The Achampong court challenge: read the legal arguments here

 

On September 10, 2018 Superior Court Justice Edward Belobaba ruled that Premier Doug Ford’s Bill 5 – the so-called Better Local Government Act – to reduce Toronto’s city council from 47 wards to 25, breached s. 2(b) of the Charter and was therefore unconstitutional. Shortly thereafter Premier Ford announced that not only was his government going to appeal the court’s decision, but he was going to invoke the Constitution’s “notwithstanding clause” for the first time in Ontario’s history to override the judge’s decision. The revised Bill has been introduced in the legislature with debates lasting into the late night; while a stay application, pending the appeal of the court decision, has been scheduled for Tuesday, September 18th. 

The David Asper Centre for Constitutional Rights is carefully observing the events as they unfold and is pleased to be convening a moderated panel discussion on Thursday Sept 20th at 4:30-6:00pm at the University of Toronto Faculty of Law (J250 Jackman Law Building, 78 Queens Park) in order to unpack the various legal issues involved in this unprecedented case.

Panel members will include two of our faculty’s Constitutional Law Professors Lorraine Weinrib and Yasmin Dawood, and litigator Steven Barrett of Goldblatt Partners LLP.

View the EVENT POSTER here.

The Asper Centre has collected the relevant court papers in the case and is pleased to share them here:

Achampong – Factum

ACHAMPONG decision Superior Court Sept 10 2018

City of Toronto – Factum (Stay Motion) (Motion File No M49615)

City of Toronto Factum CTF Factum

Factum – Stay pending appeal FINAL (for service and filing) v 2

Factum of the Intervenors, Hollett et al.

Factum of the Proposed Intervener returnable September 18, 2018

Factum of the Responding Parties, Chris Moise et al. (01193002)

Factum_Achampong_Stay C65861 M49615

Hollett – Factum (stay)

Moise – Factum

Moise – Reply Factum of the Applicants (01187040)

Supplementary Factum FINAL

 

 

Procedural delays prevent constitutional answers in B.C. Medicare case

By Sara Tatelman

It is a truth universally acknowledged that a first-year law student in possession of a jam-packed schedule must be in want of an excuse to skip Legal Process class. But as we see in Cambie Surgeries Corporation v. British Columbia (Attorney General), both ignorance and careful manipulation of the smallest rules of civil procedure lead to months- and even years-long delays before pressing constitutional questions will be answered. So 1Ls, skip at your peril.

Cambie Surgeries centres on British Columbia’s ban of most private healthcare. The plaintiffs – two private clinics owned by Dr. Brian Day and four patients – argue the unconstitutionality of three provisions of B.C.’s Medicare Protection Act: prohibition of private duplicate insurance, limits on extra billing, and preventing doctors from being paid by both the provincial Medical Services Plan and directly by patients. They argue that by preventing private billing, the province forces patients to suffer as they languish on waiting lists. They allege this infringes their s. 7 Charter right to security of the person, and the fact that some residents have access to expedited private medicine through workers’ compensation and government-run auto insurance infringes other British Columbians’ s. 15 equality rights.

The trial began in September 2016, was adjourned in April 2017 partly due to the plaintiff running out of funds and partly due to inefficient presentation of evidence, and re-commenced on April 9, 2018.

Between February and April 2018 alone, British Columbia filed eight interim motions. Seven sought to strike parts of various witness’s affidavits, while one sought to enforce Cambie Surgeries’ compliance with a previous disclosure order.

Such evidentiary disputes aren’t new: in an April 2017 interim judgement, Justice John Steeves noted that half of the 70+ days of the trial had been devoted to argument over expert witnesses. In an interview with the Canadian Press, Dr. Day said the government delays were an attempt to bleed him dry and force him to abandon his suit.

Between March and May 2018, Steeves J. released 11 interim judgements responding to the parties’ very particular quibbles. Most of the motions sought to strike expert witness affidavits in whole or in part. Steeves J. assessed the impugned statements one by one, concluding that some are admissible because they derive from the witness’s direct experience and observations while others are inadmissible because they include hearsay evidence or opinion.

The line between description and argument can be fine: stating that many patients will deteriorate as they wait for treatment is admissible, but stating that surgery gets more challenging the later it occurs is not (2018 BCSC 759 para 11). Similarly, in another judgement, some comments that might be described as opinion were held to be admissible descriptions of the physician’s work, such as his statement that efforts made at the hospital will be insufficient to meaningfully reduce his waitlist (2018 BCSC 760 para 26).

In another motion, British Columbia sought to enforce Cambie Surgeries’ compliance with a previous order. Specifically, Cambie Surgeries hadn’t produced documents it had been ordered to, and allegedly redacted 55 documents without any explanation. It also failed to list documents it didn’t have in its possession or control, as well as to include any information about privilege, all of which violates the Supreme Court Civil Rules. Steeves J. ordered Cambie Surgeries to provide unredacted copies of certain documents, an amended list of all relevant documents, and an affidavit from Dr. Day that all relevant documents have been disclosed. “… The amended list of documents will comply with the Rules by indicating the documents or classes of documents for which privilege is claimed,” Steeves J. said. “Following discussions and argument I think counsel now understands what that means.”

It’s been almost two years since the Cambie Surgeries trial began, and while a CanLII search yields nearly 50 interim decisions, we’re nowhere near a final judgement. Maybe that’s because British Columbia is disputing the smallest points in the hopes that Dr. Day, drained of his assets and mortgaged to the hilt, will slink away, taking his Charter challenge with him. Maybe that’s because Cambie Surgeries’ lawyers are making disclosure mistakes that would cost them points on a 1L Legal Process exam. Whatever’s causing the delays, and whatever one’s thoughts on privatized medicine in the Canadian healthcare system, it’s clear that the complexities of civil procedure aren’t helping the country get an answer to an important constitutional question.

Sara Tatelman is the Asper Centre’s 2018 summer research assistant.

Selected responses to R v Comeau

By Sara Tatelman

Beer remains imprisoned by provincial borders. In 2012, Gerard Comeau of Tracadie, N.B. was fined nearly $300 for bringing 15 cases of beer and three bottles of spirits from Quebec to New Brunswick. His battle against the law behind that fine has finally wound its way up through the courts.

Last month, in the final word on the matter, the Supreme Court of Canada reversed the trial judge’s decision and found constitutional s. 134(b) of the New Brunswick Liquor Control Act, which limits the amount of extra-provincial Canadian alcohol individuals can bring into the province. The Court determined laws that aim to curtail the inter-provincial passage of goods, whether directly through tariffs or indirectly through fines, violate s. 121 of the Constitution Act, 1867, which states that all items manufactured in any province must be “admitted free” into the other provinces. But laws with different aims that incidentally curtail such passage do not violate s. 121. In this case, the Court noted the legislation aims “not to restrict trade across a provincial boundary, but to enable public supervision of the production, movement, sale and use of alcohol within New Brunswick” (para 124). Furthermore, the impugned provision targets black market bourbon and Fredericton-brewed rotgut, as well as cheap Quebec beer and crisp Okanagan Pinot Gris. So the liquor limits are byproducts of another regulatory scheme, and therefore permissible.

Before addressing the constitutionality of s. 134(b), the Court “deliver[ed] a benchslap to the trial judge” for disregarding its 1921 decision in Gold Seal Ltd. V Attorney-General for the Province of Alberta, as Professor Leonid Sirota of the Auckland University of Technology Law School wrote on his blog, Double Aspect. Based on the Bedford and Carter exceptions to vertical stare decisis, the trial judge ignored precedent because of a new historical assessment of the intent behind s. 121. The Court determined this wasn’t sufficient, since “the underlying social context that framed the original legal debate [must be] profoundly altered” (para 31) and such a re-assessment doesn’t do so.

Ironically, Sirota argues, the Court doesn’t uphold Gold Seal either. In that decision, outright tariffs on inter-provincial trade are banned. But post-Comeau, provinces could impose tariffs as long as they’re rationally connected to a regulatory scheme with a non-trade objective. “So much for stare decisis,” he writes.

In a commentary in the National Post, Professor David Schneiderman of the University of Toronto Faculty of Law notes it’s unsurprising the Court gives little weight to the historical context, “to some imagined framing moment derived almost exclusively from the pen of a single British draftsperson.” That is, under the “living tree” interpretation of the Constitution, purported intentions don’t matter all that much.

Professor Malcolm Lavoie of the University of Alberta Faculty of Law argues in a CBC column that the Court could have reached a fairer balance between federal and provincial powers by simply mandating a test more robust than rational connection, such as a test of necessity. “Under this approach, the government of New Brunswick would have had to establish that its prohibition on outside liquor was truly necessary to achieve objectives relating to public health and safety, a much higher bar than the one the Court applied,” he writes.

Furthermore, Lavoie points out that the Court’s interpretation of s. 121 renders it obsolete: under s. 91 of the Constitution Act, 1867, interprovincial trade is a federal head of power. That is, it was already impossible for provincial governments to directly impose tariffs on goods coming in from other provinces.

In the Toronto Star, Dr. Maria Banda, a visiting fellow at the University of Toronto Faculty of Law, has a more positive view of the decision. Comeau ensures that provinces with higher environmental or health standards, for example, don’t risk “being dragged down to the lowest common denominator by those with lax or inexistent regulations,” she writes.

This decision will likely reverberate throughout the country, including in Alberta and British Columbia’s pipeline dispute. Those provinces should see Comeau as a warning “that they’re not going to be able to rely on their own jurisdiction under the Constitution to do things that will either interfere in federal jurisdiction or will interrupt the free flow of natural resources that is normally supposed to occur without discrimination between provinces,” Professor Carissima Mathen of the University of Ottawa Faculty of Law, said in an interview in Maclean’s.

For his part, Schneiderman argues it’s now less likely Alberta’s Bill 12 will be held to be constitutional. The principle aim of the bill, which requires government permission to export petroleum resources, is “to economically harm a recalcitrant province for interfering with Alberta’s ability to get its oil to port,” he writes. And under Comeau, that cannot be countenanced.

So is it time to #FreeTheBeer, #FreeTheGrapes and #FreeTheOil?

Sara Tatelman is the Asper Centre’s 2018 summer research assistant.

Asper Centre at the Supreme Court of Canada Twice Next Month

 

The Asper Centre will be at the Supreme Court of Canada (SCC) as an intervener in two separate cases next month: Gillian Frank v Attorney General of Canada and Spencer Dean Bird v Her Majesty the Queen.

First up on March 16, 2018 is our intervention in Bird, an important case about prisoners’ rights in Canada.  In this case, the appellant was sentenced to a penitentiary term followed by a period of long-term supervision. The Parole Board determined that this supervision would begin with the appellant residing at a community correctional centre. Upon completing his penitentiary term, the appellant arrived to the designated correctional centre to commence the period of long-term supervision but soon left. He was apprehended and charged with failure to comply with the conditions of his long-term supervision. He argued that the residency requirement was unlawful. The trial judge agreed, finding that his being forced to reside in penal institution after completion of his prison term violated his s. 7 Charter rights. The Court of Appeal allowed the appeal, ruling that the trial judge erred in permitting the appellant to collaterally attack the residency requirement.

The Asper Centre factum argues, with regard to the proper application of the collateral attack doctrine, that the Maybrun framework should consider constitutional and access to justice issues. Our factum can be found here.

Less than a week later, on March 21, 2018, the Asper Centre will be intervening in Frank, a case focused on the voting rights of Canadians residing outside of Canada. In Frank, the applicants are Canadian citizens residing in the United States for employment reasons, who intend to return to Canada if circumstances permit. Both applicants were refused voting ballots for the 2011 Canadian General Election since they had been resident outside Canada for five years or more. The applicants sought a declaration that certain provisions of the Canada Elections Act violated their Charter-protected right to vote. A judge of the Ontario Superior Court of Justice declared the impugned provisions of the Act unconstitutional by reason of violating the applicants’ right to vote under s. 3 of the Charter, and the violation was not justifiable under s. 1.

The Asper Centre factum addresses the “social contract” argument that has been used to support revoking a Canadian citizen’s right to vote if they do not live in Canada. Our factum can be found here.

 

 

Asper Centre’s fireside chat delves into the future of Charter litigation in Canada

Asper Centre Fireside Chat with David Asper and Raj Anand

Should a government pay for its citizens to challenge the constitutionality of that government’s laws?  How reliable is a government’s commitment to provide this kind of funding?  More generally, is constitutional litigation the best way to protect Canadians’ constitutional rights?

On a cold November evening, the David Asper Centre for Constitutional Rights convened a fireside discussion of these questions in the Jackman Law Building.  The discussion featured alumni Raj Anand, LLB 1978, a prominent constitutional litigator and bencher of the Law Society of Upper Canada, and David Asper, LLM 2007, the Centre’s founder and a successful criminal/constitutional litigator.  (Most notably, Asper represented David Milgaard in overturning Milgaard’s wrongful conviction.)

Cheryl Milne, executive director of the Asper Centre, chaired the discussion, the focus of which was the Court Challenges Program (“CCP”).  Created in 1978, the CCP funded legal challenges to laws offending equality and official language minority rights guaranteed under the Canadian constitution, including the Charter of Rights and Freedom.  The program has funded more than 1,200 cases, but has also been cancelled, twice, by governments averse to funding challenges to their own laws.  The current Liberal government plans to revive the CCP, and is undertaking consultations to this end.

The discussion was a study in contrasting viewpoints: Anand’s more conservative (reflecting his long experience as a member of the CCP’s Equality Rights Panel), and Asper’s more radical.  Asper was adamant, for example, that the CCP’s strength comes from its independence.  “It’s irresistible, in my view, that when you have an organization whose objective is to challenge the government, sooner or later the government will defund you—whatever the stripe.”  Anand replied that perfect independence is impossible: “Ultimately, public money has to be carefully safeguarded and spent pursuant to government policies. So, like it or not, there are always public servants that have a direct and indirect impact on the program.”

Asper was unmoved, suggesting at one point that the CCP will always be “a sitting duck for government.”

While both lamented the CCP’s suspension by the Conservative government in 2006, they fastened upon different effects as being most significant.  Anand noted the deleterious effect on s. 15 of the Charter (equality rights) jurisprudence because of fewer, and more poorly supported, cases being brought to trial.  (“The kinds of arguments that were brought… became very weak.”)  Asper characterized the CCP’s suspension as anti-constitutional: “It sent a signal to Canadians that we were somehow less willing to get into the risk of rights litigation.  It was totally contrary to the spirit of the Charter.”

Milne then asked whether, given the CCP’s inherent limitations (in addition to independence issues, the CCP’s funding mandate—limited to equality and official language minority rights cases—has long been criticized as far too narrow), the CCP was the best way to support Charter litigation in Canada.

Asper dismissed this as a red herring.  “Something is better than nothing,” he said, “but the discussion of CCP is a Band-Aid to a much more significant problem in the Canadian justice system.”  Specifically addressing those in the audience watching live via webcast from Ottawa, he continued, “I believe that the courts, and the things that radiate inward from courts—judges, lawyers, systems, processes— are failing us.  The court system itself is the biggest barrier to the adjudication of Charter rights.”

Anand was much more circumspect.  “I think it’s a bit of a distraction to say that we have a bigger problem [i.e., access to justice] and therefore we shouldn’t look at this little problem [the CCP] and try to fix it.  We have a rare opportunity here, and the question should be how we put this program back in place more durably and more effectively than the previous program.”

The ensuing discussion canvassed various alternatives to constitutional litigation, including less reliance on traditional adversarial processes (at the cost of establishing fewer binding precedents), a specialized constitutional court (diametrically opposed to the Supreme Court of Canada’s view on which tribunals can adjudicate Charter claims), and reformed civil procedure rules.  Several members of the audience wondered at the viability of privately funded litigation supplanting the CCP, such as US-style charitable organizations seeking public interest standing to bring constitutional challenges.

No consensus emerged, and the discussion concluded with Asper underlining the ongoing—soon to be imminent—need to re-engage Canadians on the importance of Charter litigation following the CCP’s suspension in 2006: “We’ve probably come through an era of government where [the Charter] wasn’t so popular,” he said, “and that’s no longer the case.”  Asper concluded by reminding the audience of what he sees as the broader context for the reformed CCP.  Once again addressing the audience watching by webcast, he said, “Canadians are losing faith in our justice system as we continue to talk about doing all these things to fix it, and don’t fix it.”

By Christopher R. Graham / Photography by Salathiel Wesser