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.

Bill C-59: The Good, the Bad, and Where We’re At

By Patrick Enright

When Bill C – 51, the Federal Government’s revised Anti-Terrorism Act, was pushed through Parliament following the attacks on Parliament Hill in 2015, the reaction from the public and civil liberties societies was swift. The Canadian Civil Liberties Association challenged key provisions of the Act under the Charter, and Professors Roach and Forcese (among others) wrote numerous articles decrying the law as “radical” and “unbalanced.” It also became a hot topic of debate in what turned out to be a contentious Federal Election, one that saw the Liberals win a surprising majority over Harper’s conservative flagship.

But when the dust settled from the election season, the question loomed large: would the Liberals take any action to reform the new law? At the time, there was reason to be skeptical. The law had received Royal Assent with support from both the Conservative and Liberal parties. And with the election of the U.S. chest-pounder-in-chief, Donald Trump, many thought the Liberals would shy away from anything that might portray them as either soft on terror or weak on national security matters.

So when the Liberals introduced Bill C – 59, An Act Respecting National Security Matters, there was reason to believe it would be a mere nodding attempt to keep a half-hearted campaign promise. In some ways the Bill does disappoint – and the Asper Centre has released a detailed analysis of its shortcomings. But in many ways it is a valiant effort to roll back some of Bill C-51’s glaring excesses.

The most obvious improvement in the legislation is the implementation of a multi-agency review mechanism. The new bill sets up a whole-of-government review committee that can assess and review all national security information (except Cabinet confidences) and produces frequent classified reports to Parliament as well as an annual unclassified report to the public regarding its findings. These provisions remedy a major deficiency in accountability that has been lacking for years in Canada’s national security framework. Until now, each national security agency had different oversight bodies, which could not collaborate with each other, despite the fact that the work of each agency is often intertwined. This created a “siloing” effect, where reviewing bodies could not follow the evidence down whatever rabbit hole it may have led. By contrast, the new “whole of government” mandate means that the entirety of Canada’s national security apparatus can be held accountable for its actions, including the CBSA (Canadian Border Services Agency) which had previously not been subject to any independent review.

The Bill is commendable in other areas as well. For example, Bill C – 51 introduced a new speech offence to the Criminal Code that made it an offence to “advocate or promote a terrorism offence in general.” The provision is breathtaking in scope. It makes it an offence to perform tasks as innocuous as promoting the assistance of designated terrorist groups, advocating for the provision of “material aid” to listed groups, and advocating for the provision of charitable aid to a listed terrorist organization. There were also no defences worked into the provision such as opinions in the furtherance of a religious belief, commentary on matters of public interest, or the articulation of truth.

Bill C – 59, to its credit, limits the scope of this offence to actions that actually “counsel” a terrorist activity. This is important because “counselling” criminal activity has always been a Criminal Code Offence – one that has been upheld as constitutional under the Charter.

All this being said, the Bill is not a model of perfection. The Liberals have come up at least one base short of a legislative home run. Canada’s national security framework remains sorely lacking in the area of privacy protection in that it still permits an enormous amount of sharing of Canadians’ personal information between federal agencies. As of now, the broad collection and sharing of Canadians’ personal information is authorized if the information pertains to acts that might “undermine the security of Canada.”

While this might sound perfectly reasonable, it is in fact alarming when one looks at the definition of what “undermines the security of Canada.” The category includes such unremarkable matters as interference with the economic or financial stability of Canada as well as any effort to “unduly influence” the government of Canada by any “unlawful means.” The term “unlawful,” it should be noted, is not the same thing as “criminal.” Canadians’ private information can be swept up and shared on the grounds that the target of the information had contravened an act of Parliament in an effort to merely “influence” government action (think of violations of the Ontario Labour Relations Act). Bill C-59 does nothing to remedy these deficiencies.

So what has been the progress on Bill C – 59? The Bill is currently being prepared for Second Reading in Committee, so there is still hope that modifications could be made. But there is no guarantee that changes to the bill won’t move in a less happy direction. The Progressive Conservatives, under their new leader Andrew Scheer, have made a habit of taking the Liberals to task on any matter that has the appearance of being “soft on terror,” including the management of returning ISIS fighters and – most controversially – the 10-million-dollar settlement with Omar Khadr. The Conservatives also appear to have taken issue with the restrictions on CSIS’s so-called threat reductions powers. Bill C – 51 made it legal for CSIS agents to take positive steps to reduce national security threats short of causing bodily harm, intruding on sexual integrity or obstructing justice. It also allowed CSIS to seek a warrant from courts that would authorize Charter violations. Bill C – 59 changes this. The Liberal government has reformed these provisions by requiring that all such actions be Charter compliant, and prohibits CSIS agents from using its powers to detain, torture, or damage property to the extent that it endangers life.

These are important changes, but it is not obvious that the Liberals will be able to pass it into law without a fight. For this reason, when it comes to debating the bill in second reading, one hopes that Liberals and Conservatives will come together to strike an appropriate balance between national security matters and rights-preservation.

In other words, that cooler heads might prevail.

Patrick Enright is a 3L JD Candidate at the University of Toronto Faculty of Law and was a 2016 Asper Centre Clinic student.

Panel Discussion with TWU Interveners’ Counsel

By Erika Voaklander and Solomon McKenzie

At the end of 2017 the Supreme Court of Canada (SCC) heard arguments in the two Trinity Western University (TWU) appeals. The results of the appeals may have wide and deep impacts on the legal profession and on Canada more broadly.

On January 18, 2018, the Asper Centre, Out in Law UofT, the Journal of Law and Equality, and the Christian Legal Fellowship of UofT Law co-hosted a discussion panel, showcasing counsel for interveners on the TWU appeals. The panelists were Joanna Radbord (Advocates’ Society), Angela Chaisson (LGBTOUT), Barry Bussey (Canadian Council of Christian Charities), Paul Jonathan Saguil (Start Proud/Outlaws), Derek Ross (Christian Legal Fellowship), and Chris Palliare (Advocates’ Society).

Trinity Western University is a private Christian university in British Columbia. TWU wanted to open a law school. The school provides an education founded on evangelical Christian principles. TWU’s approach to community development is expressed in a community covenant, a code of conduct that encourages its students to live by Biblical teachings. Amongst other considerations, the covenant prohibits sexual intimacy that violates the sacredness of marriage, as defined as between a man and a woman. Unmarried individuals are expected to live celibate lives. While LGBTQ students are permitted to attend the university, TWU would prohibit admission to its law school if a student refuses to sign the covenant.

The appeals involve legal challenges to decisions by the law societies of Ontario and British Columbia. Ontario decided to deny the accreditation of future TWU law graduates. The Court of Appeal of Ontario held that Law Society of Ontario’s (LSO) statutory mandate to act in the public interest entitled it to refuse to accredit TWU’s law school. The LSO refused to accredit on the basis that the covenant was discriminatory. BC, on the other hand, initially approved accreditation, but reversed this decision based upon a referendum it held with members. The BC Court of Appeal upheld the lower court’s decision to overturn this second decision.

The panel discussion explored the case, other legal precedents and wider considerations of constitutional advocacy. In their general discussion of the case, Chris Palliare highlighted that the SCC’s decision would likely hang on how the court defines and places boundaries on the freedom of religion enshrined in the s. 2(a) Canadian Charter of Rights and Freedoms. Additionally, Barry Bussey noted that this issue also turns on jurisdiction, notably whether the Law Society of Ontario has the right to bar membership.

An early fault line in the discussion was when the panelists considered the 2001 TWU v British Columbia College of Teachers (BCCT) case. Both Angela Chaisson and Joanna Radbord suggested that there have been many social and legal changes around LGBTQ+ rights since the finding in BCCT. Angela Chaisson asserted that the two cases were overwhelmingly dissimilar, involving different parties and underlying statutes, and with Canadian society having substantially progressed on LGBTQ+ rights since 2001. By comparison, Barry Bussey asserted the similarities between the two cases, and warned that a finding that essentially overturned BCCT would have a knock-on effect on evangelical and other religious communities’ abilities to continue to operate professional and educational facilities.

In considering the long-term impact of the TWU appeals, Derek Ross stated that the Court was at a crossroads in its recognition of religious communities’ freedom of association (s. 2(d) of the Charter). He warned that there could be deleterious impacts on the rights of religious communities. He noted that the Court supporting the LSO would be tantamount to finding it acceptable for state actors to quash the rights of groups externally assessed to have distasteful beliefs. Chris Palliare questioned the relevance of s. 2(d) to this case, and maintained that the analysis should focus on s. 2(a) religious freedom rights. Both Barry Bussey and Derek Ross stressed that a finding against TWU would have extensive and negative impacts on religious rights.

In considering what this ruling would mean to LGBTQ+ rights, Joanna Radbord noted that given the fixed number of law school spaces, allowing accreditation would diminish the ability for LGBTQ+ students to access law school. She also stressed that drawing evangelical students to one law school would intellectually impoverish the legal community at large, by hindering fruitful and diverse discussion. She highlighted the panel as an example of how law schools should act as meeting places of diverse worldviews. Paul Johnathan Saguil noted that he could have seen himself going to TWU at an early stage in his life, which would have had long term and negative impacts on his development. Angela Chaisson noted that the case was not necessarily zero-sum, and there could still be positive impacts for LGBTQ+ rights encapsulated in an adverse decision.

Finally, the group discussed the impact of the recent changes to the length of submissions by interveners down to 5 minutes of oral advocacy. Chris Palliare intoned that this was a mistake, stressing that the Court should accept fewer interveners, speaking for longer periods. Derek Ross noted that a greater number of perspectives was always welcome. Barry Bussey remarked that the new time limit meant that submissions had to be drafted in a strategic manner. In his preparation, he found that 5-minute submissions constituted 500 spoken words, a very limited space for nuanced reflections. Angela Chaisson agreed that fewer interveners were important, but that the SCC needs to start promoting the voices of people directly affected by the law. She questioned the validity of the court’s initial decision to grant no LGBTQ+ groups intervener status. Joanna Radbord noted the incredible role modelling that comes from having queer women as advocates before the SCC.

All the panelists stressed the importance and rewarding nature of constitutional advocacy. They underscored that interested students and lawyers should seek out pro-bono activities, actively pursue this type of work through their firms, connect to ongoing efforts through their own communities, and look to the David Asper Centre for opportunities.

Erika Voaklander is a 1L JD Candidate and member of Out in Law UofT and Solomon McKenzie is a 2L JD Candidate at the Faculty of Law and is co-leader of Out in Law UofT.

Unpacking the Issues in the Upcoming TWU Appeals at the Supreme Court of Canada

by Tal Schreier

On November 30th and December 1st 2017, the Supreme Court of Canada will hear two appeals involving Trinity Western University (TWU), a private Christian university in British Columbia wishing to open a new law school. The appeals involve legal challenges to decisions by the law societies of British Columbia and Ontario and the impact of a policy that requires TWU students to sign a code of conduct forbidding sexual intimacy outside heterosexual marriage. Ontario decided to deny the accreditation of TWU law graduates in the future, while BC approved accreditation. The cases are expected to “break new constitutional ground” around how administrative decision-makers are to balance the competing Charter rights of equality and freedom of religion.

The David Asper Centre for Constitutional Rights is involved in three upcoming events at the University of Toronto’s Faculty of Law aimed at assisting students and the public in better understanding the key issues that are involved in the TWU cases. The Asper Centre  is jointly convening these events with Out in Law and the Journal of Law and Equality.

First, on November 23rd, ahead of the actual court dates, a Dean’s Emerging Issues Workshop Series panel discussion has been convened to consider and analyse some of the main issues that will be covered in the TWU appeals. The discussion will cover the administrative law issues involved, the balancing of competing rights and the unique circumstances regarding the involvement of public interest interveners in these cases. The panelists will include Professors Denise Reaume and Richard Stacey of the Faculty of Law, University of Toronto, Professor Richard Moon of the Faculty of Law, University of Windsor and Cheryl Milne, the Executive Director of the David Asper Centre for Constitutional Rights. Maryam Shahid, JD Candidate at the Faculty of Law and co-Editor of the Journal of Law and Equality will moderate the panel.

Second, on the actual hearing dates (Nov 30 and Dec 1) we have organized for the live-stream viewing of the arguments taking place at the Supreme Court of Canada. While the arguments are being live-streamed directly from the court, faculty members from the law school will provide commentary explaining the key issues as they arise. A schedule of “live-commentators” will be made available in due course.

Lastly, following the hearing, we will convene a post-TWU debriefing panel discussion. This presentation will provide an opportunity for some of the intervening parties’ counsel to discuss what transpired in the cases and what they may have liked to say to the court to better enrich the parties’ arguments, if not for the constraints involved. The date for this presentation will take place sometime in late January or early February of 2018.

A Preliminary Look at Bill C-59 and its Implications on Canadian Privacy Rights

By Natasha Anzik

 

The Liberals’ new national security legislation, Bill C-59, was tabled in the House of Commons on June 20th, 2017. The ten-part, 139-page legislation has taken a robust look at the current state of Canadian national security, proposing many changes and additions, but still leaves several gaps in the protection of Canadian privacy rights.

Last December the Asper Centre’s Privacy and National Security Working Group made a submission to the Department of Public Safety Canada and to the Department of Justice. This submission primarily dealt with the Charter implications of warrantless access to basic subscriber information, but also considered data retention and systems of review. Bill C-59 has also been criticized for its failure to address issues with regard to the Security of Canada Information Sharing Act, including its overbroad definition of security and the vast amount of information sharing permitted. While not discussed here, or as part of the Asper Centre’s submission, it is evidence of the breadth of issues that remain unresolved.

Basic Subscriber Information

The Asper Centre’s submission was made in response to Bill C-51 and the 2016 National Security Green Paper and called for several reformations to the accessibility of basic subscriber information (BSI) in order to be compliant with s. 8 of the Charter. BSI can simply be a name, address, telephone number, and matching an IP address. This seemingly unremarkable information, the working group argued, should be protected from warrantless access as the combination of this information can lead to inferences about an individual’s registered services, interests, organizational affiliations, and geographic location and therefore may engage one’s s. 8 Charter rights.

Issues were raised with respect to the Green Paper’s suggested lower evidentiary requirements for obtaining lawful access to BSI, and how this lower standard would run counter to the spirit of s. 8, which protects against unlawful searches. This argument was supported by the Supreme Court’s decision in R. v Spencer, which holds that subscriber information can carry a high expectation of privacy, and disclosure of this information is vulnerable to Charter challenges. As this decision was specific to Internet subscriber information, the working group recommended a consistent standard for the sharing, retention, and destruction of personal information across different platforms. Consistency across all law enforcement agencies would also help prevent backdoor information sharing. Another issue raised by the working group is that the metadata regime of the Criminal Code has historically been unclear, and interpreted to suggest that communications service providers can readily disclose subscriber information. The Asper Centre thus advocated for a federal law that clearly prohibits the voluntary disclosure of subscriber information by telecommunications companies, and requires judicial authorization for access.

The need for clarification of this area of law was echoed in the 2016 Green Paper. While the paper called for a clear law governing access to this information, Bill C-59 is notably silent on this issue. Although not considered now, its inclusion in the Green Paper suggests this issue will be addressed in future legislation, meanwhile this area of law will likely remain inconsistent and problematic for the privacy protection of Canadians.

While Bill C-59 does not address BSI specifically, the issue of access to information comes up in the regulation of the Communication Security Establishment’s (CSE) activities. The CSE is an intelligence network, focused on gathering information to protect Canada’s cyber security from external threats. The Bill provides for a large expansion of the powers of the CSE, but also provides several restrictions recognizing the potential for these expanded powers to engage the s.8 privacy rights of Canadians. One restriction includes limiting the CSE from directing their activities at Canada and people in Canada, but this does not prevent the agency from acquiring “publicly available information”, defined as information that can be made available upon request. Although the government argues that publicly available information would inherently have a lower expectation of privacy and therefore not engage s.8 of the Charter, this information could potentially include BSI that is voluntarily released by communication service provides. This allowance therefore could lead to privacy issues as described above. As the state of lawful access remains in flux, Canadians will remain vulnerable. These provisions will also be problematic in how they might inform the treatment of BSI in future legislation.

Systems of Review

One of the most prominent parts of the new Bill is its creation of the National Security and Intelligence Review Agency (NSIRA). The current system of review was an area of concern raised by the Asper Centre’s submission. The criticism focused on the limited powers of review allocated to the Privacy Commissioner and the review agencies for CSIS, the RCMP, and the CSE. This system not only creates a silo effect between agencies, but also demands increased resources and understanding to sufficiently oversee the mass of information in and between national security agencies. Bill C-59 addresses this issue and the need for increased accountability and public confidence in its creation of the NSIRA. Outlined in the Bill’s Charter Statement, the job of the NSIRA would be to “review and report in an integrated manner on the lawfulness of all national security and intelligence activities across government, thereby enhancing accountability, transparency and the safeguarding of human rights in Canada.” Part 2 of the Bill would also establish a quasi-judicial Intelligence Commissioner, who would review certain decisions regarding intelligence gathering. These new review systems seem promising in their ability to rectify the lack of broad oversight, to increase accountability, and to correct the current silo effect.

Data Retention

The Asper Centre’s submission also encouraged the establishment of a scheme of data retention that maintains a balance between Canada’s national security interests and privacy protections. The Asper Centre discouraged mandatory minimum retention schemes and unlimited information sharing between agencies, and argued that these data retention schemes should have a system of independent review for the use of information once obtained. Bill C-59 does not address this issue at length, but does allow the limited retention of datasets, which require judicial authorization that is valid for no more than two years. Dataset use must also be “strictly necessary”, and will be subject to review by the Intelligence Commissioner. While this change does not fully address all the concerns of the Asper Centre, it is a step forward in the establishment of a more robust scheme of information storage that hopefully will be refined to ensure further Charter compliance.

 

While this Bill has made strides with respect to the Asper Centre’s concerns, there are still some gaping holes with respect to the privacy protections afforded to Canadians. It seems unlikely that lawful access to basic subscriber information will be addressed in the passing of Bill C-59, as this was an issue at the attention of legislators as part of the Green Paper consultation process, but was actively excluded in the drafting of the Bill. Hopefully the review process of the Bill will lead to further clarification of the powers of the CSE in collecting information, how basic subscriber information relates to “publicly available information,” and may engage s. 8 of the Charter. These issues will have the potential to be raised to the Standing Committee on Public Safety and National Security this fall.

Natasha Anzik is the Asper Centre’s summer research assistant and an upcoming 2L JD Candidate at the Faculty of Law.