Q&A With Professor Leah West: The Emergencies Act and the "Freedom Convoy"

CCS Summer Student Tina Tai sat down with Professor Leah West (Assistant Professor of International Affairs, Carleton University) to discuss the various legal issues surrounding the Trudeau government’s use of the federal Emergencies Act in response to the “freedom convoy” protests in early 2022.

Q: Generally speaking, what is the Emergencies Act, and how does it work?

A: The Emergencies Act is significant in that it’s the only real federal emergency legislation that we have in Canada. It gives the federal government the power to create new rules in an emergency without having to go to Parliament to pass a new law.

Invoking the Emergencies Act allows the executive (branch of government) to create new rules and new offenses — and to use powers it normally wouldn’t have — without having to go to Parliament to pass legislation.

The federal Emergencies Act is unique because there are these four types of emergencies — public welfare, public order, international, and war emergencies — and it gives the federal government specific powers that are necessary for dealing with the emergency. A really good example is a public welfare emergency, like COVID. A pandemic is a public welfare emergency: it’s caused by a disease or outbreak, and for that you need different powers than you would for, say, the outbreak of a war.

Q: What reasons did the government give for invoking the Emergencies Act for the first time in Canadian history, and what type of emergency did it declare?

A: The government declared a public order emergency. An important thing to think about here is the way the Emergencies Act is structured. You can’t just have a public order emergency; you have to have a public order emergency that rises to the level of a national emergency. So, there are actually two separate thresholds.

For it to be a national emergency, you have to have an urgent and critical situation. That situation has to be of a temporary nature, and it has to do one of two things. It either seriously endangers the lives, health, or safety of Canadians — so here, you’re looking at something that provincial power just can’t handle, where you need the power of the federal government or of multiple provinces to deal with it — or it’s an urgent critical condition that seriously threatens the ability of the government to preserve the sovereignty, security, and territorial integrity of Canada. A third threshold is that it cannot be effectively dealt with under any other law of Canada.

In this case, the government said they were declaring a public order emergency on both criteria. The difficulty, though, is that “threats to the security of Canada” is not defined in the Emergencies Act. It’s defined in the Canadian Security Intelligence Service Act, and there are four different things that are captured there: espionage, foreign influenced activities, terrorism, and subversion.

In this case, the language used by the government, in their justification laid before Parliament, basically said that what gave rise to a national emergency was terrorism, or violent extremism. But did the emergency arise from that? Or did the emergency create an opportunity for that? The Act says the emergency has to arise from it, not just be something that can be leveraged by those who seek to hurt people or use violence for political ends. The really sticky legal question is, can we say that terrorism really gave rise to that public order emergency? Or was it a by-product of it?

Reflecting on this question, it might be that the Act needs to be transformed at some point down the road to reflect what really happened, because maybe we should create the opportunities for governmental action when peaceful protests are co-opted for violent ends. In such cases, the government should be able to take swift and decisive actions to reduce the security threat.

Q: How did the government use the powers that it unlocked through the Act? In other words, what specific measures did it take to address the disruption caused by the Freedom Convoy?

A: One of the key ones they used was the creation of a “no-go zone,” so they were able to create designate areas that people couldn’t go into — for example, around Parliament Hill. They also quickly deputized police officers from different jurisdictions so they could enforce provincial and municipal bylaws in Ottawa.

Another thing that was repeated was the need for tow-truck drivers. Under the Emergencies Act, for a public order emergency, you can compel people to perform services that they’re capable of performing. So, we saw tow-truck drivers working in Ottawa to clear trucks.

The other thing that doesn’t exist anywhere under provincial emergency legislation was the financial restrictions. They made it an offence to provide financial assistance to those supporting the protest. They also created new reporting obligations on financial institutions around cryptocurrency, and they were able to freeze the assets of certain individuals who were involved in the protests.

Q: The Act states that it can only be used if no other laws can be used to deal with the alleged emergency. In your opinion, are there other laws that could have been used to effectively deal with the Freedom Convoy and its associated activities?

A: Basic Criminal Code and bylaw. At every level of government, there were things that could have been done.

The province had the capacity to create no-go zones and we already had bylaw that made it an offence to park in the middle of the street. The Criminal Code could have been used. Other things like measures under the National Defense Act could potentially have been used but I think the idea of military in the streets lining up against protestors is not something anybody wanted to see.

So all kinds of stuff could have been done. At the end of the day though, it wasn’t. So, one has to wonder whether the interpretation of the Act includes not just asking whether there are laws that could be used, but what if they’re not being used? What if other levels of government refuse to use the authorities that they have? Then should the federal government have the power to step in?

The Act doesn’t seem to provide for that. The Act doesn’t seem to create opportunities when there are other laws that exist but aren’t being used effectively. And again, that might be something we want to look at going forward.

Q: Did the Freedom Convoy meet the threshold of a situation that “seriously endangers the lives, health or safety of Canadians” or that “seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada”?

A: The first one is easier to meet. I certainly believe that the life, health, and safety of individuals in Ottawa and at the borders were threatened. The government talked about borders being closed and not being able to get medications into Canada, so I think you can make the argument that that was met. The other one is harder.

Can we really say the sovereignty and territorial integrity of Canada was threatened by the convoy and these blockages? I don’t think we ever saw the government lose a grip on its sovereignty.

Just because members of the convoy had desires to topple the government doesn’t mean their actions necessarily actually threatened the sovereignty of Canada.  I think the way the government framed it is that the economic impact and the impact on trade relationships were so damaged that it threatened Canada’s security and sovereignty, and that seems to be a bit of a stretch to me.

Q: Even though this is the first time the Act has been invoked, is there any jurisprudence that can tell us whether this invocation was legally valid?

A: No. The first question for a court would be whether or not even adjudicating is necessary now, given that we have both a preliminary review committee and an independent commission of inquiry looking at these issues. The court would be tasked with reviewing the reasonableness of the Governor-in-Council’s decision, and the reasonableness of their reasonable belief that the criteria for invocation of the Act were met (the standard for both would be pretty deferential).

The bigger issue, in terms of government accountability, is whether or not what Canadians were told about the need for the invocation of the Act really did line up with the facts, and whether or not the government really believed the legal threshold was met, or whether inventive legal reasoning was used to get the government to a point where it could invoke the Act.

It could be that, because the Act was written 30 years ago, it’s no longer fit for purpose, and the government had to get inventive to use the tool that it wanted to use. But that is problematic from the rule of law perspective.

Q: Contrary to common misconceptions, the Charter of Rights still applies when the Emergencies Act has been invoked. In your opinion, did the measures adopted by the government infringe any Charter rights? And, more importantly, how might these infringements be justified?

A: Certainly, there were limits on Charter rights, but whether or not they were justified is definitely the more important question. You’re talking about restricting people’s freedom of movement and freezing their bank accounts — that certainly goes to their security and liberty rights. We also prevented people from protesting and gathering with one another to advance their political beliefs — these are all infringements on freedom of expression.

As for whether or not the limits were reasonable: I think if we truly had a national emergency, where people’s lives were threatened, and Canada’s security was threatened, then the limits imposed seem pretty reasonable. They seem minimally impairing (to use the language of the Oakes test).

If we take the government’s word for it, then, the limits seem reasonable, but so much of this is fact dependant. The facts have been filtered through anecdotal incidents from people on the ground or news reporting.

I don’t know what the security risks were. There are lots of security risks that, in the moment, aren’t revealed. I don’t think the government has given us enough facts yet, and I’m waiting for an independent actor who has access to those facts to make that determination.

Basically, the Emergencies Act is like a “do not break glass unless in an emergency,” and now that the glass is broken I’m worried about people reaching in too easily to use it. Applying the Act has shown us where the Act itself is weak, so we now really need to revisit it and see if it’s still fit for purpose.

Q&A With Dr Dave Guénette: Quebec’s Bill 96

In this Q&A session, CCS Summer Student Zachary Fischer talked to Postdoctoral Fellow Dave Guenette (McGill Faculty of Law) about the amendments that Quebec recently made, through the passage of its Bill 96, to Canada’s Constitution Act, 1867. Zach also asked Dave about some of the other issues surrounding Bill 96, including the controversy over the Quebec government’s use of the notwithstanding clause, and the new law’s impact on Indigenous peoples in Quebec.

Part 1: Constitutional Amendment

Q: One of the overlooked aspects of Bill 96 is that it purports to unilaterally alter the Constitution Act, 1867 by adding two clauses under section 90. What are these clauses and what impact might they have on the Canadian Constitution?

A: That is correct, section 166 of Bill 96 amends the Constitution Act, 1867 to include two new provisions. The first one, section 90Q.1, states that “Quebecers form a nation,” while the second one, section 90Q.2, provides that “French shall be the only official language of Quebec … [and is] the common language of the Quebec nation.” When Bill 96 became a law, in June 2022, the Constitution Act, 1867 was consequently amended.

The Quebec National Assembly takes the power to adopt these new clauses from the constitutional amendment formula of the Constitution Act, 1982, and more specifically from its section 45. The latter provides that “the legislature of each province may exclusively make laws amending the constitution of the province.” In other words, each province has the power to unilaterally amend its own internal constitution. While this power is to be found in the Constitution Act of 1982, it is worth remembering that provinces have had this power since Confederation. Indeed, before patriation in 1982, section 92(1) of the Constitution Act, 1867 allowed provinces to do the exact same thing.

From a technical perspective — but this is important — the two new clauses (90Q.1 and 90Q.2) of the Constitution Act, 1867 are included in a new subsection entitled “Fundamental Characteristics of Quebec.” Bill 96 added this new subsection to Part V of the Constitution Act, 1867, which pertains to “Provincial Constitutions.” Otherwise put, Bill 96 added two new clauses to the “Provincial Constitutions” part of the Constitution Act, 1867.

Obviously, the specific impact of this constitutional amendment is yet to be known. The courts may eventually rule on the constitutionality of Quebec’s initiative, as well as on the scope of the new provisions. That said, it is likely that the main impact will be of a symbolic nature. Recognition of Quebec’s distinctiveness in the Canadian Constitution has been a long-standing demand of the province.

Q: There have been differing opinions on whether this amendment is valid under the amending formula contained in the Constitution Act, 1982. What is the Quebec government’s rationale for its ability to do this? What is the argument against this amendment’s validity?

A: To fully understand this constitutional amendment, I think you have to put it in the context of Canadian constitutional law. The “Canadian Constitution” is a complex object, made up of British and Canadian statutes, conventions, underlying principles, case law, customs, etc. The same can be said of provincial constitutions in Canada, including, of course, the “constitution” of Quebec. Quebec does not have a formal written constitution consolidated into a single document. Parts of the provincial constitution of Quebec are to be found in Canada’s constitutional laws, others in provincial statutes, case law, etc. Section 45 of the Constitution Act, 1982 thus allows Quebec (or any other province for that matter) to amend its internal constitution, regardless of where that constitution’s various parts are located. Of course, provinces that do so must still comply with the other procedures of Canada’s constitutional amending formula: the 7/50, unanimity, and special arrangements procedures. And this is where it gets complicated (and interesting)!

Indeed, it can be difficult to accurately distinguish what is part of the constitution of a province and what directly affects a province’s interests without being part of its internal constitution. Otherwise put, for some issues, it may be difficult to determine whether they fall within the scope of section 45 (the provinces’ capacity to unilaterally amend their constitution), or whether they are more appropriately dealt with under the special arrangements (section 43), 7/50 (section 38), or unanimity (section 41) procedures.

To date, the limits of section 45 of the Constitution Act, 1982 have been little tested by political authorities. But what is known for sure is that, in 1968, the Quebec Legislature used its power to unilaterally amend its internal constitution in order to abolish its second chamber, the Legislative Council, even though the existence of the latter was provided for in the Constitution Act, 1867 (again, in Part V on provincial constitutions).

Amongst the arguments provided for by those who oppose Quebec’s Bill 96 is that, in order to directly amend constitutional laws (such as the 1867 Act), it is necessary to use one of the three multilateral amending procedures (7/50, unanimity, or special arrangements). This argument is rather weak, though, as it goes against the 1968 precedent.

Another argument is that the entrenchment of the two new clauses would require a multilateral amendment because they fall within the scope of either the special arrangements formula (which is required for an amendment to any provision that relates to the use of the English or the French language within a province) or the “general” and “residual” 7/50 formula. This is a stronger argument than the previous one, but we will have to wait and see what judges think of its value.

Q: If the validity of this amendment is upheld or if it is not challenged in court, what impact may this have on other provinces seeking greater provincial autonomy? Is the recognition of Quebec’s nationhood a unique case, or would all provinces be able to make similar amendments?

 A: I think this is first and foremost a procedural question. The amending formula provides the rules of the game, the procedures to be followed, independently of the political motivations that may accompany a constitutional amendment. This initiative from Quebec will certainly contribute to testing the scope of the provinces’ power to unilaterally amend their own internal constitutions, but its impact will greatly depend on how politicians in Quebec and in other provinces decide to use it afterwards. Of course, the possibilities that section 45 of the Constitution Act, 1982 grants to Quebec are exactly the same for the other provinces.

However, we must keep in mind that this is no magic formula: for instance, a province cannot use this procedure to force another partner to do something or to obtain more autonomy at the expense of another order of government. Section 45 has major limits that are defined by the other amending procedures. And again, within these limits, the provinces obviously enjoy the same prerogatives.

In comparative constitutional law, this power of provinces to unilaterally and directly amend constitutional provisions is a rarity. It is also a reminder of Canadian constitutional history, of the process by which partially self-governing colonies joined to form a new political entity, without wanting to leave behind or give up some of the powers they already possessed.

One thing I find very interesting about this Quebec initiative is that it puts constitutional issues and constitutional amendments back on the agenda. To some extent, the same could be said of the Alberta referendum on equalization. There are many things that are broken in the Canadian Constitution and that deserve to be addressed through attempts at constitutional amendments. Quebec’s traditional demands are certainly amongst them, but there is also reconciliation with Indigenous peoples, reform of federal institutions, etc. Hopefully, this constitutional amendment from Quebec can lead to new and constructive constitutional talks.

Part 2: Other Bill 96 Issues

The Notwithstanding Clause

Q: The Quebec government has pre-emptively invoked the notwithstanding clause to shield Bill 96, in its entirety, from certain Charter claims (those anchored in section 2 or section 7-15 of the Charter). Is this type of pre-emptive, blanket use of the notwithstanding clause valid?

A: With regards to the constitutional validity of such pre-emptive use of the notwithstanding clause, I can hardly see how this could be challenged in any serious way. Whether we like it or not, the notwithstanding clause is part of the Canadian Charter of Rights and Freedoms, and its use by public policy-makers is always an option. To suggest otherwise would be to ignore the Supreme Court’s jurisprudence, most notably the Ford case.

The Canadian Charter celebrated its 40th anniversary this year. There are now four decades of case law and precedents relating to it, with the result that public policy-makers are relatively aware of the limits of what is and is not permitted. Among other things, it is widely known that the notwithstanding clause can be used pre-emptively and that doing so does not require any form of justification. Moreover, it is important to recall that the notwithstanding clause, in its current form, was part of the compromise that made possible the constitutional agreement of November 1981.

Obviously, governments that use the notwithstanding clause (pre-emptively or not) can be criticized in public debates. In turn, they may pay a certain political price for using it. Overriding fundamental rights and freedoms is a major political decision and should be done only when it is an absolute necessity. Nevertheless, it remains the case that there is no serious legal basis for preventing or restricting uses of the notwithstanding clause that are otherwise consistent with the Constitution and constitutional precedents.

Aboriginal Rights

Q: Bill 96 has an impact on many Quebecers, but Indigenous groups have been particularly outspoken in their opposition to the Bill. What are some of the reasons for this opposition, and what legal arguments might Indigenous groups use to challenge Bill 96?

 A: One of the main measures proposed by Bill 96 to protect the use of the French language in Quebec relates to the language of instruction in CEGEPs (the academic level in Quebec between high school and university). There are French-language and English-language CEGEPs in Quebec, and Bill 96 provides that now, in English-language CEGEPs, students will have to take and successfully pass three courses of their training (other than second language courses) in French.

My understanding is that this is the main reason for the opposition from Indigenous peoples. They would have wanted to be exempted from this new obligation. Their fear is that this will pose an additional burden on Indigenous students who do not speak French, delaying their graduation or even preventing them from being able to study at university. This obligation to take three courses in French could even — according to some leaders who have gone so far as to speak of “cultural genocide” — force Indigenous students to study outside Quebec.

As for the legal arguments that Indigenous groups could use to challenge Bill 96 and this new obligation, it could be possible for them to argue that Bill 96 violates their Aboriginal rights under section 35 of the Constitution Act, 1982 — in particular the right to speak their own languages. Furthermore, since Indigenous peoples were not involved in the decision-making process, it could be argued that the duty to consult and accommodate — a duty derived from section 35 of the 1982 Act — has not been met (however, the Supreme Court's Mikisew Cree decision probably complicates this claim). Several groups have already indicated their intention to test the validity of these aspects of Bill 96 in court.

Section 11(d) - The Presumption of Innocence

Section 11 of the Charter of Rights and Freedoms contains a list of rights provided to any person charged with a criminal offence. Subsection (d) protects the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”[1]

The rights contained under section 11 are engaged once a person has been charged criminally or when “conviction in respect of [an] offence may lead to a true penal consequence.”[2] This means that section 11 may be engaged by some regulatory or disciplinary offences.

The Content of Section 11(d)

As the Supreme Court put it in R v Oakes: “The presumption of innocence is a hallowed principle lying at the very heart of criminal law … confirm[ing] our faith in humankind; it reflects our belief that individuals are decent and law-abiding members of the community until proven otherwise.”[3] Section 11(d) enshrines this “sacrosanct” principle of criminal law in the Charter.[4]

Furthermore, as the Court stated elsewhere in R v Oakes, section 11(d) contains “at a minimum”[5] three criteria:

1) That the accused is proven guilty beyond a reasonable doubt. To satisfy this criterion, each essential element of the offence — including the actus reus and the mens rea — must be proved beyond a reasonable doubt.

2) That the state bears the burden of proving an individual’s guilt.

3) That criminal prosecutions are conducted with due process.[7]

However, under section 11(d), an accused is not entitled to “the most favourable trial procedures imaginable.”[8] As the Supreme Court put it in R v JJ, trial fairness must not only consider the accused but also the complainant and the wider community.[9]

Section 11(d) and Section 1

As with all rights contained in the Charter, section 11(d) can be limited under section 1.[10] For instance, section 1 has been used to uphold some criminal law provisions that impose a reverse onus on the accused. Such provisions, which require the accused to rebut a presumption that stems from a proven fact, are generally considered to be violations of section 11(d) (and must therefore be justified under section 1).[11] A key example of this is the law struck down in R v Oakes, which assumed that possession of narcotics was proof of an intent to traffic them unless an accused could prove otherwise.

Crucially, when conducting a section 1 analysis, the Supreme Court of Canada has recognized that section 11(d) carries significant weight. This means, in short, that a breach of the section 11(d) right will not be easily justified in terms of the collective interests that are normally considered as part of a section 1 analysis.[12]

 

[1] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 11 [Charter].

[2] R v Wigglesworth, [1987] SCJ No 71 at para 21, 2 SCR 541 [emphasis added].

[3] R v Oakes, [1986] SCJ No 7, 1 SCR 103 at para 29 [Oakes].

[4] R v Brown, 2022 SCC 18 at para 145 [Brown].

[5] Oakes, supra note 3 at para 32.

[6] Brown, supra note 4 at para 99.

[7] R v JJ, 2022 SCC 28 at para 124 [JJ].

[8]  Ibid at para 125.

[9] Ibid.

[10] Charter, supra note 1, s 1.

[11] Oakes, supra note 3 at para 57.

[12] Brown, supra note 4 at para 166.

 

Human Dignity

Human dignity as a social value has a long and varied history drawing from various religious sources, political histories, and philosophical ideals.[1] As a constitutional value and right, however, human dignity is a relatively new concept, only coming to the fore in light of the atrocities that took place during World War II.[2] While its precise legal meaning is uncertain and elusive, it can generally be said to represent the idea that “every human being possesses an intrinsic worth” that precludes their subjection to certain forms of degrading treatment by the state.[3]

Human Dignity in Canadian Constitutional Law

Although human dignity is mentioned in the Canadian Bill of Rights (1960), it was only with the advent of the Charter of Rights and Freedoms (1982) that it came to play a meaningful role in judicial decision-making (despite not being explicitly mentioned in the Charter). In R v Oakes, for example, the Supreme Court stated that “respect for the inherent dignity of the human person” must be a guiding principle for Canadian courts when they interpret the Charter.[4] However, the Supreme Court has also explicitly stated (in Blencoe v British Columbia[5]) that human dignity is not a constitutional right in Canada.

What, though, is the difference between a constitutional right (which dignity is not) and a constitutional value (which it is)?

In short, a constitutional right is something that has direct legal consequences. If the state violates an individual’s constitutional right, the individual can take legal action to compel the state to justify the violation (if a violation exists) and to remedy the violation if it can’t be justified. A constitutional value, on the other hand, lacks such direct legal consequences, and can’t ground a legal claim. Rather, a constitutional value is something that courts use to aid their interpretations of the Constitution. For example, a constitutional value can be used to help evaluate the scope of a constitutional right, and it can play an important role in determining the degree to which an infringement of a right can be justified.[6]

Specific Sections of the Charter

Since dignity is one of the Charter’s foundational and orienting values, it can potentially be invoked to aid the interpretation of any Charter right. However, dignity has played a particularly prominent role in judicial interpretations of three Charter sections: sections 7, 12, and 15.

Section 7

Human dignity has featured prominently in cases involving Section 7 of the Charter, which guarantees the individual’s “right to life, liberty, and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”[7]

Most famously, Justice Wilson’s concurring judgment in R v Morgentaler held that the state’s criminal restrictions on abortion were unconstitutional because they restricted the liberty of women in a way that was, in essence, contrary to their human dignity.[8] Similarly, in Carter v Canada, the Supreme Court found that a criminal ban on assisted suicide was unconstitutional because it deprived individuals of control over “a matter critical to their dignity and autonomy.”[9]

Section 12

Section 12 of the Charter prohibits cruel and unusual punishment or treatment, and the Supreme Court has stated that the purpose of this prohibition is to protect human dignity.[10] Building off of that, in R v Bissonnette, the Court found that consecutive sentences of life without parole were unconstitutional because leaving the door open for an offender’s rehabilitation is necessary to ensure respect for human dignity.[11]

Section 15

Section 15 deals with equality rights and prohibits certain types of discrimination.[12] In Law v Canada, the Supreme Court held that the purpose of section 15 was to protect human dignity,[13] and incorporated human dignity into the legal test for a section 15 violation[14] (this test was later abandoned, however, in R v Kapp[15]). In the process, the Court also opined on the meaning of human dignity:

“Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment … [and] is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits.”[16]

 

[1] See generally, Christopher McCrudden, ed, Understanding Human Dignity (Oxford: Oxford University press, 2013).

[2] Aharon Barak, Human Dignity: The Constitutional Value and the Constitutional Right (Cambridge: Cambridge University Press, 2015) at 3-4 [Barak].

[3] Christopher McCrudden, “Human Dignity and Judicial Interpretation of Human Rights” (2008) 19:4 The European Journal of International Law 655 at 679.

[4] R v Oakes, [1986] 1 SCR 103 at para 136.

[5] Blencoe v British Columbia (Human Rights Commission), [2000] 2 SCR 307 at para 77.

[6] Barak, supra note 2 at 103-104.

[7] Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[8] R v Morgentaler, [1988] 1 SCR 30 at para 173.

[9] Carter v Canada (Attorney General), 2015 SCC 5 at paras 65, 68, 81.

[10] Charter, supra note 7, s 12.

[11] R v Bissonnette, 2022 SCC 23 at para 85.

[12] Charter, supra note 7, s 15.

[13] Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497 at para 6 [Law].

[14] Ibid at para 7-9.

[15] R v Kapp, 2008 SCC 41 at paras 19-21.

[16] Law, supra note 13 at para 53.

Section 10 — Rights Upon Arrest and Detention

Section 10 of the Canadian Charter of Rights and Freedoms states:

“Everyone has the right on arrest or detention: a) to be informed promptly of the reasons therefor; b) to retain and instruct counsel without delay and to be informed of that right; and c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.”[1]

These rights are only engaged once someone has been detained or arrested (see our key term on section 9). They are not engaged where someone has “voluntarily co-operated with the police, for example, by inviting the police into his or her home and answering questions.”[2]

Section 10(a): The Right to Be Informed Promptly of the Reasons Therefor

Subsection (a) serves to ensure that the person who is under arrest can make an informed decision about whether to submit to arrest and exercise their right to counsel.[3]

In order for the decision to be an “informed” one, the individual must be given sufficient information about the reasons for the arrest. In particular, the level of legal jeopardy that the individual faces must be clear; for instance, police cannot mislead the individual about the specific offence they are investigating.[4] Moreover, if there is a significant change in reasons (e.g. if a new charge is being added), the individual must be informed of this.[5]

Section 10(b): The Right to Retain and Instruct Counsel Without Delay and to be Informed of That Right

 The purpose of subsection (b) is to inform a subject of their immediate right to access counsel. Without this right a person would be in a vulnerable position in the face of state power and at higher “risk of involuntary self-incrimination.”[6]

The right to counsel is immediate and may only be delayed in exceptional circumstances, such as where there is a legitimate safety concern.[7] For example, the Supreme Court has accepted that a delay may be justified for individuals suspected of impaired driving, given the importance of administering roadside breath tests as quickly as possible.

Section 10(b) has two aspects: one informational and one implementational.

The informational aspect requires police to inform the individual of their right to counsel and to ensure that they understand that right.[9]

The implementational aspect requires that the individual has a reasonable opportunity to consult with counsel. To provide such an opportunity, the police must refrain from questioning that person until consultation with counsel has occurred.[10]

That said, the individual can choose to waive their right to counsel, which must be the result of a clear and informed decision.[11] The right to counsel may also be suspended by an individual’s lack of due diligence; for example, if they make no reasonable effort to contact a lawyer.[12]

Section 10(c): The Right to Have the Validity of the Detention Determined by Way of Habeas Corpus and to Be Released if the Detention is Not Lawful

The last right contained in section 10 is subsection (c), which protects an individual’s right to habeas corpus. This is the right to appear before a court and have a hearing on the validity of the detainment. If there is no basis for continued detention, the court will order the individual’s release.[13]

Section 10 Rights Are Not Absolute

 As with all rights under the Charter, a person’s section 10 rights are subject to limitation under section 1. Section 1 of the Charter states that the government can legally impose “reasonable limits” on an individual’s Charter rights, provided that those limits are “prescribed by law” and can be “demonstrably justified in a free and democratic society.”[14]

 

[1] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 10 [Charter].

[2] Peter Hogg, Constitutional Law of Canada, 5th ed (Toronto: Thomson Reuters, 2019) at chapter 50-2.

[3] R v Evans, [1991] SCJ No 31, 1 SCR 869 at para 31 [Evans].

[4] R v Greffe, [1990] SCJ No 32, 1 SCR 755.

[5] Evans, supra note 3 at para 35.

[6] R v Suberu, 2009 SCC 33 at para 40.

[7] R v Debot, [1989] 2 SCR 1140, SCJ No 118 at para 42.

[8] R v Thomsen, [1988] SCJ No 31, 1 SCR 640.

[9] Evans, supra note 3 at para 44.

[10] R v Manninen, [1987] 1 SCR 1233, SCJ No 41 at paras 21-23.

[11] R v Clarkson, [1986] 1 SCR 383, SCJ No 20 at para 18.

[12] R v Smith, [1989] 2 SCR 368, SCJ No 89 at para 34.

[13] R v Pomfret, [1990] 2 WWR 568, MJ No 21.

[14] Charter, supra note 1, s 1.

 

Section 12 — Cruel and Unusual Treatment or Punishment

Section 12 of the Canadian Charter of Rights and Freedoms states: “[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment.”[1]

The purpose of section 12 has been defined by the Supreme Court of Canada (SCC) as: “prevent[ing] the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. It is meant to protect human dignity and respect the inherent worth of individuals.”[2] It does not protect other entities such as corporations.[3]

For the section to be engaged, the state must be responsible for the punishment or treatment.[4]

For section 12 purposes, punishment has been defined simply as a penalty imposed by the state (most often in the sentencing context).

While treatment has not been clearly defined in law, the SCC has opined that it includes conduct by the state that is not of a penal or quasi-penal nature.[5] For instance, in Ontario, the unnecessary use of a taser after arrest was held to be cruel and unusual treatment.[6]

Crucially, the words “cruel and unusual” do not mean that the treatment or punishment must be both cruel and unusual. Rather, these words have been interpreted broadly to cover any treatment or punishment that “outrages the standards of decency.”[7]

The Two Prongs of Section 12 

Section 12 has been interpreted as containing two prongs. The first prong protects against punishment that is so excessive that it offends human dignity. The second protects against punishment that, by its very nature, is incompatible with human dignity.[8]

The first prong is made out when a punishment is grossly disproportionate. This occurs when the method of punishment is acceptable (i.e. prison time) but its effects are more than “merely excessive.”[9] In undertaking an analysis under this prong, a court will consider the specific contexts of a case and the individual involved to determine whether the sentence imposed was appropriate.[10] However, the Supreme Court has made an exception to this approach when dealing with mandatory minimum sentences: in those instances, a court may consider whether a minimum sentence could hypothetically be grossly disproportionate.[11]

The second prong of the right is satisfied where the method or mode of punishment itself is “degrading and dehumanizing.”[12] These punishments are always grossly disproportionate.[13] Examples of such punishments include corporal punishment, lobotomy, castration, and torture.[14] More recently, a provision allowing for the imposition of consecutive 25-year periods of parole ineligibility was found to violate section 12 under this prong.[15] When a punishment falls into this category it can never be imposed or even remain as a possibility.[16]

Section 12 Rights Are Not Absolute

As with all rights under the Charter, a person’s section 12 rights are subject to limitation under section 1.[17] However, the Supreme Court has opined that it is unlikely that any punishment that is cruel and unusual by nature (under the second prong described above) could be justified under section 1.[18]

 

[1] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 12 [Charter].

[2] Quebec (Attorney General) v 9147-0732 Québec Inc, 2020 SCC 32, para 51 [Quebec].

[3] Ibid.

[4] Rodriguez v British Columbia (Attorney General), [1993] SCJ No 94, 3 SCR 519, at para 177.

[5] Ibid at para 182.

[6] R v Walcott, [2008] OJ No 1050, 57 CR (6th) 223.

[7] R v Smith, [1987] SCJ No 36, 1 SCR 1045 at paras 52-53.

[8] R v Bissonnette, 2022 SCC 23 at para 60 [Bissonnette].

[9] Ibid at para 61.

[10] Ibid at para 62.

[11] R v Nur, 2015 SCC 15 at para 46.

[12] Quebec, supra note 2.

[13] Bissonnette, supra note 8 at para 64.

[14] Ibid at para 66.

[15] Ibid.

[16] Ibid at para 68.

[17] Charter, supra note 1, s 1.

[18] Bissonnette, supra note 8 at para 121.

R v Bissonnette: The Weight of Human Dignity

An Overview of the Supreme Court’s Decision to Strike Down Section 745.51 of the Criminal Code

On May 27th, 2022, the Supreme Court of Canada (the “SCC” or the “Court”) rendered its judgement in R v Bissonnette. The case before the SCC centered on the validity of section 745.51 of the Criminal Code. This section allowed for a sentencing judge to stack periods of parole ineligibility for mass murders.[1] Under Canadian law, an adult convicted of first-degree murder receives an automatic life sentence with no chance of parole for 25 years.[2] When an accused committed multiple murders, the sentencing judge had the power under section 745.51 to impose consecutive periods of parole ineligibility for each murder (in 25-year increments). For instance, Alexandre Bissonnette — the claimant at issue here — murdered six people, so under section 745.51 the sentencing judge could have imposed a life sentence with no chance of parole for up to 150 years.

Mr Bissonnette challenged the constitutionality of this provision on the grounds that it unjustifiably violated his rights under the Canadian Charter of Rights and Freedoms (the “Charter”). The Court agreed unanimously and struck down section 745.51. The aim of this article is to explain how the Court arrived at this conclusion.

Section 745.51 Struck Down by Lower Courts

In an Islamophobic attack on a mosque, Mr Bissonnette murdered six people in 2017. At trial, he pleaded guilty to multiple charges including six counts of first-degree murder.[3] The Crown asked the trial judge to apply section 745.51 and impose a life sentence with no chance of parole for 150 years, which would have guaranteed that Mr Bissonnette would die in prison. However, the trial judge found that section 745.51 was unconstitutional in that it violated section 7 (the right to life, liberty, and security of the person) and section 12 (the right to be free from cruel and unusual punishment) of the Charter.[4] To remedy these violations, the trial judge read the provision so as to give judges discretion in choosing the length of parole ineligibility above 25 years. As a result, the judge was able to impose a period of parole ineligibility of 40 years.[5]

On appeal, the Quebec Court of Appeal unanimously agreed with the trial judge that section 745.51 was unconstitutional. However, the Court of Appeal found that judges could not impose any excess periods of parole ineligibility.[6] As a result, Mr Bissonnette’s sentence became life in prison with no chance for parole for only 25 years. The Crown then appealed to the SCC.

Section 745.51 Constitutes Cruel and Unusual Punishment

 Section 12 of the Charter protects a person’s right to be free from cruel and unusual treatment or punishment.[7] Since the law in question involved sentencing, the Court focused on the punishment aspect of the right. In considering whether this right had been violated, the first question the Court had to answer was accordingly whether consecutive periods of parole ineligibility constituted punishment. The SCC found that it did. Parole ineligibility, the Court said, is a consequence of conviction and impacts the liberty and security of the offender, making it a clear instance of punishment.[8]

The Court then stated the importance that the concept of human dignity plays in a section 12 analysis. While human dignity is not itself a constitutional right, the SCC noted that it is a “fundamental value” that guides Charter interpretation.[9] To reflect this, section 12 has been interpreted as prohibiting two dignity-offending types of punishment:

1. Punishment that is so excessive that it is incompatible with human dignity, i.e. punishment that is grossly disproportionate to what would be “just and appropriate.”[10]

2. Punishment that is “intrinsically incompatible with human dignity.”[11]

Such punishment, according to the Court, is cruel and unusual by nature (or “degrading and dehumanizing”) and can never be imposed without offending human dignity. Corporal punishment is one such example.[12]

In this case, Chief Justice Wagner, writing for the Court, found that section 745.51 constituted the latter type of punishment. As the Court explained, section 745.51 allowed a judge to sentence a person convicted of multiple murders to a prison term that effectively denied them a chance at parole. In other words, a judge could sentence such a person to die in prison. The Court found that such a sentence was, by its very nature, incompatible with human dignity.[13] Stripping a person of their autonomy and degrading them by negating their chance to rehabilitate and reintegrate into society was described by the Court as “shak[ing] the very foundations of Canadian criminal law,”[14] including the principle of human dignity. “To ensure respect for human dignity,” the Court wrote, “Parliament must leave the door open for rehabilitation, even in cases where this objective is of minimal importance.”[15]

The Court did note, however, that rehabilitation did not take precedence over other objectives of sentencing like deterrence and denunciation. Instead, the Chief Justice found that those other objectives were already satisfied with the automatic sentence for first degree murder — life in prison without parole for 25 years.[16] Compared to many other democratic states, this is actually a relatively harsh sentence. In Denmark and Finland, for example, the comparable ineligibility period is only 12 years, and in Germany and Switzerland it is 15.[17]

The Provision Is Not Saved by Judicial Discretion or the Royal Prerogative of Mercy

Despite section 745.51’s detrimental impact on human dignity, the Crown argued that the provision could be saved on the grounds that it gave a sentencing judge discretion on whether to impose consecutive parole ineligibility periods (and since such a decision could be reviewed on appeal). However, the Court found that discretion could not save a law that was, by its nature, cruel and unusual; such punishments must not exist even as a possibility.[18]

The Crown also argued that the Royal Prerogative of Mercy could save the provision since it provided another avenue a prisoner could use to seek release outside of parole. This argument, however, was also rejected by the Court. While the Governor General possesses the power to release an inmate under the prerogative on the advice of cabinet,[19] this power is only used in exceptional cases where there is “substantial injustice or undue hardship.”[20] For this reason, the Court found that the prerogative does not count as an “acceptable review process”[21] for most inmates. It does not allow for a realistic chance at parole, the Court said, for an inmate serving a life sentence who would be ineligible for any other parole under section 745.51.[22]

Section 1 Not Argued

When a court has determined that a law infringes upon the Charter rights of an individual, the state may be able to justify that infringement under section 1 of the Charter, which permits “reasonable” limits on Charter rights if they can be “demonstrably justified in a free and democratic society.”[23] In this case, though, the Crown chose not to try to justify the impugned provision.[24]

As a result, Chief Justice Wagner, finding that section 745.51 breached section 12 of the Charter, struck down the provision effective immediately.[25] This declaration of invalidity was retroactive to the date the impugned provision was enacted, which meant that any inmate who may have been “doomed to die” in prison under section 745.51 is now eligible for parole 25 years after the start of their sentence.[26]

Conclusion: No Guarantee of Parole

As soon as it was handed down, the Supreme Court faced a high degree backlash for this decision, with some federal politicians (including prime ministerial hopefuls) advocating for the use of the notwithstanding clause to revive section 745.51.[27] However, the Court has made it clear that striking down section 745.51 does not mean the murderers it applied to will be walking the streets in 25 years. It simply means that after 25 years they will be eligible for parole, and it will then be up to the parole board to determine if an offender has been rehabilitated to the extent that they can safely reintegrate into society.[28] Even after Bissonnette, a murderer who never reaches that stage of rehabilitation will still spend the rest of their lives in a prison cell.

 

[1] Criminal Code, RSC 1985, c C-46, s 745.51.

[2] Ibid, s 745.

[3] R v Bissonnette, 2022 SCC 23, paras 10-12 [Bissonnette].

[4] Ibid at paras 15-17. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c 11 [Charter].

[5] Bissonnette, supra note 3 at paras 18-19.

[6] Ibid at para 20.

[7] Charter, supra note 4 at s 12.

[8] Bissonnette, supra note 3 at para 58.

[9] Ibid at para 59.

[10] Ibid at paras 60-62.

[11] Ibid at para 60.

[12] Ibid at paras 66-67.

[13] Ibid at para 81.

[14] Ibid at para 84.

[15] Ibid at para 85 [emphasis added].

[16] Ibid at para 89.

[17] Ibid at para 91.

[18] Ibid at para 111.

[19] Ibid at paras 113-114.

[20] Ibid at para 115.

[21] Ibid at para 116.

[22] Ibid at para 118.

[23] Charter, supra note 4 at s 1.

[24] Bissonnette, supra note 3 at para 121.

[25] Ibid at para 122.

[26] Ibid at para 137.

[27] Madeleine Cummings, “Alberta murder victim's parents, MP criticize top court's decision on parole ineligibility”, CBC News, June 28, 2022; Aaron Wherry, “The case for making the notwithstanding clause politically awkward again”, CBC News, June 1, 2022.

[28] Bissonnette, supra note 3 at para 41.

Section 28: Gender Equality

What is Section 28?

Section 28 of the Charter of Rights and Freedoms is a special provision of the Charter that prioritizes gender equality. The exact words of section 28 are: “Notwithstanding anything else in this Charter, the rights and freedoms in it are guaranteed equally to male and female persons.”[1]

While section 28 doesn’t create a distinct, standalone right to gender equality, it guarantees that all of the rights in the Charter are granted equally to men and women. It can be cited along with section 15 (the general equality rights section of the Charter) in cases where gender discrimination is at play.[2]

Section 28 and Section 1

Section 28 interacts with section 1 of the Charter in a unique way. Section 1 outlines the idea that our rights and freedoms can be justifiably infringed by the state.[3] The Oakes test, devised by the Supreme Court in R v Oakes,[4] set out a general framework for assessing whether a law or government action that violates a Charter right can be justified under section 1.

According to Beverley Baines, the activists who argued (successfully) for the inclusion of section 28 in the Charter in the early 80s did so “in order to exempt the right to sex equality from the reach of the section 1 limitations provision.”[5] The aim, in other words, was to ensure that gender equality rights could not be justifiably infringed the way that other Charter rights could.

However, in practice, section 28 has not protected gender equality rights from infringement but has merely been factored into the courts’ section 1 analyses. For example, while the Supreme Court has held that criminal offences that only apply to one sex – like the criminalization “a female person” who commits infanticide[6] — can be justified under section 1, section 28 means that someone accused of such an offence cannot be denied the Charter rights and freedoms that are guaranteed to all persons.

On the other hand, the sex of people other than the accused can be a valid justification for infringing Charter rights. This was the case in R v Osolin, which concerned fair trial rights in the context of a sexual assault trial. There, Justice Cory wrote that “[t]he provisions of section 15 and section 28 of the Charter guaranteeing equality to men and women … should be taken into account in determining the reasonable limits that should be placed on the cross-examination of a complainant” in a sexual assault trial.[7] Recognizing that sexual assault is a predominantly gender-based crime that disproportionately victimizes women, Justice Cory held that “[c]ross‑examination … which relies upon groundless rape myths and fantasized stereotypes is improper and should not be permitted,”[8] regardless of the impact that this has on an accused’s right to a fair trial.

Section 28 and Section 33

Section 28 is sometimes regarded as the “notwithstanding” clause to the section 33 “notwithstanding clause.”[9] Section 33(1) reads as follows: “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.”[10]

Provincial and federal governments can use this “notwithstanding clause” to protect a law from Charter challenges under section 2 and sections 7 to 15. Notably, section 28 is not mentioned in section 33, suggesting that it is immune to the section 33 notwithstanding clause. Thus, while the notwithstanding clause can be used to override section 15 equality rights, it can’t override the requirement under section 28 that the rights and freedoms found in the Charter must be guaranteed equally to men and women.

This situation has recently given rise to controversy. In 2019, the Quebec government used the section 33 notwithstanding clause to pass Bill 21, a law that banned certain public sector workers from wearing religious symbols at work. To the extent that Bill 21 disparately impacts Muslim women — if they wish to wear a hijab at work, for example — some scholars have argued that the use of section 33 doesn’t shield it from invalidation by the courts.[11] Instead, these scholars claim that section 28 is a shield against section 33.[12] They assert that Bill 21 results in the unequal protection of Charter rights for men and women in Quebec, which would be a violation of section 28. Since section 28 can’t be overridden by section 33, Bill 21 may accordingly be vulnerable to judicial invalidation.[13]

 

[1] Canadian Charter of Rights and Freedoms, s 28, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[2] R v Park, [1995] 2 SCR 836, 99 CCC (3d) 1.

[3] Charter, supra note 1, s 1.

[4] R v Oakes, [1986] 1 SCR 103, 26 DLR (4th) 200.

[5] Beverley Baines, “Section 28 of the Canadian Charter of Rights and Freedoms: A Purposive Interpretation” (2005) 17 Canadian J of Women & L 45 at 55.

[6] Criminal Code, RSC 1985, c C-46, s 233.

[7] R v Osolin, [1993] 4 SCR 595, 109 DLR (4th) 478.

[8] Ibid.

[9] Kerri Froc, “Shouting into the Constitutional Void: Section 28 and Bill 21” (2019) 28:4 Const Forum Const 19-22 [Froc].

[10] Charter, supra note 1, s 33(1).

[11] See Froc, supra note 9.

[12] Ibid.

[13] Ibid.

Hate Speech and Freedom of Expression: The Constitutionality of the Trudeau Government’s Plans to Criminalize Holocaust Denial

The Trudeau government, as part of its 2022 Budget, set out its intention to amend the Canadian Criminal Code to “prohibit the communication of statements, other than in private conversation, that willfully promote antisemitism by condoning, denying or downplaying the Holocaust.”[1] This raises several key constitutional questions. The first is whether this proposal infringes upon rights listed under Section 2(b) of the Charter, which guarantees individuals’ “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”[2] The second question is whether such an infringement, if it exists, can be justified under Section 1 of the Charter, which states that the rights and freedoms in the Charter can be limited if this “can be demonstrably justified in a free and democratic society.”[3]

What Constitutes Free Expression? The Scope of Section 2(b)

In R v Keegstra (1990), a landmark case on the constitutionality of hate speech regulation, the Supreme Court stated that all activity that conveys or attempts to convey meaning is considered expressive and within the ambit of Section 2(b), regardless of how distasteful or unpopular it is.[4] To avoid any misunderstanding, the Court explicitly affirmed that hate speech is captured by section 2(b), and that the only form of expression that would not fall within section 2(b)’s ambit would be physical violence.[5] Similarly, in R v Zundel (1992), the Court held that the publication of false news — as an activity that evidently attempts to convey meaning — is also a form of expression guaranteed protection under section 2(b).[6]

Given this expansive reading of Section 2(b) of the Charter, it is clear that the promotion of antisemitism by condoning, denying, or downplaying the Holocaust would legally constitute a form of expression that is captured within Section 2(b). It is also clear that with this law the government intends to interfere with this expression, and thus there is an infringement of section 2(b) which must be tested under section 1 of the Charter.

Section 1 and the Oakes Test

The limitations clause in section 1 of the Charter was explicated in a 1986 case, R v Oakes, where the Court set out a 2-step test to determine whether a government infringement of a Charter right can be justified:

1. The government must show that the law in question has a goal that is both “pressing and substantial.”[7]

2. The court then conducts a proportionality analysis using three sub-tests:

a) The government must first establish that the impugned law is rationally connected to its purported purpose.

b) The law must only minimally impair the violated Charter 

c) Even if the government can satisfy the above steps, the impact on Charter rights may be too high a price to pay for the benefit the provision would procure. In other words, there must be a balance between the law’s salutary and deleterious effects.[8]

To shed light on how this test might apply to the government’s proposed Holocaust denial law, it is useful to examine two seminal cases in which the criminalization of antisemitism was at issue. Those cases are the two that were mentioned above: R v Keegstra (1990) and R v Zundel (1992). At first glance, these cases appear to produce opposite conclusions, and we accordingly need to assess which is more relevant when considering the justifiability of the law under consideration here.

Case Study 1: R v Keegstra

Mr Keegstra, a high school teacher, was promoting antisemitism to his students by describing Jews as “treacherous,” “subversive,” and “sadistic.”[9] As a result, he was charged with wilfully promoting hatred against an identifiable group under section 281(2) of the Criminal Code (now Section 319(2)). While the Supreme Court found that section 319(2) infringed upon the rights guaranteed under section 2(b), the majority also found that such an infringement was justified under the Oakes test.

In applying the Oakes test, the Court first noted the significant harm caused by hate propaganda, both to members of the targeted group and to society at large. The Court accordingly had no trouble concluding that the criminalization of hate speech via section 319(2) had a pressing and substantial objective: namely, addressing the significant harm caused by hate speech.

Moving on to the three-step proportionality stage of the Oakes test, the Court had little trouble concluding that the criminalization of hate speech was “rationally connected” to the state’s pressing and substantial objective. Even if criminalizing hate speech didn’t actually suppress hate speech, the Court said, it clearly addresses the harms of hate speech in at least one important sense: by reflecting “the severe reprobation with which society holds messages of hate directed towards racial and religious groups.”[10]

Next, the Court considered the question of minimal impairment — the second prong of the proportionality analysis — by noting that the scope of section 319(2) is limited in several key ways. Firstly, it does not capture private communications, or communications that were intended to be private but inadvertently became public.[11] Secondly, it requires the promotion of hatred to be wilful, i.e. intentional.[12] And thirdly, it requires that an individual intended to “promote hatred,” not merely ridicule or disparagement. In combination, these factors mean that section 319(2) only captures those few individuals who “intend or foresee as substantially certain a direct and active stimulation of hatred.”[13] This, for the Court, was a sufficiently narrow sphere of application to make the provision “minimally impairing” of Charter rights.

Finally, in assessing the overall proportionality of the provision, the Court noted that while the nature of regulated expression is not relevant in determining whether or not it falls within the ambit of section 2(b), it does become relevant in assessing whether or not the suppression of the expression can be justified under section 1.[14] Thus, because hate speech has no connection to (and in fact undermines) the values underlying section 2(b) — e.g. the promotion of democratic values — the Court concluded that the restrictions of section 319(2) were easier to justify.[15] The Supreme Court therefore upheld section 319(2) as a justifiable limit on free expression.

Case Study 2: R v Zundel

Mr Zundel published a pamphlet that downplayed the Holocaust, suggesting that it was a myth promoted as part of a global Jewish conspiracy. Consequently, he was charged with spreading false news under section 181 of the Criminal Code.[16]

In response to Mr Zundel’s claim that this unjustifiably infringed his expressive freedom, the Supreme Court found that the dissemination of false information was distinct from the dissemination of hate, even where it can be said that the false information might be injurious to the public wellbeing.[17] Affirming the parameters set out in Keegstra, the Court found that publication of false information is protected by section 2(b) of the Charter, regardless of how false or misleading it is.[18] Furthermore, the Court found that the consequence of section 181 was to restrict expression, and thus there was an infringement on the rights guaranteed under section 2(b).[19]

Having found a section 2(b) infringement, the Court then turned to assessing whether the infringement could be justified through the Oakes test. This is where we find the decisive part of the Court’s analysis. To quote the Court: “in determining the objective of a legislative measure for the purposes of s[ection] 1, the Court must look at the intention of Parliament when the section was enacted or amended. It cannot assign objectives, nor invent new ones according to the perceived current utility.”[20] In essence, this means that to pass the Oakes test, the benefit the law provides must have been the one intended by Parliament at the time of enactment. Furthermore, in searching for the objective of the impugned law, the Court will require something more specific than just a general protection from harm.[21] Given these self-imposed restrictions, the Court could not find a pressing and substantial objective behind section 181, and it was accordingly deemed unjustified and unconstitutional.[22]

Having found that section 181 lacked a pressing and substantial objective, the rest of the Oakes test was unnecessary to deem the law to be invalid. Nonetheless, the Court noted that even if such an objective had been found, a ban on publishing false information that is likely to cause public mischief is simply too broad to be justified under section 1.[23]

Putting it All Together: Is Criminalizing Holocaust Denial Constitutional?

When looking at the government’s proposed Holocaust denial law, we must begin by acknowledging the problem of antisemitism in Canada. In 2021, Canada saw record levels of antisemitic incidents, including violence, and an overall increase of seven percent compared to the year prior.[24] The fact that the government has described the law in question as “[p]rohibiting the promotion of Antisemitism” suggests that it clearly considers Holocaust denial to be part of a larger problem of antisemitism as opposed to just being a case of revisionist history or false information untethered from hate speech. As such, there is evidently a pressing and substantial objective that the proposed law seeks to achieve: namely, suppressing antisemitism in Canada. The presence of this pressing and substantial objective — which is closely related to the objective that was identified and validated in Keegstra — seems to distinguish the proposed law from the provision that was invalidated in Zundel. In other words, the law seems to be narrower and more specific in scope than the Zundel law (indeed, it is even narrower than the law that was upheld in Keegstra).

Going on to the second part of the Oakes test, we see that the government was careful to tie together the promotion of antisemitism and the denial, downplaying, or condoning of the Holocaust. In this regard, the law does not simply criminalize denial, downplaying, or condoning of the Holocaust, but rather does so only when this expression is used to wilfully promote antisemitism. Once again, the specificity of this wording shows the government’s efforts to ensure that the law is narrow enough to survive a challenge under section 2(b) of the Charter. Moreover, the law takes direct cues from the Supreme Court’s analysis in Keegstra by replicating much of the wording deemed there to be indicative of minimal impairment. For example, like section 319(2) — the provision that was upheld in Keegstra — the proposed law won’t apply to private communications, and only applies where the promotion of antisemitism is “wilful,” as opposed to ignorant or inadvertent.

In sum, then, given the pressing and substantial problem of antisemitism, and the similarity in the wording of the proposed law to section 319(2), it seems likely that the new prohibition (if it passes) would survive a Charter challenge under section 2(b). While freedom of expression is an important Charter right, the Supreme Court’s rulings on laws regulating hate speech make it clear that socially harmful expression is far from unassailable, and will receive less protection than expression that aligns with the deeper values of the Charter and the Constitution.

 

[1] See here: <https://budget.gc.ca/2022/report-rapport/anx3-en.html#wb-cont>.

[2] Canadian Charter of Rights and Freedoms, s 2, part I of the Constitution Act, 1982 [Charter].

[3] Ibid, s 1.

[4] R v Keegstra, [1990] 3 SCR 697 at 729 [Keegstra].

[5] Ibid at 732.

[6] R v Zundel, [1992] 2 SCR 731 at 753-755 [Zundel].

[7] R v Oakes, [1986] 1 SCR 103 at para 69 [Oakes].

[8] Ibid at para 71.

[9] Keegstra, supra note 4 at 714.

[10] Ibid at 769.

[11] Ibid at 773.

[12] Ibid at 773.

[13] Ibid at 777.

[14] Ibid at 760.

[15] Ibid at 761-762, 766.

[16] Zundel, supra note 6 at 732.

[17] Ibid at 743.

[18] Ibid at 753-755.

[19] Ibid at 750.

[20] Ibid at 761.

[21] Ibid at 762.

[22] Ibid at 767.

[23] Ibid at 768.

[24] “Antisemitism in Canada at record levels in 2021 with surge in violence, audit finds”, CBC News (April 25 2022), online: <https://www.cbc.ca/news/canada/canada-antisemitism-violence-report-1.6430495>.

Interpretive Prism or Shield? A Primer on Section 25 of the Charter

The Dickson v Vuntut Gwitchin case (“Dickson”),[1] which is now before the Supreme Court of Canada, provides us with an opportunity to reconsider the role of section 25 of the Charter — an oft-neglected provision that deals with the interplay between Indigenous peoples’ rights and other sections of the Charter. Section 25 states that:

The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including: a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and b) any rights or freedoms that now exist by way of land claim agreements or may be so acquired.[2]

Broadly speaking, Dickson concerns the relationship that this provision establishes between the self-government rights of First Nations and the Charter rights of their members. In short, the case originated when Cindy Dickson, a member of the Vuntut Gwitchin First Nation (“VGFN”), was prevented from taking up a VGFN Council seat because of a residency requirement in the VGFN Constitution that she was unable to comply with. While the Yukon Court of Appeal held that this residency requirement infringed section 15 of the Charter (the equality rights section) it concluded that section 25 effectively shields the requirement from challenge, since allowing the challenge would limit the self-government rights of the VGFN.

In anticipation of the Supreme Court’s consideration of this case, this article offers a brief primer on section 25. While there has been a relative dearth of litigation on section 25, the Supreme Court (and one Justice in particular) has dropped a number of breadcrumbs that provide some sense, at least, of its meaning and scope. This article aims to follow those breadcrumbs.

What’s the Purpose of Section 25?

There are basically two competing interpretations of the purpose of section 25.

The first interpretation is that section 25 serves as an interpretative prism. According to this view, section 25 requires that other sections of the Charter should, if possible, be understood in such a way as to avoid a negative impact on Aboriginal rights. However, if such an interpretation is not possible, section 25 will not save the impugned law or government action, even if invalidating or discontinuing that law/action will have a detrimental impact on Aboriginal rights.[3]

The second interpretation, by contrast, is that section 25 acts as a shield. According to this view, if Aboriginal rights would be limited by a Charter claim, section 25 would be engaged and would bar that Charter claim.[4] This is the approach that the Yukon Court of Appeal adopted in Dickson: Ms Dickson’s equality rights claim could not proceed because of the detrimental impact that this would have on the collective, self-government rights of her First Nation. This interpretation of section 25 was also the one favoured by the concurring opinion of Justice Bastarache in R v Kapp (“Kapp”), a landmark Supreme Court decision on constitutional equality rights.[5]

A Note on Kapp

Kapp is a seminal case on Aboriginal rights and section 15 (equality rights) of the Charter. In it, the Supreme Court held that a communal fishing license granted exclusively to several Indigenous groups did not constitute a violation of section 15 of the Charter, as had been claimed by a group of non-Indigenous commercial fishers. This was because section 15(2) explicitly allows governments to take measures to ameliorate the circumstances of disadvantaged groups, even if this means granting them preferential treatment over others.[6] While the majority of the Supreme Court held the government licensing scheme to be valid due to section 15(2),[7] one judge, Justice Bastarache, wrote a concurring opinion based on section 25 of the Charter, arguing that this provision shielded the government scheme from the Charter challenge.[8]

What Rights Are Covered?

Although they did not decide the case based on section 25, the majority in R v Kapp suggested in passing that only rights which are of “a constitutional character” are likely to fall within its scope.[9] In contrast, Justice Bastarache’s concurrence argues for a broader reading of section 25 which protects all Aboriginal rights that are unique to Aboriginal communities because of “their special status.”[10] Following from this more expansive reading, Justice Bastarache suggested that any “legislation that distinguishes between aboriginal and non-aboriginal people in order to protect interests associated with aboriginal culture, territory, sovereignty or the treaty process deserves to be shielded from Charter scrutiny.”[11] In Dickson, the Yukon Court of Appeal affirmed this approach.[12]

Following from this, another question which arises around section 25 is whether it can be invoked by Indigenous governments in response to Charter claims by their own members. While this question wasn’t at issue in Kapp, Justice Bastarache tentatively suggested that such usage would be contrary to the spirit of section 25, since it would partially remove Indigenous people from “the Charter protection scheme”[13] (rather than bolstering and protecting their rights).

On a related note, some scholars have wondered if the Charter actually applies to laws passed by self-governing Indigenous nations, since section 32 of the Charter limits its application to federal and provincial governments.[14] However, in Dickson, the Yukon Court of Appeal rejected this argument, holding that the Charter applies to Indigenous governments when they are, by their very nature, exercising governmental power (although after finding that the Charter applied to the VGFN, the Court of Appeal then held that section 25 effectively blocked Ms Dickson’s Charter claim).[15]

How (and When) Should Section 25 Be Applied?

Another complicated question relating to section 25 concerns the point at which it should be factored into legal analysis. While there are a number of ways of approaching this question, in Kapp, Justice Bastarache offered a potential roadmap for future courts by articulating a three-step approach. To quote Justice Bastarache:

“The first step requires an evaluation of the claim in order to establish the nature of the substantive Charter right and whether the claim is made out, prima facie. The second step requires an evaluation of the native right to establish whether it falls under s[ection] 25. The third step requires a determination of the existence of a true conflict between the Charter right and the native right.”[16]

The key point here is that, for Bastarache, section 25 should be applied before there has been a full analysis of whether the Charter has been violated.[17] Although this three-step process has not (yet) been affirmed by the Supreme Court, the Yukon Court of Appeal did use it in Dickson v Vuntut Gwitchin First Nation.[18] That said, it must be noted that the Yukon Court did not use, nor comment upon, Justice Bastarache’s suggestion that section 25 might apply differently in the case of a restriction placed on an Indigenous person by an Indigenous government (i.e. precisely the type of “internal restriction” that is at issue in the Dickson case).[19]

Conclusion: The Tension Between Individual and Collective Rights

The issue of balancing the rights of individuals against the collective rights of a political community or nation is a difficult one, especially when one considers the historical context of Crown-Indigenous relations in Canada. On the one hand, a key premise of the Charter regime in Canada is that all individuals will be protected against problematic exercises of governmental power. On the other hand, a key dimension of reconciliation between the Canadian state and Indigenous communities is the recognition of Indigenous peoples right to collectively manage their own affairs — even (and perhaps especially) when this means deviating from the Charter. The fact that the Supreme Court is soon going to be weighing in on this tension has the potential to provide much needed clarity on the relationship between Indigenous individuals, Indigenous governments, and the Canadian Constitution.

 

[1] The case is on appeal from the Yukon Court of Appeal. See Dickson v Vuntut Gwitchin First Nation, 2021 YKCA 5 [Dickson].

[2] Canadian Charter of Rights and Freedoms, s 25, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[3] R v Kapp, 2008 SCC 41 at para 79 [Kapp].

[4] Ibid at para 79.

[5] Ibid at para 81.

[6] Charter, supra note 2, s 15(2).

[7] Kapp, supra note 3 at para 61.

[8] Ibid at paras 76-77.

[9] Ibid at paras 63, 65.

[10] Ibid at para 103.

[11] Ibid at para 103.

[12] Dickson, supra note 1 at paras 145-146 [Dickson].

[13] Kapp, supra note 3 at para 99.

[14] Ibid at para 100.

[15] Dickson, supra note 1 at para 98. See also Eldridge v British Columbia (Attorney General), [1998] 2 SCR 624 at para 44.

[16] Ibid at para 111.

[17] On Justice Bastarache’s reasoning on this point, see Kapp, supra note 3 at para 109.

[18] See Dickson, supra note 1, e.g. at para 146.

[19] See Kapp, supra note 3 at para 99.