Author: Student

Procedural delays prevent constitutional answers in B.C. Medicare case

Posted on by Student

By Sara Tatelman

It is a truth universally acknowledged that a first-year law student in possession of a jam-packed schedule must be in want of an excuse to skip Legal Process class. But as we see in Cambie Surgeries Corporation v. British Columbia (Attorney General), both ignorance and careful manipulation of the smallest rules of civil procedure lead to months- and even years-long delays before pressing constitutional questions will be answered. So 1Ls, skip at your peril.

Cambie Surgeries centres on British Columbia’s ban of most private healthcare. The plaintiffs – two private clinics owned by Dr. Brian Day and four patients – argue the unconstitutionality of three provisions of B.C.’s Medicare Protection Act: prohibition of private duplicate insurance, limits on extra billing, and preventing doctors from being paid by both the provincial Medical Services Plan and directly by patients. They argue that by preventing private billing, the province forces patients to suffer as they languish on waiting lists. They allege this infringes their s. 7 Charter right to security of the person, and the fact that some residents have access to expedited private medicine through workers’ compensation and government-run auto insurance infringes other British Columbians’ s. 15 equality rights.

The trial began in September 2016, was adjourned in April 2017 partly due to the plaintiff running out of funds and partly due to inefficient presentation of evidence, and re-commenced on April 9, 2018.

Between February and April 2018 alone, British Columbia filed eight interim motions. Seven sought to strike parts of various witness’s affidavits, while one sought to enforce Cambie Surgeries’ compliance with a previous disclosure order.

Such evidentiary disputes aren’t new: in an April 2017 interim judgement, Justice John Steeves noted that half of the 70+ days of the trial had been devoted to argument over expert witnesses. In an interview with the Canadian Press, Dr. Day said the government delays were an attempt to bleed him dry and force him to abandon his suit.

Between March and May 2018, Steeves J. released 11 interim judgements responding to the parties’ very particular quibbles. Most of the motions sought to strike expert witness affidavits in whole or in part. Steeves J. assessed the impugned statements one by one, concluding that some are admissible because they derive from the witness’s direct experience and observations while others are inadmissible because they include hearsay evidence or opinion.

The line between description and argument can be fine: stating that many patients will deteriorate as they wait for treatment is admissible, but stating that surgery gets more challenging the later it occurs is not (2018 BCSC 759 para 11). Similarly, in another judgement, some comments that might be described as opinion were held to be admissible descriptions of the physician’s work, such as his statement that efforts made at the hospital will be insufficient to meaningfully reduce his waitlist (2018 BCSC 760 para 26).

In another motion, British Columbia sought to enforce Cambie Surgeries’ compliance with a previous order. Specifically, Cambie Surgeries hadn’t produced documents it had been ordered to, and allegedly redacted 55 documents without any explanation. It also failed to list documents it didn’t have in its possession or control, as well as to include any information about privilege, all of which violates the Supreme Court Civil Rules. Steeves J. ordered Cambie Surgeries to provide unredacted copies of certain documents, an amended list of all relevant documents, and an affidavit from Dr. Day that all relevant documents have been disclosed. “… The amended list of documents will comply with the Rules by indicating the documents or classes of documents for which privilege is claimed,” Steeves J. said. “Following discussions and argument I think counsel now understands what that means.”

It’s been almost two years since the Cambie Surgeries trial began, and while a CanLII search yields nearly 50 interim decisions, we’re nowhere near a final judgement. Maybe that’s because British Columbia is disputing the smallest points in the hopes that Dr. Day, drained of his assets and mortgaged to the hilt, will slink away, taking his Charter challenge with him. Maybe that’s because Cambie Surgeries’ lawyers are making disclosure mistakes that would cost them points on a 1L Legal Process exam. Whatever’s causing the delays, and whatever one’s thoughts on privatized medicine in the Canadian healthcare system, it’s clear that the complexities of civil procedure aren’t helping the country get an answer to an important constitutional question.

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

Susan Ursel chosen as Constitutional Litigator-in-Residence for fall 2018

Posted on by Student

The Faculty of Law’s David Asper Centre for Constitutional Rights is pleased to announce that lawyer Susan Ursel will be the Asper Centre’s Constitutional Litigator-in-Residence for the fall 2018.

Ursel, a Toronto-based employment and human rights lawyer, will be teaching constitutional advocacy in the Asper Centre clinic during the fall term. Drawing upon her extensive experience from her constitutional, human rights and administrative law practice, she will mentor students on the case files that they will be working on in the clinic.

“Susan Ursel’s wealth of litigation experience and work in the human rights field, especially in seeking equality rights, will add an exciting dimension to the clinic this coming term,” says executive director Cheryl Milne.

Susan Ursel says, “I am very much anticipating the exciting and fascinating work with the Asper Centre this year. Constitutional issues and litigation have been a passion of mine for many years and I am honoured to be doing this work with the Asper Centre which is renowned for its constitutional expertise and for its exceptional educational programs. My thanks to the Centre for inviting me to work with them.”

Selected responses to R v Comeau

Posted on by Student

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.

Outside the Four Corners of the Charter

Posted on by Student

By Catherine Ma

 

Asper Centre Constitutional Law Symposium, Panel III: Outside the Four Corners of the Charter

The afternoon panel of the Asper Centre’s October 20th 2017 Constitutional Law Symposium for Canada’s Sesquicentennial, titled Outside the Four Corners of the Charter, included papers that reflected on the development of Canadian constitutional law beyond the Charter. The panel featured Eric Adams, an associate Professor at the University of Alberta, Faculty of Law; Professor Richard Stacey from the University of Toronto, Faculty of Law; and University of Toronto Law Professor David Schneiderman. The panelists’ respective papers explored the Bill of Rights, the duty to consult Indigenous Peoples, and unwritten constitutional principles. Professor Lorraine Weinrib from the University of Toronto, Faculty of Law moderated.

Professor Adams began the session by presenting his paper, entitled “Writing Rights: the Canadian Bill of Rights in Canadian Constitutional History” and arguing that the Bill of Rights holds an important – and often overlooked – place in constitutional law. He acknowledged that the Bill of Rights largely lacks jurisprudential value, as the Supreme Court of Canada has rejected most legal arguments invoking the Bill. Further, in the only case where the Bill of Rights was successfully argued, R v. Drybones, the SCC expressly said that the Bill of Rights only renders legislation inoperative, if the legislation subjected groups to harsher treatment on its prohibited grounds. Drybones is also notable for the dissent by Cartwright CJ, who stressed that the Bill of Rights does not permit courts to invalidate laws in conflict with the Bill – an assertion that is diametrically opposed to his earlier statements in other Bill of Rights cases. Despite admitting these limitations, Professor Adams declared that the Bill of Rights is important for changing public “imagination” and dialogue around constitutional law, which ultimately enabled the Charter of Rights and Freedoms to arise.

Professor Stacey, drawing from his paper entitled “Honour and Sovereignty: How Democratic Accountability Shapes the Duty to Consult Indigenous Peoples” questioned the extent to which the Crown can delegate its duty of consult Indigenous Peoples. He noted that in Haida Nation, the SCC stated that the Crown may delegate procedural aspects of consultation to industry proponents seeking a particular development. This statement makes “no sense” since the Crown effectively would be delegating its duty to consult Indigenous Peoples to the industries whose work is undermining Indigenous rights. So, would the Crown need to be involved in consultations between Indigenous Peoples and industry proponents? If so, how much Crown involvement would be required? Professor Stacey answered his own questions by situating the duty to consult in a broad understanding of reconciliation. For him, reconciliation means harmonizing two “paradoxically opposed” perspectives: The belief that Canada has enjoyed sovereignty over Indigenous Peoples since Confederation, and the view that many Indigenous Peoples never surrendered their sovereignty to the Canadian state. This conception of reconciliation suggests s. 35 of the Constitution Act, 1982 should be a framework to restore self-determination to Indigenous Nations – and guarantee Indigenous Peoples’ meaningful participation in decisions affecting them.

Professor Schneiderman in his presentation titled “Unwritten Constitutional Principles in Canada: Genuine or Strategic?” contended that the SCC acts strategically when invoking unwritten constitutional principles in its decisions. He elaborated the SCC does not intend for unwritten constitutional principles to guide jurisprudence in constitutional law; rather, the SCC appeals to these principles in order to “get out of a jam” and “escape from its legitimacy problem.” In Reference Re: Secession of Quebec, the SCC applied the principles of federalism, democracy, constitutionalism and the rule of law, and protection of minorities in order to disavow unilateral secession and found a constitutional duty to negotiate when a province wishes to secede from Canada. Yet, in BC v. Imperial Tobacco Canada Ltd., the SCC rejected appeals to the rule of law; and in Quebec v. Canada, the SCC similarly rejected the idea of cooperative federalism. This behaviour suggests that the SCC is acting rationally to secure their desired objectives.

The audience was interested in the nuances of the panelists’ arguments. They questioned if public imagination influenced the Bill of Rights – or if only the Bill shaped public opinion, other ways that sovereignty might manifest for Indigenous Peoples, and whether unwritten unconstitutional principles have strength due to their actual content or the fact that these principles are unwritten. Other questions linked ideas from the different papers together. Such questions included: Is the Honour of the Crown an unwritten constitutional principle that guides s. 35 jurisprudence?

Catherine Ma is a 2L JD Candidate at the Faculty of Law and is also a co-leader of the Asper Centre’s Indigenous Rights student working group. 

Asper Centre Constitutional Law Symposium, Panel II: Seminal Cases for Past Reflection and Future Consideration

Posted on by Student

By Ryan Howes

 

The presentations that comprised the Asper Centre’s Constitutional Law Symposium panel titled “Seminal Cases for Past Reflection and Future Consideration” featured Ben Berger, Associate Dean and Associate Professor, Osgoode Hall Law School; Richard Moon, Professor, University of Windsor, Faculty of Law; and Margot Young, Professor, University of British Columbia, Allard School of Law. The panel was moderated by Breese Davies, the Asper Centre’s current Constitutional Litigator-in-Residence.

The presentations all concerned the development of Charter rights jurisprudence in Canada. The introduction of the Charter in 1982 challenged the Supreme Court of Canada (SCC) to adapt to its role as interpreter of Charter rights and integrate them into the existing constitutional body and Canadian society. Each panelist discussed an instance of this process and a perspective it offers on the development and future of Canadian constitutional jurisprudence.

Professor Berger’s presentation, based on his paper entitled “Assessing Adler: The Weight of Constitutional History and the Future of Religious Freedom” considered the seminal case of Adler v Ontario (AG) within the broader context of Canadian constitutional logic and subsequent freedom of religion jurisprudence. Adler was an SCC decision that upheld the constitutionality of selective public funding for Catholic and denominational schools to the exclusion of Jewish schools. The SCC held that s. 93 of the British North America Act, which mandated the existing funding scheme, had constitutional status and was therefore immune from the s. 15 Charter challenge advanced in the case.

The SCC emphasized the historical importance of s. 93 to federation in its reasoning in Adler. For Professor Berger, this exemplifies what he calls the particular logic of Canadian constitutionalism, which preserves past constitutional compromises and defers to them in addressing contemporary concerns. This he contrasts with universal logic, which consists of faith in reason of legal principle and demonstrates a distancing from past arrangements or the status quo in reasoning about contemporary issues. This universal logic values past constitutional arrangements to the extent that they are upheld by legal principles. The particular logic, by contrast, is not so limited in its evaluation.

Adler anticipated the key role that education would play in the relationship between law and religion in subsequent Canadian jurisprudence. The reasoning in Adler foreshadowed an increased judicial awareness of the communal or collective element in religion when contemplating religious freedom. This development is evident in Loyola v Quebec, which constitutes the Supreme Court’s most ambitious statement so far regarding collective interest in the context of religion.

Professor Moon, in his presentation titled “Dolphin Delivery and the Court’s Loss of Confidence” discussed how the SCC’s interpretation and application of Charter rights developed. When the Charter became active in 1982, there were high expectations that the courts would adopt a wide interpretation of rights. This was true at first, but the SCC gradually began to understand that this involved the courts in complicated political and social questions. Liberal interpretation of rights granted the courts a concerning power to reconstruct and reform the rights they were interpreting. The Dolphin Delivery case exemplified the SCC’s retreat from this mode of jurisprudence.

In Dolphin Delivery, a court injunction on employees picketing outside a business was challenged on the basis of s. 2(b) infringement. The court injunction was issued because the common law banned the kind of picketing the employees sought to do. The SCC held that the Charter applies to state action, including the common law, but does not apply to private litigation divorced from government action. This limited the range of applicable rights-based claims. The SCC applied the s. 1 proportionality test and held that the picketing caused sufficient harm to the target business to justify the injunction’s infringement on s. 2(b).

Professor Moon observed a tendency in SCC’s reasoning when it applies the s. 1 proportionality test that demonstrates two distinct understandings of the individual and their rights. The first step of the test is to understand the value of the right in question. Here, the SCC adopts a noble view of the individual and bestows intrinsic value on rights, such as the values of self-fulfillment, pursuit of truth, and democracy. The second step considers the infringing law in question and gauges whether the problems it addresses justifies infringing the implicated right. Here, the SCC adopts a behavioral view of the individual and a pragmatic understanding of rights. Rights first granted near-absolute value are then reduced to flexible treatment and subordinated to policy considerations that invariably and necessarily fail to contemplate all the relevant factors or protections that exist against the harm in question. The ordering of these two conflicting treatments is relevant to the outcome and facilitates findings that justify infringement.

The final panelist in this session was Professor Young, who based on her forthcoming paper entitled “Equality at Large: Section 15 and the rest of the Charter” discussed how equality rights can be and have been interpreted in a manner that fundamentally changes how rights operate. Rights traditionally operate to insulate the individual from abuses of state power. They limit state interference in private life. But some s. 15 Charter arguments take the opposite approach. They justify state interference in private life. The state can impose social norms under the guise of protecting equality rights. The shield becomes the sword. And that sword can then be used to infringe other rights.

The ongoing Trinity Western University case exemplifies the complicated challenge equality claims present when in conflict with other rights. Trinity Western University wished to open a law school with students and staff that willingly sign a community covenant promising to abstain from lifestyles deemed immoral from their particular Christian worldview. This includes abstaining from homosexual behavior. The Ontario and British Columbia bar refused to license Trinity Western University law school graduates on the basis that the school was discriminatory. Trinity Western claims this infringes their freedom of religion.

The Trinity Western University case poses a question: Should communities composed of willing participants be free to collectively repudiate particular lifestyles and exclude persons living such lifestyles from their community? The alternative is state enforced indiscriminate integration and punitive noncompliance measures. This is of course a matter of degree and context. Professor Young argued that the space in which such conflicts occur must inform the decision. For example, Trinity Western is a private law school, but its program qualifies graduates for a law license, a public resource. These qualities define the space being considered. If it were instead a private business school, considerations should account for and reflect the differences in these cases. Isolating rights conflicts from the space in which they occur neglects their complexity and condemns the debate to a principle standoff.

Taken together, the panelists’ presentations suggested the SCC’s adaptation to the Charter exemplifies a balance of liberal and conservative concerns. Professor Young identified the potential for s. 15 equality rights to reform our Canadian constitutional law. Yet, Adler demonstrated the SCC’s concern to insulate the existing constitutional body from s. 15 based claims for reform, while Dolphin Delivery too limited Charter claims to instances of government action, denying their applicability to private litigation. Upcoming cases like Trinity Western University will inform how this process will continue into the future.

Ryan Howes is a 1L JD Candidate at the Faculty of Law and is also the current Asper Centre work-study student