Supreme Court of Canada

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.

Supreme Court’s Ruling in Recent Extradition Case Disappoints: Comment

Posted on by Tal Schreier

by Patrick Enright

This past week the Supreme Court of Canada released its decision in the landmark extradition case of India v Badesha.  The case – which the Asper Centre intervened in earlier this year – involved the possible extradition of an infamous couple to India to face charges of conspiracy to commit murder.  The case raised the intriguing question of when, and if, diplomatic assurances from a foreign state can make extradition to a foreign state Charter-compliant. India, for its part, has a notorious human rights record with respect to treatment of prisoners in its custody. Systemic abuse, sexual assault, a lack of potable water, and cramped living conditions are all endemic throughout the system – and abuse from prison guards is a common occurrence.

The question before the Court was this: can mere assurances of safety from the Indian government make up for all this?

The Supreme Court’s answer seems to be “no.” But much remains uncertain. On the plus side, the Court made it clear that diplomatic assurances cannot, by themselves, make up for evidence of human rights abuses in a foreign country. And the Court made it equally clear that general evidence of widespread human rights abuses can be used as evidence that specific persons will be subject to torture and mistreatment upon extradition to a foreign state.

It also laid out the considerations that must be taken into account when assessing the reliability of assurances against torture. Factors such as the specificity of the assurances, the foreign state’s capacity to comply with the assurances, and the ability to monitor and verify the foreign state’s compliance with assurances must all be considered.

But the good news stops there. Much of the decision’s positive elements are muddled by the Court’s insistence on including a number of policy considerations that, we are told, must also colour the analysis. Courts must in each case consider the relationship between Canada and the recipient state, as well as the seriousness of the offence, when determining whether a surrender order meets constitutional muster.

There is, however, an obvious problem with this. The question of whether policy considerations should tip the scale in favor of extraditing leaves too much discretion in the hands of politicians – instead of the Courts. One only has to look at the fallout from the payment to Omar Khadr to realize that importing political considerations into questions of rights-protection is often a marriage made in hell.

When assessing the role of diplomatic assurances in determining whether extradition is appropriate, then, the question should be a simple one…can the state actually fulfill its promises?

The Asper Centre’s submissions urged the Supreme Court to place this question at the heart of the analysis on judicial review of extradition cases. We urged the Court to require the state to produce evidence that it could fulfill its promises and safeguard the rights of Canadian citizens’ subject to extradition. The court, for its part, only partially heeded our warning – opting instead to list a catalogue of things that are to be considered when assessing a surrender order – some rights-friendly, some not.

The Asper Centre’s outside counsel, John Norris, was also troubled by the court’s deference to the Canadian government on extradition cases, yet he too chose to see the silver lining as the court did in the end uphold the need to carefully consider human rights in extradition cases. “You can see it as the glass is half-full or half-empty. I prefer to see it as half-full because the emphasis on human rights is an important part of the judgment,” Norris commented.

As the proverbial wisdom has always said: sometimes you win, and sometimes you lose. And sometimes you lose, but the result isn’t quite as bad as you thought it might be.

And I guess that’s something.

Patrick Enright is a third-year JD candidate at the University of Toronto’s Faculty of Law and was a student in the Asper Centre half time clinic, who assisted with the Asper Centre’s intervention in this case.

A Trip to the Court: Reflections on an Asper Centre Intervention at the SCC

Posted on by Tal Schreier

By: Patrick Enright

It is hard not to think that the world is now teetering on the edge of disintegration. Things fall apart. A vulgar reality television host is now President of the United States. Protests are erupting on our university campuses, the “fake news” media is more distrusted than ever, and people are losing faith in liberal democratic institutions. We are now – as it has been said –  living in a “post-fact” world, where truth and falsehood have become indistinguishable, and the very foundations of liberalism have been shaken to their core. Alternatives are now being sought to a social and political order built on the enlightenment promises of “life, liberty, and the pursuit of happiness.” The falcon can no longer hear the falconer.

In such times it is a temporary relief to take a visit to the Supreme Court of Canada. On the 35th anniversary of the Charter it stands as a healthy reminder that some of our most august institutions remain unscathed by these wider political tremors.

I was afforded just such a reminder on March 20th, when I traveled to Ottawa to hear the case I had been working on argued before the nine Justices of the Court. McLachlin. Moldaver. Abella. Rowe. Cote. Wagner. Karakatsanis. Gascon and Brown. All were there to hear the arguments in a case called The Republic of India v Badesha (although Brown was not physically present and watched on from a remote location). The case involved the grisly matter of what is now popularly referred to as an “honour killing.” The two respondents – Sujit Badesha and Malkit Kaur Sidhu – were accused of orchestrating and paying for the murder of Ms. Sidhu’s daughter, Jassi back in the year 2000. It seems that Jassi refused to comply with her parents’ desire that she marry a 60+ year old business associate of Mr Badesha’s. Instead of adhering to her parents demands, then, she fled to India to marry a man she had recently fallen in love with – a handsome young rickshaw driver named Mithu.

It was a Romeo and Juliet story that would, like Shakespeare’s titular characters, end in tragedy. When Mr. Badesha and Ms. Sidhu found out about the marriage, they allegedly hired a team of hitmen to kill Jassi for having dishonored the family name. These men (allegedly) tracked Jassi down, cut her throat, and dumped her body in a local ravine.

The issue in the case surrounded whether extraditing Badesha and Sidhu to face charges in India for the murder of Jassi would violate their right to life, liberty and the security of the person under the Charter. While India had offered assurances that the two would not be mistreated on arrival, the evidence showed that the conditions in Indian prisons are, frankly, abhorrent. Over-crowding, a lack of potable water, a lack of access to medical resources, and sexual assault are all endemic problems within the Indian prison system. The constitutional question, then, was this: can diplomatic assurances make up for all these problems?

John Norris, a lawyer and professor here at the law school, stood up to argue our case before the court. He urged the Justices to consider the possibility of holding a trial in Canada as a viable alternative to extraditing the pair. It was argued that if this option were pursued, the only thing that would be lost is the opportunity to hold a trial on Indian soil (where, admittedly, the crime actually took place).

“That’s a pretty big loss,” Just Moldaver snapped back, leaning forward in his chair.

But Mr. Norris – as a seasoned veteran of the Court – gently reminded Justice Moldaver in response that most extradition cases do not involve crimes that are sufficiently connected to Canada to make a Canadian trial a viable option. It is only in those rare cases where this alternative is available that a court would be obliged to take this into consideration.

With only five minutes to speak before the Court, this was the most ground that could be made – but it was a proud moment for me (having worked on the file), the Asper Centre, and the legal profession to see Mr. Norris, as well as the other interveners, travel to Ottawa to speak on behalf of the Charter. His efforts, as well as the efforts of all the interveners, were a stirring tribute to what is now the thirty-fifth birthday of our rights and freedoms.

While the outcome of the case remains uncertain, it was heartening to see the Justices interact with the parties’ submissions, carefully consider the evidence, and grapple with Canada’s international obligation to human rights. On the Charter’s anniversary it was a reminder as to why we have a Charter in the first place; to provide those subject to state power the chance to be heard. It is the right to have our most fundamental interests thoughtfully considered, and the opportunity to pause the inexorable force of the state – if only for a moment. It is, in short, the embodiment of the idea that all those subject to state power are to be treated fairly, justly, and with the human dignity that they deserve.

Even Mr. Badesha and Ms. Sidhu.

 

Patrick Enright is a second-year JD candidate at the University of Toronto Faculty of Law and was a student in the Asper Centre half time clinic in the Winter 2017 term.

Asper Centre was granted leave to intervene in the SCC case on voting rights for long-term expats

Posted on by Tal Schreier

The case, Gillian Frank, et al. v Attorney General of Canada concerns two applicants who are Canadian citizens residing in the United States for employment reasons, who intend to return to Canada if circumstances permit. Both applicants were refused voting ballots for the 2011 Canadian General Election since they had been resident outside Canada for five years or more. The applicants sought a declaration that certain provisions of the Canada Elections Act violated their Charter-protected right to vote. A judge of the Ontario Superior Court of Justice declared the impugned provisions of the Act unconstitutional by reason of violating the applicants’ right to vote under s. 3 of the Charter, and the violation was not justifiable under s. 1.

A majority of the Court of Appeal allowed the Attorney General’s appeal, finding that the denial of the vote to non-resident citizens who have been outside Canada for five years or more is saved by s. 1. The limitation is rationally connected to the government’s pressing and substantial objective of preserving Canada’s “social contract” (whereby resident citizens submit to the laws passed by elected representatives because they had a voice in making such laws); it minimally impairs the voting rights of non-resident citizens by ensuring they may still vote if they resume residence in Canada; and the limitation’s deleterious effects do not outweigh the law’s benefits. In dissent, Laskin J.A. would have dismissed the appeal, finding that the “social contract” was not an appropriate nor a pressing and substantial legislative objective, and should not have been considered by the court. Justice Laskin also found that the denial of the right to vote was not rationally connected to the stated objective and did not minimally impair the rights of non-resident citizens, and that its harmful effects outweighed the stated benefits of the limitation.

The Asper Centre will intervene in March of 2018.