Supreme Court of Canada

The State Is Not Immune: The Supreme Court Affirms that Crown Can be Held Liable in Damages for Unconstitutional Laws

Posted on by Tal Schreier

by Vlad Mirel, with Neil Abraham and Megan Stephens

In a 5-4 split, the Supreme Court of Canada in Canada (Attorney General) v. Power held that damages may be awarded to those affected by Charter-violating laws. Although the threshold that must be met to be awarded damages remains high, the Supreme Court has confirmed that the Crown does not have complete immunity from damages. Significantly, the Supreme Court’s view achieves a balance between important legislative privileges which weigh in favour of absolute immunity, and the Charter rights of all Canadians that favour no immunity.

Background

In 1996, Mr. Power was convicted of two indictable offenses and sentenced to eight months imprisonment. After serving his sentence, he received his x-ray technician diploma and became a medical radiation technician at a New Brunswick hospital. Over a decade later, Mr. Power’s employer received a tip about his criminal record and his employment was terminated. Mr. Power was subsequently unable to find new employment due to his record and decided to apply for a record suspension. Record suspensions enable those who have served their sentences and have demonstrated they are law abiding citizens to remove their criminal record from the Canadian Police Information Centre’s database and thus help them access employment.

While at the time of his conviction, Mr. Power could apply for a record suspension five years after his release, subsequent legislation made Mr. Power permanently ineligible for a record suspension. This legislation was soon declared unconstitutional by the courts. Mr. Power argued that he was owed damages under s. 24(1) of the Charter based on the breach of rights he suffered from the unconstitutional legislation.

Mackin Revisited

Much of this case was based upon revisiting the decision in Mackin v. New Brunswick (Minister of Finance), where the Supreme Court held that the Crown could be liable for damages if legislation was clearly unconstitutional, adopted in bad faith or an abuse of power. Canada sought to overturn Mackin in this appeal by arguing that it was entitled to absolute immunity in order to preserve its legislative privilege and protect the separation of powers. Parliamentary privilege plays an important role within Canadian politics, ensuring the legislature is able to execute its functions without fear of external review. Canada argued that if it were subject to damages, it would represent a loss of this privilege. Furthermore, Canada argued that the judiciary should not be able to demand the Crown pay damages as these two entities must be kept in isolation from each other based on the separation of powers.

Decision

The Asper Centre intervened in this appeal and its submissions can be traced throughout the majority’s decision. The Supreme Court agreed that adopting absolute immunity would ignore important constitutional principles of equal significance to legislative privilege. Instead, the Court approached the question by asking how s. 24(1) could be interpreted in a way that would reconcile these Canadian constitutional principles, including constitutionality and the rule of law, rather than allowing legislative privilege to trump Charter rights.

First, the Supreme Court held that forcing the Crown to pay damages for unconstitutional laws drafted by Parliament would not be a threat to parliamentary privilege. While legislative privilege ensures those creating legislation are free from external review, it does not extend the same protections to the state itself. Thus, as the damages would be levied upon the Crown rather than individuals, limited immunity would present no threat to this parliamentary privilege.

The Court also found that limiting the state’s immunity is consistent with the separation of powers, as each branch does not work in total isolation. Holding the legislature accountable for its misuse of power would not constitute judicial interference.

Having upheld the ruling in Mackin and reiterated the state’s limited immunity, the Court moved to clarify aspects of Mackin. In accordance with the Asper Centre’s own submissions, the majority first clarified that the “clearly wrong” (now termed “clearly unconstitutional”) threshold required for damages to be awarded is based on an objective standard. Thus, a claimant must demonstrate that it was clear at the time of the law’s enactment that the state would be violating Charter rights. By adding this objective standard, the Supreme Court has permitted plaintiffs to seek damages by arguing for the rights-violating effects of the respective law rather than requiring them to explicitly demonstrate any bad faith. However, a demonstration of Parliament’s bad faith would still provide an effective way of receiving damages.

Furthermore, the Supreme Court affirmed the three-part test established in Vancouver (City) v. Ward for determining whether damages ought to be awarded in the case of a Charter breach.  Now, the Power “clearly unconstitutional” threshold will be utilized to inform the third part of the Ward test, which asks whether the state has demonstrated that countervailing factors do not support damages being awarded. Thus, when investigating Charter damages, state immunity is considered within a wider three-part test rather than as a preliminary question.

Dissent in Part

Justices Jamal and Kasirer dissented in part. Although they agreed with the majority that a clearly unconstitutional law should lead to an award of damages, they disagreed that a demonstration of the Crown’s “bad faith” should achieve the same result. In Justice Jamal and Kasirer’s opinion, examining the intention of legislators in creating a law would represent the judiciary “second guessing” the legislature, and thus permit the judiciary to intrude upon legislative privilege. Thus, a Court deciding whether to award damages should only inquire if a law was clearly unconstitutional at the time of its creation and not if it was enacted in bad faith.

Dissent

In dissent, Justice Rowe and Côté argued that Canada should be allotted absolute immunity. Rowe and Côté expressed concerns that enabling courts to hold the Crown liable in damages effectively forces courts to adopt a supervisory role over the legislative process. Broadly speaking, both Justices agreed with Canada’s submissions, deciding that forcing the state to be held liable in damages for an unconstitutional law would stand in direct contradiction to legislative privilege. Furthermore, the separation of powers directly precludes the judiciary from scrutinizing the legislative process.

Looking Forward

The Supreme Court in Power has confirmed that state immunity is not absolute and has clarified the framework that future litigants will utilize when seeking damages for Charter breaches. Those who attack laws based on their unconstitutionality must orient their pleadings in a way that show “clear” rights violations which meet the “clearly unconstitutional” threshold. Proving that an impugned law has achieved this level of unconstitutionality will likely require utilizing precedent, which demonstrates the importance of employing language from existing authorities to prove the adverse effects of legislation.

Megan Stephens and Neil Abraham, the Asper Centre’s counsel in this intervention, commented that although the “clearly unconstitutional” threshold for damages has now been confirmed, it is unknown what form this threshold will truly take in practice. Instead, it is only through the resolution of future cases on this issue that the threshold will become clearly defined. Despite this uncertainty, Stephens and Abraham argue that the open-ended nature of “clearly unconstitutional” signifies that plaintiffs still have more than enough space to bring and argue their claims.

Stephens and Abraham also note that Power will be highly relevant for cases challenging laws passed through the notwithstanding clause. Parties to such cases should consider utilizing the invocation of the clause as proof that the legislature passed the law recklessly or in bad faith. Indeed, there are many cases in the lower courts that are currently challenging laws passed through s. 33, such as gender identity cases in Saskatchewan and New Brunswick, as well as religious symbols and language cases in Quebec.

Lastly, it remains to be seen whether Power will enable claimants to receive individual remedies under s. 24(1) even where the law cannot be struck down due to s. 33. In much of this future litigation, the language utilized in Power that balanced Charter rights with legislative principles will likely be used to evaluate how constitutional supremacy can be balanced with the legislative use of s. 33.

Vlad Mirel, U of T Law JD Candidate and Asper Centre Summer RA, with Neil Abraham and Megan Stephens, pro-bono counsel acting for the Asper Centre in the Power intervention

R v Sharma: Supreme Court of Canada upholds legislation limiting conditional sentences despite Indigenous over-incarceration concerns

Posted on by Tal Schreier

by Kailyn Johnson

In a 5-4 split, the Supreme Court of Canada upheld the constitutionality of sections 742.1(c) and 742.1(e)(ii) of the Canadian Criminal Code (R v Sharma, 2022 SCC 39 at paras 2-4 [Sharma]). These sections of the Criminal Code, which were amended in 2012, limit access to conditional sentences for certain classes of offences.[1] 

Ms. Cheyenne Sharma challenged the constitutionality of the two provisions under sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms (the Charter). She argued that the provisions were unconstitutional under section 7 of the Charter because they arbitrarily and overbroadly limit the freedom of offenders (Sharma at para 85). Additionally, she asserted that the legislation was unconstitutional under section 15(1) of the Charter because it disproportionately and negatively affects Indigenous offenders (Sharma at para 72). This, she contended, violates the right to equality before the law, derived from section 15(1). Ms. Sharma is of Ojibwa ancestry and a member of the Saugeen First Nation (Sharma at para 5). 

In 1996, Parliament introduced section 742.1 of the Criminal Code, creating the framework of the conditional sentence. The bill also included section 718.2(e) of the Criminal Code which instructed courts to consider alternatives to imprisonment, appropriate under the circumstances, “with particular attention to the circumstances of Aboriginal offenders” (Sharma at para 130). Both these provisions were designed to address Indigenous over-incarceration in Canadian prisons. The 2012 amendments, however, reduced judges’ discretion in limiting prison sentences for Indigenous offenders. 

Background on the case 

In 2015, Ms. Sharma was caught smuggling nearly 2 kilograms of cocaine into a Toronto airport. Ms. Sharma pleaded guilty to importing a controlled substance and was sentenced to 18 months in prison (Sharma at para 81). Ms. Sharma seemed to be an ideal candidate for a conditional sentence (Sharma at para 224). She had no previous criminal record. At only 20 years old, Ms. Sharma was her child’s sole provider. At the time of the offence, Ms. Sharma had little support and no financial resources. She was on the verge of eviction. She had smuggled the drugs after her then-partner offered her $20,000 to transport them from Suriname to Toronto, where she was apprehended (Sharma at para 5-6, 116). 

Furthermore, a Gladue report revealed that Ms. Sharma was subject to tremendous intergenerational trauma.[2] Her grandmother was a residential school survivor. Her mother had been placed in foster care. Ms. Sharma herself had been assaulted, forced to drop out of school, and struggled with substance abuse (Sharma at para 6, 121). At the time of sentencing, Ms. Sharma had moved to reserve lands and was receiving help for her substance use issues while working towards her high school diploma (Sharma at para 121). Ms. Sharma’s circumstances and the Indigenous over-incarceration crisis were a few of many compelling reasons for Ms. Sharma to complete her sentence in the community rather than in prison. 

Procedural History 

The trial judge determined that Ms. Sharma was ineligible for a conditional sentence due to the 2012 amendment, 742.1(c). This amendment prohibits offenders who are convicted of offences which carry maximum prison terms of 14 years or life, from receiving conditional sentences, even if the offender themselves receives a much shorter term. Ms. Sharma challenged the constitutionality of this provision and also 742.1(e)(ii), which prohibits offenders convicted of certain offences, including drug trafficking, from receiving a conditional sentence if the maximum penal term for the crime is 10 years or more. The trial judge dismissed her constitutional challenge under section 15 of the Charter (Sharma at para 20). At the time, Ms. Sharma did not include her section 7 challenges in oral arguments (Sharma at para 15). Ms. Sharma appealed this verdict and her sentence. 

At the Ontario Court of Appeal, Ms. Sharma renewed her challenge to the legislation under both section 7 and section 15 of the Charter. The majority of the court struck down the provisions as unconstitutional (Sharma at para 21). They held that both provisions were overbroad under section 7 of the Charter and impermissible under section 15(1) because they discriminated against Indigenous offenders (Sharma at paras 22-23). The Crown appealed to the Supreme Court of Canada. 

Majority at the Supreme Court of Canada 

The majority of the Supreme Court of Canada held that sections 742.1(c) and 742.1(e)(ii) are constitutional under section 7 of the Charter. While the amendments do inhibit “the right to life, liberty, and security of the person” guaranteed by section 7, through imprisonment, they do so in “accordance with the principles of fundamental justice” (Sharma at para 85). The statutes are neither arbitrary nor overbroad. 

The majority also upheld sections 742.1(c) and 742.1(e)(ii) as constitutional under section 15 of the Charter. Section 15(1) guarantees: 

  1. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 

The majority concluded that Ms. Sharma failed to meet the evidentiary burden required for a successful section 15 challenge. To succeed, Ms. Sharma would need to show 1) that the legislation disproportionately affected Indigenous people and 2) the disproportionate effects of the legislation reinforce, exacerbate, perpetuate, or create disadvantage. The Court found that Ms. Sharma failed to produce evidence which showed the legislation disproportionately impacts Indigenous offenders (Sharma at para 67, 76). The majority found that “historic or systemic disadvantage” alone was not enough to establish the disproportionate impact of this specific legislation on Indigenous offenders (Sharma at para 71). The analysis emphasizes a requirement to show causation through evidence that the impugned law “created or contributed to” the disproportional impact on the claimant group (Sharma para 45). Both amendments were upheld under section 15 because the arguments failed step one of the test due to the lack of evidence of causation. 

Dissent at the Supreme Court of Canada 

Four justices of the Supreme Court dissented to the majority holding in Sharma. Karakatsanis J., writing for the dissent, found both provisions unconstitutional, breaching both section 7 and section 15(1) of the Charter. Section 7 was breached because the revisions are overbroad (Sharma at para 118). By using the maximum sentence of a crime as a proxy for its seriousness, the legislation captures not only serious offenders but also offenders whose crimes were only potentially serious (at para 164). For example, if two offenders are convicted of the same crime, both will share the same maximum sentence. Yet the offender sentenced to only 1 year in prison has only committed a potentially serious crime, while the offender sentenced to 14 years imprisonment has committed a serious crime. Despite the differences in severity and actual penal term, both are barred from conditional sentencing by the same provision. Thus, the legislation captures offenders outside its intended scope (serious crimes) and is therefore overbroad. 

The dissent also held that both 742.1(c) and 742.1(e)(ii) are unconstitutional under section 15(1). The dissent recognizes that Indigenous over-incarceration is a result of Canada’s colonial history (Sharma at para 114). While sentencing laws cannot change this past or heal the social issues leading to over-incarceration, they are uniquely positioned to address or exacerbate the effects. 

The dissent applies the same test as the majority but states that the majority’s clarification “seek[s] to revise the test” and “resurrect[s] their rejected arguments in Alliance and Fraser” contrary to stare decisis” (Sharma at para 204). The dissent observes that facially equal treatment under the law may lead to unequal results (Sharma at para 187). The Gladue framework was specifically designed to combat this issue. By considering Indigenous circumstances during sentencing decisions, the courts were working towards achieving substantive equality. The amendments to section 742, however, limit access to conditional sentences and other remedial tools. While the legislation applies to all offenders, it distinguishes by race because it prevents Indigenous offenders from using the Gladue framework (Sharma at para 233). The legislation thus compels judges to give harsh prison sentences to Indigenous offenders where a lesser sentence may otherwise have been appropriate because of Gladue principles. Only Indigenous offenders are impacted in this way and imposing prison sentences exacerbate historic and systemic disadvantages (Sharma at para 237). Therefore, the dissent finds that the statutes are unconstitutional under section 15 of the Charter. 

Impacts of the Sharma decision 

There were 21 interveners in the Sharma case at the Supreme Court of Canada level.  In its factum, the David Asper Centre for Constitutional Rights (“Asper Centre”) argued that, because the criminal justice system plays a causal role in the disadvantage of Indigenous peoples, section 15 of the Charter imposes a positive remedial duty (Factum of the Intervener the David Asper Centre for Constitutional Rights at para 1). The majority of the Court dismissed this argument, finding that “15(1) does not impose a general, positive obligation on the state to remedy social inequalities or enact remedial legislation” (Sharma at para 63). Chris Rudnicki, a criminal lawyer and lecturer at Lincoln Alexander School of Law, called this particular result “profoundly disappointing.”[3] 

In their factum at the Court of Appeal, the Women’s Legal Education and Action Fund (“LEAF”) and the Asper Centre submitted evidence from Statistics Canada and government reports of the growing rates of over-incarceration of Indigenous people in Canada. From 2007/2008 to 2017/2018, admissions of Indigenous men to prison increased 28%. Admission of Indigenous women to custody increased 60%. Indigenous incarceration rates are also grossly disproportionate. Indigenous people make up only 4% of the Canadian adult population, yet they account for 30% of all admissions to provincial and territorial custody (Factum of the Interveners Women’s Legal Education and Action Fund and the David Asper Centre for Constitutional Rights at para 8). The statistical evidence included in the intervening submissions confirms the conclusions of the Ontario Court of Appeal about the over-incarceration of Indigenous women.  

The majority at the Supreme Court of Canada had serious concerns about the intervening parties’ submissions. “Interveners creating a new evidentiary record at the appellate level undermines the trial process” they concluded (Sharma at para 75). However, the majority of the Supreme Court failed to identify why they found it objectionable to include the intervening submissions in the evidentiary record. The decision to diminish the role of interveners, thus largely dismissing their evidence, was heavily critiqued by the dissent. This was one of the reasons the dissent found that “My colleagues’ revisions are not only unsolicited, unnecessary, and contrary to stare decisis; they would dislodge foundational premises of our equality jurisprudence. This is not “clarification”; it is wholesale revision” (Sharma at paras 205-206). Overall, LEAF feels the Sharma decision “will make future equality rights claims more difficult.”[4]  

The decision has serious repercussions on Indigenous peoples, as the dissent observed. The impugned provisions force the hands of judges to impose harsher sentences on Indigenous offenders than they may have otherwise (Sharma at 238). These prison sentences are often contrary to Indigenous principles of justice such as community healing, reconciliation, and reintegration of the offender (Sharma at para 214, 240). They also remove Indigenous people from their community, family, and culture, thereby stripping them of their support (Sharma at para 240). The decision fails to realize the objectives of section 718.2(e), to consider sentences alternative to prison terms, “with particular attention to the circumstances of Aboriginal offenders.” Sharma fails to meaningfully address Indigenous over-incarceration. The continued enforcement of 742.1(c) and 742.1(e)(ii) may reinforce cycles of intergenerational trauma. 

While reactions to the Court’s decision were largely negative,[5] Ms. Sharma’s lawyer, Nader Hasan, LEAF, and many others are using this as a rallying cry to pass Bill C-5.[6] If enacted, Bill C-5 would amend both the Criminal Code and the Controlled Drugs and Substances Act, repealing mandatory minimum sentences for a variety of offences. This would allow for greater judicial discretion when assessing the individual circumstances of offenders during sentencing as well as to increase the usage of conditional sentences. These proposed changes are designed to curb the over-incarceration of Black and Indigenous people in Canadian prisons.[7] 

Kailyn Johnson is a 1L JD candidate at the Faculty of Law and is a member of the Asper Centre’s Consent and Constitution student working group. 

[1] Conditional sentences are an alternative to serving a term in prison. Instead, individuals who meet legislative criteria and are not deemed a safety threat to their communities can serve their sentence in the community, under surveillance, with specific requirements. 

[2] Gladue reports collect relevant personal information on Indigenous offenders during the sentencing stage of a trial. These reports are used to tailor a prison sentence to suit both the individual circumstances of the offender as well their community. This may include information on the individual’s family history, culture, hereditary laws, and values. Reintegration, reconciliation, and community healing may be special considerations when sentencing Indigenous offenders (Gladue at para 214). 

[3] Chris Rudnicki, [@chrisrudnicki], ““There is no general, positive obligation on the state to remedy social inequalities or enact remedial legislation, nor is the legislature bound to its current policies.” A profoundly disappointing result in R v Sharma, 2022 SCC 39,” Twitter, 4 Nov 2022 

[4] Women’s Legal Education and Action Fund, “Supreme Court decision fails to address the mass incarceration of Indigenous women and makes equality rights claims more difficult,” 4 Nov 2022, https://www.leaf.ca/news/supreme-court-decision-fails-to-address-the-mass-incarceration-of-indigenous-women-and-makes-equality-rights-claims-more-difficult/. 

[5] Lisa Kerr [@coleenlisa], “This is a hard one to report. R v. Sharma. In a 5:4 decision, majority holds that Criminal Code sections that prevent conditional sentences do not limit s. 7 or s. 15 rights,” Twitter, 4 Nov 2022, Nader Hassan, [@Nader_Hassan_law], “ While today’s decision in #Sharma is beyond disappointing, the policy justification for #BillC5 is just as sound as ever. Parliament needs to address Indigenous mass incarceration,” Twitter, 4 Nov 2022, 

[6] Nader Hasan, [@Nader_Hasan_law], “While today’s decision in #Sharma is beyond disappointing, the policy justification for #BillC5 is just as sound as ever. Parliament needs to address Indigenous mass incarceration,” Twitter, 4 Nov 2022; Criminal Lawyers Association, [@ClaOntario], “Today’s @SCC_eng decision in R v. Sharma drives home the importance of Bill C-5. We call on the @SenateCA to pass C-5 quickly so that judges once again have discretion to craft fit sentences that take into account experiences with #systemicracism,” Twitter, 4 Nov 2022, 

[7] Department of Justice Canada, “Bill C-5: Mandatory Minimum Penalties to be repealed,” 7 Dec 2021, https://www.canada.ca/en/department-justice/news/2021/12/mandatory-minimum-penalties-to-be-repealed.html. 

The SCC in R v J.J.: Upholding the Constitutionality of Criminal Code Reforms which Remove Barriers that Deter Sexual Assault Complainants from Reporting

Posted on by Student

By: Caitlin Salvino

On June 23rd, 2022 the Supreme Court of Canada (SCC) released its decision in R v J.J..[1] This 6–3 ruling upheld the constitutionality of recent amendments to the Criminal Code that remove barriers for complainants within the sexual assault trial processes. This piece provides an overview of the history of sexual assault provisions in the Criminal Code and the SCC’s decision in J.J..

History of Sexual Assault Criminal Code Provisions

In 1983, the Criminal Code was reformed to narrow the provisions of “rape” and “indecent assault” into three levels of sexual assault.[2] The 1983 reforms also removed exemptions for marital rape and prohibited evidence on the complainant’s sexual history, subject to  limited exceptions.[3] Following the 1983 Criminal Code reforms, the constitutionality of limits on complainant sexual history evidence was challenged in R v Seaboyer.[4] In Seaboyer, the SCC struck down the Criminal Code provisions related to sexual history, finding that they excluded relevant evidence that would interfere with the accused’s right to make a full answer and defence.[5] The SCC held that these provisions were overbroad as they did not minimally impair the accused’s procedural rights.

In response to Seaboyer, Parliament re-introduced Criminal Code provisions that limited complainant sexual history evidence. These reformed sexual history provisions were deemed constitutional by the SCC in R v Darrach[6] and remain in place today under section 276 of the Criminal Code. These section 276 protections, also known as the “rape shield law”, establish that evidence related to the complainant’s sexual history is inadmissible if it supports assumptions that the complainant is: (1) more likely to have consented to the sexual activity at issue during the trial or (2) less worthy of belief.[7] Section 276 creates an exception to the prohibition of evidence related to sexual history, that requires four criteria to be met: (1) the evidence is not being introduced for the above mentioned assumptions (consent and belief), (2) the evidence is relevant to an issue at trial, (3) the evidence is of specific instances of sexual activity, and (4) the evidence has significant probative value that is not “substantially outweighed by the danger of prejudice to the proper administration of justice”.[8] Section 276(3) lists numerous considerations that judges must take into account during a sexual history evidence admissibility hearing, including society’s interest in encouraging reports of sexual assault and the potential bias against the complainant’s dignity and privacy.[9]

2018 Legislative Reforms to Sexual Assault Evidence Admissibility

Despite the existing rape shield law protections, barriers remain within the criminal justice system for individuals who experience sexual assault. Only 5% of all sexual assaults are reported to police.[10] There is attrition of sexual assault cases at all levels of the criminal justice system. Data from Statistics Canada found that “an accused was solely identified in three in five (59%) sexual assault incidents reported by police; less than half (43%) of sexual assault incidents resulted in a charge being laid; of these, half (49%) courted; of which just over half (55%) led to a conviction; of which just over half (56%) were sentenced to custody”.[11]

In response to the low levels of sexual assault reporting, Parliament in 2018 enacted further reforms to sexual assault trial procedures. Under sections 278.92 and 278.94 of the Criminal Code, Parliament passed amendments creating new procedures for screening complainant evidence to be introduced in a trial.[12] Prior to these amendments there were no procedures for the admissibility of complainant records held by the accused.[13] However, there were procedures for the admissibility of evidence related to the complainant’s prior sexual history under section 276 of the Criminal Code and there were procedures for the admissibility of complainant records held by third parties under section 278 of the Criminal Code. In relation to the latter, the defence can request access to third party records of the complainant to use as evidence in criminal trials.[14] This evidence includes records from medical and counselling centres, child welfare agencies, residential and public schools, drug and alcohol rehabilitation centres, immigration services, and sexual assault crisis centres.[15] The constitutionality of the third-party records processes under section 278 of the Criminal Code was upheld in R v Mills.[16]

The 2018 Criminal Code reforms sought to address this gap in the sexual assault legislative scheme and create processes governing the admissibility of complainant private records held by the accused. The twin Criminal Code provisions of sections 278.92 and 278.94 create a two-stage process for the introduction of records in sexual assault trials, with a focus on increasing the participation of sexual assault complainants. At the first stage, per section 278.93(2), the accused must submit an application to the judge that “set[s] out detailed particulars of the evidence that the accused seeks to adduce and the relevance of that evidence to an issue at trial”.[17] Subsequently, the judge will review the application considering the threshold tests under sections 278.92(2)(a) and (b) and depending on the type of evidence will also consider the factors laid out in sections 276(3) or 278.92(3) of the Criminal Code. If the judge determines that the application meets the threshold evidence requirements, they will proceed to stage two.[18]

At the second stage, the judge will hold a hearing to determine if the evidence should be admitted under the test set out in section 278.92(2) of the Criminal Code. The section creates differing admissibility tests for section 276 evidence and private records evidence. First, as already discussed, section 276 evidence applications must meet the conditions under section 276(2) and judges must consider the factors laid out in section 276(3).[19] Second, private records applications undergo the admissibility test laid out in section 278.92(2)(b).[20] This provision requires that the evidence meets two conditions: (1) the evidence is relevant to an issue at trial, and (2) the evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.[21] These two conditions must be examined with consideration of the factors listed in section 278.92(3).[22] At the second stage of the evidence admissibility process, the Criminal Code provisions permit the complainant to appear at the hearing and make submissions with assistance of counsel. The complainant’s participation does not extend to the trial and is limited to a victim’s impact statement at sentencing.[23]

The Constitutionality of the Complainant Records Admissibility Processes

Shortly following the passing of the 2018 Criminal Code amendments, their constitutionality was challenged. Two individuals charged with sexual assault (J.J. and Shane Reddick) argued that sections 278.92 and 278.84 of the Criminal Code violated their Charter rights, including the right to silence and the privilege against self-incrimination under sections 7 and 11(c); their right to a fair trial under sections 7 and 11(d); and their right to make a full answer and defence under sections 7 and 11(d).[24] The SCC majority decision, written by Chief Justice Wagner and Justice Moldaver, held that the 2018 amendments to the Criminal Code were constitutional.

First, at the outset, the SCC dismissed the claim that the evidence admissibility process engages the right to silence and the privilege against self-incrimination under sections 7 and 11(c) of the Charter.[25] The SCC made this finding on the basis that during the evidence admissibility processes the accused is not compelled to testify.[26]

Second, the SCC rejected that the evidence admissibility provisions infringe the accused’s right to a fair trial under sections 7 and 11(d) of the Charter. To begin, the SCC affirmed that in the context of the right to a fair trial, sections 7 and 11(d) must be assessed together because they are inextricably intertwined.[27] The SCC held that fair trial rights are not infringed because the evidence admissibility procedures reaffirm the fundamental principle of evidence law that only relevant evidence is admitted. The right to a fair trial does not extend to an unlimited right to have all evidence admitted. Instead, the accused’s Charter rights are only infringed when they are not able to admit relevant evidence.[28]

Third, the SCC held that the sexual assault complainant’s participation in the second stage of the evidence admissibility process does not infringe the rights of the accused to make a full answer and defence under sections 7 and 11(d) of the Charter. The SCC determined that the complainant’s participation does not impact the accused’s disclosure rights or undermine prosecutorial independence.[29] Further, the SCC rejected that the accused’s right to make a full answer and defence is undermined by the complainant learning of the evidence to be admitted before the trial. The SCC held that this right does not include having the complainant’s initial emotional reaction to introduced evidence occur during the trial.

Due to the determination that the evidence admissibility procedures for sexual assault do not infringe any Charter rights, the SCC declined to conduct a section 1 analysis to determine if a Charter infringement is demonstrably justified.[30]  

Looking Ahead

The Criminal Code provisions related to sexual assault have undergone extensive reform and litigation over the past forty years. The creation of admissibility procedures for evidence in sexual assault trials and the inclusion of complainant participation options is the most recent legislative reform enacted by Parliament to remove barriers to reporting sexual assault. The SCC in J.J. upheld the constitutionality of the sexual assault evidence admissibility procedures.[31] In doing so, the SCC recognised continued barriers to reporting for individuals who experience sexual assault and held that “more needs to be done”.[32]

Caitlin Salvino is a JD Candidate at the Faculty of Law and is the Asper Centre’s 2022 summer Research Assistant.

 

[1] R v J.J., 2022 SCC 28 [J.J.].

[2] The Criminal Code of Canada classifies sexual assault into three different levels: Level 1: (s. 271 – Sexual Assault) Any form of sexual activity forced on another person (i.e., sexual activity without consent), or non-consensual bodily contact for a sexual purpose (e.g., kissing, touching, oral sex, vaginal or anal intercourse). Level 1 sexual assault involves minor physical injury or no injury to the victim. Conviction for a level 1 sexual assault is punishable by up to 10 years in prison. Level 2: (s. 272 – Sexual Assault with a weapon, threats to a third party or causing bodily harm) A sexual assault in which the perpetrator uses or threatens to use a weapon, threatens the victim’s friends or family members, causes bodily harm to the victim, or commits the assault with another person (multiple assailants). Conviction for a level 2 sexual assault is punishable by up to 14 years in prison. Level 3: (s. 273 – Aggravated sexual assault) A sexual assault that wounds, maims, or disfigures the victim, or endangers the victim’s life. Conviction for a level 3 sexual assault is punishable by up to life in prison. See Criminal Code, RSC 1985, c. C-46, ss 271-273; Martha Shaffer, “The impact of the Charter on the law of sexual assault: plus ca change, plus c’est la meme chose” (2012) 57 SCLR 354.

[3] Shaffer, supra note 2 at 337-338.

[4] R v Seaboyer, [1991] 2 SCR 577, 83 DLR (4th) 193.

[5] Ibid at 582-585.

[6] R v Darrach, 2000 SCC 46.

[7] Criminal Code, supra note 2, s 276 (1).

[8] Ibid at s 276 (2).

[9] Ibid at s 276 (3)

[10] Department of Justice Canada, “Sexual Assault – JustFacts”, (31 January 2017), online: https://www.justice.gc.ca/eng/rp-pr/jr/jf-pf/2017/may02.html.

[11] Statistics Canada, “From arrest to conviction: Court case outcomes of police-reported sexual assaults in Canada, 2009 to 2014”, (26 October 2017), online: https://www150.statcan.gc.ca/n1/pub/85-002-x/2017001/article/54870-eng.htm.

[12] An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, SC 2018, c 29.

[13] J.J., supra note 1 at para 4.

[14] Criminal Code, supra note 2, s 278.3(2) – 278.3(5)

[15] Karen Busby, “Discriminatory uses of personal records in sexual violence cases” (1996) 9:1 CJWL 148 at 149.

[16] R v Mills, [1999] 3 SCR 668, 180 DLR (4th) 1.

[17] Criminal Code, supra note 2, s 278.93 (2).

[18] J.J., supra note 1 at para 28-29.

[19] Ibid at para 31.

[20] Ibid at para 32.

[21] Criminal Code, supra note 2, s 278.92(2)(b)

[22] The factors to consider include society’s interest in encouraging the reporting of sexual assault offences and the potential prejudice to the complainant’s personal dignity and right of privacy. For an exhaustive list, see ibid at s 278.92(3).

[23] J.J., supra note 1 at para 33.

[24] Ibid at para 112.

[25] Ibid at paras 148-150.

[26] Ibid.

[27] Ibid at para 114.

[28] Ibid at paras 125 and 129.

[29] Ibid at paras 151 and 176.

[30] Ibid at para 191.

[31] Ibid.

[32] Ibid at para 2.

A Clear and Decisive Supreme Court Ruling on Public Interest Standing: Attorney General of British Columbia v. Council of Canadians with Disabilities

Posted on by Student

by Caitlin Salvino

On June 23rd, 2022 the Supreme Court of Canada (SCC) released its decision in Attorney General of British Columbia v. Council of Canadians with Disabilities.[1] This ruling reaffirms the important role of public interest standing in systemic litigation and will have long lasting impacts on future Charter litigation.

Public Interest Standing

All cases heard by the courts require parties to have standing.[2] In most cases parties have private interest standing through a direct legal interest in the case.[3] In some cases, there are no parties with private interest standing and a party may apply for public interest standing to pursue the litigation. The courts have long recognised that there must be limitations on public interest standing to avoid over-burdening the courts, deter “busybody” litigants, and maintain the appropriate role of the courts within Canada’s constitutional democracy.[4] The courts have thus developed a test to determine whether public interest standing should be granted.[5]

The leading case on public interest standing is Canada v Downtown Eastside Sex Workers United Against Violence Society.[6] In Downtown Eastside Sex Workers, the SCC established that the court will consider three factors in assessing public interest standing: (1) if there is a serious and justiciable issue;[7] (2) if the claimant has a genuine interest in the proceedings ;[8] and (3) if the litigation is a reasonable and effective means to bring forward the challenge.[9] Furthermore, the SCC stipulated that these three public interest standing factors should not be assessed as a checklist. Instead, the factors should be assessed cumulatively through a purposeful and flexible interpretive approach.[10]

Council of Canadians with Disabilities and the Jurisprudence on Public Interest Standing

Despite the criteria laid out in Downtown Eastside Sex Workers, less than ten years later the SCC granted leave  in Council of Canadians with Disabilities.[11]  The Council of Canadians with Disabilities (CCD) had sought public interest standing to challenge the constitutionality of the British Columbia’s Health Care (Consent) Act, Mental Health Act and Representation Agreement Act. This combined legislative scheme permits the administration of psychiatric medical treatment to patients living with disabilities related to mental health and mental illness without their consent. Unlike all other forms of medical treatment, when a patient is being involuntarily held in a mental health facility, psychiatric treatment can be administered without the consent of the patient or the patient’s identified substitute decision-maker.[12] The CCD argued that this legislative scheme violated sections 7 and 15 of the Charter in a way that could not be justified under section 1.[13]

Initially, the constitutional challenge was brought by individuals with private interest standing who had undergone non-consensual psychiatric treatment. The CCD was supporting this litigation as a co-plaintiff. However, the individual plaintiffs subsequently withdrew from the proceedings after the Attorney General of British Columbia requested their medical records.[14] The CCD then pursued the Charter claims independently by seeking public interest standing, which the Attorney General of British Columbia challenged. At the court of first instance, the Attorney General’s summary trial motion was granted and the CCD was denied public interest standing.[15] On appeal, the British Columbia Court of Appeal granted the CCD public interest standing.[16] The case was then granted leave to appeal to the SCC.[17]

In Council of Canadians with Disabilities, the SCC unanimously reaffirmed the public interest standing analysis established in Downtown Eastside Sex Workers. This decision is significant because it addresses interpretive gaps that remained from Downtown Eastside Sex Workers and sends a strong message affirming the important role of public interest standing parties within Canada’s constitutional democracy.

First, the SCC in Council of Canadians with Disabilities provided additional guidance on the public interest standing analysis. The court rejected the CCD’s argument, and the Court of Appeal’s finding, that the principles of legality and access to justice should merit particular weight in the public interest standing analysis.[18] Instead, the SCC held that the principles of legality and access to justice permeate all three factors that a court must consider when deciding whether to grant public interest standing.[19] The principle of legality is linked to the rule of law by requiring that there are reasonable ways for individuals to challenge the legality of State action.[20] The principle of access to justice is symbiotically linked to public interest standing by providing an avenue to challenge the legality of State action and uphold the rule of law.[21]  The SCC noted that the dual principles of legality and access to justice are most relevant to the consideration of the third factor in the public interest standing  analysis[22] but cautioned against courts interpreting these principles as “hard and fast requirements or free-standing, independently operating tests”.[23]

Second, the SCC clarified the requirement of a sufficient factual setting for cases where parties are granted public interest standing. The SCC established that there is no strict requirement that public interest litigation always be in partnership with a directly affected co-plaintiff.[24] Such an interpretation would undermine the principles of legality and access to justice by creating barriers to litigation for marginalised populations. Instead, the SCC held that parties seeking public interest standing must “show that a sufficiently concrete and well-developed factual setting will be forthcoming at trial”.[25] The SCC reasoned that at the pre-liminary stages it is unnecessary for the party seeking public interest to provide trial-level evidence. However, the courts retain the ability to reconsider standing at any point of the proceeding if there is not a sufficient evidentiary record to conduct the trial.[26]

Finally, the SCC decision in Council of Canadians with Disabilities is significant because it represents a vindication of the public interest work of  CCD, and uplifts the importance of public interest standing in systemic litigation. The CCD first filed the original notice of civil claim in 2016 and had been litigating the preliminary issue of standing for six years.[27] Rather than referring the case back to the British Columbia Supreme Court for re-consideration, the SCC granted the CCD public interest standing because “it is in the interests of justice”.[28]

This decision also sends a message to governments who seek to shut down public interest litigation on behalf of vulnerable populations at preliminary stages. The SCC makes clear that the threshold to establish public interest standing should not be onerous and should only be denied in limited circumstances. This message is in part demonstrated through the SCC’s decision to grant special costs in favour of the CCD.[29] Special costs requires the losing party to cover the full costs of the litigation and is much higher than the standard “party costs” that usually only cover 30% to 40% of the actual litigation costs incurred.[30] The SCC, through this decision and the awarding of special costs, sends a cautionary message to government’s considering challenging public interest litigation based on standing.

The David Asper Centre Intervention in Council of Canadians with Disabilities

The David Asper Centre for Constitutional Rights participated as an intervener in Council of Canadians with Disabilities. Through their intervention factum, the Asper Centre focused on the role of public interest standing as a mechanism in litigation pursuing a remedy under section 52(1) Constitution Act, 1982. Section 52(1), also known as the Constitution’s “supremacy clause”,[31] establishes that “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect”.[32]  The Asper Centre argued that section 52(1) is a systemic remedy that does not require an individual plaintiff.[33]  In their factum, the Asper Centre also highlighted challenges associated with class actions, which could become one of the only viable ways for parties to pursue litigation for Charter rights violations if public interest standing were to be restricted.[34]

In Council of Canadians with Disabilities, without referencing the Asper Centre, the SCC adopted its stance on the challenges associated with class actions as an alternative means to pursue litigation.[35] Following the release of the decision in Council of Canadians with Disabilities, the Asper Centre Executive Director Cheryl Milne shared that the SCC “listened to the submissions of the CCD and the Asper Centre, that relying upon class action litigation as a more effective means of bringing this claim forward is questionable. [The SCC] note[s] that class actions are ‘rife with unknowns,’ including the fact that their primary focus is on damages and not always the systemic issue raised by a public interest litigant”.[36]

Looking Ahead

The unanimous SCC decision in Council of Canadians with Disabilities reaffirms and fills the gaps in the existing jurisprudence on public interest standing. The SCC released a clear and decisive ruling on the importance of the parties with public interest standing pursuing systemic litigation on behalf of vulnerable populations. Moving forward, the decision Council of Canadians with Disabilities is likely to increase access to justice for vulnerable populations and ensure that potential State Charter infringements are accountable under the rule of law.

The Asper Centre intervention factum in Council of Canadians with Disabilities can be read here. 

Caitlin Salvino is a JD Candidate at the Faculty of Law and is the Asper Centre’s 2022 summer Research Assistant.

 

[1] British Columbia (Attorney General) v Council of Canadians with Disabilities, 2022 SCC 27 [Council of Canadians with Disabilities].

[2] Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, at para 1 [Downtown Eastside Sex Workers].

[3] Mia Reimers, “Constitutional Challenges: Public Interest Standing”, (26 September 2014), online: Centre for Constitutional Studies <https://www.constitutionalstudies.ca/2014/09/constitutional-challenges-public-interest-standing/>.

[4] Downtown Eastside Sex Workers, supra note 2 at para 1.

[5] Ibid at para 2.

[6] Downtown Eastside Sex Workers, supra note 2.

[7] Ibid at paras 39–42.

[8] Ibid at para 43.

[9] The third stage of the public interest standing analysis adjusted the precedent from Minister of Justice of Canada v. Borowski. In Borowski, the SCC held that the third public interest standing factor required that the party seeking public interest standing show that: “there is no other reasonable and effective manner in which the issue may be brought before the Court”. The SCC in Downtown Eastside Sex Workers altered the rigid Borowski third factor from requiring that litigation is the most effective means of bringing forward the case to requiring that the litigation is an effective means of bringing forward the case. See Minister of Justice of Canada v Borowski, [1981] 2 SCR 575, 130 DLR (3d) 588 and  Downtown Eastside Sex Workers, supra note 2 at paras 19–20, 44.

[10] The SCC affirmed the purposeful and flexible interpretive approach to public interest standing that was established in Canadian Council of Churches v. Canada (Minister of Employment and Immigration). See Downtown Eastside Sex Workers, supra note 2 at para 23 citing Canadian Council of Churches v Canada (Minister of Employment and Immigration), [1992] 1 SCR 236, 88 DLR (4th) 193, at 252.

[11] Council of Canadians with Disabilities, supra note 1.

[12] Ibid at para 8.

[13] Ibid.

[14] Ibid at paras 9–10. Also see Council of Canadians with Disabilities v British Columbia (Attorney General), 2020 BCCA 241, at para 21 [Council of Canadians with Disabilities BCCA].

[15] MacLaren v British Columbia (Attorney General), 2018 BCSC 1753.

[16] Council of Canadians with Disabilities BCCA, supra note 14.

[17] Attorney General of British Columbia v. Council of Canadians with Disabilities, 2022 SCC 27, leave to appeal to SCC granted, 2021 CanLII 24821.

[18] Council of Canadians with Disabilities, supra note 1 at para 31.

[19] Ibid at para 56.

[20] Ibid at para 33.

[21] Ibid at para 34.

[22] The third public interest standing factor is whether the litigation is a reasonable and effective means to bring forward the challenge. See Downtown Eastside Sex Workers, supra note 2 at para 44. Also see Council of Canadians with Disabilities, supra note 1 at para 58.

[23] Council of Canadians with Disabilities, supra note 1 at para 69.

[24] Ibid at paras 63–67.

[25] Ibid at para 71.

[26] Ibid at paras 72, 74–75.

[27] Ibid at para 122.

[28] Ibid at para 78.

[29] Ibid at paras 119–123.

[30] Peter J Roberts, “The Thorny issue of Costs and Special Costs”, (3 November 2014), online: Lawson Lundell LLP <https://www.lawsonlundell.com/Commercial-Litigation-and-Dispute-Resolution-Blog/the-thorny-issue-of-costs-and-special-costs>.

[31] Peter Hogg, Constitutional Law of Canada, student ed (Scarborough: Carswell, 2006) at 850.

[32] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 52(1).

[33] Attorney General of British Columbia v. Council of Canadians with Disabilities, 2022 SCC 27 (Factum of Intervener David Asper Centre for Constitutional Rights, at para 6).

[34] Ibid at paras 13-15.

[35] Council of Canadians with Disabilities, supra note 1 at paras 113–116.

[36] Quote provided directly from Executive Director of the Asper Centre Cheryl Milne.

The Curious Case of Section 15 and Courts of First Instance: The Joint Asper Centre, LEAF and West Coast LEAF Intervention in Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al 

Posted on by Student

by Caitlin Salvino

In the Fall of 2022, the Supreme Court of Canada (SCC) will hear the case Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al.[1] The David Asper Centre for Constitutional Rights, West Coast Legal Education and Action Fund (West Coast LEAF), and Women’s Legal Education and Action Fund (LEAF) have been jointly granted intervener status.[2] Their joint intervention focuses on the treatment of claims under section 15 of the Canadian Charter of Rights and Freedoms (Charter) by courts of first instance.

The Safe Third Country Agreement with the United States

In Canada, an individual can apply for refugee status at an official Port of Entry or at an Immigration, Refugees and Citizenship Canada office. To qualify for refugee status the claimant must either: (1) have a well-founded fear of persecution or (2) are at risk of torture, or cruel or unusual punishment in their home countries.[3]

In Canada, the federal government has restricted Port of Entry asylum claims through the Safe Third Country Agreement (STCA) with the United States (US). The STCA bars refugee claimants that arrive at the Canadian border from the US, unless they meet a narrow category of exceptions.[4] The STCA expects refugees to make an asylum claim in the first safe country they enter, in this case the US. The Canadian government maintains that countries will only be recognised as a “safe third country” if they respect human rights and offer a high degree of protection to refugee claimants.[5]  The Immigration and Refugee Protection Act (IRPA) requires the Government of Canada to continuously review the STCA with the US to ensure that it meets  four conditions listed in the IRPA.[6] The STCA with the US has been criticised by refugee and human rights organisations, based on increasing evidence of mistreatment of refugee claimants in the US.[7]

Challenging the Constitutionality of the Safe Third Country Agreement

In 2017, the STCA was jointly challenged by refugee claimants barred under the STCA, together with the Canadian Council of Refugees, Amnesty International and the Canadian Council of Churches. In addition to arguing that provisions of the STCA were ultra vires, the Applicants argued that the combined effect of sections 101(1)(e) of IRPA and 159.3 of the Immigration and Refugee Protection Regulations unjustifiably infringed sections 7 and 15 of the Charter.[8]

Under section 7, the Applicants argued that many asylum seekers rejected under the STCA are automatically imprisoned upon their return to the US as a form of punishment depriving the claimants of their section 7 rights to liberty and security of the person.[9] With respect to section 15, the Applicants argued that the STCA with the US has a disproportionate impact on female-identifying refugee claimants. This claim was supported by evidence of a narrower interpretation of gender persecution asylum claims in the US[10] and a one-year bar on all refugee claims in the US.[11] The one-year ban on refugee claims requires an individual to seek asylum within one year of experiencing persecution – a restriction that poses a barrier for women and 2SLGBTQQIA[12] individuals who experience gender persecution that involve unique forms of trauma that often result in delayed reporting.[13]

The Applicants succeeded at the Federal Court in 2020. The Federal Court declared that the provisions[14] enacting the STCA unjustifiably infringed section 7 of the Charter.[15] The Federal Court held that the STCA was intra vires federal authority and declined to address the arguments put forward on section 15 of the Charter.[16] As a remedy for the section 7 violation, the impugned provisions were declared to have no force or effect and the declaration of invalidity was suspended for six months.[17]

The Federal Court ruling was overturned by the Federal Court of Appeal in 2021.[18] The Federal Court of Appeal agreed with the lower court that the STCA is intra vires the federal authority[19] but disagreed with the findings with respect to section 7 of the Charter.[20] The Federal Court of Appeal, held that the two impugned provisions, which recognise the US as a safe third country, do not cause the harms being challenged under the Charter.[21] Instead, the Federal Court of Appeal held that section 102(3) of IRPA, which includes the criteria for safe third country designation, should have been challenged under judicial review in relation to the alleged harms under the Charter.[22] Regardless of the appropriate approach, the Federal Court of Appeal disagreed with the lower court’s factual findings on section 7, which the Federal Court of Appeal deemed insufficient and unrepresentative of the experiences of refugee claimants on the whole.[23] On section 15, the Federal Court of Appeal agreed with the Federal Court’s approach to judicial restraint and also declined to address the claim based on equality rights.[24]

Joint Asper Centre, LEAF and West Coast LEAF Intervention

In Canada, there is a growing recognition of the relevance of gender-related persecution in refugee asylum claims. Although it is not yet recognised as an independent ground to establish fear of persecution, if claimed, gender-related persecution must be assessed by the Refugee Division panel considering the claim.[25] The assessment of gender-related persecution claims requires an examination of the link between gender persecution and the enumerated grounds in the Refugee Convention.[26]

The Applicants argued that the STCA violated both sections 7 and 15 of the Charter. Under section 15, the Applicants argued that the STCA disproportionately impacts female-identifying refugees[27] and provide an extensive evidentiary record of gender discrimination under the STCA.  After determining that provisions of the STCA unjustifiably infringed section 7 of the Charter the Federal Court declined to address the section 15 claim.[28] In doing so, the Federal Court made no factual findings on the evidence of gender-based discrimination within the STCA legal regime. The Federal Court’s disregard of the section 15 claim was upheld by the Federal Court of Appeal who determined that lower courts are not required to consider all Charter claims because section 15 “does not enjoy ‘superior status in a hierarchy of rights’”.[29]

The joint Asper Centre, West Coast LEAF and LEAF intervention for the upcoming SCC hearing focuses on the Federal Court’s decision to not consider and make factual findings on all Charter issues raised that are supported by an extensive evidentiary record. The joint interveners argue that the Federal Court should have decided the section 15 claim and the refusal to consider the section 15 claim inappropriately applied the doctrine of judicial restraint.[30]

The joint interveners support their position with three arguments. First, a purposive interpretation of the Charter as a whole requires a ruling on all Charter claims raised with an extensive evidentiary record. The Federal Court’s decision to decline considering the section 15 issue altered the subsequent justificatory analysis of section 1 and the appropriate remedy.[31] Second, the lower court erred in its application of the principle of judicial restraint, which does not permit a court to favour one Charter claim over another.[32] This flawed interpretation of the principle of judicial restraint has the practical implication of creating a hierarchy of Charter rights, within which section 15 is relegated to the bottom.[33] Third, the Federal Court’s failure to address the section 15 claim minimises the issue of gender-based violence and historic disadvantage experienced by women and 2SLGBTQQIA individuals.[34]

Looking Ahead

The SCC hearings in Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al. will be heard in Fall 2022.[35] The joint intervention by the Asper Centre, West Coast LEAF and LEAF argues that this case represents a unique opportunity for Canada’s highest court to send a directive to lower courts regarding the treatment of court cases with multiple Charter claims. This guidance on the treatment of multiple Charter claims in a single case is particularly relevant to equality rights under section 15 – a Charter provision that has been historically dismissed[36] and has experienced uncertainty based on its “continual reinvention” in the jurisprudence.[37]

The Asper Centre, West Coast LEAF and LEAF filed their joint intervention factum on June 15, 2022 and it can be read here. 

Caitlin Salvino is a JD Candidate at the Faculty of Law and is the Asper Centre’s 2022 summer Research Assistant.

[1] The date of the SCC hearings for Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al. is October 3, 2022.

[2] Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72, leave to appeal to SCC granted, 2021 CanLII 129759. 

[3] Immigration, Refugees and Citizenship Canada, “How Canada’s refugee system works”, (27 November 2019), online: Government of Canada https://www.canada.ca/en/immigration-refugees-citizenship/services/refugees/canada-role.html.

[4] Immigration, Refugees and Citizenship Canada, “Canada-U.S. Safe Third Country Agreement”, (23 July 2020), online: Government of Canada https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement.html.

[5] Overview of the Canada–United States Safe Third Country Agreement Background Paper, 4, by Madalina Chesoi & Robert Mason, 4 2020-70-E (Library of Parliament, 2021) at 1–2.

[6] The four conditions that are evaluated in each review are: (1) if they are a party to the Refugee Convention and Convention Against Torture; (2) its policies and practices are in line with those two international treaties; (3) its human rights record and (4) whether they are party to an STCA agreement with Canada. See Immigration, Refugees and Citizenship Canada, supra note 3.

[7] “US as a Safe Third Country Infographic”, (June 2017), online: Canadian Council for Refugees <https://ccrweb.ca/en/us-safe-third-country-infographic>; Contesting the Designation of the US as a Safe Third Country, by Amnesty International & Canadian Council for Refugees (2017); “Refugees entering from US and Safe Third Country: FAQ”, (February 2017), online: Canadian Council for Refugees https://ccrweb.ca/en/refugees-entering-us-and-safe-third-country-faq.

[8] Canadian Council for Refugees v Canada (Immigration, Refugees and Citizenship), 2020 FC 770, at paras 82–83 [Canadian Council for Refugees FC].

[9] Ibid.

[10] Ibid at para 151.

[11]  Ibid at para 153.

[12] The acronym 2SLGBTQQIA refers to Two-Spirit, lesbian, gay, bisexual, transgender, queer, questioning, intersex and asexual.

[13]  Canadian Council for Refugees FC, supra note 8 at para 153.

[14] Immigration and Refugee Protection Act, SC 2001, c 27, s 101(1)(e), 159.3.

[15] Canadian Council for Refugees FC, supra note 8 at para 162.

[16] Ibid at paras 151–154.

[17] Ibid at para 163.

[18] Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72, at para 179 [Canadian Council for Refugees FCA 2021].

[19] Ibid at para 179.

[20] Ibid at paras 132–168.

[21] Ibid at paras 46–47.

[22] Ibid at paras 92–93.

[23] Ibid at paras 132–168.

[24] Ibid at paras 169–174.

[25] Immigration and Refugee Board of Canada, Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution, online: https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir04.aspx.

[26] The enumerated grounds under the Refugee Convention are having a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. See UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, 1951.

[27] Canadian Council for Refugees FC, supra note 8 at para 151.

[28]  Ibid at para 154.

[29] Canadian Council for Refugees FCA 2021, supra note 19 at para 172 citing Gosselin, supra note 25 at para 26.

[30] Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72, leave to appeal to SCC granted, 2021 CanLII 129759 (Factum of Joint Interveners Asper Centre, West Coast LEAF and LEAF, at para 3).

[31] Ibid at para 4.

[32] Ibid at para 18.

[33] Ibid at para 4.

[34] Ibid at para 26.

[35] The date of the SCC hearings for Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al.is October 3, 2022.

[36] Bruce Ryder & Taufiq Hashmani, “Managing Charter Equality Rights: The Supreme Court of Canada’s Disposition of Leave to Appeal Applications in Section 15 Cases, 1989-2010” (2010) 51 SCLR 505; Jonnette Watson Hamilton & Jennifer Koshan, “Adverse Impact: The Supreme Court’s Approach to Adverse Effects Discrimination under Section 15 of the Charter” (2014) 19 Rev Const Stud 191.

[37] Jennifer Koshan & Jonnette Watson Hamilton, “The Continual Reinvention of Section 15 of the Charter” (2013) 64 UNBLJ 19.