The Constitutionality of the Proposed Federal Conversion Therapy Ban  

by Jeffrey Wang

On June 21, 2019, the Federal government announced its intentions to criminalize conversion therapy in a letter to provincial premiers. While this is undoubtedly a positive step for LGBT+ rights, the constitutionality of this ban has been questioned 

Conversion Therapy  

Conversion therapy can be defined as any practice that claims to change a person’s sexual orientation or gender identity/expression. The practice can take the form of psychological, medical, religious, or other type of intervention. Every major health organization has denounced conversion therapy. The Canadian Psychological Association (CPA), for example, released a policy statement in 2015 discrediting the efficacy of conversion therapy and recognizing its negative outcomes such as distress, anxiety, depression, negative self-image, difficult sustaining relationship, and sexual dysfunction.

History of Conversion Therapy Bans 

In late 2018, Alberta activist Devon Hargreaves began a petition to have Parliament ban conversion therapy for minors. While Parliament agreed that the practice is immoral, the petition was rejected on the basis that the provinces have the primary jurisdiction to regulate health professions. On April 9th, 2019, Senator Serge Joyal proposed Bill S-260, which amends the Criminal Code to ban the advertising of and material benefit from conversion therapy. This follows a similar strategy of banning the ancillary activities surrounding a practice, most notably employed within the new prostitution laws. This bill died on the Senate floor and given the upcoming federal elections, it is unclear if government will draft a new, similar bill.  

Within Canada, Ontario, Nova Scotia, and Manitoba have banned the medical practice of conversion therapy for minors. The cities of Vancouver and St Albert (Alberta) have passed bylaws that prohibit businesses from providing conversion therapy to minors. 

Potential Constitutionality 

Federalism  

Although conversion therapy is a health issue, in Canada v PHS the court clarifies that “Parliamenthas historic jurisdiction to prohibit medical treatments that are dangerous, or that it perceives as socially undesirable behaviour.” It has been agreed upon by professionals that conversion therapy is dangerous and socially undesirable.  

Freedom of Expression  

Banning conversion therapy may be seen as a s.2(b) Charter violation for professionals who perform conversion therapies. However, it is very likely that the ban would be justified under s.1, especially in light of the scientific consensus that it is dangerous and harmful. The s.1 analysis will likely follow the same path as R v Keegstrawhere the expression stemming from conversion therapy will been seen as holding low constitutional status. Although it may not be hate speech, conversion therapy certainly damages the psychological integrity of individuals, as well as harms the broader LGBT+ community.  

Freedom of Religion  

Some have argued that banning conversion therapy may constitute a s.2(a) Charter violation for those who genuinely believe that their religion mandates them to be heterosexual and for practitioners who perform the therapy as a religious obligation. This argument is unlikely to succeed since there is consensus that conversion therapy is not effective at changing an individual’s sexuality. While some religions may enforce strict heterosexuality, conversion therapy does not make people heterosexual and thus cannot be protected under freedom of religion protections. Even if it is considered a religious right, the conversion therapy ban will likely be justified under s.1 as discussed above.  

Life, Liberty and Security   

It may be argued that the conversion therapy ban violates a person’s liberty or security interest in seeking psychological treatment, reminiscent of the Morgentaler decision. However, conversion therapy has been medically denounced and indeed creates many negative psychological reactions. Thus, it is unlikely that seeking this dangerous “treatment” will engage liberty or security under s.7 

Alternatively, if Parliament criminalizes ancillary activities around conversion therapy but not conversion therapy itself, this may raise issues relating to the principles of fundamental justice, such as in the Bedford case. However, the ban on conversion therapy clearly does not place those who perform it in danger like with the prostitution laws, so it is unlikely to be overbroad or grossly disproportionate.  

International Law  

Canada’s international law obligations also support a ban on conversion therapy. Principle 18 of the Yogykarta Principles, a set of principles on the application of international human rights law to sexual minorities, declares that sexual orientation is not to be considered a medical condition. Furthermore, more severe practices of conversion therapy may meet the requirements of torture under the Convention against Torture and International Covenant on Civil and Political Rights. 

Conclusion  

Overall, the constitutionality of the federal conversion therapy ban will depend on the precise form of the ban. However, medical professionals have reached a consensus on the harms of conversion therapy, a fact that constitutionally justifies its criminalization. It must be recognized that this ban is a huge step in Canada’s protection of LGBT+ identities.  

Jeffery Wang is a 2L JD Candidate at the Faculty of Law and is the co-leader of the Asper Centre’s current Refugee and Immigration Law student working group. 

The Constitutional validity of separate school funding

by Jeffrey Wang

On April 20th, 2017, Justice Layh of the Saskatchewan Queen’s Bench released the decision of Good Spirit School Division No. 204 v. Christ the Teacher Roman Catholic Separate School Division No. 212, ruling that public funding for non-Catholic students to attend Catholic schools is unconstitutional. In other words, this decision means that non-Catholic students can no longer attend Catholic schools in Saskatchewan. As can be expected, this ruling has been controversial, leading the Saskatchewan premier to invoke the notwithstanding clause. It has the potential to affect all Catholic students in Saskatchewan, Alberta, and Ontario, three provinces subject to denominational school rights. On March 13th, the case was heard at the Court of Appeal but no decision has been yet released.  

Background  

In 2003, the public school in Theodore Saskatchewan was shut down due to an insufficient student population. The school board planned to bus all 42 students to a nearby school instead. However, since Saskatchewan is subject to denominational school rights under the Constitution, the parents of Theodore voted to open a Catholic school (St. Theodore Roman Catholic School) even though the majority of students were not Catholic. Nonetheless, the majority of the 42 students chose not to be bussed to the public school, meaning that the public school board received less funding. In response, the school board (Good Spirit School Division) launched a suit claiming that the Catholic school cannot receive funding for non-Catholic students based on s.93 of the BNA Act, and s.2(a) and s.15 of the Charter. 

Case Summary   

This case is over 200 pages long, addressing numerous constitutional and procedural issues. This article will focus on two of them. Firstly, is the government’s funding of non-Catholic students in Catholic schools a constitutionally protected right under s.93 of the BNA Act? Secondly, if not, does it infringe s.2(a) and/or s.15 of the Charter? 

s.93 of the BNA Act  

S.29 of the Charter is clear that Charter rights do not apply to the denominational schoolprotected under s.93 of the BNA ActBut what parts of denominational schools are barred from Charter review? In Greater Montreal Protestant School Board v Quebec, the SCC ruled that s.93(1) only covers the denominational aspects of Catholic/Protestant education and the non-denominational aspects necessary to deliver these denominational aspects.1 This has been termed the denominational aspects test. The Good Spirit School Division (GSSD) argues that the admission of non-Catholic students is not a denominational aspect since the purpose of denominational schools is to be separate from the majority.2 They assert that Catholic schools were historically seen as entirely separate from regular education, and that Catholic organizers did not historically want non-Catholics to attend.3 On the other hand, the Catholic school argues that no specific admission requirements were historically outlined for Catholic schools,4 and that spreading the word of God to non-Catholics has always been a part of Catholic education.5  

Justice Layh rules that the funding of non-Catholic students does not pass the denominational aspects test and thus is not immune to Charter review. He leans heavily on the historical fact that those who fought for separate school rights wanted those schools to be separate from the majority  they were a way for the minority faith to remove their children from majority influences and sustain their religion.6 In addition, he asserts that even if it is accepted that spreading Catholicism is a part of Catholic education, the protected denominational aspect of Catholic education is the transmission of Catholic values to Catholic children rather than non-Catholic children.7 With this view, he finds that the admission of non-Catholics into Catholic schools cannot be protected under the denominational school rights negotiated in the BNA Act 

s.2(a) and s.15 of the Charter 

Proceeding to the Charter analysis, Justice Layh finds that funding non-Catholics to attend Catholic schools violates s.2(a) and s.15. He undertakes a religious neutrality analysis, ruling that funding students at the public expense to subscribe to one religion violates the government’s duty of neutrality under s.2(a).8 Similarly, Justice Layh finds that funding non-Catholic students to attend Catholic schools also violates s.15 – the funding allows members of the Catholic faith to promote Catholicism over other religions, and allows Catholic parents to fund education in their faith over parents of other faiths.9  

Conclusion  

It is unclear as of now where the law stands, since the appeal decision has not been released and the notwithstanding clause has been invoked. However, this case has already inspired litigation focusing on the admission of English students into constitutionally protected French schools.10 If Justice Layh’s decision is upheld, many Catholic school students may be forced to transfer schools and Catholic school boards around the country could lose large amounts of funding.  

Jeffrey Wang is a 2L JD Candidate at the Faculty of Law.

Asper Centre Caselaw Compendium for Detention Review Hearings

This compendium of caselaw was prepared by Jim Molos and Devon Johnson, who are J.D. Candidates at the University of Toronto Faculty of Law and former Asper Centre Clinic students. During their Asper Centre practicum following the Clinic course, they conducted a survey of relevant Federal Court case law related to immigration detention hearings and compiled a compendium of jurisprudence to assist practitioners in martialling precedent to advocate for their clients’ best interests in immigration detention hearings.

  >> Asper Centre Compendium <<

 

Challenging Quebec’s Secularism Bill despite its use of s.33

by Jeffrey Wang

On June 16th, 2019, Quebec passed An Act respecting the laicity of the State (Bill 21). This bill was controversial for banning the wearing of religious symbols, such as hijabs, niqabs, turbans and kippahs, for some public employees, including some teachers and public servants with state-sanctioned power to exercise coercive authority, such as police and prosecutors. It also contains the notwithstanding clause. One day after its adoption, the CCLA and National Council of Canadian Muslims (NCCM) filed an application to stay the application of Bill 21. The claimants present five fascinating arguments on the unconstitutionality of Bill 21 despite its override on Charter rights.

Firstly, the applicants claim that Bill 21 is ultra vires. According to Saumur, Henry Birks, and Big M Drug Mart, the regulation of religious observance for a moral purpose is the sole jurisdiction of Parliament. As stated in its preamble, the purpose of Bill 21 is to affirm the laicity of the State. In addition, s.6 and s.8 of Bill 21 can be considered criminal legislation, both with prohibitions and sanctions.

Secondly, the applicants argue that Bill 21 is impermissibly vague as to violate the rule of law. Particularly, Bill 21 defines religious symbol as something that is worn for a religious purpose or something that can be reasonably considered religious. Both definitions are vague. Firstly, people can wear the same item for different reasons – wedding bands, for example, have religious significance to some but not others. Dressing modestly can have religious significance to Muslim women and wearing hats can have religious significance to Jewish men. Moreover, since there are so many religions within Canada, it is impossible to identify all religious symbols. Thus, it will depend on the knowledge of individual people to identify symbols covered by Bill 21. In addition, enforcement is also left to individual organizations. This will create a chaotic and arbitrary environment in which each organization will allow and disallow different items, with different consequences. The rule of law mandates that people know the prohibitions and penalties of a law in advance, which Bill 21 clearly violates.

Thirdly, the applicants argue that Bill 21 modified the architecture of the Canadian constitution by changing the inclusive nature of public institutions. In the Secession Reference, the SCC recognized respect for minority rights as an organizing constitutional principle. Thus, unilaterally altering this principle is impermissible. The applicants argue that interference with certain rights may violate the basic constitutional architecture even without the Charter. For example, pre-1982, if a government had barred religious minorities from voting, this would have unconstitutionally altered Canadian democracy. Similarly, respect for minority rights within Canada’s democracy means that all citizens can participate in public institutions, regardless of the notwithstanding clause. Bill 21 violates this principle.

Fourthly, the applicants argue that Bill 21 affects judicial independence. S.3 of Bill 21 applies to judicial institutions, yet s.5 exempts Superior Court judges and Court of Appeal judges from complying with laicity. With respect to the judges that Bill 21 does not exempt, this infringes the requirements of judicial independence by imposing a requirement that subjects them to discipline. Under s.100 of the BNA Act, the state cannot impose a condition that impacts a judge’s security of tenure. The applicants further argue that many other actors within the judicial institution, such as clerks, justices of the peace, sheriffs, etc., must still comply with the act. Since these actors play such as important role within the legal system, they are also subject to the guaranteed administrative independence of the courts.

Fifth, starting at paragraph 156, the applicants argue that the application of Bill 21 to elected officials violates s.3 of the Charter. S.3 of the Charter includes the right to qualify for membership in the House of Commons or a provincial legislature. By applying s.8 of Bill 21 to elected officials, it excludes individuals who cover their face from this membership. The applicants argue that this is not justified under s.1 since state laicity is not a pressing objective and a total ban is not a minimal impairment of rights.

The decision of Justice Michel Yergeau was released on July 18, 2019, denying the stay. Justice Yergeau did not focus on the constitutional aspects of the case, but rather deferred to interlocutory injunction procedures. Referencing past case law, he notes that “constitutional disputes are not…amenable to the expeditious and informal procedure of the interlocutory injunction”[1] and that “only a trial judge will be able to [decide on the merits of the constitutional arguments].”[2] Yergeau J’s decision is currently being appealed.

Regardless of the outcome, the claimant’s arguments show that although the Charter thoroughly protects our rights, our constitutional culture of rights protection has evolved beyond the Charter’s parameters. Even without the Charter, citizens can turn to federalism and the unwritten constitution to continue to seek protection from majoritarian rule. The results of the stay may have direct consequences for future uses of s.33, which may no longer be seen as the legal “get-out-of-jail-free” card for the legislature.

Read the CCLA’s factum here.

[1] Hak c. Procureure générale du Québec, 2019 QCCS 2989, para 58

[2] Ibid, para 146

Jeffrey Wang is a 2L JD Candidate at the Faculty of Law.

Report from our 2019 Summer Fellow at LEAF

by Paniz Khosroshahy

This summer I have been working at Women’s Legal Education and Action Fund (LEAF) as an Asper Centre Summer Fellow. LEAF works to advance women’s substantive equality rights through litigation, law reform, and public education, and I feel fortunate to have been able to assist the organization with its projects for the past two months.

My main responsibility is to work on LEAF’s project on image-based sexual violence, which can include surreptitious recordings, “deep fakes,” “revenge porn,” and other forms of non-consensual creation and distribution of intimate and sexualized images. This project follows LEAF’s intervention in R v Jarvis, a case heard at the Supreme Court of Canada (SCC) earlier this year that concerned a high school teacher secretly recording his female students’ cleavage using a camera in his pen. Thankfully, after some unfortunate precedents in Ontario and other provinces, the SCC clarified that the voyeurism provisions of the Criminal Code prohibited Mr. Jarvis’s conduct, and that women did not leave their expectations of privacy at the door when they left their homes.

The aim of this project is to consolidate Canadian and international responses to image-based sexual violence and identify best practices for its regulation. This resource would then be used for LEAF’s future interventions as well as inform its policy proposals and recommendations to governments.

I am very excited to be working on this project as it concerns a new and developing area of law. In that sense, LEAF is not trying to retroactively fix rape myths and stereotypes embedded in the law but actually set the agenda by ensuring that the legislatures, courts, and administrative bodies shape laws in line with women’s equality. While nowadays it is less acceptable to disparage survivors for having “asked for it,” such attitudes are still common when it comes to internet-based hate and abuse. For example, the judge in one of the cases that I researched is of the view that, to avoid receiving death and rape threats on Twitter, women should just stay off social media. However, just as drinking alcohol is not a permission for sexual advances, sending intimate images to one’s partner is also not a permission for those images to be posted on pornography websites. There is no clear line between our lives online and offline, and the courts need to adjust to that reality as soon as possible.

Aside from the image-based sexual violence project, I have also contributed to research in support of a potential intervention in R v Fraser. This case is on appeal to the SCC and concerns RCMP’s discriminatory pension policy towards part time employees, who are almost all women with childcare responsibilities. This is a very important case as it touches on how the pension system rewards full time, long-term, high-paying, permanent employment and effectively disregards and devalues part-time work, housework, and caring labour, which characterizes work overwhelmingly done by women. I hope to be involved with the case later into the school year.

I have also supported the LEAF staff in completing several other reports and submissions. I started my fellowship by contributing to LEAF’s chapter for a report created by the Centre for Policy Alternatives about Canada’s implementation of the Beijing Platform for Action. The Beijing Platform concerns gender equality and was adopted by Canada and other countries at the Fourth World Conference on Women in 1995. The signatories will convene in 2020 for the UN’s summit on Commission on the Status of Women in 2020 to evaluate their progress.

Another highlight of my summer thus far has been working on a project about alternative methods of sexual assault adjudication. I have written and contributed to chapters on campus sexual assault mechanisms, criminal injuries compensation programs, specialized domestic violence and sexual violence courts, and restorative and transformative justice approaches to sexual assault. I also assisted with drafting LEAF’s submission to the Law Society of Ontario on access to justice.

Last but not least, one of the most exciting aspects of my fellowship has been to connect with feminist legal scholars and practitioners from all over the country. It was reading the writing and work of these individuals that motivated me to go to law school in the first place, and it has been truly an honour to be able to meet and work with them during my time at LEAF. Overall, I have had an extremely fulfilling experience at LEAF, and I recommend this fellowship to students interested in using their legal knowledge and skills for social justice.

Paniz is a 2L JD Candidate at the Faculty of Law, and was awarded an Asper Centre fellowship to work at LEAF this summer.