Supreme Court Moves Voting Rights into Globalization Era in Frank Decision

by Jasmit de Saffel

In its first decision of the year, the Supreme Court of Canada sided with Canadian ex-pats in a case about their voting rights. Chief Justice Wagner held that “citizenship, not residence, defines our political community and underpins the right to vote” (para 35).

Frank v Canada had been initiated by two Canadians living in the United States after they were denied the right to vote in the 2011 federal election. Dr. Gill Frank and Mr. Jamie Duong live in the United States for work and educational purposes but maintain close ties to Canada. The impugned provisions of the Canada Elections Act held that citizens who had resided outside of Canada for more than five consecutive years were not able to vote in federal elections until they resumed residence in Canada. This provision was recently repealed by the government, and the Supreme Court decision has made the residence limitation on voting rights unconstitutional.

The application judge sided with the applicants in 2014, finding that the residence requirement infringes section 3 of the Charter and was not saved under section 1. On appeal to the Court of Appeal, the Attorney General of Canada conceded that the provision breached section 3 but argued that it was a justified infringement for the sake of the Canadian “social contract.” The appeal was allowed.

In his reasons Wagner CJ, writing for a 5-2 majority, emphasized that any intrusions on the core democratic right to vote must be reviewed on the basis of a stringent justification standard (para 25). He found that residence is not mentioned in the section 3 guarantee or established as essential to the right to vote in the jurisprudence. “The Charter tethers voting rights to citizenship, and citizenship alone” (para 29).

Under the section 1 analysis, Wagner CJ dismissed the Attorney General’s social contract argument as a vague and ill-suited objective to withstand the rigours of a section 1 justification. He quotes the Asper Centre’s factum in laying out the argument’s analytical failings, holding that using the social contract as an objective collapses any distinction between legislative means and ends (para 53).

The real downfall of the government’s case was at the minimal impairment stage. The Court held that the limit was over-inclusive and that no correlation had been shown between time lived abroad and subjective commitment to Canada. The Court held that we live in a globalized society and that the ability of citizens living abroad to remain connected to Canada is “unprecedented.” Non-residents, like the applicants, are able to maintain deep “political, familial, financial or cultural” roots in Canada (para 69). The limit was held to undermine, rather than promote, the underlying objective of electoral fairness in Canada. The Court found that our democracy is “manifestly strengthened” by the demonstration of civic commitment of Canadian citizens abroad voting via special ballot (para 75). Denying non-residing citizens the right to vote was understood as coming at the expense of their dignity and self-worth.

In a concurring judgement, Rowe J held that the residency requirement is not trivial and is firmly rooted in Canada’s representative democracy model (para 90). While finding that the limit on section 3 was not justified in this case, Rowe J held that the possibility of voting limits based on residence should not be entirely ruled out.

In their dissent, Cote and Brown JJ held that the decision is regressive and undoes a long-standing Westminster tradition of privileging local connections in electing local representatives.

Jasmit de Saffel  is a 1L JD Candidate at the Faculty of Law and is the current Asper Centre work-study student

Dunsmuir Revisited: Questioning the Standard of Review

by Catherine Ma

Earlier this month, the Supreme Court of Canada heard the appeals in Minister of Citizenship and Immigration v Alexander Vavilov, Bell Canada et al v Attorney General of Canada, and National Football League et al v Attorney General of Canada. The Supreme Court explicitly declared that these cases offered “an opportunity to consider the nature and scope of judicial review of administrative action” as set out in Dunsmuir v New Brunswick. The Supreme Court allowed 27 intervenors to make submissions on the issues, as well as appointed amici curiae to provide further insights.

It is impossible to overstate my initial excitement for this trilogy of cases. As a summer law student this past year, I assisted with the intervention by the Attorney General for Ontario, and I personally believe that the standard of review analysis needs reform. The current approach appears to be nothing more than an intellectual exercise. It fosters endless debate about the proper standard of review, diverting attention from the real impacts of administrative decisions. Yet, the law is about the experiences of individuals who must navigate the legal system, and the function of judicial review is ensuring that all individuals are treated fairly under the law.

My initial excitement increasingly faded as more factums were submitted; after the hearings, I lost all expectations of genuine reform. These cases narrowly focused on the standard of review applicable to an administrative decision-maker’s interpretation of a statute. The oral submissions for Bell Canada and NFL and Vavilov discussed piecemeal adjustments to the current approach to the standard of review, such as establishing a new category where a standard of correctness would apply and eliminating the category of “true questions of jurisdiction.” The parties obsessed over whether the standard of review should change in light of statutory rights to appeal and/or a decision-maker’s level of independence from the legislature.

I found it interesting that the parties only made fleeting references to the Charter of Rights and Freedoms in their factums, as the impact of many administrative decisions on individuals’ Charter and human rights is often profound. Counsel for Mr. Vavilov mentioned that the impugned decision had “enormous importance,” as having citizenship would mean that Mr. Vavilov had a Charter right to enter and remain in Canada. During oral submissions, his counsel Barbara Jackman asserted that a standard of correctness must apply to administrative decisions that involve human rights. She explained that such issues engage the Charter, and “deference is not part of the constitutional scheme.” The courts must be the ultimate decision-maker due to the significance of those decisions.

The amici curiae remarked that a standard of correctness should apply when decisions implicate the Charter since the courts must have the “last word” on interpretations of the Charter and purported infringements of Charter rights [79-82].

The intervenor Community & Legal Aid Services Programme (CLASP) provided the most comprehensive submission regarding the Charter. It advocated for a “nuanced approach” that would consider the nature of a decision, the nature of the decision-maker, the nature of the decision-making process, and the Charter right at issue in order to determine the proper standard of review.

In light of the relative silence around the Charter, it seems unlikely that the Supreme Court of Canada will adjust the standard of review as it pertains to administrative decisions that implicate the Charter. I suspect that the Supreme Court of Canada will only make minor tweaks to the current approach to the standard of review, leaving the Doré / Loyola framework untouched.

[Click on picture for link to archived webcast of SCC hearing on Dec 4, 2018]

 

Catherine Ma is a 3L JD Candidate at the Faculty of Law and was a student leader of the Asper Centre’s Indigenous Rights student working group in 2017-2018.  She was a summer law student at the Ministry for the Attorney General in 2018. 

Asper Centre ED Cheryl Milne to take part in panel at upcoming Regulating Creation Conference

On Friday November 23, 2018, the Asper Centre’s Executive Director Cheryl Milne will take part in a panel about reconciling children’s rights and donors’ rights as part of a HEALTH LAW, POLICY AND ETHICS IN CANADA interdisciplinary conference titled “Regulating Creation and the Assisted Human Reproduction Act”, which will take place at the University of Toronto Faculty of Law.

Since the adoption of the Canadian Assisted Human Reproduction Act in 2004, assisted human reproduction has been developing at a very fast pace at a global scale, in a complex social, medical and industrial context. An early challenge of the legislation by Quebec in 2010 resulted in the removal of many key components of the legislation, particularly those related to the regulatory control and licensing of assisted human reproduction. New scientific developments, in particular those related to gene editing, have also inspired calls for changes to the remaining prohibitions. Both the federal government and the provinces are under pressure to re-imagine how assisted human reproduction should be regulated and funded in Canada. Since the Supreme Court’s decision, there have been new funding initiatives at the provincial level, and ongoing debate, yet limited action at the federal level with respect to the development of regulations about surrogacy and gamete donation. A recent proposal to repeal the Act’s prohibitions on payment for surrogacy and the purchase of gametes has renewed debate over the remaining criminal law-based restrictions. And while other countries have moved away from anonymous gamete donation, Canada’s legislation and case law continue to allow anonymity. Meanwhile, many investigative reports and scholarly research into assisted human reproductive practices, including surrogacy and gamete donation, have shed light on what is happening on the ground, and on the multitude of personal, economic, ethical and legal ramifications of Canada’s assisted human reproduction practice.

This one-day colloquium, preceded by an evening debate, will explore a number of key issues related to Assisted Human Reproduction.

Read the Regulating Creation – Agenda as of 12 Nov 2018 and to register for the Conference, please Click Here.

Unbiased Policing and the Legalization of Cannabis

by Jasmit de Saffel

On October 18th, 2018 two Toronto Police Service (TPS) Sergeants came to the University of Toronto law school to present about the comprehensive training police officers go through to reduce their implicit biases on the job. The presenters were engaging, introspective and candid about the mistakes Toronto Police has made in the past. They also agreed that policing is a profession that cannot afford “bad apples”.

The Sergeants’ explanation of the Police and Community Engagement Review (PACER) conducted by the Toronto Police Service beginning in 2012 was indicative of the TPS’s desire to address past issues with implicit bias. The PACER report made extensive recommendations, one of which was implementing the Fair and Impartial Policing (FIP) program, a bias mitigation program developed by a notable expert on bias in policing, Dr. Lorie Fridell of the University of South Florida. The FIP program is based on the modern science of bias, consistent with the TPS’s current focus on evidence-based policing and policy development. All new and existing officers go through the Fair and Impartial Policing program, which focuses on understanding human bias, the science of bias, the impact of bias policing, managing implicit bias, and addressing the biases of others. The Toronto Police Service’s implementation of the program has been successful enough to warrant an invitation from the program creators to help tweak it further.

Despite the presenters’ extensive insight and understanding of the dangers implicit bias poses in law enforcement, the Sergeants prefaced their talk by stating that they were not going to talk about cannabis. This left me a bit dumbstruck, especially after having attended the “Perspectives on Cannabis” panel discussion presented as part of the law school’s Emerging Issues workshop series the week before. The panelists there, criminal lawyer Stephanie DiGiuseppe, sociologist Dr. Akwasi Owusu-Bempa and our own Professor Kent Roach, were explicit about the negative impacts of Canada’s cannabis prohibition on racialized and Indigenous communities. They emphasized the long-lasting and adverse effects on the lives of those affected by the biased and discriminatory policing of cannabis.  In light of these realities, how could you not discuss cannabis at an implicit bias in policing presentation on the day after federal legalization of cannabis?

Ironically, the Cannabis Act has actually created more laws around cannabis than existed before. Under the Controlled Drugs and Substances Act there were eight cannabis-related offences, including possession, trafficking, exporting, and importing. The Cannabis Act has both increased the number of possible offences, and made the penalties stiffer. These offences include, but are not limited to, public possession of more than an ounce, unauthorized promotion, and sharing cannabis with a minor. Sharing with a minor has a potential 14 year jail term attached to it, promoting to youth can get you a $5 million fine, and possession over the limit can still mean 5 years in jail. The Act has also created a category of “illicit cannabis,” which includes any products not purchased from an authorized retailer or grown legally. While adults are able to recreationally use cannabis, they are only able to do so within this strict web of regulations.

I was hoping to hear about the TPS’s plan to reduce their implicit biases in enforcing the new Cannabis Act regulatory scheme. The vagueness and confusion about what legalization practically looks like has raised concerns about the potential for old habits of discriminatory law enforcement to persist. These concerns are amplified in light of the fact that uncertainty about legal cannabis consumption leaves a lot to the discretion of individual police officers. An obvious example is the fact that no standardized test has been accepted for determining whether someone is driving impaired. How will police officers ensure that they are not making decisions about impairment based on their implicit biases? Ambiguity also exists about where cannabis can be used, how minors will be identified, how illicit cannabis will be recognized, how immigration status will be affected etc. All this means is that the implementation of the Cannabis Act can very easily continue to disproportionately affect historically marginalized demographics.

It is entirely unrealistic to assume that the biases that led to the over-representation of racialized and Indigenous Canadians with criminal records for cannabis-related offences disappeared as the clock struck midnight on October 17.  In fact, research from other jurisdictions that have legalized cannabis has shown a decrease in overall cannabis-related arrests, but no decrease in the gap between racialized and white arrests.  The reality of the situation is that an annual training is likely not going to undo a lifetime of preconceived notions and understandings of the world. It is also not going to erase the decades of friction cannabis prohibition has caused between the police and marginalized groups in Toronto.

These concerns are not meant to criticize the TPS Sergeants’ presentation specifically. The TPS’s vision, as articulated in its PACER report, is making the Toronto Police Service a leader in bias-free police service delivery and their dedicated implementation of the Fair and Impartial Policing program is an excellent first step in doing this. The candour of the two presenters also suggested a genuine desire to improve the relationship between the TPS and the city. However, the anti-bias program described lacks the accountability and enforcement mechanisms required to make it effective in changing attitudes and behaviours. While it was a good presentation to give a room of privileged law students, I am not sure how it would resonate in neighbourhoods that have been adversely affected by biased police practices.

A city as diverse and complex as Toronto needs a police service that represents, respects and protects all of its residents and can in turn be held accountable by them. As the city adjusts to the legalization of cannabis and all the regulations that come with it, the TPS is presented with an excellent opportunity to prove its commitment to reducing biases in policing. Toronto can lead by example and demonstrate that it is possible to police cannabis legalization in a just and equitable manner. Doing so will require widespread education about the new cannabis regulations, robust accountability mechanisms for law enforcement officers, an open dialogue between historically marginalized communities and the TPS and a demonstrated and genuine desire by the police to atone for past injustices.

Jasmit de Saffel  is a 1L JD Candidate at the Faculty of Law and is the current Asper Centre work-study student