 79 at 95. [14]Ibid at 97. [15]Smeltzer, supra note 4 at 353. [16]Ibid at 356. [17]Mckinney v University of Guelph, [1990] 3 SCR 229 at 272, 76 DLR (4th) 545 [Mckinney]. [18]Joe Friesen, “Controversial University of New Brunswick professor to retire amid probe” , The Globe and Mail (4 June 2019), online: [19]“Cambridge rescinds offer of visiting fellowship for professor Jordan Peterson”, The Globe and Mail (21 March 2019), online: [20]Mckinney, supra note 17 at 273. We like our speech deep dish: Freedom of Expression on Post-Secondary Campuses Part 2 Last summer the Progressive Conservative government of Ontario ordered all provincially funded post-secondary institutions to implement free speech policies similar to the Chicago Principles.[1] Failure to do so could have ended in the withholding of funding.[2] The United Conservative government of Alberta is implementing a similar policy, but have not said whether financial penalization would be involved.[3] The Alberta deadline for post-secondary institutions is December 15, 2019.[4] Is a provincial policy requiring that the Chicago Principles be implemented on post-secondary campuses a violation of the Charter guaranteed freedom of expression? Chicago Principles The Chicago Principles are the University of Chicago’s commitment “to free and open inquiry in all matters.”[5] In pursuit of these ideals: – worries about mutual respect and civility do not justify closing off the discussion of ideas; – restriction on expression is permitted if it is in line with established law, if the expression invades privacy or confidentiality interests or is incompatible with the University’s functioning; – the University can regulate the place, time, and manner of expression to ensure that the ordinary activities of the University are not disrupted; and – members of the University community may not interfere with or obstruct the freedom of others to express their views, and it is the University’s responsibility to protect that freedom.[6] In the United States, over 60 campuses have adopted the Chicago Principles, or a statement that is substantially similar.[7] Though promoted as being designed to protect freedom of expression, the Principles also present opportunities for violating this right. This could occur through a university dictating when, where, and how a protest could occur, or through blocking one person’s expression for the benefit of another. For example, a university could prevent counter protesters from impeding the visibility of a student club’s display, or remove students who are yelling to drown out a guest speaker with whom they do not agree. It appears one reality of the Principles is that they allow post- secondary institutions to actually limit freedom of expression. Charter Application The Charter of Rights and Freedoms[8] does not control every individual or institution in Canada. Simply put, it only guarantees that government, or agents of government, will not violate, restrict, or limit a person’s Charter rights. There are times when post-secondary institutions may be implementing government policy, and hence controlled by the Charter, and other times when a court would treat a college or university as a private actor and not subject to Charter restraints. To determine whether a Charter right has been violated, courts first “identify the precise source of the alleged” limitation.[9] Regarding the Chicago Principles, a court would need to decide whether the post-secondary institution or the government made the policy. The answer is unclear because post-secondary institutions do not have to implement the policy, but they risk losing government funding if they do not. If a court decided the institution made the policy, the next step is deciding if the Charter applies to the school. It remains uncertain in which situations a court will decide that the Charter applies to post-secondary institutions. The Supreme Court of Canada (“SCC”) initially decided that the Charter applies to: 1. all legislation; 2. governmental actors (the executive and administrative branches); 3. entities with statutory authority; and 4. actors that are considered governmental because of the control that government exerts over them.[10] Application of the Charter has since grown to include a fifth category: activities that further “a specific governmental program or policy.”[11] This occurs when a direct connection exists between a government policy andCharter violating activity.[12] For post-secondary institutions, the SCC decided in 1990 that the Charter applied if the government generally had control over the institution, or if a government statute forced the institution to take a particular action.[13] Since that decision, the occasions on which a court has found the Charter to apply to post-secondary institutions have been few and far between. If theCharter does not apply, a university is considered a private actor, and could make uncontestable policies that violate Charter rights. Unfortunately, the SCC has muddied the waters further. In situations where the Charter has been found to apply to an action to further a government policy, the Court has expected to find both that the government decided 1) the content and the persons to which the policy would apply, and 2) the entity that would deliver the program.[14] The SCC has not yet used this category specifically to test Charter application to post-secondary institutions. The current situation concerns the implementation of freedom of expression policies on post-secondary campuses. Although the government is choosing what they want these policies to look like (the content), they do not choose who the policies apply to (persons applicable). The institutions determine who is accepted for enrollment. Leaving aside the SCC approach to the limited number of cases they have heard involving post-secondary institutions, even provincial courts fail to agree on the application of the Charter to these schools. In Alberta, the trend has been that the Charter applies on post-secondary campuses, whereas in Ontario and British Columbia, the courts have deemed post- secondary campuses Charter free zones.[15] A national consensus does not exist. Do the Chicago Principles violate Freedom of Expression? How courts decide if freedom of expression has been violated can be found in Part 1 of our series on freedom of expression on campus. If a court were to determine that a post-secondary institution that has implemented the Chicago Principles is under the control of the Charter, how could the institution justify their use? A post-secondary institution would need to prove there is a pressing need to limit expression in some contexts because free and open inquiry is more broadly under threat. Is there a rational connection between the policy as implemented and the ‘need’? The institution would then need to show that the Charter right to freedom of expression was minimally impaired by their action. This would likely depend on how the policy is enforced. For example, requiring a buffer zone around a protest would be less impairing than banning a counter protest all together. Finally, the school would need to prove that the value of the objective of protecting free and open enquiry more broadly, and the benefits of that policy, outweigh the restriction that is being placed on the freedom of expression of individuals in some contexts. Conclusion The questions are these: In order to promote the underlying values of freedom of expression, do post-secondary campuses need guidelines like the Chicago Principles? Is it constitutionally defensible for a provincial government to impose such a policy on the educational institutions? (Read Part 1 of our freedom of expression on campus series for more on that question). Or is this policy initiative more in line with the fears expressed by Justice McIntyre of the SCC back in 1990: “It is ironic that most attempts to limit freedom of expression and hence freedom of knowledge and information are justified on the basis that the limitation is for the benefit of those whose rights will be limited”?[16] [1]Joe Friesen, “Ontario colleges adopt single free-speech policy as universities rush to meet deadline”, The Globe and Mail (16 December 2018), online: [2]Ibid. [3]Emma Graney, “UCP prepares to roll out Ford-flavoured post- secondary changes in Alberta”, Edmonton Journal (6 May 2019), online: [4]Clare Clancy, “Keyano College becomes first Alberta institution to publicly roll out Chicago principles”, Edmonton Journal (29 July 2019), online: [5]University of Chicago, “Report of the Committee on Freedom of Expression” at 2 online (pdf): provost.uchicago.edu [6]Ibidat 2-3. [7]FIRE, “Chicago Statement: University and Faculty Body Support” (12 July 2019), online: thefire.org [8]Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c11. [9]Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624 at 643, 151 DLR (4th) 577 [Eldridge]. [10]Franco Silletta, “Revisiting Charter Application to Universities” (2015) 20 Appeal 79 at 82. [11]Eldridge, supra note 9 at 660. [12]Ibid at 665. [13]Mckinney v University of Guelph, [1990] 3 SCR 229 at 269, 273, 76 DLR (4th) 545 [Mckinney]. [14]Eldridge, supra note 9 at 664-665 [15]The Constitutional Law Group, Canadian Constitutional Law, 5thed by Patrick Macklem, Carol Rogerson et al (Toronto, ON: Emond Montgomery Publications Limited, 2017) at 837. [16]Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927 at 1008, 58 DLR (4th) 577 Comparing Federal Government and Indigenous Perspectives on Self-Government Agreements Introduction: Agreements for Self-Government Indigenous peoples have lived in what is now Canada for thousands of years, governing themselves and developing unique legal orders. The Canadian state, with its colonial roots, has been slow to recognize this reality. However, there has been a recognition that the Indigenous nations governed themselves before colonial occupation and can do so again. This has lead to an increased volume of negotiations to create Indigenous self-government agreements. Currently, there are 22 standing self-government agreements between the federal government and various Indigenous groups, with approximately 50 self- government negotiating tables ongoing throughout the country.[1] According to the Constitution Act, 1867, the federal government has jurisdiction over “Indians, and land reserved for the Indians.”[2] Section 35 of the Constitution Act, 1982, however, recognizes that “existing aboriginal and treaty rights… are hereby recognized and affirmed.”[3] With this back-drop British Columbia courts have determined that it is constitutionally valid for the Crown to negotiate self- government agreements with Indigenous nations to grant these nations jurisdiction over local matters.[4] Negotiated agreements can “set out law-making authority” in many different areas, including: “governance, social and economic development, education, health, lands, and more.”[5] Self-government agreements in Canada are a patchwork, some are comprehensive in nature[6] but others are “sectoral agreements in education, health, resource management, etc.”[7] Self-Government Agreements may involve land claims, but they do not always.[8] Jurisdiction for Indigenous laws can take many forms and can be based around territory (binding on the land controlled by the Indigenous group), personality (binding on members of a First Nation), or based around emergency measures.[9] This article seeks to highlight, that while opinions on self- government agreements are diverse and should not attempt to be summarized in one broad stroke, it is important to learn about the positions of the federal government and some Indigenous peoples. Thus, this article is an introductory reflection of self-government agreements from both the state and Indigenous perspective; in an era of attempted reconciliation, this is useful context to this evolving constitutional and colonial relationship. This can assist Canadians in reflecting on one of the most important constitutional relationships in Canada. Indigenous Self-Government from the Federal Government’s Perspective In February 2018, Prime Minister Justin Trudeau promised “a fundamental rethink” of how the government recognizes Indigenous rights by “vowing to work with Indigenous partners to… foster self-governance.”[10] The Prime Minister states that the federal government’s desire is to “get to a place where Indigenous peoples in Canada are in control of their own destiny, [and are] making their own decisions about their future.”[11] This statement is representative of the lofty rhetoric adopted by the federal government about Indigenous self-government. The federal government views Indigenous self-government agreements as a tool for reconciliation to “address a long history of colonialism and the scars it has left.”[12] Self- government agreements are thought to be preferential to lawsuits from Indigenous groups seeking to attain self- government through constitutional litigation.[13] If areas of provincial jurisdiction are effected then “provincial governments are necessary parties to negotiations and agreements.”[14] The goal of self-government is for Indigenous laws to “operate in harmony with federal and provincial laws.”[15] In case of a conflict, the federal government has stated that Indigenous laws “protecting culture and language generally take priority,” but laws of “overriding national or provincial importance” must prevail over local Indigenous laws.[16] The Charter of Rights and Freedoms, Canadian Human Rights Act, and Criminal Code will continue to apply.[17] This ambiguous policy is likely an effort to keep flexibility in the negotiation process. Sensing the need for flexibility, the federal government acknowledges that agreements will look different from one Indigenous community to another since they have different needs, histories, cultures, and economies. For this reason, agreements can vary considerably in content. From Canada’s perspective, matters that are “internal” and “integral to [the individual group’s] culture” would naturally fall into Indigenous jurisdiction.[18] Thus, the federal government has publicly adopted a vague yet optimistic tone in how they approach Indigenous self- government agreements. This contrasts with some Indigenous voices. Indigenous Perspectives on Self-Government Agreements Unsurprisingly, given their long and difficult relationship with the federal government, Indigenous people have greater skepticism about the federal government’s motivation behind self-government negotiations. It must be remembered that Indigenous people are not all from the same culture and as individuals they have diverse values, opinions, and aspirations. These are just some perspectives of Indigenous people about self-government agreements. A primary concern about engaging in negotiations is that it will require Indigenous nations to give up something important in return. According to Cree (nêhiyaw) lawyer Sylvia McAdam, self-government agreements require foregoing future claims to Aboriginal rights through litigation “in exchange for the rights included in the new settlement or agreement.”[19] This can be a difficult psychological burden if you believe that self-government should already be recognized and not negotiated like a contract. Some critics believe that self- government negotiations are an attempt to “re-assert [Canada’s] failed and internationally condemned extinguishment model under different names.”[20] If less damning than extinguishment, there is concern that self-government agreements “relegate Indigenous nations into municipal status,” and would make Indigenous governments a delegated body where governing authority can be taken away or not respected.[21] Some Indigenous people further believe that the negotiations for self-government can carry too many emotional and tangible burdens for local populations to accept. This is made worse by delays and lengthy negotiations periods. The late Arthur Manuel and Grand Chief Ronald Derrickson believe that this leads Indigenous negotiators to discover that “they could not get support for a deal from their own people,” leading the negotiations to go “on and on and never bear fruit.”[22] Further, there are incredible costs in negotiation and legal fees both for the federal government and for the Indigenous communities affected. Arthur Manuel and Grand Chief Ronald Derrickson claim that “over a billion dollars” has been spent in negotiations for self-government, where “more than $500 million dollars has been borrowed from impoverished Indigenous communities.”[23] This borrowed money could be used for other reasons, such as poverty reduction measures. At least some Indigenous people do not view the cost and effort of negotiating self-government agreements to be worth what they get in return. However, there are positive aspects of negotiating self- government for Indigenous peoples. McAdam points to the Muskeg Lake Cree Nation as a success story. The Nation utilized a self-government agreement “to develop the urban reserve” in Saskatoon where they “developed buildings and property” to build many successful business enterprises.[24] This is just one example of how Indigenous nations can use self-government to create economic prosperity that was not possible under federal control. Conclusion Indigenous self-government negotiations and agreements are complex for the federal government and for Indigenous nations and people. As such, it is impossible to develop a standard narrative for how the Canadian state, or the diverse Indigenous peoples of Canada, view such arrangements. However, self-government agreements are a modern manifestation of a long, storied, and complex colonial relationship between the Crown and the Indigenous peoples that occupy this land. The relationship between the Canadian state and Indigenous peoples is at the heart of Canada’s history, governance, and constitutional framework. As the relationship evolves in an era of “reconciliation,” it is important to attempt to understand this complex relationship – and how it manifests in ways such as Indigenous self-government agreement negotiations. [1] Crown-Indigenous Relations and Northern Affairs Canada, “Self-government” (12 July 2018), online:Government of Canada [2] Constitution Act, 1867 (UK) 30 & 31 Vict, c 3, s 91(24), reprinted in RSC 1985, Appendix II, No 5. [3] Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [4] Campbell v British Columbia (Attorney General), 2000 BCSC 1123; Sga’nism Sim’augit (Chief Mountain) v Canada (Attorney General), 2013 BCCA 49. [5] Supra note 1. [6] John J Borrows & Leonid I Rotman, Aboriginal Legal Issues: Cases, Materials & Commentary, 5th ed (Toronto: LexisNexis, 2018) at 63. Comprehensive self-government agreements include the Cree-Naskap (of Quebec) Act, SC 1984, c 18, the Sechelt Indian Band Self-Government Act, SC 1986, c 27 in British Columbia, the Champagne and Aishihik Self-Government Agreement in Yukon, and others. Other self-government agreements are included in modern treaties, such as the 1999 Nisga’a Final Agreement. [7] Ibid. [8] Sylvia McAdam (Saysewahum),Nationhood Interrupted: Revitalizing nêhiyaw Legal Systems(Saskatoon: Purich Publishing Ltd) at 72 [McAdam]. Comprehensive claims always involve land, but specific claims do not necessarily include land claims. [9] Peter W Hogg & Mary Ellen Turpel, “Implementing Aboriginal Self-Government: Constitutional and Jurisdictional Issues” (1995) 74:2 Can Bar Rev 187 at 198-200. [10] John Paul Tasker, “Trudeau promises new legal framework for Indigenous people” (14 February 2018), online: Canadian Broadcasting Corporation [11] Ibid. [12] Supra note 1. [13] Crown-Indigenous Relations and Northern Affairs Canada, “The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self- Government” (15 September 2010), online:Government of Canada [14] Ibid. [15] Supra note 1. [16] Supra note 13. [17] Supra note 1. [18] Ibid. [19] McAdam supra note 8 at 74. [20] Arthur Manuel & Grand Chief Ronald Derrickson,The Reconciliation Manifesto: Recovering the Land, Rebuilding the Economy (Toronto: James Lorimer and Company Ltd, 2017) at 115 [Manuel & Derrickson]. The term “extinguishment” refers to the extinguishment of Indigenous culture. TheTruth and Reconciliation Commission of Canada referred to this as “cultural genocide.” [21] McAdam supra note 8 at 75. [22] Manuel & Derrickson supra note 20 at 114. The late Arthur Manuel is from the Neskonlith Indian Band in British Columbia and Grand Chief Ronald Derrickson is from the Westbank First Nation in British Columbia. [23] Ibid. [24] McAdam supra note 8 at 73-74. Some of the Muskeg Lake Cree Nation’s enterprises include: Muskeg Property Management Inc., Cree Way Gas Ltd., Cree Investments, Jackpine Holdings Ltd., Dakota Dunes Golf Links LP and STC Inc.