Author: Student

Frank v Canada: Contrasting the Section 1 Analyses

Posted on by Student

By: Sahil Kesar and Jasmit De Saffel

On January 11, 2019 the Supreme Court issued its decision on the constitutional challenge to provisions of the Canada Elections Act detailing residence requirements for voting in federal elections. The provisions in question denied the right to vote in federal elections to Canadian citizens residing abroad for five consecutive years or more.  The Court sided with the expats and held that the impugned provisions infringe section 3 of the Charter and were not saved under section 1.  Frank v Canada was substantively significant for deepening the constitutional protection of section 3 voting rights for Canadians. The decision was also procedurally note-worthy, particularly in the strongly contrasting section 1 analyses of the majority and dissent decisions.

While both the majority and dissent found a pressing and substantial purpose to the non-resident limitation, they both determined it to be different from each other. Writing for the majority, Wagner CJ found that the purpose of the legislation is to maintain the fairness of the electoral system to resident Canadians. Brown J and Cote J’s dissent found the purpose to be to privilege a relationship of some currency between electors and their communities.

The majority did not come to a conclusion on rational connection but they did reject the Attorney General’s arguments, suggesting that it is likely they did not find a rational connection. The dissent found a rational connection between the 5-year period and the objective of preserving currency between electors and their communities. They found that the majority’s reasoning in dismissing the rational connection, taken to its conclusion, creates inconsistencies in their argument.

The majority determined the appeal on minimal impairment. They held that the 5-year period has no basis and is over-inclusive as it applies even to those to whom it is not intended to apply. The dissent stated that, based on the options available to Parliament, the 5-year period was the least impairing option, especially considering the non-resident cut-offs for other similar democracies and that citizens can vote again once they re-establish residency.

Finally, on proportionality, the majority did not think the salutary effects outweigh the deleterious effects. They asserted that the impugned provisions disenfranchise over one-million non-resident Canadians who have been abroad for 5 years or more and that it is unclear how this advances fairness in the electoral system. It severely limits the ability of non-resident citizens to vote especially considering the laws that might be enacted could affect their citizenship. The dissent took the view that the salutary effects outweigh the deleterious effects mentioned by the majority. Addressing the concerns of reciprocity between exercising the right to vote and bearing the burden of Canadian laws and protecting the integrity of the electoral system outweigh any concerns with the legislation. They also found that the majority overlooks the importance of residence and effective representation in weighing the effects.

The dissent’s deferential section 1 analysis did not decide this case but should be noted for giving the government more leeway in justifying infringements on voting rights. Considering Rowe J’s openness to a limit based on residency in his concurring judgement, one wonders if there is potential for the dissent’s less stringent section 1 analysis to decide future cases about positive rights guaranteed in the Charter?

Sahil Kesar is the current Asper Centre half-time clinic student and a 3L JD candidate at UTLaw.

Jasmit de Saffel is this year’s Asper Centre’s work-study student and a 1L JD candidate at UTLaw.

 

Reflecting on the Sex-Ed Charter Challenge

Posted on by Student

By: Leslie Anne St. Amour

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

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

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

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

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

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

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

 

Asper Centre Files Submissions on Administrative Segregation

Posted on by Student

by Jasmit de Saffel

On November 19, 2018, the Asper Centre filed submissions to the Standing Committee on Public Safety and National Security in regards to the use of administrative segregation in Canadian correctional facilities and the proposed amendments to the legislation under Bill C-83. The submissions were prepared by the Executive Director, Cheryl Milne, and six Asper Centre clinic students: Joshua Foster, Becky Lockert, Ben Hanff, David Coté, Misha Boutilier, Sara Tatelman.

The brief submitted to the Committee emphasized the “gross disproportionality” of administrative segregation, a measure used to ensure the safety of the inmates and the penitentiary. There is growing social science and professional consensus that administrative segregation has immensely deleterious effects with no rehabilitative function. The negative health effects of segregation on specific individuals cannot be preemptively determined and there is no way to know when the damage becomes irreversible.

The serious deprivation of inmates’ Charter rights to life, liberty and security of the person under administrative segregation has resulted in two recent judgements ruling the practice unconstitutional: Corporation of the Canadian Civil Liberties Association v Her Majesty the Queen 2017 ONSC 7491  and British Columbia Civil Liberties Association v Canada (Attorney General) 2018 BCSC 62. Both decisions are currently under appeal to their respective provincial courts of appeal.

The submissions find that the proposed amendments to administrative segregation under Bill C-83 are substantively and procedurally deficient. Substantively, it permits more than 15 consecutive days in segregation, contrary to the Nelson Mandela Rules (the United Nations Standard Minimum Rules for the Treatment of Prisoners), and therefore contrary to Canada’s international obligations to not engage in torture or cruel, inhuman, or degrading treatment or punishment. Procedurally, Bill C-83’s’ remedial framework is also not compliant with international standards. Instead of implementing an external review process for uses of administrative segregation,  it allows the possibility of a non-binding recommendation by a health care professional and review by the Commissioner, only after a period of 30 days in segregation.

The submitted brief makes 10 recommendations to the Committee to ensure a Charter-compliant system of administrative segregation. These recommendations include:

  • Canada taking immediate steps to eliminate the practice of administrative segregation, except in the rarest cases.
  • Correctional Services Canada justifying any uses of administrative segregation before an impartial decision-maker within 48 hours. The onus to justify being on the state.
  • An inmate not being placed in administrative segregation for more than 72 hours.

For more details and the rest of the recommendations, please find the FULL SUBMISSIONS HERE.

Jasmit de Saffel  is a JD Candidate at the Faculty of Law and is the current Asper Centre work-study student

Asper Centre Students in Focus: Brittany Cohen

Posted on by Student

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.