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

By: Chris Puskas and Nic Martin

On October 20^th 2017, the Asper Center convened a Constitutional Law Symposium for Canada’s Sesquicentennial.  The papers presented in the Symposium formed part of the 2017 Asper Centre Constitutional Roundtables series focused on the development of Canadian constitutional law since Confederation. The packed venue at the University of Toronto, Faculty of Law eagerly awaited the first panel to kick off the day with a thorough discussion of Section 7 of the Charter of Rights and Freedoms. The panel was chaired by Carol Rogerson, an eminent Constitutional law professor at the University of Toronto’s Faculty of Law. The panelists were: Hamish Stewart, Professor at the University of Toronto, Faculty of Law; Martha Jackman, Professor, University of Ottawa, Faculty of Law; and, Audrey Macklin, Director of the Centre for Criminology & Sociolegal Studies, and Professor & Chair in Human Rights Law, University of Toronto, Faculty of Law.

Professor Stewart opened the morning’s discussions with comments on the landmark 2015 Supreme Court decision of Carter v Canada and new and ongoing related litigation brought by Julia Lamb and the British Columbia Civil Liberties Association. Carter, applying section 7, reined in the criminal prohibitions against assisted death, which prohibited those suffering from grievous and irremediable medical conditions from seeking physician-assisted death. The Lamb v Canada case challenges aspects of Parliament’s response to Carter in Bill C-14. Bill C-14 – equipped with a robust preamble highlighting the importance of human dignity and autonomy, the equal value of every life, and the need to safeguard from abuses against vulnerable persons – permits patients to seek physician assisted death only when their death is “reasonably foreseeable.” Professor Stewart briefly hypothesized that this aspect of the new provision might be overbroad.

The focus of his discussion, however, was on a recently released pre-trial decision in the Lamb case. Ms. Lamb asked the court to order that certain factual findings from the Carter case were binding on the Attorney General. The court refused to make such an order, meaning that Ms. Lamb and the BCCLA will be tasked with building their own complete factual record. The court’s decision was based on the premise that the Carter judgment was inextricably linked to the legislative and social facts before the Carter court and that Ms. Lamb could not be permitted to rely on those facts in her case challenging different legislation in a different context. This decision raises interesting questions for constitutional litigation and challenges. The more a constitutional decision is tied to its specific facts, the less general force it has. This case leaves us with questions about whether or not the current format of constitutional litigation is best suited to the goal of effective Charter driven law reform.

Next, Professor Jackman took the room for a critical analysis of the case of Gosselin v Quebec. Following Irwin Toy v Quebec, “corporate-commercial economic rights” were excluded from the Charter. However, Chief Justice Dickson left open the possibility that “economic rights fundamental to the human life or survival” may nevertheless fall within the ambit of section 7. Professor Jackman explained that the legal impact of Gosselin has been to render such a reading of section 7 rights a fleeting aspiration at best. In 2002, the Supreme Court rejected Ms. Gosselin’s argument that her section 7 rights were violated due to a Quebec poverty scheme which forced her to live on $170 a month. Professor Jackman explained that, despite the voluminous evidence of the harm Ms. Gosselin faced due to her poverty, including a 5000 page record, the Supreme Court held that the evidence was insufficient to support her claim.

Providing insights into her upcoming paper, Professor Jackman repeatedly returned to the phrase, “one step forward and two steps back” to explain the legacy of this case. On the positive side, eight justices acknowledged that, while section 7 was primarily a negative rights guarantee, it could be interpreted to support positive rights given the right facts. On the negative side, Professor Jackman first argued that the way the court approached the evidence in this case places a disproportionate burden on the claimants as opposed to governments. Second, the case exhibited numerous stereotypes about poverty and those living in poverty. Rather than directly addressing the voluminous record, backed by professional organizations, about the harms of living in poverty, the Court relied on various stereotypes about those living in poverty, such as their weak work ethic and the idea that poverty is a choice.

In conclusion, Professor Jackman reiterated that the case was disheartening, on an intellectual and emotional level, and that the legacy of the case is a Charter out of touch with Canada’s international human rights obligations. Professor Jackman’s paper will explore ways to change this situation so that everyone can truly be accorded equal benefit and protection under the Charter.

The final presentation in the panel was delivered by Professor Macklin. Professor Macklin focused on Canada (Minister of Employment and Immigration) v Chiarelli, a leading immigration law case. Chiarelli held that deportation of permanent residents who have violated a condition of their residency in Canada does not violate section 7 of the Charter. Professor Macklin focused on the Court’s reasoning, which subordinated section 7 of the Charter to the common law principle of the Crown prerogative. Professor Macklin carefully guided the room through the logic in the jurisprudence which was relied on to come to the conclusion in Chiarelli: (1) every state has a right to exclude and expel under international law; (2) there is a common law right of states to exclude and expel and no alien (a non-citizen of the state) has a right to enter or remain in the country; (3) therefore, there is no breach of fundamental justice when excluding or expelling aliens; and (4) consequently, deportations do not breach life, liberty or security of the person under s.7.

Professor Macklin asked the question: how do we connect the first proposition to the third? The lack of a right to remain does not mean that deportation fails to engage life, liberty or security of the person. To drive this point home, Professor Macklin offered various analogies where section 7 is engaged despite having no absolute, unqualified related right: for example, the right to counsel is not an unlimited right, yet we still guarantee state funded legal counsel to those accused of criminal offences. Professor Macklin’s paper, titled “The Inside-Out Constitution,” focuses on exploring this jurisprudential logic and question its doctrinal coherence and normative basis.

All three panelists were met with interesting and engaging questions from the Symposium attendees. The session illustrated that the right to life, liberty and security of the person is a complex and challenging – yet immensely important – section of the Charter. Section 7 will continue to challenge courts and academics alike. If developed consistently, logically, and in line with the Charter’s true vision, it holds great promise for everyone in Canada.

Chris Puskas and Nic Martin are both 2L JD Candidates at the University of Toronto, Faculty of Law and are two of the leaders of this year’s Asper Centre Refugee & Immigration Law student working group.