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Asper Centre Students in Focus: Brittany Cohen

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Brittany Cohen, a rising second-year J.D. candidate, is another student research assistant working at the Asper Centre this summer.

Building on one of its student working group projects this past academic year, the Asper Centre is developing a series of police oversight legal information guides for the general public (one for each province, the territories and for the RCMP), and Cohen is spearheading the research this summer.  The guides will include a plain-language review of criminal and disciplinary oversight procedures in each jurisdiction, detailed steps that affected persons need to take to file a police complaint, timelines to keep in mind, special sections for vulnerable groups such as Indigenous people and victims of gender-based violence, and lists of resources and referrals for further assistance. The guides will be available online and in print, and will be translated into French and several Indigenous languages, to ensure accessibility.

The guides are designed so “[the public] can find really accessible information on how to file a police complaint,” Cohen says. “Right now, in a lot of provinces, it’s really difficult to find the right information.”

The most difficult aspect of her research thus far has been tracking down accurate and up to date information on the precise mechanisms of each province’s police accountability procedures. “The reason we want to create the guides is that there’s a lack of information, so that’s obviously a problem when creating the guides,” Cohen explains. “We will be partnering with stakeholders across Canada to find legal experts in the different regions who can fill in the gaps.”

Cohen was a member of the police oversight student working group during her first year as a law student, where she performed preliminary research on the police oversight bodies in Nova Scotia. Over the summer, she’s been exploring the issue on a national level by reviewing each province’s policing legislation, which establishes the police oversight bodies and/or procedures in that province, and drafting the information guides.

Cohen, who first became interested in the law in high school and who studied criminal justice and psychology in undergrad, is drawn to both criminal defence and constitutional law. “There’s a lot of overlap there,” she says, noting the two fields involve directly assisting clients. “I think both of them have a direct impact on the public, and that’s my main focus.”

Cohen will be co-leading the Asper Centre’s police oversight student working group this upcoming academic year.

External audit of immigration detention review shows pattern of serious Charter violations

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By Cheryl Milne

On July 20, 2018, the Immigration and Refugee Board of Canada released an external audit performed by independent auditor, Katherine Laird, on Canada’s immigration detention review system. She examined randomly selected cases where immigration detention exceeded 100 days. The report documents serious concerns about procedural fairness leading to lengthy incarceration. A review of the document headings shows a litany of unfair practices and barriers to justice that have left many detainees languishing in detention with little hope of release. They include:

  • Failure to allow the detained person to hear and present evidence;
  • Failure to decide afresh as required by the legislation;
  • Uncritical reliance on Canadian Border Security Agency Hearing Officers;
  • Barriers to participation of detained person in the hearing; among others.

The overall finding, articulated as “notable discrepancies between the expectations articulated by the courts and the practice of the Immigration Division,” is based upon many specific instances of practices that show an administrative system that has become one-sided, unfair and callous to the impact of long-term incarceration on individuals.

Calling many of the practices a fundamental breach of natural justice, the report references the Federal Court in Brown v Canada (Citizenship and Immigration):

“Citing Charkaoui, the Court stated:

Before the state can detain people for significant periods of time, it must accord them a fair process. This basic principle has a number of facets. It comprises the right to a hearing. It requires that the hearing be before an independent and impartial decision-maker. It demands a decision based on the facts and the law. It entails the right to know the case put against one, and the right to answer that case.”

The liberty interests as stake are significant – cases reviewed involved detention of more than four months – thus invoking the principles of fundamental justice that provide the necessary limit on government action. While the majority of persons in the immigration detention system (88%) are released within 90 days, this is still a significant amount of time. Of those held longer, 64% were released within 180 days (based on 2017 statistics). However, also in 2017, 80 individuals remained in detention for over a year. For those people the detention review hearings seemed to be most problematic and the breaches of fairness most pronounced.

The most problematic jurisdiction examined is the Central Region encompassing most of Ontario. Not surprising, this is the district in which virtually no legal aid was provided to detainees and where fewer detainees therefore had the benefit of legal representation. The auditor also found that the practices of Canadian Border Services Agency were often more adversarial in this jurisdiction.

Overall it is a strong indictment of an administrative system that seems inured to the impact of detention on individuals and oblivious to the obligations of the government under the Charter. The audit finds that too often the onus of proof seemed to have slipped over to the detained person to demonstrate why they should be released, when the original grounds for detention were on shaky factual grounds.

The report makes a number of recommendations, but what is clear is that a cultural change is needed. The auditor notes that the Immigration Division should “encourage a tribunal culture that values compassionate adjudication”. But more than an attitudinal shift is needed. Only substantive reform will fix a system that has skewed so far from the rule of law and the Charter of Rights and Freedoms.

Image by Diego Torres Silvestre

Tax rule capping charities’ political activity infringes on free expression: ONSC

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By Sara Tatelman

Courts often breeze by the first step of the Oakes analysis, I remember my first year constitutional law professor telling the class. That is, when determining whether a law infringing on Charter rights is justified, judges tend to give governments the benefit of the doubt that their laws have a legitimate purpose.

In Canada Without Poverty v. Attorney General (Canada), released on July 16, the Ontario Superior Court of Justice decision departs from that trend. In that case, Canada Revenue Agency determined nearly all of the applicant’s activities were political and therefore violated s. 149.1(6.2) of the Income Tax Act. Read alongside s. 9 of CRA’s Policy Statement 022, the provision requires registered charities to spend no more than 10% of their resources on “political activities.” While direct submissions to government don’t count towards the 10% max, communicating similar non-partisan policy messages to the public does.

Canada Without Poverty argued the ITA provision violated its s. 2(b) right to free expression, and that such public advocacy is essential for its fight towards poverty relief. Indeed, its executive director deposed that limiting such communications to 10% of its resources “is fundamentally at odds with achieving its charitable purpose” (para 39).

In his decision, Morgan J. noted that several national and international policies, such as the government’s 2017 Report of the Consultation Panel on the Political Activities of Charities and the Copenhagen Declaration, state that poverty relief is best attained through people’s full participation in decisions around societal well-being.

The government argued the ITA doesn’t violate the applicant’s freedom of expression because it can still engage in such communications, just without the designation of a registered charity. That is, it has a right to free speech but not subsidized speech (para 31).

But Morgan J. disagreed, noting that “any burden, including a cost burden, imposed by government on the exercise of a fundamental freedom such as religion or expression can qualify as an infringement of that right or freedom if it is not trivial or insubstantial” (para 44).

He also pointed to McLachlin C.J. and Major J.’s partial dissent in Harper, which highlights the importance of public communication in free speech: “The ability to engage in effective speech in the public square means nothing if it does not include the ability to attempt to persuade one’s fellow citizen through debate and discussion” (para 45).

Morgan J. added that Canada Without Poverty has a right to effective freedom of expression, which includes “the ability to engage in unimpaired public policy advocacy toward its charitable purpose” (para 47).

Having determined the applicant’s right to free expression was infringed, Morgan J. analyzed whether such infringement was justified. After examining statements of the Minister of National Revenue when the ITA provision was introduced in 1985, the wording of the statute and CRA’s policy statement, he found it was not.

“Government cannot justify limiting the right of free expression for charities for the very purpose of ensuring that charities use no more than 10% of their resources on the exercise of free expression,” he wrote (para 62).

Since this a rare case where step one of the Oakes test was not met – the government didn’t establish a pressing and substantial objective for the law in question – there was no need to go further. “Once the objective is determined to be unjustified, the means chosen to accomplish the objective are equally unjustifiable and the impairment cannot be minimal,” Morgan J. wrote (para 64).

He therefore struck down the parts of the ITA provision that required charities to limit their political activities to 10% of their resources, effective immediately. He also ordered a reading in of the phrase “charitable activities” in the provision to include all non-partisan political activities that further the organization’s charitable purposes.

So, charities, go forth and agitate (in a non-partisan way)!

Asper Centre Students in Focus: Jason Lamb

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Meet Jason Lamb, a rising second-year J.D. candidate and one of the Asper Centre’s student research assistants this summer.

Lamb’s main project is to help publish a special edition of the Supreme Court Law Review based on presentations at the Asper Centre’s public interest litigation conference in March. The journal edition will “be a lasting document to preserve this moment of our thinking,” he notes.

The papers examine the intersection of law and advocacy in a public context. “It’s a very wide-ranging topic that can cover all sorts of issues [such as] ethics in the legal profession, access to justice, advocating for housing rights, intervening at the Supreme Court — there are all kinds of ways that practitioners and academics approach that question,” Lamb says.

The project also involves significant inter-disciplinary research, which draws upon Lamb’s history and political science background.

“I’ve had to get abreast of all different areas of sociology [and] political science that I’ve left dormant since I’ve gone into law school,” he says. “I’m reviving a lot of stuff that I’ve learned in the past and am now applying it in the context of advocacy and lawyers, which is not something I’ve thought of before.”

Lamb wanted to work with the Asper Centre this summer because of his experience volunteering with the Refugee and Immigration Student Working Group during the school year. It made him realize the connections between the law and current affairs, and that law students “can start playing a small role in as an actual actor in the overall scheme of things, rather than someone who just observes.”

A long-time debater, Lamb is considering a litigation career, but is wary of working in a constantly adversarial environment. “I can see why it can wear someone down over time, he says. “But it’s an interesting challenge.”

Beyond freedoms: the administrative underbelly of the Trinity Western decision

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By Sara Tatelman

The Supreme Court of Canada may have divided 7-2 on whether law societies must accredit Trinity Western University’s proposed law school, but the split was much narrower when it came to the nitty-gritty of administrative law. While the five-justice majority accepted the Doré/Loyola framework for judicial review of administrative law decisions, the other four justices called for varying degrees of reform.

The Doré framework applies when courts are reviewing the constitutionality of an administrative decision, such as one by a human rights tribunal, an immigration and refugee board, or a law society. Reviewing courts give considerable deference to the original decision-maker, given their subject matter expertise, and only over-turn their decisions if they are not reasonable.

On the other hand, when courts are determining whether a Charter-infringing law is nonetheless constitutional, the Oakes test applies. Unlike Doré, it clearly places the onus of proving the law is proportional on the government.

“The framework set out in Doré and affirmed in Loyola is not a weak or watered down version of proportionality – rather, it is a robust one,” the majority wrote (para 80).

“But saying [the framework is robust] does not make it so,” Côté and Brown J.J. snapped back in their dissent (para 304).

McLachlin C.J. (concurring) and Rowe (concurring), Côté and Brown (dissenting) J.J. all argued that judicial review of administrative law decisions should ask whether an individual’s Charter rights were infringed, rather than the more nebulous Charter values of the Doré framework and the majority’s decision. While rights are clearly outlined in constitutional documents, the majority suggests Charter values are those “the state always has a legitimate interest in promoting and protecting,” such as democracy, equality and human rights (para 41, citing Loyola at para 47).

Furthermore, rights are clearly distinct from other values. “To denominate an interest as a right is to recognize its normative primacy,” the Asper Centre noted in its 2013 intervention in Divito v. Minister of Public Safety and Emergency Preparedness. “As such, a Charter right intrinsically ‘weighs’ more (by virtue of being a right) than something called an interest, value or entitlement. A Charter right, once established, also possesses normative priority. A rights bearer need not justify protection of a Charter right; rather, the state must justify infringing it.”

Côté and Brown J.J. pointed out that Charter values are unsourced, amorphous and undefined, subject to each judge’s personal interpretation and nothing but “mere rhetorical devices by which courts can give priority to particular moral judgements” (para 309).

The dissenting (Côté and Brown J.J.) and the concurring (McLachlin C.J. and Rowe C.J., in separate in decisions) justices were divided over whether the Doré framework was salvageable. The latter argued it was, as they saw strong parallels between Doré and Oakes.

Under Doré, the decision maker must find reasonable the balance between the Charter values and the statutory objective, which of course involves identifying that objective, Rowe J. wrote. This corresponds to the first step of the Oakes test, which is ensuring the rights-infringing statute has a sufficiently pressing and substantial objective.

The second step of Doré is determining whether the decision proportionately balanced the relevant Charter protections, he added. This corresponds to the proportionality test in Oakes, which analyzes rational connection, minimal impairment and the balance between beneficial and deleterious effects.

McLachlin C.J. added that the Doré analysis usually comes down to the minimal impairment and balancing questions.

The dissenting justices, however, were troubled there was no clear rationale as to why judicial review of administrative decisions requires a separate framework. They noted courts had used the Oakes analysis before Doré was decided, as well as several times since.

“… [T]he orthodox test — the Oakes test — must apply to justify state infringements of Charter rights, regardless of the context in which they occur,” Côté and Brown J.J. wrote. “Holding otherwise subverts the promise of our Constitution that the rights and freedoms guaranteed by the Charter will be subject only to “such reasonable limits prescribed by law as can be demonstrably justified” (para 304).

The four justices were once again united when the question of burden of proof came up. They all found Doré, which has remained “conspicuously silent” on that issue (para 195), especially unsatisfactory in this regard.

In most administrative law decisions, applicants shoulder the burden of proof. But in Charter disputes, the four justices argue – as did the Asper Centre in Attorney General of Canada on behalf of the Republic of India v. Surjit Singh Badesha — that the justificatory burden must fall to the state actor. Otherwise, the Doré framework would provide significantly less protection than Oakes (para. 117, 197, 313).

And that, surely, is intolerable. As McLachlin C.J. wrote, “Canadians should not have to fear that their rights will be given different levels of protection depending on how the state has chosen to delegate and wield its power” (para 116).

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