Author: Tal Schreier

Supreme Court of Newfoundland and Labrador dismisses Constitutional Challenge to Travel Restriction

Posted on by Tal Schreier

by Ainslie Pierrynowski

Does a provincial government have the authority to restrict interprovincial travel? Can limitations on mobility rights be justified in the name of public health? These timely issues were at the heart of Taylor v Newfoundland and Labrador,[1] a September 17, 2020 decision from the Supreme Court of Newfoundland and Labrador.

Background

On July 1, 2019, the Public Health Protection and Promotion Act, or the PHPPA, came into force in Newfoundland and Labrador.[2] When the Minister declares a public health emergency under PHPPA, section 28(1)(h) of the PHPPA enables the Chief Medical Officer of Health (CMOH) to make orders restricting travel to the province.[3]

In light of the COVID-19 pandemic, the CMOH issued such an order, effective May 4, 2020. This order limited entry to Newfoundland and Labrador residents, asymptomatic workers, and people with extenuating circumstances. On May 5, 2020, the CMOH made another order, which expanded the circumstances where a person would be exempt from the travel restriction.

When Kimberly Taylor’s mother passed away on May 5, 2020 at her home in Newfoundland and Labrador, Taylor sought an exemption from the travel restriction to attend her mother’s funeral. Taylor’s request was denied. Consequently, Taylor challenged section 28(1)(h) of the PHPPA. Taylor argued that this provision was beyond the legislative competence of the provincial legislature. In the alternative, Taylor contended that section 28(1)(h) infringed right to mobility and right to liberty pursuant to sections 6 and 7 of the Charter, respectively.

Is Section 28(1)(h) Beyond the Province’s Jurisdiction?

Justice Donald H. Burrage held that section 28(1)(h) fell within the province’s constitutional jurisdiction over matters of a local and private nature. At its core, the provision aimed at protecting and promoting the health of Newfoundland and Labrador’s population. Any impact on federal spheres of power, such as interprovincial undertakings, was merely incidental.

Furthermore, Justice Barrage noted, “[i]n the public health response to COVID-19 there is plenty of room for both levels of government…an effective public health response demands the cooperative participation of each [emphasis in the original].”[4]

Does Section 28(1)(h) infringe the Charter?

Justice Burrage determined that section 28(1)(h) did not engage Taylor’s right to liberty. A finding that Taylor’s right to liberty was engaged because of the travel restriction would effectively make section 6 mobility rights synonymous with the section 7 right to liberty. This conclusion would produce incoherence in the Charter, since section 7 applies to anyone “physically present in Canada and by virtue of such presence amenable to Canadian Law”[5] and is subject to the principles of fundamental justice, whereas section 6(1) only applies to Canadian citizens[6] and is subject to section 1 of the Charter. Alternatively, Taylor’s decision to attend her mother’s funeral does not amount to a “fundamental personal choice” and therefore does not attract Charter protection.

On the other hand, Justice Burrage concluded Taylor’s mobility rights had been infringed. Justice Burrage found that the right to remain in Canada under section 6(1) of the Charter included the right to move within Canada.

In this case, however, the violation of section 6(1) could be justified under section 1 of the Charter. According to Justice Burrage, the travel restriction related to a pressing and substantial objective: namely, protecting the province’s population from illness and death due to imported COVID-19 cases.

In terms of whether the travel restriction was rationally connected to this purpose, mathematical modelling presented in evidence showed that the travel restriction was an effective means of containing COVID-19. The model indicated that if non-resident travel to the province resumed at typical levels, the number of COVID-19 infections would rise to twenty times that of a scenario where the travel restriction remained in place and 1000 exempt non-residents entered the province every week.

As for the requirement that the impugned legislation must impair the protected right no more than necessary to achieve the desired objective, Justice Barrage found that limiting interprovincial travel was integral to containing COVID-19 in Newfoundland and Labrador. Overall, Justice Barrage concluded that the travel restriction’s benefit to the public outweighed its harms.

“While restrictions on personal travel may cause mental anguish to some, and certainly did so in the case of Ms. Taylor,” Justice Burrage wrote, “the collective benefit to the population as a whole must prevail.”[7]

Closing Thoughts

Ultimately, Taylor’s challenge to section 28(1)(h) was dismissed. Justice Barage held that the province’s  travel restrictions were consistent with the Constitution. The implications of this decision, however, stretch beyond the borders of Newfoundland and Labrador.

Across Canada, government responses to COVID-19 have forced legal advocates to grapple with the balance between individual rights and public health. For instance, a group of Yukon contractors have initiated a lawsuit challenging the territory’s COVID-19 restrictions. Similar to the challenge in Taylor, the applicants argue that the travel restrictions fall outside of the territory’s jurisdiction and that the travel restrictions infringe section 6 of the Charter. Meanwhile, the Justice Centre for Constitutional Freedoms released a report claiming that the Saskatchewan government’s COVID-19 response infringed the Charter and exceeded the province’s legislative jurisdiction. Echoing the basis for the Constitutional challenge in Taylor, the report contends that the Saskatchewan government’s COVID-19 response violates sections 6 and 7 of the Charter. Unlike Taylor, the report also draws on section 2 of the Charter, alleging that the Saskatchewan government’s actions have limited Saskatchewanians’ freedom to practice their faith, assemble, and associate.

The outcome of Taylor suggests that the courts may ultimately consider these measures Constitutional. While the Justice Centre for Constitutional Freedoms introduces a novel argument related to section 2 of the Charter, it remains to be seen whether this argument will eventually be raised in court.

Moreover, Justice Barrage concluded that PHPPA travel restrictions can operate alongside the federal Quarantine Act, as the latter deals with travel into Canada, not travel within Canada. Yet, Justice Barrage noted that “[i]t may well be the case that the Quarantine Act displaces s. 28(1)(h) of the PHPPA where international travel is concerned.”[8] Justice Barrage declined to expand on this point, as the case was concerned with domestic travel. Nevertheless, future cases might pick up this thread if federal and provincial travel restrictions ever come into conflict.

Overall, this case offers insight into the scope of provincial powers in the context of a public health emergency. This decision is significant—and not only due to the gravity of the ongoing COVID-19 pandemic. After all, as Newfoundland and Labrador’s Minister of Health and Community Services said when the PHPPA was introduced in the House of Assembly, “We are living in a world with SARS and Ebola.  You are one plane flight away from a significant public health problem…”[9]  As new public health concerns continue to emerge, the relationship between the Charter and provinces’ efforts to safeguard the health of their population seems poised to evolve and develop in tandem with these new challenges.

Ainslie Pierrynowski is a 2L JD student at the University of Toronto Faculty of Law.

[1] 2020 NLSC 125 [Taylor].

[2] Public Health Protection and Promotion Act, SNL 2018, c P-37.3, s 67.

[3] Public Health Protection and Promotion Act, SNL 2018, c P-37.3, s 28(1)(h).

[4] Taylor v Newfoundland and Labrador, 2020 NLSC 125 at para 290.

[5] Singh v Canada (Minister of Employment and Immigration), (1985) 1 SCR 177 at 202.

[6] Section 6(2) applies to Canadian citizens and permanent residents.

[7] Taylor, supra note 1 at para 292.

[8] Taylor v Newfoundland and Labrador, 2020 NLSC 125 at para 277.

[9] “Bill 37, An Act Respecting The Protection And Promotion Of Public Health,” Newfoundland and Labrador, House of Assembly Proceedings, 48-3, Vol XLVIII No 44 (20 November 2018) at 2616.

Supreme Court Upholds Federal Powers to Combat Genetic Discrimination

Posted on by Tal Schreier

 

Unresolved Fault Lines Appear on the Normative Scope of Criminal Law Powers

By Nicholas Buhite

On July 10th, 2020, the Supreme Court of Canada released its judgment in Reference re Genetic Non-Discrimination Act (2020 SCC 17), a reference case coming out of the Quebec Court of Appeal. At issue was whether Parliament had constitutional jurisdiction under criminal law powers provided in s. 91(27) of the Constitution Act, 1867, or whether the law fell solely within provincial competence over property and civil rights under s. 92(13). In a five-four decision, the Supreme Court of Canada overturned the ruling made by the Quebec Court of Appeal and held that the law was within Parliament’s jurisdiction under its criminal law powers.

Justice Karakatsanis wrote for the plurality, joined by Justices Abella and Martin. Justice Moldaver, joined by Justice Côté, wrote a separate concurring opinion. Justice Kasirer, joined by Chief Justice Wagner and Justices Brown and Rowe, wrote in dissent.

Background

In 2017, Parliament passed the Genetic Non-Discrimination Act on a free vote without government support. Among other things, the Act made it an offence punishable by indictment or summary conviction for anyone offering goods, contracts, or services to compel any person to undergo genetic testing or disclose its results. In the same vein, withholding goods, services, or contracts for refusing to undergo such testing was also prohibited, as was collecting, utilizing, or disclosing genetic testing information without a person’s written consent. The Act also established exceptions to these rules for certain medical and research purposes.

Following the passage of the Act, the Attorney General of Quebec, joined by the Attorney General of Canada, presented a reference question to the Quebec Court of Appeal submitting that ss. 1 – 7 of the Act were ultra vires.  They contended that the act fell solely within provincial property and civil rights powers set out under s. 92(13) of the Constitution Act, 1867 and not under federal criminal law powers set out in s. 91(27).

To assess this division of power argument, a court must establish what the “pith and substance” (R v Morgentaler [1993]), also called the “dominant purpose” (Reference re Assisted Human Reproduction Act) or “true subject matter” (Reference re Pan-Canadian Securities Regulation) of the impugned provision is and determine whether that subject matter falls within the scope of a matter under federal authority. In defining the “dominant purpose” of the impugned provision, a court must look to its purpose and effects (both legal and practical) (Firearms Reference). To fall under criminal law powers, the pith and substance of the impugned provision must 1. consist of a prohibition; 2. be accompanied by a penalty; and 3. be supported by a criminal law purpose. In this case, whether there is a valid criminal law purpose to the provision was the primary issue for the Court.

In 2018, the Quebec Court of Appeal concluded that the Act did not fall within federal competence. It held that, in pith and substance, the law was meant to promote public health by encouraging the use of genetic testing by assuaging fear that the results may be used against someone. It also held that the impugned provision did not, in pith and substance, prohibit or address discrimination (Para 12). In its determination that this goal was not a valid criminal law purpose, the Court of Appeal distinguished the goal of promoting public health from defending public health against “intrinsic threats” such as drugs and tobacco. Instead the court held that the law regulated information available for employment and insurance purposes, and fell within provincial competence over property and civil rights (Para 13)

The Canadian Coalition for Genetic Fairness, acting as amicus curiae, appealed to the Supreme Court of Canada.

Karakatsanis, Abella and Martin (Plurality)

Justice Karakatsanis’ plurality opinion differed significantly from the Court of Appeal on the proper characterization of the pith and substance of the impugned provisions.

In determining the provisions’ purpose she rejected the idea presented by the Court of Appeal and other justices on the Supreme Court that the dominant purpose of the Act was to increase the public’s willingness to undergo genetic testing, and took a broader view that the law was meant to prevent discrimination and address Canadians’ fears that their genetic test results could be used against them. This difference in description was based primarily on a broader interpretation of the Parliamentary record and a willingness to examine the purpose of the provisions in the general context of the Act. In examining effects, she held that the practical effect of the impugned provisions was to give individuals control of their genetic testing data in a broad and general sense. By adopting a broad and general interpretation of the law’s effects, J. Karakatsanis also rejected the position, presented in J. Kasirer’s dissent, that the provisions served mainly to regulate insurance contracts.

In classifying what head of power this overarching purpose would fall under, the plurality held that it falls under criminal law powers to protect against threats to autonomy, privacy, equality and public health. Justice Karakatsanis also held that Parliament, by seeking to supress what it considered to be the moral wrong of potential genetic discrimination, acted under well-established criminal law powers to combat such wrongs (Margarine Reference). She also noted that Parliament’s choice to target precursors to discrimination rather than the discrimination itself, does not limit their criminal law powers over the matter (RJR-MacDonald).

In discussing the scope of Parliament’s criminal law authority over public health, the plurality held that “…[P]arliament is entitled to use its criminal law powers to respond to a reasoned apprehension of harm, including a threat to public health” (Para 96) and “no degree of seriousness of harm need be proved before it can make criminal law” (Para 79).  Justice Karakatsanis held that such a reasoned apprehension of harm existed in this case and rejected the idea that Parliament’s criminal law powers could be effectively limited by a notion of “evils” or moral threats. Justice Kasirer, in his dissent, would have derived a more strenuous “real threat of harm” standard from the criminal jurisprudence’s past references to “evils.”

Moldaver and Côté (Concurrence)

While Justice Moldaver wrote in agreement with the result of the case, his characterization of the dominant purpose of the provisions represents something of a middle ground between J. Karakatsanis’ position and that of the Court of Appeal.

While he recognized that preventing or decreasing the likelihood of discrimination was an important facet of the provision, he held that it was not the dominant purpose. Instead, he looked to the health-centred definition that the Act gives to genetic testing, and to his own view of the Parliamentary record, and found that the dominant purpose of the Act was to protect public health against the threat that people would forego genetic testing out of fear that they would not have control over the test results.

In assessing whether Parliament’s criminal law authority applied to this alleged threat to public health, J. Moldaver declined to take a side between a “reasoned apprehension of harm” or a “real threat” standard, but stated that he would have found that Parliament was justified under either framework. In his view, the threat of detrimental health effects due to people foregoing genetic testing was real and well-defined, and the indirect methods used to tackle it were analogous to the federal powers exercised against tobacco advertising in RJR-Macdonald.

Kasirer, Wagner C.J., Brown and Rowe (Dissent)

Justice Kasirer rejected J. Karakatsanis and J. Moldaver’s characterizations of the pith and substance of the provisions, instead following the Court of Appeal’s approach.

He rejected the proposition that the impugned provisions of the Act were meant to combat genetic discrimination based on the idea the text did not prohibit it outright. Instead he argued that the sole dominant purpose of the Act was to promote usage of genetic testing and that goals of protecting individuals’ control over their data or making discrimination harder were solely ancillary to that purpose. In evaluating the effects of the provisions, he placed significant weight on the impacts they would have on the insurance industry, identifying the dominant purpose of the provisions as “removing the fear that information from genetic tests could serve discriminatory purposes in the provision of goods and services, in particular in insurance contracts, in order to encourage Canadians to avail themselves of those tests ” (Para 221).

In applying this characterization to criminal law powers, J. Kasirer argues that a mere deleterious effect on the public good is insufficient to capture the attention of criminal law. Instead, J. Kasirer argues that impugned legislation should 1. relate to a public purpose, 2. respond to a well-defined threat to be suppressed or prevented, and 3. relate to a threat that is “real” in that Parliament had a concrete basis and reasoned apprehension of harm when enacting the impugned legislation (Para 234).

Based on this standard, J. Kasirer went on to conclude that the threat to health, or privacy and autonomy, were not sufficiently well-defined and that there was no evidentiary basis to conclude that such a threat, even if better defined, presented a real threat of harm. He also rejected J. Moldaver’s position on harm arising from undetected diseases by stating that combatting such a harm was only a secondary effect of Parliament’s effort to promote genetic testing.

As such, J. Kasirer concluded that the provisions did not fall within federal powers over criminal law, but under provincial powers over property and civil rights.

Conclusion

By upholding federal jurisdiction over genetic testing, the Court has significantly expanded privacy protections for individuals undergoing such procedures. Nevertheless, the Court missed an opportunity to find majority support for a clear demarcation of the nature of threats that Parliament may respond to under criminal law powers. This failure to establish a predictable standard will likely lead to continuing uncertainty in federalist jurisprudence.

Nicholas Buhite is a 2L JD Candidate at the Faculty of Law. 

Asper Centre ED joins forces with child rights advocates to call for the safety of Canadian children deprived of their liberty during COVID-19

Posted on by Tal Schreier

On May 6th 2020, a group of child rights organizations, lawyers and advocates from across Canada, including Asper Centre ED Cheryl Milne, joined forces to advocate for the rights of children in detention during the Covid-19 pandemic.

The group addressed their concerns in an open letter to the Minister of Justice and Attorney General of Canada. Their letter urges Canada to do its utmost during the COVID-19 pandemic to protect the rights, health, and well-being of young people who interact with the justice system.

The organizations and advocates based many of their recommendations on the Alliance for Child Protection in Humanitarian Action’s recently published Technical Note on COVID-19 and Children Deprived of their Liberty, which provides detaining authorities with key information and steps to respond to COVID-19.

The group is calling on government to pursue all efforts to divert youth from institutions during the pandemic and to actively seek the release and reintegration of youth who are currently detained, whenever possible. Further, they are urging for greater transparency about the health and well-being of young people in the justice system and the necessary oversight, as advocates and organizations have not been able to enter institutions to check in on youth and the conditions of their detention during this time.

Ms. Milne co-wrote the letter with Rowena Pinto (UNICEF Canada), Rachel Gouin (Child Welfare League of Canada), Shawn Bayes (Elizabeth Fry Society of Greater Vancouver), Mary Birdsell (Justice for Children and Youth), Heather Sago (Murray McKinnon Foundation) and Senator Kim Pate. Ms. Milne is the past Chair of the Canadian Coalition for the Rights of Children and Justice for Children and Youth.

Ontario Court of Appeal Rules G20 Protester’s Rights Violated by Police

Posted on by Tal Schreier

 

Ten years after Toronto hosted the G20 summit, a civil suit launched against the Toronto police has finally been resolved by the Ontario Court of Appeal. The decision—Stewart v. Toronto (Police Services Board)—represents a strong affirmation of the constitutional right to protest, especially in public spaces like parks.

The case arose out of the G20 summit held in Toronto in 2010. A group of activists had organized a public rally in Allan Gardens, a public park in downtown Toronto. Based on vague reports of potential violence by “Black Bloc” protesters, the police set up an indiscriminate perimeter around the park the day before the rally and required all those wishing to participate in the protest to submit to a search of their personal belongings. The police also seized items that they believed could be used to defeat the effects of tear gas and pepper spray, such as goggles, bandanas, and vinegar.

The police stopped the appellant, Luke Stewart, and told him they were searching all protesters under the authority of the Trespass to Property Act. Mr. Stewart refused to consent to the search, believing it to be unconstitutional. When he attempted to move past the police perimeter, he was forcibly detained. The police then searched his bag and confiscated a pair of swimming goggles.

Mr. Stewart brought a lawsuit against the police in 2011, seeking Charter damages for violation of his freedom of expression, right not to be arbitrarily detained, and right to be secure against unreasonable search or seizure. The Superior Court dismissed his claim in 2018, ruling that the police had the requisite search powers and did not infringe any of his constitutional rights.

The Canadian Civil Liberties Association (CCLA) intervened in this case at both the trial level and at the appeal, arguing for limits on the power of police to interfere with the rights of protesters.

Winston Gee headshot

Winston Gee

Winston Gee, an associate at Torys LLP and former Asper Centre Clinic student, presented the CCLA’s submissions at the hearing of the appeal.

In reasons written by Justice Brown, the Court of Appeal agreed with the CCLA that the police had no legal authority for their actions. It overturned each of the trial judge’s rulings and awarded Mr. Stewart $500 in Charter damages. The Court also affirmed the fundamental importance of free political expression, especially in public parks:

“Our civil liberties tradition recognizes that public parks, such as Allan Gardens, are civic spaces naturally compatible with the public expression of views, whether the content of those views support or dissent from the popular sentiments of the day… The freedom to engage in the peaceful public expression of political views is central to our conception of a free and democratic society. Freedom of expression requires zealous protection.”

Despite the low damages award, Gee was pleased that “the Court accepted one of our central submissions at the hearing—that the Trespass to Property Act does not create any substantive property rights but is merely a mechanism to enforce existing rights that come from other sources, such as the common law.” As a result, the Act could not be used by the police to impose “conditions of entry” of their choosing. That power properly belonged to the City as the common law owner and occupier of the park—and it is subject always to the Charter.

Gee said that his work on this case “benefitted immensely from my time at the Asper Centre. That’s where I first gained experience with appellate advocacy, including by learning from leading constitutional litigators like Mary Eberts and Marlys Edwardh. I also had the opportunity to assist with the Asper Centre’s intervention in Henry v. British Columbia (Attorney General), one of the Supreme Court’s leading cases on Charter damages. That experience was particularly relevant to this case.”

Gee also thanked his colleagues at Torys for providing excellent mentorship and for giving him the opportunity to argue such an important case.

by T. Schreier, with Winston Gee (JD/MPP UTLaw 2017)

Constitutional Litigator-in-Residence for 2020

Posted on by Tal Schreier

Nader Hasan has been selected as the Asper Centre Constitutional-Litigator-in-Residence for Fall 2020.

Nader’s wealth of constitutional litigation experience in areas ranging from search and seizure law to digital privacy law to protecting civil liberties, as well as his vast teaching experience will greatly enrich the Asper Centre’s Clinic students next term.

Nader is a partner at Stockwood Barristers in Toronto. He practises criminal, regulatory and constitutional law at the trial and appellate levels. He has an expertise in digital privacy law and search and seizure law, and has appeared in many of the leading cases in this area.

Nader has been recognized by Best Lawyers magazine as one of Canada’s leading appellate lawyers.  He has appeared in 20 cases at the Supreme Court of Canada, including as lead counsel to the successful appellants in Clyde River v. Petroleum Geo‑Services Inc., 2017 SCC 40, a landmark Indigenous rights decision.

Nader is a veteran Adjunct Professor of law at the University of Toronto, Faculty of Law, where he has taught the Law of Evidence and currently teaches a popular class on crime and punishment. He also serves on the Advisory Board of the David Asper Centre for Constitutional Rights. He is a co-author of Sentencing, 9th edition (LexisNexis, 2017), a co-author and co-editor of Digital Privacy: Criminal, Civil and Regulatory Litigation (LexisNexis, 2018), a co-author of a forthcoming book on Search and Seizure (Emond Publishing), and author of numerous articles on criminal and constitutional law.

Nader brings a cross-border perspective to his practice. He previously practised with a leading litigation firm in New York, appearing in both New York State and U.S. federal courts.  Today, he regularly advises Canadian citizens in relation to criminal and regulatory issues with a multi-jurisdictional dimension, and regularly advises Canadians detained abroad.

Nader acts regularly for clients seeking to vindicate their constitutional rights in high-profile cases.  He has acted for the wrongfully convicted and asylum seekers.  He acts for Indigenous groups and environmental NGOs in environmental and constitutional cases.  He also acts for civil liberties groups, including the Criminal Lawyers’ Association (CLA), the British Columbia Civil Liberties Association (BCCLA), and the David Asper Centre for Constitutional Rights.

Nader is a graduate of Harvard University (B.A.), the University of Cambridge (M.Phil), and the University of Toronto, Faculty of Law (J.D.).  Upon graduation from law school, Nader clerked for the Honourable Marshall Rothstein of the Supreme Court of Canada.

View the Asper Centre’s past Constitutional Litigators-in-Residence HERE.