Author: Tal Schreier

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

Posted on by Tal Schreier

by Jeffrey Wang

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

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

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

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

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

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

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

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

Read the CCLA’s factum here.

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

[2] Ibid, para 146

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

Report from our 2019 Summer Fellow at LEAF

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by Paniz Khosroshahy

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

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

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

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

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

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

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

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

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

Asper Centre granted intervener status in 2 upcoming Ontario Court of Appeal cases and seeks standing in a third one

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City of Toronto v. Attorney General of Ontario et al

On September 10, 2018, Ontario Superior Court Judge Edward Belobaba in City of Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151 declared that the province of Ontario had “substantially interfered” with the Charter section 2(b) freedom of expression rights of both the municipal ward election candidates and City of Toronto voters and struck down the province’s Bill 5 (which reduced the number of City of Toronto wards from 47 to 25) as unconstitutional.

The province appealed the decision to the Ontario Court of Appeal, which on September 19, 2018 stayed the order of the Superior Court pending the appeal, and thus allowed the election to proceed with the reduced number of wards.

The appeal of the lower court decision will be heard on June 10-11, 2019. The Asper Centre has been granted intervener status in this appeal, with its arguments focusing on the role that section 2(b) of the Charter plays “in ensuring a stable and protected election framework which is necessary to foster full engagement in the democratic process.”  Read the Asper Centre’s Intervener Factum here.

R v. Sharma

Ms. Sharma is a bi-racial Indigenous woman, whose ex-boyfriend used her as a drug mule and she was charged and convicted with importing just under 2kgs of cocaine. She would have been a suitable candidate for a conditional sentence but for the prohibition preventing drug importers from receiving a conditional sentence.

Based on a s.12 Charter argument advanced by Ms. Sharma that 2 years in jail would be grossly disproportionate and thus cruel and unusual punishment, the judge in R. v. Sharma, 2018 ONSC 1141, found that the mandatory minimum sentence of 2 years under the Act was unconstitutional and unjustified under section 1 of the Charter.  This aspect of the decision was not appealed.

Ms. Sharma also advanced a s.15 Charter argument that s.742.1(b) and (c) of the Criminal Code disproportionately affects Indigenous women as it removes the ability to serve their sentences as conditional sentences. The judge did not address (b) since he had already found the mandatory minimum to be unconstitutional. As for (c), the judge held that there is no reason to believe that the prohibition on conditional sentences, on the record before it, created an adverse effect such that it can qualify as a distinction based on Aboriginal status. This claim was dismissed.

Ultimately, the judge determined 18 months incarceration to be just, and reduced it by only 1 month given Gladue factors.

Ms. Sharma appealed her sentence to the Ontario Court of Appeal and the Asper Centre jointly with LEAF (the Women’s Legal Education and Action Fund) were granted intervener status in this appeal.

R v. Morris

Mr. Morris is a black male who was charged with multiple offences including possession of illegal firearms and assaulting a police officer. He was convicted only of the firearms offences.

Upon sentencing, the judge considered Mr. Morris’ personal social context, based on reports from psychologists and social scientists with an expertise on black racism in Canada. The Crown sought 4-4.5 years while the defence sought 1 (before Charter breaches were accounted for). In his decision the judge mentions that reports, such as the ones he was presented with, are not new to the law given Gladue reports for Indigenous offenders. He ultimately, in light of  Mr. Morris’s upbringing and social context (among the other mitigating and aggravating factors), sentenced him to 15 months, reduced to 12 months for Charter breaches.

The Crown appealed the sentence stating that the sentencing judge erred by imposing an unfit sentence, erred in his treatment of social context evidence and erred in his treatment of aggravating/mitigating factors.

The Asper Centre has applied for intervener status in this case. The motion is scheduled to be heard on June 13th.

Immigration Detention Symposium: CARL Toolkit and Case law Compendium

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by Delia Luca and Jacob Webster

The final panel of the Asper Centre Immigration Detention Symposium held on March 15, 2019 focused on the Immigration Detention Toolkit (Toolkit) recently launched by the Canadian Association of Refugee Laywers (CARL) and the Asper Centre Clinic’s Compendium of jurisprudence related to the Immigration and Refugee Board’s (IRB) External Audit, soon to be available. In conjunction, the panellists advanced strategies for addressing the ongoing challenges in Canada’s immigration detention system and illuminated the discrepancies between the expectations articulated by the courts and the practice of the IRB’s Immigration Division (ID). The panelists were Jamie Chai Yun Liew, Associate Professor at the University of Ottawa and co-leader of CARL working group on Immigration Detention, Aris Daghighian, an Associate at Green and Spiegel LLP and member of CARL’s Working Group on Immigration Detention, Devon Johnson, a JD Candidate at UofT Law and Asper Centre Clinic Student and Jim Molos a JD Candidate at UofT Law and Asper Centre Clinic Student. The panel was moderated by Enbal Singer a 3L at UofT Law and co-leader of the Asper Centre’s student working group on Immigration and Refugee Law.

The Immigration Detention Toolkit

The Immigration Detention Toolkit was devised by CARL in order to provide recommendations on the steps counsel can take to ensure the fairest process possible outcomes for their clients in immigration detention.  The panelists modestly acknowledged that the Toolkit is a “living document”, an evolving document, that ought to be updated to reflect criticisms and recommendations. The Toolkit is the product of laudable advocacy across the country, in response to the Immigration and Refugee Board’s (IRB) External Audit. The panelists cautioned that the Toolkit should not be used in isolation, as it is meant to be employed by counsel in conjunction with the Chairperson’s Guidelines.

While touched on throughout the panel, the need to ensure fair representation for clients in the face of relatively unprincipled judgments strikes us as meriting a more elaborate discussion. How should counsel approach discrepancies and a lack of transparency with respect to the immigration detention system? The Toolkit seeks to aid counsel in discerning what they should demand of the ID. For instance, counsel must ask for sufficient disclosure in order to hold the Canada Border Service Agency’s (CBSA) officials accountable, CBSA should provide reasonable notice of the evidence or information that will be relied upon at the detention review, including any evidence that may exculpate the detainee. Knowing the right questions and making appropriate demands on behalf of clients is especially relevant in a legal forum where government officials and the ID have seemingly broad discretion.

The panel also touched upon the question of how to properly articulate detainee’s mental illness, addiction and other vulnerabilities. As legal practitioners working with vulnerable clients, one must acknowledge and represent their client’s circumstances in a manner that does not disaffirm their agency and active role throughout the process. Despite societal efforts at creating a safe environment where said vulnerabilities may be discussed openly, detainees’ suffering from various conditions continue to be stigmatized. In such cases, counsel must assess their client’s situation, identify the need to appoint a Designated Representation (DR) and inform the ID accordingly.

The Toolkit advances recommendations of how to relate to the vulnerability of detainees and encourage the courts to consider their vulnerability in a substantive, rather than merely procedural manner. Counsel must demonstrate that their client’s vulnerability should not be taken as a flight risk or risk to the public. Furthermore, counsel must highlight that the detainee’s mental health or addiction is not voluntary and may inhibit one’s capacity. In doing so, counsel must not severely victimize the client in a manner that strips the client of their perceived ability to improve their condition. This issue invokes the rising demands upon immigration lawyers to think creatively, as evidenced by the advent of using habeas corpus under section 10(c) of the Canadian Charter of Rights and Freedoms (“Charter”) on behalf of clients, to grant them relief from arbitrary state detention. All in all, in the face of broad discretion, counsel must challenge Canada Border Services Agency (CBSA) submissions and force adequate disclosure. As per the words of one of the panelists, counsel has the duty to “put CBSA’s feet to the fire” in hopes of facilitating a fair and just process.

A Compendium of Federal Court Jurisprudence

As clinic students at the Asper Centre last term, Jim Molos and Devon Johnson conducted a survey of relevant Federal Court case law and compiled a compendium of jurisprudence to assist practitioners in martialling precedent to advocate for their clients’ best interests in immigration detention hearings. Their presentation emphasized the minimum standards for lawful immigration detention and their interpretation under section 7 of the Charter in Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9. Molos stressed the importance of effective advocacy. Although the constitutionality of the Immigration and Refugee Protection Act (IRPA) has been affirmed by courts, particular detentions may still be unconstitutional. With relation to disclosure, it was stressed that section 7 of the Charter protects the right against having a case brought on undisclosed evidence. Thus, counsel should ensure that the Minister’s case is challenged effectively.

The latter half of Molos and Johnson’s presentation focused on alternatives to detention under section 58(3) of the IRPA. The panellists emphasized that all conditions imposed on release should be viewed as an imposition of liberty and thus must be subject to ongoing review in a way that ensures that the impositions do not deprive liberty disproportionate to risk.

In the question and answer period that followed the panel, an audience member questioned whether the CARL Toolkit is written in a manner accessible to unrepresented detainees or published in multiple languages. Liew and Daghighian acknowledged that this was an important suggestion and that while the Toolkit was written in an accessible manner, it was probably not accessible enough for a self-represented litigant. This speaks to the evolving nature of the document.

The CARL Toolkit is available here and the Asper Centre Federal Court Case law Compendium is forthcoming. The presentation used by Liew and Daghighian during the panel is available here and the presentation used by Molos and Johnson is available here.

Delia Luca and Jacob Webster are both 1L JD Candidates at the Faculty of Law and members of the Asper Centre’s Immigration & Refugee Law student working group. 

Immigration Detention Symposium: Habeas Corpus Panel Highlights

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by Mashoka Maimona and Renuka Koilpillai

The “Habeas Corpus Best Practices” panel was one of the highlights of the Asper Centre’s Immigration Detention Symposium, held on March 15, 2019. The panellists were immigration and refugee lawyers Subodh Bharati, Jared Will, and Swathi Sekhar. The lively panel was moderated by the Refugee Law Office’s Simon Wallace, who explained that the panel would focus on the current status of habeas corpus, and how it can be used as a litigation strategy in immigration detention cases.

Habeas corpus is a common law writ of relief for immigration detainees to challenge their detention as unlawful. Previously in Canada, as Will outlined, habeas corpus applications could not be used by people who were being held in immigration detention, as courts consistently held that they did not have jurisdiction to hear the case. This changed after Chaudhary v Canada, where the Ontario Court of Appeal (ONCA) stated that habeas corpus is a better remedy in cases of long-term detentions. Fast forward two years to 2017, where in Ogiamien v Ontario, the ONCA extended the use of habeas corpus to immigration matters whenever it can be shown to be a more advantageous remedy than the standard immigration processes. Although this was a step in the right direction, according to Will, Brown v Canada determined that habeas corpus applications should not be attached to Charter damages claims, as a Charter claim “distorts what is otherwise intended to be an expeditious process….and gives the Charter damages claim a higher priority for hearing than it would otherwise receive.”  The 2018 SCC appeal in Chhina (decision still pending) will provide important clarification on the scope of habeas corpus, potentially expanding or narrowing the judicial remedies in reviewing a person’s immigration detention.

Bharati’s goal in a detention review is to demonstrate that the immigration detention is unlawful: if it is “unhinged from the immigration purpose” (see Charkaoui and Chaudhary) or if there is any deprivation of liberty that follows from a procedurally unfair process. He called for s. 11 of the Charter to apply to immigration detention matters. Section 11 covers the legal rights that apply to those “charged with an offence,” including (a) the right to be informed without unreasonable delay of the specific offence, (b) the right to be tried within a reasonable time, and (e) the right not to be denied reasonable bail without just cause. Even the SCC has expressed disbelief that any administrative tribunal could imprison someone (see R v Wigglesworth), yet the Federal Court continues to maintain that s. 11 does not apply to immigration matters.

The Chhina appeal demonstrates that there is a greater concern by our courts in extending Charter rights to non-Canadians, as opposed to questioning why everyone does not enjoy the same set of rights, Bharati said. Under s. 11(d) of the Charter, Canadians enjoy the right to be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal. Non-Canadians can, however, be placed in a maximum security prison without these safeguards. The defendant in a criminal bail hearing is brought to court in his or her street clothes — because “the presumption of innocence requires the garb of innocence,” as “every defendant is entitled to be brought before the court with the appearance, dignity, and self-respect of a free and innocent” person (see Eaddy v People). However, in immigration detention matters, where detainees are not being held for any criminal purpose, they appear at detention review hearings wearing an orange prison uniform. The detentions themselves can even be held in maximum security prisons. The minds of decision-makers who pass through these gates with armed guards can be reasonably assumed to be tainted. What follows from a procedurally unfair process is by its very nature unlawful, Bharati reminded the audience.

When asked about future litigation strategies, Bharati shared his stark truth: “One realization I’ve had is that the law is not meant to be the vehicle for social reform. It’s very difficult. Laws are made by people in power to keep their power. It’s about keeping the status quo.” Systemic change through the judicial system is about understanding the underlying principles, he added. One of these principles in how we measure the legitimacy of a law in its equal application.

Sekhar flagged how detainees are further criminalized for “non-cooperation” by CBSA officers, who threaten to invoke s. 16 of the Immigration and Refugee Protection Act (IRPA) and charge her clients criminally. This is done without understanding the experiences of the detainees, such as their potential fear of returning to their country, or how months and even years of incarceration affects their mental health.

Will advocated for more rules in this area, pointing to Quebec’s Code of Civil Procedure as an exemplar for its accelerated process for handling habeas corpus applications — a process that affords detention cases the importance and urgency they deserve. Forty-eight hours after providing notice, a detainee can plead in front of a judge (as everything else gets bumped down the list). This seems unsurprising, given the high-stakes in such detention cases that involve the deprivation of people’s liberty, dignity, minds, and lives. However, while the question on the writ is straightforward, boiling down to whether the affidavit raises reasonable and probable grounds to challenge the detention, detainees face “tense resistance” from the Department of Justice and the Ontario courts. The reality is that habeas applications are resource intensive and time-consuming, Will added, and because of the sheer length of the process, a habeas application may not be in a detainee’s best interest. Nevertheless, the first tool in a detainee’s arsenal is the threat of a habeas, he suggested.

Mashoka Maimona and Renuka Koilpillai 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.