Charter

Above the Law? Understanding the Notwithstanding Clause

Posted on by Tal Schreier

By Catherine Ma

On September 20, 2018 the David Asper Centre for Constitutional Rights convened a panel with U of T Law Professors Yasmin Dawood and Lorraine Weinrib, and Goldblatt Partners’ Steven Barrett to discuss the constitutional challenge to the Better Local Government Act. The proposed legislation would have reduced the size of Toronto’s city council in the midst of its municipal election, as well as ending mandatory election of regional councillors across all regional municipalities. Superior Court Justice Edward Belobaba struck down the legislation, finding that it was an unjustified infringement to s.2(b) of the Charter. The Court of Appeal of Ontario ultimately granted a stay of the Superior Court’s decision until a full appeal could be heard after the election. Its effect was allowing the Better Local Government Act to govern the 2018 municipal elections in Ontario.

Before the Court of Appeal rendered its decision, Ontario’s Premier Doug Ford had threatened to invoke the notwithstanding clause if a stay was not granted. The notwithstanding clause allows the federal government or a provincial government to enact legislation that overrides certain fundamental freedoms, legal rights, and equality rights guaranteed in the Charter. Premier Ford further warned that he would not hesitate to use the notwithstanding clause in the future, without providing specific details.

The Panel Discussion

The panelists all provided unique perspectives regarding the constitutional challenge to the Better Local Government Act and the notwithstanding clause itself.

Above the Law panelists: Prof Yasmin Dawood, Prof Lorraine Weinrib, Steven Barrett [click on photo for link to webcast of panel]

Professor Dawood summarized the Superior Court and Court of Appeal decisions. She noted the that it was “novel” to argue that the Better Local Government Act infringed s.2(b) by depriving voters of their right to cast a vote that would enable effective representation. She questioned whether the legislation also infringed the s.2(b) rights of political donors.  Professor Dawood ultimately concluded, “Interrupting an election midstream is inappropriate and completely inconsistent with notions of democratic and electoral fairness, even if it is the case that the provincial government has the power to do so.” Democratic legitimacy and electoral fairness requires that the provincial government consult all stakeholders before changing election laws.

Professor Weinrib focused on the principles that govern use of the notwithstanding clause. She emphasized that the drafters envisioned the notwithstanding clause as a narrow exception, used only when a Charter right would “fundamentally damage society’s stability and well-being.” She added that the notwithstanding clause cannot be applied retroactively; in this case, the provincial government cannot invoke the clause since candidates already spent resources, social capital, volunteers, and energy; and interacted with their constituents. Professor Weinrib further criticized Premier Ford for threatening to invoke the notwithstanding clause whenever the courts strike down provincial legislation as unconstitutional. She recommended asking the Supreme Court of Canada to clarify the constitutional principles that govern the use of the notwithstanding clause.

Mr. Barrett discussed specific Charter arguments made in the case, as well as the Court of Appeal’s decision. He commented that for the stay application, it was “unusual” for the Court of Appeal to examine the substantive merits of the s.2(b) argument rather than the usual factors for a stay application. He criticized the Court of Appeal for ignoring how the Better Local Government Act undermines the effectiveness of candidates’ political speech. Mr. Barrett criticized Premier Ford for threatening to routinely use the notwithstanding clause in the future as well. He warned this threat has a “corrosive effect” on judicial legitimacy and potentially judicial independence. Individuals must make it clear that using the notwithstanding clause is only appropriate in exceptional circumstances.

Other Uses of the Notwithstanding Clause

Provincial governments have rarely used the notwithstanding clause, particularly for its intended legal function. From 1982 to 1985, the Parti Québécois placed a notwithstanding clause in all of its new legislation and retroactively amended all existing laws to include such a clause in order to protest the enactment of the Constitution Act, 1982, which it had not signed. Its actions were a political protest, rather than aimed at protecting a specific law from a Charter challenge.

In 1988, Quebec’s provincial government invoked the notwithstanding clause in response to the companion cases, Ford v Quebec (AG) and Devine v Quebec (AG), which struck down provincial legislation that prohibited the public use of all languages other than French. The legislation already had a notwithstanding clause to override s.2(b) of the Charter; however, the Supreme Court of Canada held that the legislation unjustifiably infringed a similar guarantee in Quebec’s Charter of Rights and Freedoms. The provincial government then introduced a virtually identical bill, except with clauses to override the Charter and the Quebec Charter for a five-year period. Following the expiration of this period, the provincial government amended the law. The amended law did not include a notwithstanding clause.

In 2017, Saskatchewan’s provincial government used the notwithstanding clause in the School Choice Protection Act. Its use responded to Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, which held that funding non-Catholic students who attended Catholic schools was an unjustified infringement of s.2(a) and s.15(1) of the Charter. Saskatchewan Premier Brad Wall justified its use on the basis that the legislation would protect school choice for parents and students, including faith-based options. There was no political opposition to its use.

Most recently, Québec Premier François Legault threatened to use the notwithstanding clause in order to pass a controversial “secularism law.” This proposed legislation would prevent public servants – including teachers, police officers, and judges – from wearing religious garments while performing public functions. The law is widely interpreted as targeting Muslim women who wear a niqab.

It is hoped that Ford and Legault’s recent threats will not embolden others to invoke the notwithstanding clause inappropriately. In light of these threats, the appropriate use of the Constitution’s notwithstanding clause must continue to be scrutinized, perhaps as Professor Weinrib suggested by the Supreme Court of Canada itself.

Catherine Ma is a 3L JD Candidate at the Faculty of Law and was a student leader of the Asper Centre’s Indigenous Rights student working group in 2017-2018. 

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

Posted on by Student

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

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.

Bill C-59: The Good, the Bad, and Where We’re At

Posted on by Tal Schreier

By Patrick Enright

When Bill C – 51, the Federal Government’s revised Anti-Terrorism Act, was pushed through Parliament following the attacks on Parliament Hill in 2015, the reaction from the public and civil liberties societies was swift. The Canadian Civil Liberties Association challenged key provisions of the Act under the Charter, and Professors Roach and Forcese (among others) wrote numerous articles decrying the law as “radical” and “unbalanced.” It also became a hot topic of debate in what turned out to be a contentious Federal Election, one that saw the Liberals win a surprising majority over Harper’s conservative flagship.

But when the dust settled from the election season, the question loomed large: would the Liberals take any action to reform the new law? At the time, there was reason to be skeptical. The law had received Royal Assent with support from both the Conservative and Liberal parties. And with the election of the U.S. chest-pounder-in-chief, Donald Trump, many thought the Liberals would shy away from anything that might portray them as either soft on terror or weak on national security matters.

So when the Liberals introduced Bill C – 59, An Act Respecting National Security Matters, there was reason to believe it would be a mere nodding attempt to keep a half-hearted campaign promise. In some ways the Bill does disappoint – and the Asper Centre has released a detailed analysis of its shortcomings. But in many ways it is a valiant effort to roll back some of Bill C-51’s glaring excesses.

The most obvious improvement in the legislation is the implementation of a multi-agency review mechanism. The new bill sets up a whole-of-government review committee that can assess and review all national security information (except Cabinet confidences) and produces frequent classified reports to Parliament as well as an annual unclassified report to the public regarding its findings. These provisions remedy a major deficiency in accountability that has been lacking for years in Canada’s national security framework. Until now, each national security agency had different oversight bodies, which could not collaborate with each other, despite the fact that the work of each agency is often intertwined. This created a “siloing” effect, where reviewing bodies could not follow the evidence down whatever rabbit hole it may have led. By contrast, the new “whole of government” mandate means that the entirety of Canada’s national security apparatus can be held accountable for its actions, including the CBSA (Canadian Border Services Agency) which had previously not been subject to any independent review.

The Bill is commendable in other areas as well. For example, Bill C – 51 introduced a new speech offence to the Criminal Code that made it an offence to “advocate or promote a terrorism offence in general.” The provision is breathtaking in scope. It makes it an offence to perform tasks as innocuous as promoting the assistance of designated terrorist groups, advocating for the provision of “material aid” to listed groups, and advocating for the provision of charitable aid to a listed terrorist organization. There were also no defences worked into the provision such as opinions in the furtherance of a religious belief, commentary on matters of public interest, or the articulation of truth.

Bill C – 59, to its credit, limits the scope of this offence to actions that actually “counsel” a terrorist activity. This is important because “counselling” criminal activity has always been a Criminal Code Offence – one that has been upheld as constitutional under the Charter.

All this being said, the Bill is not a model of perfection. The Liberals have come up at least one base short of a legislative home run. Canada’s national security framework remains sorely lacking in the area of privacy protection in that it still permits an enormous amount of sharing of Canadians’ personal information between federal agencies. As of now, the broad collection and sharing of Canadians’ personal information is authorized if the information pertains to acts that might “undermine the security of Canada.”

While this might sound perfectly reasonable, it is in fact alarming when one looks at the definition of what “undermines the security of Canada.” The category includes such unremarkable matters as interference with the economic or financial stability of Canada as well as any effort to “unduly influence” the government of Canada by any “unlawful means.” The term “unlawful,” it should be noted, is not the same thing as “criminal.” Canadians’ private information can be swept up and shared on the grounds that the target of the information had contravened an act of Parliament in an effort to merely “influence” government action (think of violations of the Ontario Labour Relations Act). Bill C-59 does nothing to remedy these deficiencies.

So what has been the progress on Bill C – 59? The Bill is currently being prepared for Second Reading in Committee, so there is still hope that modifications could be made. But there is no guarantee that changes to the bill won’t move in a less happy direction. The Progressive Conservatives, under their new leader Andrew Scheer, have made a habit of taking the Liberals to task on any matter that has the appearance of being “soft on terror,” including the management of returning ISIS fighters and – most controversially – the 10-million-dollar settlement with Omar Khadr. The Conservatives also appear to have taken issue with the restrictions on CSIS’s so-called threat reductions powers. Bill C – 51 made it legal for CSIS agents to take positive steps to reduce national security threats short of causing bodily harm, intruding on sexual integrity or obstructing justice. It also allowed CSIS to seek a warrant from courts that would authorize Charter violations. Bill C – 59 changes this. The Liberal government has reformed these provisions by requiring that all such actions be Charter compliant, and prohibits CSIS agents from using its powers to detain, torture, or damage property to the extent that it endangers life.

These are important changes, but it is not obvious that the Liberals will be able to pass it into law without a fight. For this reason, when it comes to debating the bill in second reading, one hopes that Liberals and Conservatives will come together to strike an appropriate balance between national security matters and rights-preservation.

In other words, that cooler heads might prevail.

Patrick Enright is a 3L JD Candidate at the University of Toronto Faculty of Law and was a 2016 Asper Centre Clinic student.

Panel Discussion with TWU Interveners’ Counsel

Posted on by Tal Schreier

By Erika Voaklander and Solomon McKenzie

At the end of 2017 the Supreme Court of Canada (SCC) heard arguments in the two Trinity Western University (TWU) appeals. The results of the appeals may have wide and deep impacts on the legal profession and on Canada more broadly.

On January 18, 2018, the Asper Centre, Out in Law UofT, the Journal of Law and Equality, and the Christian Legal Fellowship of UofT Law co-hosted a discussion panel, showcasing counsel for interveners on the TWU appeals. The panelists were Joanna Radbord (Advocates’ Society), Angela Chaisson (LGBTOUT), Barry Bussey (Canadian Council of Christian Charities), Paul Jonathan Saguil (Start Proud/Outlaws), Derek Ross (Christian Legal Fellowship), and Chris Palliare (Advocates’ Society).

Trinity Western University is a private Christian university in British Columbia. TWU wanted to open a law school. The school provides an education founded on evangelical Christian principles. TWU’s approach to community development is expressed in a community covenant, a code of conduct that encourages its students to live by Biblical teachings. Amongst other considerations, the covenant prohibits sexual intimacy that violates the sacredness of marriage, as defined as between a man and a woman. Unmarried individuals are expected to live celibate lives. While LGBTQ students are permitted to attend the university, TWU would prohibit admission to its law school if a student refuses to sign the covenant.

The appeals involve legal challenges to decisions by the law societies of Ontario and British Columbia. Ontario decided to deny the accreditation of future TWU law graduates. The Court of Appeal of Ontario held that Law Society of Ontario’s (LSO) statutory mandate to act in the public interest entitled it to refuse to accredit TWU’s law school. The LSO refused to accredit on the basis that the covenant was discriminatory. BC, on the other hand, initially approved accreditation, but reversed this decision based upon a referendum it held with members. The BC Court of Appeal upheld the lower court’s decision to overturn this second decision.

The panel discussion explored the case, other legal precedents and wider considerations of constitutional advocacy. In their general discussion of the case, Chris Palliare highlighted that the SCC’s decision would likely hang on how the court defines and places boundaries on the freedom of religion enshrined in the s. 2(a) Canadian Charter of Rights and Freedoms. Additionally, Barry Bussey noted that this issue also turns on jurisdiction, notably whether the Law Society of Ontario has the right to bar membership.

An early fault line in the discussion was when the panelists considered the 2001 TWU v British Columbia College of Teachers (BCCT) case. Both Angela Chaisson and Joanna Radbord suggested that there have been many social and legal changes around LGBTQ+ rights since the finding in BCCT. Angela Chaisson asserted that the two cases were overwhelmingly dissimilar, involving different parties and underlying statutes, and with Canadian society having substantially progressed on LGBTQ+ rights since 2001. By comparison, Barry Bussey asserted the similarities between the two cases, and warned that a finding that essentially overturned BCCT would have a knock-on effect on evangelical and other religious communities’ abilities to continue to operate professional and educational facilities.

In considering the long-term impact of the TWU appeals, Derek Ross stated that the Court was at a crossroads in its recognition of religious communities’ freedom of association (s. 2(d) of the Charter). He warned that there could be deleterious impacts on the rights of religious communities. He noted that the Court supporting the LSO would be tantamount to finding it acceptable for state actors to quash the rights of groups externally assessed to have distasteful beliefs. Chris Palliare questioned the relevance of s. 2(d) to this case, and maintained that the analysis should focus on s. 2(a) religious freedom rights. Both Barry Bussey and Derek Ross stressed that a finding against TWU would have extensive and negative impacts on religious rights.

In considering what this ruling would mean to LGBTQ+ rights, Joanna Radbord noted that given the fixed number of law school spaces, allowing accreditation would diminish the ability for LGBTQ+ students to access law school. She also stressed that drawing evangelical students to one law school would intellectually impoverish the legal community at large, by hindering fruitful and diverse discussion. She highlighted the panel as an example of how law schools should act as meeting places of diverse worldviews. Paul Johnathan Saguil noted that he could have seen himself going to TWU at an early stage in his life, which would have had long term and negative impacts on his development. Angela Chaisson noted that the case was not necessarily zero-sum, and there could still be positive impacts for LGBTQ+ rights encapsulated in an adverse decision.

Finally, the group discussed the impact of the recent changes to the length of submissions by interveners down to 5 minutes of oral advocacy. Chris Palliare intoned that this was a mistake, stressing that the Court should accept fewer interveners, speaking for longer periods. Derek Ross noted that a greater number of perspectives was always welcome. Barry Bussey remarked that the new time limit meant that submissions had to be drafted in a strategic manner. In his preparation, he found that 5-minute submissions constituted 500 spoken words, a very limited space for nuanced reflections. Angela Chaisson agreed that fewer interveners were important, but that the SCC needs to start promoting the voices of people directly affected by the law. She questioned the validity of the court’s initial decision to grant no LGBTQ+ groups intervener status. Joanna Radbord noted the incredible role modelling that comes from having queer women as advocates before the SCC.

All the panelists stressed the importance and rewarding nature of constitutional advocacy. They underscored that interested students and lawyers should seek out pro-bono activities, actively pursue this type of work through their firms, connect to ongoing efforts through their own communities, and look to the David Asper Centre for opportunities.

Erika Voaklander is a 1L JD Candidate and member of Out in Law UofT and Solomon McKenzie is a 2L JD Candidate at the Faculty of Law and is co-leader of Out in Law UofT.