Recapping YY Chen’s Constitutional Roundtable on Citizenship and the Charter

by Michelle Huang and Jeffrey Wang

On Thursday, February 28, the Asper Centre hosted Professor Y. Y. Brandon Chen for a Constitutional Roundtable titled “Toward a Substantive Understanding of Citizenship in the Canadian Charter of Rights and Freedoms”. Chen is a lawyer and social worker by training, and is completing his SJD at UTLaw. He is currently an Assistant Professor at the University of Ottawa’s Faculty of Law, focusing his research on public law, health, and migration. Chen was also an Asper Centre clinic student in 2009 while a pursuing his JD at UTLaw.

For the Roundtable, Professor Chen presented an argument for a more inclusive judicial definition of Canadian citizenship within the Charter. The first part of his presentation focused on the three sections of the Charter that explicitly limit rights to citizenship – sections 3, 6, and 23. He argues that courts have relied on Federal statutes’ definitions of citizenship to inform their understandings of citizenship, resulting in a large number of people being inadequately protected. Chen’s stance is that Courts should be reading these sections of the Charter in a more purposive manner in an attempt to include non-citizen groups who are also entitled to the same degree of protection.

Chen posed two questions in relation to s.3, s.6 and s.23. Firstly, should the meaning of “citizen of Canada” depend on legislative definition? If so, are we allowing Parliament to skirt its Charter obligations? Secondly, he asks what a judicially constructed definition of citizenship would look like.

Chen proposed that citizenship can be understood as membership in a state. More specifically, it is the desire to foster a deep connection to a society. This idea is supported by social science research and the Supreme Court in the case of Ontario v Winner [1951] SCR 887. However, the present legislative definition of citizenship is not broad enough to encompass all groups of people who possess these qualities. There are non-citizens with similar interests and relationships to the Canadian state that are entitled to the protection of the Canadian government under this definition.

The second part of Chen’s legal argument was focused on how s.15 of the Charter interprets citizenship as an analogous ground of protection. Currently, the court only targets policies that draw a clear line between citizenship and non-citizenship. For example, in Toussaint v Canada (Minister of Citizenship and Immigration), 2011 CAF 208, the Federal Court of Appeal rejected a claim that a law discriminated against non-citizens simply because other non-citizen groups are protected by the law. This is a simplistic line of argument that tends to erase the distinct groups that exist under the non-citizen category, such as migrant workers, international students, and permanent residents. Despite their universal non-citizen legal status, these groups receive differential rights from the government.

Chen emphasized that Canadian courts have ruled that discrimination based on one type of disability is still disability discrimination, even if other types of disabilities are protected. In recognizing that there are different non-citizen groups who receive differential treatment, the same logic should be applied to them.

Overall, Professor Chen presented a compelling argument for the courts to understand citizenship in a way that more actively protects individuals’ rights. In questioning the courts’ reliance on Parliament’s definition of citizenship, he opened up the possibility of protecting more individuals under the Charter who are already substantive members of Canadian society. Furthermore, in challenging the normative line between citizenship and non-citizenship under s.15, Professor Chen advocates for a more nuanced and complex understanding of differential (non)citizenship experiences.

Michelle Huang and Jeffrey Wang are 1L JD Candidates at the Faculty of Law. They are also members of the Asper Centre Immigration & Refugee Law student working group this year.

What they don’t know will hurt them: no consent, gender identity or social media in the Ontario sex ed curriculum

By Leslie Anne St. Amour

In my opinion, to call the court’s decision dismissing the case against the Ontario government in respect to the repeal and replacement of the sex ed curriculum disappointing would be an understatement. I would consider instead: disheartening, or infuriating.

In 2018 the Ontario government issued a directive to repeal the 2015 sexual education curriculum and replace it with the 2010 curriculum, which had the same sexual education content as the 1998 curriculum. The previous curriculum did not include among other things consent, gender identity and expression, cyberbully or sexting. The Elementary Teachers’ Federation of Ontario (ETFO), the Canadian Civil Liberties Association (CCLA), and a parent of a child affected brought two applications to judicially review this directive, which essentially required the determination of one question: whether the directive and the events surrounding the decision infringed the Charter rights of teachers, students, and/or parents.

Arguments were made regarding sections 2(b), 7 and 15(1) of the Charter of Rights and Freedoms in this case by the ETFO and the CCLA. Several interveners also took part to provide other perspectives including: Grand Council of Treaty 3, Justice for Children and Youth and Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario.  This article provides my opinion on the Charter analysis provided by the court, but I will note there was also a discussion of jurisdiction and standing.

I understand how the court came to dismiss the applications, but I still believe it was incredibly important that the case was brought. We need queer youth, young women and girls and survivors of sexual violence to know we stand with them. The court did clarify that teachers can teach from the 2015 curriculum with no fear of professional repercussions and in many ways, that is a win for students with willing teachers. But the concern remains for students of teachers unwilling to teach this content for personal reasons or because of the opinions of those around them.

2(b) – Freedom of Expression

In addressing the section 2(b) freedom of expression analysis, the court examined the combination of the removal of topics from the curriculum along with statements made by members of the government and the creation of a website which allowed for the submission of information on teachers and classrooms. The complainants alleged that this constellation of factors established a violation of teachers’ freedom of expression by preventing them from teaching facets of the 2015 curriculum which were removed by the replacement with the 2010 curriculum.

In finding that there was no 2(b) violation, the judge appears to rely on the fact that counsel clarified the positions of the Minister in respect to what was fair game for teachers to teach under the new curriculum. I am frustrated by this result as this clarification would not have come had this not been brought to court and runs counter to the common understanding of the statements made by the government, which the court itself called “Ill-considered”. However, I expect some teachers will find solace in this decision as it confirms their ability to provide necessary information on consent, gender identity, sexual orientation, sexting and cyberbullying to their students without fear of professional sanctions.

7 – Guarantee to Life, Liberty and Security of the Person

While working with the Asper Centre, within our working group, I focused on the s. 7 arguments and I knew this would be a difficult argument to make but I hadn’t expected the court’s focus on a lack of evidence of harm stemming from the 2010 curriculum. Jurisprudence on s. 7 does not require direct scientific evidence, but rather a sufficient casual connection is enough to draw a reasonable inference on a balance of probabilities.

In my mind, every sexual assault which was committed by a person who had been taught sex ed in Ontario during the time period the 2010 curriculum was in use or was perpetrated against someone had been taught sex ed in Ontario during that time arguably had a link to the curriculum. This is due to a lack of education around the requirement of consent to engage in sexual activity. I thought of the young men and women who didn’t know they needed to say yes, didn’t know how to say no or didn’t know what to do when their no or lack of yes meant nothing to someone else. I think of the young men and women now having to face the reality of having engaged in sexual misconduct or assault because no one taught them any better in a world which rewards toxic masculinity and rape culture and encourages women to bite their tongue and let it go.

And so, I knew this argument would be hard to make because a government does not have a positive burden to ensure life, liberty and security of the person and because a policy of one government does not bind the next, but I hadn’t expected part of the issue to be a conceived lack of harm.

15(1) – Equality

In addressing the s 15(1) arguments the court references the characterization of the curriculum as a benefit which is not available to certain groups however, does not address this point specifically in its reasons. The court reiterates the jurisprudence surrounding the fact that the repeal of a policy does not constitute a Charter violation if it removes a benefit that previously existed. However, my understanding of the framing of the issue as a benefit which is not available to certain groups such as LGBTQ students is a desire to see the current curriculum, separate from the repeal itself, as a violation.

By providing a sexual education curriculum which does not teach content relevant to diverse gender identities or sexual orientations, cis and straight students are receiving a benefit from the government that other students cannot receive. That benefit is a sexual education curriculum which is relevant to them. The court does not address the s. 15 claim from this angle, addressing only the lack of requirement to continue to provide a benefit that had previously been received.

I want to end this article by saying that I and many others will continue to stand with the students impacted by the repeal and this decision and continue to do what we can to support them and their access to the necessary information they are no longer guaranteed in the classroom. Therefore, I’ve provided a list of links below to resources that are working to fill this gap:

http://www.mysexed.ca/resources.html

https://www.youthline.ca

http://www.ppt.on.ca/resources/fact-sheets/

http://teenhealthsource.com

Leslie Anne St. Amour is 2L JD Candidate at the Faculty of Law and a former Asper Centre clinic student. [read Leslie Anne’s previous blog post reflecting on her work on this case as an Asper Centre Clinic student.]

 

 

R v Bird: Do Not “Breach First, Challenge Later”

by Sahil Kesar

Spencer Bird (“Bird”), a long-term offender, was charged with breaching the conditions of a community supervision order prescribed by the Parole Board. At the criminal proceeding, he sought to use the defence that the order which imposed his parole conditions was unconstitutional as they violated Section 7 of the Charter. He argued that the condition that he reside in a facility that was designated a penitentiary for the community portion of his sentence breached his right to liberty. At trial, Bird was successful only to have the decision overturned and to be convicted on appeal on the basis that he could not collaterally attack the parole condition in this manner. The Supreme Court of Canada (“SCC”) drew upon the doctrine of collateral attack based on the approach developed in R v Consolidated Maybrun Mines Ltd and R v Al Klippert Ltd to determine its applicability when the constitutionality of an administrative order is challenged collaterally, rather than appealed or judicially reviewed directly.

The majority dismissed the appeal on the basis that Bird was precluded from collaterally attacking the long-term supervision order (“LTSO”) prescribed by the Parole Board. Analyzing the factors of the Maybrun framework, Moldaver J determined that Parliament could not have intended to let offenders “breach first” and “challenge later” the LTSO conditions imposed on them by the Parole Board. Further, the availability of other options for Bird to pursue his constitutional rights favoured not allowing the collateral attack especially since Parliament intended to defer to the judgment of the Parole Board, given the wording of the legislative scheme. Moldaver J did find, however, that the final factor of the Maybrun framework favoured allowing the collateral attack; however, after weighing all the factors of the Maybrun framework, Moldaver J concluded that Parliament did not intend to have LTSO conditions collaterally attacked in the case at hand and dismissed the appeal.

Martin J, in a concurring opinion, also dismissed the appeal but on the basis that the LTSO conditions did not violate the Charter, concluding that Bird could collaterally attack the LTSO conditions imposed by the Parole Board in his defence. Martin J differed in her approach to the factors enumerated in the Maybrun framework. She was of the view that allowing a collateral attack does not amount to a “breach first, challenge later” approach since breaching LTSO conditions is not a strategic plan, especially since it could potentially lead to an additional 10-year sentence. Martin J also found that none of the options listed by the majority, which Bird could have sought instead of breaching his LTSO conditions, were adequate and intended by Parliament to use in this specific legislative scheme, particularly habeas corpus. She also found that the fifth factor weighed in favour of allowing the collateral attack.

Looking at the Charter arguments, Martin J dismissed the Section 9 and 11 arguments on the basis that this was not an exceptional case where she should hear Charter arguments not previously raised. On the Section 7 argument, Martin J disagreed with Bird’s arguments that the residency condition imposed on him was arbitrary. She found that the broad definition of penitentiary does not amount to him being forced to serve an arbitrary extension of his carceral sentence. She also found that the distinctions between other parolees and long-term offenders do not indicate that long-term offenders were not to be housed where Bird was being forced to reside. Ultimately, Bird’s residency condition was within the ability of the Parole Board to impose and was based on his particular circumstances.

The Asper Centre intervened in this appeal. The Centre made four submissions:

  1. First, the Asper Centre’s sought to have constitutional considerations made explicit in the Maybrun This was based on two assertions. First, Maybrun was not a constitutional case but the jurisprudence it drew on provided for the balancing of legislative intent against constitutional considerations. Particularly, the US jurisprudence points towards the idea that courts should not ignore a defendant’s constitutional rights or the practical availability of prescribed remedies when deciding whether to permit a collateral attack on an administrative order. Second, the Maybrun framework implicitly permits constitutional considerations. Since the framework is intended to protect the rule of law by determining the legislature’s intended forum for relief, it must do so in a way that encourages compliance with the constitution because the principle of constitutionalism requires state action to comply with the constitution. Divorcing Charter rights from the Maybrun framework creates a perverse situation where an administrative decision is neither rooted in law nor constitutionally compliant.
  2. Second, the Asper Centre sought to have the repute of the administration of justice included as an enumerated factor under the Maybrun Denying a collateral attack when Charter rights are at stake would bring the administration of justice into disrepute, as shown in certain other examples.
  3. Third, with emphasis on seeking judicial review in Federal Court, the Asper Centre sought to have access to justice considered in the Maybrun Judicial review in Federal Court is not timely or accessible for three reasons: 1) the requirement to exhaust complex and ineffective internal reviews; 2) the difficulty in obtaining deadline extensions in Federal Court; and 3) the protracted time period required to obtain judicial review.
  4. Fourth, allowing collateral attacks does not prejudice the Crown. There is no impact on the standard of review. The Crown asserted that allowing the collateral attack would distort the standard of review since constitutional questions would be considered under correctness instead of reasonableness. However, reasonableness would be applied under Dore, not correctness as they assert.

Moldaver J for the majority, asserted that the two principles that underlie the approach to collateral attacks on court orders are accounted for in the Maybrun framework for administrative orders. The framework adequately balances legislative intent with ensuring effective means for recourse to individuals challenging administrative orders. As such, this rejects the notion that constitutional considerations or the repute of the administration of justice (submissions one and two of the Asper Centre) need to be explicitly included since the framework already accounts for the rule of law and the repute of the administration of justice.

Moldaver J made reference to the Asper Centre’s third submission at paragraph 57. He accepted that there are realistic concerns over timeliness and accessibility of relief in Federal Court and that efficiency and timeliness are of greater importance when liberty is concerned. However, he held that Bird received notice of the Parole Board’s decision to impose residency conditions five months before his long-term supervision commenced, therefore giving him ample time to seek judicial review. Moldaver J stated that concerns about timeliness of judicial review was speculation and that Parliament might want to consider whether the procedures in place governing judicial review could be modified to provide more timely and accessible relief. However, he did not make access to justice a consideration in the Maybrun framework. Martin J, in her concurring opinion also accepted that Bird would have been unlikely to have the resources to secure counsel or self-represent himself for the purpose of navigating judicial review proceedings. She did consider the access to justice issues that this raises as the absence of an internal appeal process cannot mean Parliament intends individuals to navigate Federal Court.

Neither the majority nor the concurrence directly addressed the Asper Centre’s fourth submission.

Read the Asper Centre’s Factum in the Bird Appeal here.

Sahil Kesar is a 3L JD Candidate at the University of Toronto Faculty of Law and is currently the Asper Centre half-time Clinic student

Reflecting on the Sex-Ed Charter Challenge

By: Leslie Anne St. Amour

Now that the Constitutional challenge to the Ford government’s repeal of the 2015 sex-ed curriculum has been heard by the court, I am reflecting on why I wanted to work on this project as an Asper Centre Clinic student last term. The repeal of the 2015 sex-ed curriculum was terrifying and personal to me. I grew up in rural Ontario and received all of my public-school sexual education based on the 1998 curriculum. In my hometown there is no access to abortion services, mental health services are few and far between and everyone knows each other and their business, making seeking additional information or services difficult, if not impossible.

We learned to be abstinent. And if not, then to use a condom. But not how to use a condom. We learned sexually transmitted infections exist and that they are something to be ashamed of and feared. Not where to go to get tested, how to navigate disclosure or that the stigma is unnecessary. We simply did not learn about consent or gender identity.

Because of this inadequate curriculum, many young people in Ontario have turned to each other and the internet for their sex education in the years since we have left public-school. We turn to the internet, but there is so much information and misinformation that we often struggle to know what is accurate and so we crowdsource it amongst ourselves. We hope one of our friends had a sex-ed teacher who went above and beyond the 1998 curriculum, or that one of us learned something at our universities’ health fairs or maybe that one of us with a parent in healthcare knows the accurate answer.

This Charter challenge focused on: section 2(b) guaranteeing freedom of expression, section 7 guaranteeing life, liberty and security of the person and section 15 guaranteeing equality. While working with the Asper Centre to support this litigation I conducted research on several topics including Constitutional conventions and Charter jurisprudence. The Charter section I primarily focused on was section 7. Under the guidance of Susan Ursel, the Asper Centre’s Constitutional Litigator in Residence last term, I conducted research into potential Charter challenges that could be made. In this case, section 7 was used to address the removal of consent from the curriculum and the impact this has on the security of the person of students, women and LGBTQ+ people in particular.

Society is facing a reckoning in respect to consent and sexual activity. The #MeToo movement has provided an opportunity for discussion about sexual assault, harassment and consent. We are seeing a societal conversation about consent, what it means and how to ensure consent has been given. This makes it so clear to me that so many people do not understand consent and therefore how important it was that it was included in the 2015 sexual education curriculum. The removal of consent from the curriculum puts every child who will not be taught about their right to bodily integrity at risk and puts those children at risk of one day perpetuating sexual violence because they do not understand the required consent and how to gain it.

I hope that regardless of the results of the case, students across Ontario have heard us. There are people here supporting their rights to bodily autonomy and to have all gender identities and sexual orientations included in their curriculum. And I hope that governments across Canada, not just Ontario, have heard us ask for this.

Leslie Anne St. Amour is 2L JD Candidate at the Faculty of Law and a former Asper Centre clinic student.

 

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