Michael Bryant on Challenging the Province on Charter Grounds

  • November 29, 2018
  • Interview by Saba Ahmad

The Canadian Civil Liberties Association (CCLA) recently filed a Judicial Review Application[i] challenging the Province’s decision to scrap the 2015 amendments to Ontario’s Health and Physical Education curriculum. Among the changes, Ontario no longer teaches students in grades 1-8 about LGBTQ issues, and it also removed from the curriculum material about online stalkers, cyberbullying, and consent. The CCLA alleges the decision infringes students’ s. 7 rights to security of the person under the Canadian Charter of Rights and Freedoms (Charter) and that it discriminates in violation of s. 15(1) on grounds of sex, sexual orientation, gender identity, and family status. We asked CCLA Executive Director Michael Bryant, Ontario’s former attorney general, about CCLA’s litigation and his own role in challenging the province he once exemplified.

What was wrong with the government’s decision to revert to the old, 1998 curriculum?

The updated sex ed curriculum was the result of a government policy with years of work and consultation and expertise brought to bear that rendered the 2015 result.  The democratic dissenters have convinced the government of the day that their view should trump the 2015 policy. It’s not like the government demonstrated that heterosexual-only education was in the public interest — which isn’t even possible. The government did no work before making the change. Without evidence and study to justify it, the decision smacks of homophobia. And it’s also undemocratic, because most people in Ontario support the 2015 legislation.

Isn’t it Premier Doug Ford’s mandate to scrap the curriculum? And if so, shouldn’t he be empowered to do it?

He may not have come out with this idea explicitly when he was running, but he was clear enough something was coming. That’s how, when the directive was released, we got our materials filed within 24 hours.

Whether he promised it to the voters or not, the thing he ran on is offside the Charter and the way he did it was offside administrative law.

What’s your reaction to Premier Ford’s threat to invoke the “Notwithstanding Clause” in s. 33 of the Charter to override Charter rights that may be affected by new legislation?

It’s clearly a real risk, but, as with the City of Toronto challenge, the government did pay a price with their first flirtation with s. 33. For almost three weeks, the government was off its mandate. 

How so? Can you say more about that?

MPPs were in the legislature at a time when they weren’t expecting to be in there.  They had to put all their time and energy into this one piece of legislation to overturn this one decision of Justice Belobaba. That was three weeks the government didn’t move a centimetre on any other bills or initiatives. From experience, I know that happens. But you don’t want to be doing that a few times a year. The Premier will have to pick and choose when it’s done. 

Also, now that Premier Ford has threatened to use s. 33, the judiciary is alive to it, and applicants like CCLA can tailor our arguments to anticipate that risk.

Did CCLA tailor its arguments to account for the risk that s. 33 might be invoked in this case?

Not yet. But by the time the government’s evidence is in and factums are filed, we’ll have worked out the details of those arguments.

We’re not alone. Every applicant and plaintiff bringing a constitutional challenge will take that risk into account. We have very little constitutional doctrine around the requirements for s. 33, and if it’s going to be used more often, then I think you can expect some more innovative arguments. 

If during your tenure as Attorney General, the Premier had wanted to use s. 33, what would you have said?

If it was this particular matter about the Toronto council size? I would have said, “You’re trivializing 33 — don’t use it for this. You’re not going to get your way on this municipal election. You’re not going to get it done in time. Don’t use it on this because, politically, it will make it impossible for you to not use it again and again going forward. And then we’re going to spend four years passing s. 33 legislation, and not much more.” 

That hypothetical advice sounds like political advice; what about legally, as a guardian of the public interest? 

Legally, I expect the government to continue to say that it can invoke 33 — that’s the canonical position on s. 33 — that there really are no limits on it, based on the case law as it stands now. But there must be limits and that will be explored in future litigation. 

What did you think of the Ontario Court of Appeal’s decision about the municipal election — the appeal of the decision of Justice Belobaba? Do you think it was intended to prevent the invocation of s. 33? They clearly said that’s not what they were doing. 

I think they did stave off a constitutional crisis. They did. I am reluctant to say more about that decision at this point.

CCLA had asked for injunctive relief, I believe, but then there was a stay. What happened with that?

We worked it out with the Attorney General that no injunction would be necessary. The parties agreed to proceed with the full application on September 24. We were going to proceed before a three-member panel of the Divisional Court. We were all getting ready for that. Then the Elementary Teachers Federation of Ontario (ETFO) showed up and the court decided to hear their application together with ours. ETFO asked for the adjournment, which we opposed. 

So you were ready to go on September 24?

Ready to go and we may have had a result by now. We had a schedule for materials and cross examinations and before we implemented it, there was an adjournment. The application was moved to November.  And now, ETFO has asked for another adjournment, so it’s now going to be heard in January.

And will you attend cross examinations?

I’ll go to some crosses. ETFO has over a dozen affiants — their focus is on the impact of the repeal on teachers. Our focus is the impact on students and their families. So where ETFO’s evidence is just about the teachers, we’re not going to participate. We don’t have skin in the game. We will confine our participation to matters relevant to our co-applicants — to the students and their families.

So how involved do you personally get on a file — on this file?  Do you want to sink your teeth in like a litigator again? 

My role is to say “let’s litigate” — that’s the big decision. And what are our arguments going to be? Well obviously, on this file, it’s about ss. 7 and 15. Cara Zwibel is an excellent lawyer here at CCLA and that's what she does. She's in charge of fundamental freedoms. She practised at Borden Ladner Gervais — clerked for Ian Binnie.  And our outside counsel, Stuart Svonkin, has won five cases for us already.  I tend to leave the litigation to the litigators and limit my involvement to an oversight role.

Wasn’t there some controversy when you joined CCLA? Were people disappointed because you lacked an activist background?

No, that wasn’t the controversy. And certainly, the last six years would qualify as having an activist background. I had been serving as duty counsel — as a legal aid criminal lawyer for the indigent — up in the Brampton bail and mental health courts. But even my legislative career — being an MPP is like being a full-time activist. The “controversy” was entirely on social media — driven by opponents of me, which every ex-politician’s going to have. The CCLA Board was not shocked and they expected the appointment wouldn’t be cheered by all people. 

How is the role of Attorney General like your job as Executive Director at CCLA?

It’s nothing like it in that I when I was Attorney General, I really had to keep the litigation at arm’s length. I limited my input to articulating the public interest. I had to try to avoid playing lawyer. And the lawyers that were driving those files had more experience than I did personally. I was aware that I was not, say, Ian Scott. But I participated as much as I could, checking in with my deputy to make sure my participation was appropriate. 

At CCLA, I am more involved in the litigations, but I also spend time fundraising and assisting with communications. I also support the work of the education trust, which involves teaching kids about their rights.

How does your former role as Attorney General help you to prevent CCLA’s application from failing? What insights do you bring, in particular, that helped in setting strategy in this case?

I have experience with how it works, or the interaction between Premier, Ministers, staff, civil servants, and those pesky lawyers headquartered at the McMurtry Scott Building. The Ministry of the Attorney General (MAG) has people located in every ministry of government — agents of the Attorney in every ministry. McMurtry and Scott implemented this to ensure that everything that the government is working on, from the beginning, would be looked at through a constitutional lens. So by the time a regulation or piece of legislation or a policy goes live, it’s been through the ringer – the policy has been through some rigorous constitutional analysis. As a result, the policies come out low risk and can’t easily be attacked in court. For each legislative enactment, there’s kind of a thick file of efforts compiled by the government, trying to make sure its policy is constitutional and respectful of the rights of Ontarians. And where rights are infringed, the government creates a record demonstrating why that might be justifiable. Where the judiciary will step in and say “no you can’t do this, government” is where there’s no file or a very thin file.  And that’s exactly what this sex ed directive file is going to look like. 

Based on my experience as Attorney General, I can envision staff at MAG scrambling to take this directive, and trying to come up with a record to show the policy is consistent with administrative and constitutional law. And given the short timeline, I expect the resulting file to probably have been slapped together. On top of that, knowing that it’s a new government, the MAG might (at least initially) have been shut out of the government decision-making process.  Presently, I think the government is vulnerable on this. It didn’t have the time to do the rigorous constitutional analysis that would have been required on this. And in time, yes the government will probably come to see the value add that MAG brings. But it did not look to me like the Attorney General was consulted on this issue before it went live.

I wish you and the CCLA the best of luck.  We look forward to reading the decision.

 

About the Author

Saba Ahmad is a civil litigator working on commercial and administrative matters in Toronto. She is licensed to practise law in the Province of Ontario and the State of New York.
 

 

[i] Along with co-applicant, Becky McFarlane, in her personal capacity and as litigation guardian for her child who identifies as queer and curious, in Toronto’s Divisional Court, Court File No. 526/18.