The 16th Annual Charter of Rights and Freedoms Conference took place on October 2, 2017 at the OBA’s offices in Toronto. This article summarizes the Conference’s four panels, as well as the Year in Review presentation.
The Year in Review: Critical Update on Significant Charter Litigation
Ewa Krajewska (Borden Ladner Gervais LLP) presented this update on the significant developments in Charter litigation in 2017, including the following statistics:
- In 2017, the Supreme Court of Canada issued 12 decisions in Charter cases (19% of its overall caseload).
- The most common sections addressed by the Court were s. 1 and s. 2(b) considered in three cases.
- Four cases involved rights grouped under s. 11 of the Charter, with 11(e) considered twice.
- Two cases considered s. 8 and two others involved s. 7.
- Seven of the 12 Charter decisions were unanimous (58%).
- Justice Moldaver was the justice most likely to have a non-majority opinion. In twelve Charter judgments he dissented twice and concurred another two times.
- Justice Karkatsanis was the only justice who was part of the majority or unanimous judgment in every single Charter case heard this year – every other justice concurred or dissented at least once.
- The full Court sat in nine of the twelve Charter cases, while the other three were heard by seven justices.
Making Sense of Developments in Charter Remedies
Moderator: Saba Ahmad
Panelists: Andrea Gonsalves (Stockwoods LLP), Professor Kent Roach (Faculty of Law, University of Toronto) and Najma Jamaldin (Barrister and Solicitor)
This engaging discussion on remedies for Charter breaches focused on Charter damages and stays.
Andrea Gonsalves presented her paper on how courts deal with the prospect of double recovery in cases where tort and Charter damages are both sought. For the Court to award Charter damages there must be (1) a breach of Charter rights; and (2) damages must be functionally justified, or in other words, one of the three functions of Charter damages (compensation, deterrence or vindication) must be present. Government may show that Charter damages are not appropriate and just under s. 24(1) of the Charter due to the presence of countervailing factors, one of which is the prospect of double recovery in tort. Gonsalves argues that, while compensation is of fundamental importance, for Charter damages to be effective, they must be available where tort damages would not meet the two other functions of Charter damages, vindication and deterrence.
Professor Kent Roach presented his paper that provides an overview of the developments in Charter damages awards. In Professor Roach’s view Ward is one of the Chief Justice’s many contributions to Canadian law and presents a Charter damages analysis that is elegant in its simplicity. The test for Charter damages has since become much more complex and uncertain, particularly as a result of the Court’s most recent Charter damages decision, Ernst. In addition, the low quantum of Charter damages makes it difficult to advise clients to pursue them. In Professor Roach’s view, the evolution of Charter damages has been made worse as a result of the fact that the Chief Justice’s vision in Ward has not prevailed.
Njama Jamaldin presented her paper raising the question of whether a remedy short of stay can address a breach of the right to be tried within a reasonable time under s. 11(b) of the Charter. The Senate Committee studying delay in the justice system has recommended that judges be permitted to award a reduction of sentence, or costs, as an alternative to a stay for delay, and that the Criminal Code be amended to outline the remedial options available for delay, including an order expediting the trial. Jamaldin argues that s. 24(1) of the Charter is sufficiently broad to permit a range of remedies in response to Charter breaches (including remedies short of stay).
Legalizing and Regulating Marijuana, and the Charter Implications
Moderator: Gerald Chan (Stockwoods LLP)
Panelists: Professor Bill Board (Faculty of Law, University of Windsor), Mark Crow (Constitutional Law Branch, Ministry of the Attorney General) and Annamaria Enenajor (Ruby Shiller & Enanajor Barristers)
This panel provided three distinct viewpoints on the upcoming legalization and regulation of marijuana and its Charter implications.
Professor Bogart discussed the process and rationale for the legalization of marijuana. Recent research has shown the effects of marijuana to be relatively benign (compared to other illicit drugs), although additional research is needed. Given the growing recognition that the “war on drugs” has not achieved its objectives and in fact has been shown to be tinged with racism (with racialized persons being charged more frequently despite their using illicit substances less as a group), legalization of marijuana seems a logical step.
Mark Crow discussed Ontario’s public plan for legalization and regulation of marijuana in the Province. Among the difficult questions considered by Ontario were its retail plan, the age cut-off for legal use, location of legal use and taxation. Age restrictions for alcohol and tobacco use have been upheld under the Charter based on evidence of the need to protect youth from harm. There is health evidence that marijuana use may harm the developing brain up to age 25; but given that the primary users of marijuana are age15-25, there were concerns that picking too high an age would drive youth to seek marijuana in the black market. Ontario opted to set the age cut-off at 19 combined with educating young people regarding potential harms. In addition, the provincial approach is to seize cannabis when found on persons under age, but keep them out of contact with the justice system as much as possible. Use will be prohibited in all public places. Ontario’s rules regarding medical cannabis had not yet been announced at the time of the conference.
Annamaria Enanajor provided a critique of the proposed criminal provisions of the marijuana legalization legislation in the context of the history of strict criminalization of illicit substances known critically as the “war on drugs”. Drug laws have historically targeted and controlled specific classes and groups of people. Three aspects of the “war on drugs” are particularly relevant: (1) it focuses on penalization and prohibition (a moral opposition to drug use); (2) its framework is impervious to and hostile to science (it ignores decades of research from criminology and epidemiology that harsh sentences do not reduce drug use); and (3) it is moralistic and is, therefore, hostile to any attempt to introduce safe drug use as part of its model. The war on drugs approach puts a tremendous strain on Charter rights. It is most punishing to those Canadians who have been historically marginalized. It has a disproportionate effect on vulnerable members of society. Bills C 45 and C 46 are a step in the right direction because they aspire to cure many of the ills that have resulted from the war on drugs: they (1) aspire to be informed by evidence; (2) are not wedded to prohibition; (3) look to regulation; and (4) can coexist with other strategies.
However, at the same time, the legislation makes no reference to the disproportionate impact the war on drugs has had on racialized persons. It is ignorant of the legacy of drug criminalization as it affects vulnerable groups. The legislation legalizes possession of marijuana or cannabis products. However, it increases penalties for sale and creates a new offense for using a person under the age of 18 to distribute marijuana. This is based on the false principle that increasing penalties deters drug use, for which there is no basis in social science research. The legislation creates an offense of selling marijuana to minors. Statistically, people who are distributing to minors who are going to be targeted by this new offense are young (21 or under). Increasing penalties for youthful offenders for the purpose of protecting the young is problematic; it may not result in a Charter claim, but may not be the best legislative strategy. There is no evidence that the penalty deters the activity.
The government’s Charter compliance analysis for Bill 46 provides a muddy analysis for section 15, 7 and 8, punting everything to s. 1. The government with this bill has a very attractive legislative objective – public health and safety. As a result, the federal government is not too concerned about whether or not it is breaching s. 8 by demanding a breath sample in the absence of reasonable suspicion because of the s. 1 pressing and substantial objective of preventing impaired driving. Ms. Enanajor believes that the following provisions violate the Charter: 1) permission for a police officer to stop an individual and demand a breath sample without reasonable and probable grounds; (2) attempt to limit the material that the defense can request in response to an impaired driving charge; and (3) criminalizing the presence of substances in a person’s body when that substance may have no bearing on the ability of the person to drive. An accused person has a right to make a full answer and defense. The government with this piece of legislation is attempting to narrowly circumscribe what is relevant. This might be challenged in court as being contrary to section 7 of the Charter.
Clarifying the Reach and Limits of Religious Freedoms
Moderator: Nicola Simmons, Keel Cotrelle LLP
Panelists: Professor Richard Moon (Faculty of Law, University of Windsor), Albertos Polizogopoulos (Vincent Dagenais Gibson LLP) and Giovanna Di Sauro (Filion Wakely Thorup Angeletti LLP)
This lively panel considered the scope of freedom of religion (Charter s. 2(a)); the obligation of public actors to consider Charter values underlying freedom of religion; and the intersection between freedom of religion and other Charter rights.
Professor Richard Moon discussed his paper focusing on the requirement of state neutrality under s. 2(a) of the Charter – in other words, the requirement that the state not support or prefer religious practices of one group over those of another. He noted that courts have not consistently enforced the neutrality requirement, likely because religious beliefs sometimes have public implications (they often say something about the way we should treat others and about the kind of society we should work to create). As a result, the courts have applied the neutrality requirement selectively.
Albertos Polizogopoulos took the view that state neutrality is nothing more than state endorsement of non-religion (or atheism). Both Professor Moon and Giovanna Di Sauro disagreed with that position. Di Sauro stated that the two step analysis under s. 2(a) does not favour non-religion. The question is always whether there is a religious practice or interest that has been interfered with in more than a trivial or insubstantial way. What really affects the analysis, in Di Sauro’s view, is the consequence of the claimant’s request on others and the balancing of Charter rights. In Professor Moon’s view, the courts’ interpretation of neutrality did not favour atheism. The Supreme Court, he noted, has said that what would be objectionable is a positive affirmation of atheism – removing a prayer from a public meeting, on the other hand, does not have to be that.
The discussion of Trinity Western University v Law Society of Upper Canada (“TWU’) was similarly contentious. Polizogopoulos stated that the issue in TWU is whether the Charter can be imposed on a private organization if it enters the public square. Di Sauro disagreed that this was a central issue in that case. The Charter applies to the regulator –the Law Society of Upper Canada – and it was the Law Society’s exercise of discretion that is at issue in TWU. Polizogopoulos maintained that while the court does not say that TWU is subject to the Charter, the Court of Appeal’s decision effectively applies the Charter to TWU. Professor Moon noted that law schools are a significant gateway to the legal profession. TWU is seeking a public role by seeking to be a gateway to the profession. In Professor Moon’s view, the only argument TWU can advance is that entry to law school is no longer a gateway to the profession; however, in his view that is not a persuasive argument.
The one matter on which all panelists agreed was that religious freedom is a collective right. As such, religious associations have standing to bring claims.
The Future of Charter Litigation
Moderator: The Honourable Dennis O’Connor, OC, QC (Borden Ladner Gervais LLP)
Panelists: Karin Baqi (Justice for Children and Youth), Padraic Ryan (Constitutional Law Branch, Ministry of the Attorney General), Daniel Sheppard (Goldblatt Partners LLP)
This panel of young litigators from private practice, a non-governmental organization and government was moderated by the Honourable Dennis O’Connor.
In his introduction, Justice O’Connor noted that when the Charter came into being no one conceived of how significantly it would impact Canadian jurisprudence and society. The future of Charter litigation is unknown, but hearing from young litigators who regularly litigate Charter cases may provide some insight into that future.
Each panelist was asked to describe a significant Charter case in which they had been involved, their advice to other young advocates interested in doing Charter litigation, their view on the prevalence of interventions, and their insights regarding the future of Charter litigation.
Daniel Sheppard was called to the bar in 2010 and practices public law at Goldblatt & Partners. He was counsel in Bedford and is the clinical director of the Osgoode Hall Law School test case litigation group. His involvement in Bedford started as a student when he expressed boredom to Professor Alan Young. He was given the task of reviewing all of the footnotes in an expert report.. From there, his involvement in the case grew. He noted that opportunities to do Charter litigation are limited in the private bar. With respect to interventions, Sheppard argues that interventions have become more of a means for lawyers and organizations to make a name for themselves rather than actually making a meaningful contribution to the case at hand. He is skeptical of interventions as an authentic means of assisting the court, especially since intervenor time in the Supreme Court of Canada has been reduced to five minutes. Sheppard noted that the substantive notion of discretion has reduced the need for court decisions about constitutionality. Discretion has become a safety valve that can protect legislation from scrutiny.
Padraic Ryan was called to the bar in 2012 and is Counsel in the Constitutional Law Branch of the Ministry of the Attorney General. Prior to his call to the bar Ryan was a clerk in the federal court and in the Constitutional Court of South Africa. He is a co-author of the 5th Edition of Constitutional Law published by Irwin Law. Ryan spoke about his experience working on R v Michaud (a challenge under s. 7 by commercial truck drivers to highway speed regulation). As an articling student in the Constitutional Law Branch he had the opportunity to retain an expert and cross-examine an expert in Michaud. These were formative experiences. By the time he was counsel, the case had made its way to the court. Ryan encouraged young lawyers interested in doing constitutional law to consider government. Government lawyers litigate Charter cases, but also advise government on the constitutionality of policies and programs. Ryan recommended that serious intervenors provide a draft factum with their motion materials to demonstrate the contribution they intend to make. Ryan expressed the view that Charter litigation in administrative tribunals will continue to grow. In addition, Bedford has opened the door to re-litigation of decided Charter issues.
Karin Baqi is counsel at the South Asian Legal Clinic of Ontario on secondment to Justice for Children and Youth. She was co-counsel in Brown v Canada, a case involving a man who found himself in immigration detention for a period of five years. Baqi was co-retained to represent the End Immigration Detention Network, a third party at the proceeding, with co-counsel Swathi Sekhar. Baqi went to law school in order to be able to better help others. Baqi agreed with Sheppard’s assessment that the Supreme Court of Canada currently engages in a broad but shallow way with interventions. She expressed her hope that the Charter would in the future be used to recognize material inequalities and play a role in distributive justice. She noted that the reinstatement of the court challenges program could be a positive step in that direction.
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