freedom of expression

Freedom of expression in an election context: A purposive approach

Posted on by Tal Schreier

by Keely Kinley

On September 19, 2019, the Ontario Court of Appeal dismissed the City of Toronto’s legal challenge against the Province of Ontario for making unilateral changes to the size and structure of Toronto’s city council midway through last year’s municipal election period (Toronto (City) v. Ontario (Attorney General), 2019 ONCA 732). In a 3-2 decision, the Court of Appeal held that the province had the “legitimate authority” to reduce council from 47 to 25 seats, and that doing so was constitutional even in the middle of an active election (para 6).

At trial, the Ontario Superior Court ruled that Bill 5 – the legislation that changed Toronto’s ward structure – “substantially interfered” with both candidates’ and voters’ freedom of expression contrary to s. 2(b) of the Charter (Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151). Specifically, the court found that Bill 5 interfered with candidates’ freedom to effectively communicate their political messages to voters and, by doubling the population size of City wards, also interfered with electors’ ability to express political views through voting. Nine days after the ONSC decision was released, the province won a stay of the ruling and the election proceeded with 25 wards on October 22, 2018.

On appeal, the court found that Bill 5 did not infringe the s. 2(b) rights of either candidates or voters. Justice Miller, writing for the majority, emphasized that s. 2(b) of the Charter protects against interference with expressive activity, not interference with expressive activity’s intended result; consequently, “legislation that changes some state of affairs (such as the number of electoral wards) such that a person’s past communications lose their relevance, and no longer contribute to the desired project (election to public office), is not, on that basis, a limitation of anyone’s rights under s. 2(b)” (para 41).

All five judges agreed that the Province had the constitutional authority to alter the structure of Toronto’s City Council, that legislation cannot be stuck down solely on the basis of unwritten constitutional principles, and that Bill 5 did not infringe voters’ 2(b) rights. However, MacPherson and Justice Nordheimer decried Miller’s characterization of the expressive activity affected by the ward changes as “a person’s past communications” as overly narrow and found that candidates’ 2(b) rights were infringed by the mid-election enactment of Bill 5.

MacPherson’s fiery dissent called for a purposive approach to freedom of expression in the election context and identified the 2(b) right implicated in this case as the “right of all electoral participants to freely express themselves within the terms of the election after it had begun” (para 128). Justice MacPherson cited para 1 of the Asper Centre’s factum to support this view: “The Charter’s guarantee of freedom of expression is a key individual right that exists within and is essential to the broader institutional framework of our democracy. In the election context, freedom of expression is not a soliloquy. It is not simply the right of candidates and the electorate to express views and cast ballots. It expands to encompass a framework for the full deliberative engagement of voters, incumbents, new candidates, volunteers, donors, campaign organizers and staff, and the media, throughout a pre-determined, stable election period.”

The dissenting judgment suggests that free expression in the election context requires that an election’s basic terms not be “upended mid-stream” (para 123). Reducing the size of city council during an active election made it difficult for volunteers, voters, donors, and commentators to carry on expressing themselves “within the established terms of [the] election then in progress” (para 128), and this is why Justice MacPherson’s finding that candidates’ 2(b) rights were infringed turned on the timing of the Bill; even though the province never directly curtailed expressive activity, it effectively “blew up the efforts, aspirations and campaign materials of hundreds of aspiring candidates” when it altered the ward structure in the middle of the election period (para 136).

While the majority did not adopt the Asper Centre’s broad, purposive view of freedom of expression in the election context, this was a successful intervention for the Centre. Its arguments were cited with approval in both judgments and provided important international context to this difficult case of first instance.

As of January 2019, Toronto City Council has instructed staff “to pursue a leave to appeal application to the Supreme Court of Canada in the event the Province is successful on its appeal at the Court of Appeal” (see the City’s public statement here: http://wx.toronto.ca/inter/it/newsrel.nsf/11476e3d3711f56e85256616006b891f/d354c2f99405923b8525847a0056fff8?OpenDocument); staff are now in the process of reviewing the court’s decision in detail. If the City appeals, the 3-2 split at the Court of Appeal and the national significance of the issues raised in this case might improve the odds of the Supreme Court of Canada granting them leave.

Keely Kinley is a 2L JD Student at the Faculty of Law. She was the 2019 Asper Centre summer research assistant and is currently leading the Asper Centre’s Climate Justice student working group.

The Constitutionality of the Proposed Federal Conversion Therapy Ban  

Posted on by Tal Schreier

by Jeffrey Wang

On June 21, 2019, the Federal government announced its intentions to criminalize conversion therapy in a letter to provincial premiers. While this is undoubtedly a positive step for LGBT+ rights, the constitutionality of this ban has been questioned.  

Conversion Therapy  

Conversion therapy can be defined as any practice that claims to change a person’s sexual orientation or gender identity/expression. The practice can take the form of psychological, medical, religious, or other type of intervention. Every major health organization has denounced conversion therapy. The Canadian Psychological Association (CPA), for example, released a policy statement in 2015 discrediting the efficacy of conversion therapy and recognizing its negative outcomes such as distress, anxiety, depression, negative self-image, difficult sustaining relationship, and sexual dysfunction.

History of Conversion Therapy Bans 

In late 2018, Alberta activist Devon Hargreaves began a petition to have Parliament ban conversion therapy for minors. While Parliament agreed that the practice is immoral, the petition was rejected on the basis that the provinces have the primary jurisdiction to regulate health professions. On April 9th, 2019, Senator Serge Joyal proposed Bill S-260, which amends the Criminal Code to ban the advertising of and material benefit from conversion therapy. This follows a similar strategy of banning the ancillary activities surrounding a practice, most notably employed within the new prostitution laws. This bill died on the Senate floor and given the upcoming federal elections, it is unclear if government will draft a new, similar bill.  

Within Canada, Ontario, Nova Scotia, and Manitoba have banned the medical practice of conversion therapy for minors. The cities of Vancouver and St Albert (Alberta) have passed by–laws that prohibit businesses from providing conversion therapy to minors. 

Potential Constitutionality 

Federalism  

Although conversion therapy is a health issue, in Canada v PHS the court clarifies that “Parliament…has historic jurisdiction to prohibit medical treatments that are dangerous, or that it perceives as ‘socially undesirable’ behaviour.” It has been agreed upon by professionals that conversion therapy is dangerous and socially undesirable.  

Freedom of Expression  

Banning conversion therapy may be seen as a s.2(b) Charter violation for professionals who perform conversion therapies. However, it is very likely that the ban would be justified under s.1, especially in light of the scientific consensus that it is dangerous and harmful. The s.1 analysis will likely follow the same path as R v Keegstra, where the expression stemming from conversion therapy will been seen as holding low constitutional status. Although it may not be hate speech, conversion therapy certainly damages the psychological integrity of individuals, as well as harms the broader LGBT+ community.  

Freedom of Religion  

Some have argued that banning conversion therapy may constitute a s.2(a) Charter violation for those who genuinely believe that their religion mandates them to be heterosexual and for practitioners who perform the therapy as a religious obligation. This argument is unlikely to succeed since there is consensus that conversion therapy is not effective at changing an individual’s sexuality. While some religions may enforce strict heterosexuality, conversion therapy does not make people heterosexual and thus cannot be protected under freedom of religion protections. Even if it is considered a religious right, the conversion therapy ban will likely be justified under s.1 as discussed above.  

Life, Liberty and Security   

It may be argued that the conversion therapy ban violates a person’s liberty or security interest in seeking psychological treatment, reminiscent of the Morgentaler decision. However, conversion therapy has been medically denounced and indeed creates many negative psychological reactions. Thus, it is unlikely that seeking this dangerous “treatment” will engage liberty or security under s.7.  

Alternatively, if Parliament criminalizes ancillary activities around conversion therapy but not conversion therapy itself, this may raise issues relating to the principles of fundamental justice, such as in the Bedford case. However, the ban on conversion therapy clearly does not place those who perform it in danger like with the prostitution laws, so it is unlikely to be overbroad or grossly disproportionate.  

International Law  

Canada’s international law obligations also support a ban on conversion therapy. Principle 18 of the Yogykarta Principles, a set of principles on the application of international human rights law to sexual minorities, declares that sexual orientation is not to be considered a medical condition. Furthermore, more severe practices of conversion therapy may meet the requirements of torture under the Convention against Torture and International Covenant on Civil and Political Rights. 

Conclusion  

Overall, the constitutionality of the federal conversion therapy ban will depend on the precise form of the ban. However, medical professionals have reached a consensus on the harms of conversion therapy, a fact that constitutionally justifies its criminalization. It must be recognized that this ban is a huge step in Canada’s protection of LGBT+ identities.  

Jeffery Wang is a 2L JD Candidate at the Faculty of Law and is the co-leader of the Asper Centre’s current Refugee and Immigration Law student working group. 

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

Posted on by Student

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)!