Lecture Video: Sentencing Children to Life in Canada, with Professor Debra Parkes

Lecture Audio: What Oakes Could Have Said, with Professor Gregoire Webber

Section 11(a): The Right to Be Informed Without Unreasonable Delay of the Specific Offence Charged



Any person charged with an offence has the right … to be informed without unreasonable delay of the specific offence.


This right consists of two elements. The first and primary element is the notification of the exact accusation. If the accused is not informed about the exact nature of the accusation, their ability to fully respond and defend themselves may be impeded. The accused has the right to understand the charges against them so that they can strategize their defense, gather evidence, and prepare to confront the prosecutor’s case.[1] This right is a safeguard for the legal principle that “an accused can only be charged with an offence recognized by law.”[2]


The second element is the right to be notified of the charges without undue delay. This provision serves to safeguard the right to a full response and defense.[3] The Supreme Court of Canada in R v Delaronde (1997) determined that section 11(a) also serves as an economic safeguard. The court ruled that individuals suffering economic hardships from delayed charge notifications may have legal redress.[4]




The right to be informed under s.11(a) is only triggered once a person has been charged with an offence.[5]


Criminal Code


The section 11(a) requirement to provide sufficient notice of the charges against the accused has been partly codified by section 581 of the Criminal Code. Section 581 sets the requirements for the form of statement of offence, which includes that the statement uses plain language, uses the words of the enactment that describes the offence, or uses words that provide sufficient notice of the charges to the recipient. Additionally, it requires that each count in an indictment contains an independent statement.


Unreasonable Delay


Determination of “unreasonable delay” is approached using the same factors that are relevant under section 11(b) (this protects the right to be tried within a reasonable time). These factors include the length of any delay, reasons for the delay, waiver of time periods (if the individual deliberately tries to avoid being informed of the charge), and prejudice to the accused.


Interplay with Section 1


Note that under section 1 of the Charter, Charter rights are guaranteed “subject only to such reasonable limits … as can be demonstrably justified in a free and democratic society.” For more information on section 1 of the Charter, please refer to our webpage on the Supreme Court’s Oakes Test.



[1] R v Cisar, [2014] ONCA 151 (CA).

[2] Ibid at para 11.

[3] Ibid at para 12.

[4] R v Delaronde, [1997] 1 SCR 213.

[5] R v Heit, [1984] 7 DLR (4th) 656.

Q&A with Leonid Sirota: The Working Families Case and the Trouble with the SCC’s Voting Rights Jurisprudence

In this latest Q&A session, CCS summer student Stephen Raitz interviews Professor Leonid Sirota (University of Reading, School of Law) about the recent Ontario Court of Appeal judgment in Working Families — a case about whether Ontario-based spending limits on third party political advertising unjustifiably violate the “informational component” of the right to vote.



Q: Could you briefly summarize what was at issue in the Ontario Court of Appeal’s recent Working Families decision?



A: Working Families concerns the constitutionality of Ontario legislation limiting spending by anyone except political parties and candidates on advertisements for or against parties or candidates or addressing issues “that can reasonably be regarded as closely associated with” a party or candidate to (now) roughly $700,000 in the year before an election campaign is due to begin. The main argument, which the Court accepted by 2-1, was that this legislation was contrary to section 3 of the Charter, which protects the right to vote, as (mis)interpreted by the Supreme Court in Harper v Canada (Attorney General). One might think that this would naturally have been a section 2(b) freedom of expression claim, but that was foreclosed because the legislation invokes section 33 of the Charter, aka the “notwithstanding clause,” which ousts the application of section 2(b) ― but not section 3. There was also an argument to the effect that section 33 was not properly invoked, but the court rejects it out of hand, and unanimously.



Q: How did the majority and dissenting opinions differ in the way they approached section 3 of the Charter?



A: First, it’s important to note that the ONCA isn’t really interpreting section 3 of the Charter, but rather the Harper majority’s gloss on that provision. One might think that section 3 deals with voting (which isn’t an expressive activity in any meaningful way, whatever the Supreme Court of Canada may have thought of that in Baier) and section 2(b) with electoral campaigning (which obviously is). These are two different provisions addressing different things. But in Harper, the Court confused matters by saying that section 3 also deals with campaigning, albeit through the lens of voters receiving information that will help them decide whom to vote for, rather than by considering the rights of those (parties, candidates, and civil society groups) who would like to persuade the voters. Specifically, Harper reinterprets the section 3 right to vote as a “right to meaningfully participate in the electoral process” (this is consistent with misbegotten SCC precedent) and stipulates that “[t]he right to meaningful participation includes a citizen’s right to exercise his or her vote in an informed manner” (this is new). To add to the confusion, the discussion in Harper is very cursory, indeed impressionistic. As a result, both ONCA opinions in Working Families — the majority and the dissent — struggle to make sense of it and to place it within the broader framework of Charter case law.

To decide whether “a citizen’s right to exercise his or her vote in an informed manner” is impaired by the legislation at issue, the ONCA majority seizes on what it sees as two “proxies” identified by Bastarache J in Harper (though he doesn’t describe them in this way): first, whether “[s]pending limits [are] carefully tailored to ensure that candidates, political parties and third parties are able to convey their information to voters,” and second, whether such limits “allow third parties to engage in ‘modest, national, informational campaigns.’” Much of the majority opinion in Working Families is devoted to arguing that the impugned law fails these two tests. It points, in particular, to the fact that there was never a justification given for expanding the limits on political advertising from six months before an election campaign to a whole year (without the expenses ceiling being raised at all), which speaks to a lack of “careful tailoring,” and to the trial judge’s lack of an explicit finding that a “modest informational campaign” was possible within the confines of the law (though the trial judge made no finding to the contrary either). The dissent both disagrees with the majority’s analysis on these specific points and also, perhaps more importantly, rejects reliance on the alleged “proxies” for a section 3 violation identified by the majority. The dissent would instead engage in a more global assessment of whether informed participation is impaired. The dissent also accuses the majority of conflating its section 3 analysis (especially careful tailoring) with what should be happening under section 1, while the majority tries very hard to draw distinctions between these two stages.

To my mind, the dissent’s approach is more in line with what Bastarache J did in Harper, but the majority’s way of dealing with the case is understandable insofar as it tries to inject, if not objectivity, then at least tractability into the analysis. The dissent’s conflation criticism is warranted, but the bigger conflation is in Harper, between section 2(b) and section 3. Everything else flows from there. If the “careful tailoring” language means something, then should we blame the majority for using it? In their different ways, the two opinions are trying to make the best of the very difficult situation the Harper majority opinion put them in.



Q: The media landscape has evolved immensely since the SCC’s Harper decision. How do you think these changes — the free spread of misinformation on social media, for example — should impact the way that courts interpret and apply section 3 (if at all)?



A: Part of the premise of the question is misconceived: we know enough about the social media companies’ moderation practices now to tell that they often actively, if seldom successfully, suppress what they regard ― rightly or wrongly ― as misinformation. But be that as it may, I don’t think the (real) changes in media landscape are relevant to the interpretation of section 3, which ― on the Harper approach ― includes a very general, and really quite limited, “right to exercise [one’s] vote in an informed manner” (or more accurately, given that the Charter is only concerned with state action, a right not to be prevented by the government from exercising one’s vote in an informed manner). Profound though they may be, changes in the media landscape occur in spite of the government’s attempt to stand athwart history and yell stop, so it is difficult to see how they affect this right. If indeed the right not to be prevented by the government from being an informed voter was protected in 2004, then there is no reason why section 3 would not protect the same right in 2023. That said, it would be interesting to see how the courts would deal with an argument to the effect that C-18, which predictably resulted in news becoming less available on key online platforms, impairs this right in much the same way as certain provisions of the Criminal Court impaired sex workers’ right to the security of the person in Bedford.



Q: You’ve provided comments on a similar Australian case (Unions NSW v New South Wales [2019] HCA 1). What could the SCC glean from that decision, if anything, when it hears the Working Families case on appeal?



A: Nothing much, I would guess. Unions NSW logically enough addressed the implied freedom of political communication under the Australian Constitution. Since in this case Canadian courts cannot consider the freedom of expression issues due to the operation section 33, the SCC will be confined to revisiting the section 3 framework it made up in Harper ― whether to discard it altogether (as I hope, but doubt, it will), or to expound it beyond the cursory explanation given by Bastarache J. In doing so, the SCC, like the ONCA, will probably be at pains to show that it is not simply replicating a section 2(b) analysis. Hence it will probably not find any freedom of expression cases, whether its own, those decided by other Canadian courts, or those from other jurisdictions, helpful. There are comments about the value of civil society campaigns to informing voters in the plurality opinion in Unions NSW, but the SCC already pays lip service to this idea. I do not think it can really go any further under the section 3 framework ― otherwise this will become a duplication of section 2(b), which should be avoided both on principle and, more to the point, in light of the judgment in Toronto (City) v Ontario (Attorney General). If the SCC has occasion to revisit these issues in a more natural way, under a section 2(b) claim, then it should follow the Australians’ rejection of deference to the evidence-free claims made by the government on behalf of legislation that muzzles civil society for the benefit of political parties. But don’t hold your breath for it to happen.


Q&A with Bridget Gilbride: Litigating Dickson v Vuntut Gwitchin First Nation

In this Q&A session, CCS summer student Juliana Quan interviews lawyer Bridget Gilbride (Fasken Martineau DuMolin), who is representing claimant Cindy Dickson in a landmark Charter case currently before the Supreme Court of Canada. For more info on the Dickson case, see here: https://journals.library.ualberta.ca/constitutional_forum/index.php/constitutional_forum/issue/view/1959



Q: We are currently awaiting the Supreme Court of Canada’s decision in the case of Dickson v VGFN. Could you briefly summarize the legal dispute that the Court will be addressing?



A: The case arises because the appellant, Cindy Dickson, a citizen of the Vuntut Gwitchin First Nation, is barred from serving on the VGFN’s government because she lives in Whitehorse, not Old Crow, the only community within the VGFN’s Settlement Land. The majority of VGFN citizens live outside of their Settlement Land (including a large contingent in Whitehorse), and the VGFN exercises considerable legislative authority over all their citizens in Yukon. Ms. Dickson brought a Charter challenge to VGFN’s residency requirement on the ground that it discriminates against her based on where she lives, relying on a previous decision of the Supreme Court of Canada, Corbière v Canada. There are three issues before the Supreme Court: 1) whether the Charter applies to the Vuntut Gwitchin government, an Indigenous self-government in Canada; 2) if the Charter applies, whether section 25 operates to shield the residency requirement from Charter review; and 3) if the Charter applies, whether the residency requirement is discriminatory, as found by the courts below.



Q: The Yukon Court of Appeal found that the Charter applies to the VGFN and that its residency requirement is discriminatory but is shielded from invalidation by section 25 of the Charter. What are your thoughts on the idea that section 25 can function as an effective shield against Charter claims? Are there other interpretive approaches to section 25 that might be preferable?



A: We argued that section 25 is an interpretative provision that should not be applied as an automatic shield and should not bypass the balancing exercise required by section 1 of the Charter.  In circumstances in which an Indigenous right will be negated through the application of the Charter, section 25 may well operate as a shield, but the analysis should be case-by-case, so that harm arising from the Charter infringement can be considered and balanced as part of the analysis. Specifically, we argued that section 25 should not operate to automatically shield laws of Indigenous governments, having the effect of providing lesser protections to Indigenous individuals than others in Canada.



Q: How might the Supreme Court’s ruling impact the relationship between Indigenous people and their governments? Are you concerned that the decision could underestimate the positive role that the Charter can play in Indigenous communities across Canada?



A: The Charter, which in large part constitutionalizes human rights recognized in important international covenants, provides basic and fundamental protections to all Canadian citizens, who are inherently vulnerable in the face of government conduct. The Charter empowers and protects individuals, which in turn strengthens democracies, including Indigenous governments.



Q: More generally, what challenges have you experienced in representing Ms. Dickson?



A: It is a privilege representing Cindy. Mostly, I regret that I have not succeeded to date in the courts below. Cindy is very courageous to bring this important issue forward, and it has not been easy on her. She tried other avenues to resolve this issue but was not left with any options other than this court challenge. I am humbled by her commitment to equality for her fellow citizens, and honoured to be part of it.


Q&A with Dr Ryan Beaton: Indigenous Rights and the Charter (Dickson v Vuntut Gwitchin First Nation)

In this Q&A, CCS Summer Student Juliana Quan talks to Dr Ryan Beaton (Power Law, Vancouver) about the case of Dickson v Vuntut Gwitchin, a major case that is currently before the Supreme Court of Canada on the application of the Charter of Rights and Freedoms to self-governing First Nations, and on the role that section 25 of the Charter might play in shielding First Nations from Charter claims.



Q: We are currently awaiting the Supreme Court of Canada’s decision in the case of Dickson v VGFN. Could you briefly summarize the legal dispute that the Court will be addressing?



A: Cindy Dickson, a citizen of the Vuntut Gwitchin First Nation (VGFN), wanted to run for election to the VGFN Council. VGFN has concluded a comprehensive land claims agreement and a self-government agreement with both Canada and Yukon. As envisioned by the self-government agreement, VGFN has adopted a VGFN Constitution, which includes a provision requiring that VGFN councillors reside on VGFN settlement lands in Yukon’s far north. Ms Dickson lives in Whitehorse in part because her son needs access to medical treatment not readily available in VGFN settlement lands hundreds of kilometres to the north. She wants to be able to serve on VGFN Council without having to relocate to VGFN settlement lands.

Ms Dickson asked the Yukon Supreme Court (YKSC) to invalidate the councillor residency requirement in the VGFN Constitution, arguing that the requirement violated her equality rights under section 15 of the Canadian Charter of Rights and Freedoms. VGFN argued that the Charter does not apply to the residency requirement because adopting that requirement — and indeed, adopting the entire VGFN Constitution of which it is a part — is an exercise of inherent Indigenous self-government or jurisdiction.

Section 32 of the Charter governs the scope of its application, stating that the Charter applies to Parliament and the federal government and to provincial legislatures and governments, as well as to all matters within the authority of Parliament (including all matters relating to the Yukon territory) and within the authority of provincial legislatures. A major questioned raised in this case is whether section 32 should be interpreted as making the Charter applicable to Indigenous legislatures and governments, even though section 32 does not mention them explicitly.

VGFN also argued in the alternative that, if the Charter does apply to the residency requirement, then section 25 of the Charter prevents the application of section 15 to invalidate the residency requirement. Section 25 states that the guarantee of rights and freedoms in the Charter “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.” Here it is important to note that, while the VGFN land claims agreement with Canada and Yukon states that it is a treaty within the meaning of section 35 of the Constitution Act, 1982, the self-government agreement is not a treaty in that sense. But even if the self-government agreement is understood not to be a section 35 treaty and the adoption of the residency requirement in the VGFN Constitution not the exercise of section 35 treaty rights, the adoption of the residency requirement is still arguably the exercise of “other rights and freedoms that pertain to the aboriginal peoples of Canada” within the meaning of section 25. The Supreme Court of Canada (SCC) has said very little about section 25 to date, and Dickson is likely to give us its most extensive treatment yet.

Both the YKSC and the Yukon Court of Appeal (YKCA), while differing in some details of their respective analyses and conclusions, found in essence that the Charter did apply to the residency requirement in the VGFN Constitution, but that section 25 shielded the requirement from invalidation under section 15.

The SCC will now have its say on whether the Charter applies to the residency requirement and, if so, whether section 25 shields the residency requirement from the application of section 15 or otherwise influences the interpretation of Ms Dickson’s section 15 rights on the facts of this case. Ultimately, the SCC will have to decide whether the residency requirement violates Ms Dickson’s equality rights under section 15. Whatever conclusion the SCC reaches on that final legal outcome, the reasoning it uses to get there will likely set an important landmark orienting the judiciary’s view of Indigenous law and its place in the Canadian constitutional landscape. The case also provides the SCC with a chance to finally develop a framework for the interpretation and application of section 25 of the Charter.



Q: Do you believe the Court will take this opportunity to develop a principled framework for the interpretation of section 25 of the Charter? How would you suggest this be achieved?



A: As noted above, I expect the Court to offer its most extensive treatment to date of section 25. The Court cannot hope to anticipate, let alone answer, all the questions that might arise about section 25, but I think it will have to address at least two major points:

1) What are the “other rights and freedoms that pertain to the aboriginal peoples of Canada” mentioned in section 25, and is the VGFN adoption of the residency requirement an exercise of one of these other rights or freedoms?

2) If the VGFN adoption of the residency requirement is an exercise of one of these other rights or freedoms, does section 25 render section 15 entirely inapplicable to the residency requirement or does it merely inform the interpretation of how section 15 applies to the residency requirement, for instance, by requiring the courts to adopt, where reasonably possible, an interpretation of section 15 that avoids concluding that the residency requirement violates it?

I expect the SCC to take a relatively cautious approach, given how little it has said to date on section 25. That is, I expect the Court will answer these questions on the facts of this case, deciding whether the adoption of the residency requirement is an exercise of a right or freedom within the meaning of section 25, offering some discussion of the relevant characteristics of the residency requirement but without trying to give any comprehensive definition of what qualifies as a section 25 right or freedom. Even a cautious approach should, however, yield significant answers about the Court’s approach to section 25.

The second question I note above is important: in this case, the YKSC and the YKCA essentially decided that section 25 acted as a full shield against the application of section 15 to the residency requirement, rather than as a factor shaping the interpretation of section 15. Ms Dickson argues that section 25 was never intended to shield Indigenous laws and governments against the appeal to Charter rights and freedoms by their own Indigenous citizens. On her argument, section 25 may in principle shield elements of the VGFN Constitution from Charter challenges by non-Indigenous individuals or governments, but it has no application to her appeal, as a VGFN citizen, to her rights under the Charter.

There is thus a major gap between the visions advanced by VGFN and Ms Dickson, respectively, as to how section 25 applies to the facts of this case. That gap squarely raises the question: can citizens of a First Nation invoke the Charter to challenge the laws and conduct adopted by that First Nation in exercising its inherent powers of self-government? The SCC will have to give at least some answer to that question in this case, even if the Court wants to avoid a broad discussion of section 25 that would take it far beyond the facts of the case.



Q: You have expressed doubts about the risk that the Court’s decision could create “Charter-free zones” — zones in which governmental power can be lawfully wielded in ways that contravene the Charter. Could you elaborate on this?



A: Technically, if the Charter did not apply to Indigenous laws and governments, then nothing they did would contravene the Charter — the Charter would simply not apply and the question of contravention would not arise. But precisely this result, a situation where members of Indigenous nations would be “denied” their Charter rights and freedoms in relation to their own Indigenous governments, is a result the Court will, I suspect, strongly want to avoid. Even if the Court concludes that Indigenous laws and governments should be shielded from the Charter in many contexts, the Court will almost certainly express this in terms of the balance that needs to be struck between individuals’ Charter rights and freedoms, on the one hand, and collective rights or powers of self-government, on the other.

This balancing approach likely holds much greater appeal for the Court than an approach that could be said to deny Charter rights to individuals like Ms Dickson in their interactions with their own Indigenous governments. The SCC often prides itself on a modern and nuanced understanding of the need to balance collective rights (e.g. linguistic, denominational, or Aboriginal rights) and individual rights, or even collective and individual aspects of specific rights themselves.

Given the Court’s consistent preference for such balancing between collective and individual rights, I think the Court will view the situation raised in Dickson as one calling for a proper balance to be struck, case-by-case, between the Charter rights of individuals like Ms Dickson and collective Indigenous rights of self-government.



Q: Section 25 refers to “other rights and freedoms that pertain to the Aboriginal peoples of Canada.” What might be included in this category?



A: Excellent question! VGFN argues that this case provides a prime example: its adoption of the residency requirement as an expression of its inherent Indigenous right of self-government, which is recognized in the self-government agreement with Canada and Yukon (and in federal and territorial implementation legislation), even though it is not formally recognized in treaty or by judicial declaration.

As already noted, the self-government agreement reached between VGFN, Canada, and Yukon explicitly states that it is not a section 35 agreement and so not a treaty within the meaning of that section. VGFN also has never obtained a judicial declaration that they have an Aboriginal right to adopt the residency requirement (or the VGFN Constitution more generally) as an aspect of self-government. But, even if adoption of the residency requirement is thus not an exercise either of a treaty right or of an Aboriginal right in this sense, section 25 specifically refers to “aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada” (emphasis added). VGFN argues that these words must have been included in section 25 for some purpose, and must therefore cover rights and freedoms that are not (or not yet established as) Aboriginal or treaty rights.

VGFN argues that this category of “other rights or freedoms” surely includes their inherent power of self-government to adopt the residency requirement, a power recognized by Canada and Yukon in the self-government agreement with VGFN and in federal and territorial implementing legislation. To my mind, VGFN’s argument on this point is very persuasive.



Q: In your opinion, what should be the guiding constitutional principles and considerations that inform the discussion around the application of the Charter to Indigenous governments exercising inherent self-government rights?



A: I think the courts (as well as federal, provincial, and territorial governments) should be extremely cautious about imposing solutions on Indigenous governments and communities as to the proper interaction between the Charter and Indigenous self-government. Note, for instance, that the VGFN Constitution states that disputes arising under it may be brought to the Yukon Supreme Court so long as the Vuntut Gwitchin’s own Court has not been established. The VGFN Constitution thus contemplates the establishment of a VGFN Court, although that has not yet occurred.

The SCC should be careful not to issue a judgment that unnecessarily pre-determines whether or how any future Vuntut Gwitchin Court would be expected to apply the Charter to VGFN laws and government conduct. Even if the superior courts exercise some supervisory jurisdiction over such Indigenous courts, this should be done with great deference, allowing Indigenous peoples to develop their own distinctive approaches to legal issues arising under their own laws and governments. At the same time, I do not think the SCC should (or will) entirely rule out the supervisory jurisdiction of superior courts — it could well be appropriate at times for individuals like Ms Dickson to continue to have access to superior courts to argue that they have been denied their rights in some fundamental way. While black-and-white answers to many of these questions might initially be satisfying (to those on the winning side of an argument), I think it wiser for the SCC to establish that courts need to be deferential towards Indigenous governments and courts working out their own solutions, but not rule out the possibility that individuals might in some circumstances properly have recourse to provincial and territorial superior courts. The principles and considerations governing such circumstances will have to be worked out as situations arise, not (one hopes) through judicial reflection in the abstract.



Q: Considering the issues at stake, do you believe it is appropriate for the Supreme Court of Canada to be the ultimate arbiter on whether the Charter applies to self-governing First Nations? Could you discuss why multilateral negotiations might or might not be a better approach?



A: The lower courts in this case reasonably pointed out that extensive multilateral negotiations have already taken place and led to historic self-government and land claims agreements between VGFN, Canada, and Yukon. It is not surprising that legal disputes then arise in the implementation of those agreements and the subsequent adoption of the VGFN Constitution. The VGFN Constitution itself provides that disputes arising under it may be brought to the Yukon Supreme Court and, of course, the Yukon Supreme Court is subject to appellate review by the Yukon Court of Appeal and, ultimately, the SCC. So, in the circumstances of this case, yes, I do believe it is appropriate for the SCC to decide the appeal that has been brought before it.

More generally, the SCC will inevitably have some role to play in determining whether and how appeal can be made to the Charter in the context of Indigenous laws and self-government. As Ms Dickson argues in the present case, while she is a citizen of VGFN, she is also a Canadian citizen and she can ask the courts, including the SCC, for an interpretation of her Charter rights. That said, it remains crucial that the courts show appropriate deference to the choices made by Indigenous governments and other decision-makers. There is no easy formula for how the courts should do that; it’s principally a matter of adopting an orientation of adequate respect and deference that will shape the legal doctrine developed case-by-case. It’s important also to keep in mind that the disputes that arise will often not oppose state power to Indigenous rights in any simple way. Dickson is at its heart a challenge by a VGFN citizen, appealing to her Charter rights, to a law adopted in the VGFN Constitution.



Q: If the Charter is found or presumed to apply, what consequences might that have for the future of Indigenous self-government and self-determination in Canada?



A: A lot depends on how the Charter is found to apply. For instance, the lower courts in this case found that the Charter applies whether the courts give effect to the residency requirement understood solely as an exercise of inherent Indigenous self-government or whether they give it effect through (or partially on account of) the federal and territorial legislation designed to implement the self-government agreement with VGFN. The reasoning of the lower courts is much stronger on the latter alternative than the former. One possibility is that the SCC will decide that the Charter applies in this case based on the specific terms of the self-government agreement and implementing legislation and that it does not need to decide whether the Charter would necessarily apply to the residency requirement viewed simply as an exercise of Indigenous self-government.

If the SCC takes this tack, that arguably leaves Indigenous peoples (and Canada, the provinces, and the territories) greater discretion to negotiate the exact manner in which the Charter will apply to Indigenous laws and governments. Again, it’s doubtful that the courts would uphold any agreement that flatly denied the application of the Charter to Indigenous laws and governments, something that Canada, the provinces, and territories seem unlikely to agree to in the first place anyway. But that still leaves many questions about the Charter’s application unanswered. For instance, how is the Charter to be applied in Indigenous courts like the Vuntut Gwitchin Court contemplated in the VGFN Constitution? How would the decisions of Indigenous courts on Charter issues be reviewed, if at all, by superior courts? On matters such as these, the SCC’s decision in Dickson could leave narrower or wider room for negotiation, depending on how exactly it determines that the Charter applies.

That wider discretion could have pros and cons. It could add a further layer of complexity to negotiations that are already typically long and costly. It could lead to a patchwork of approaches across the country. But it could also allow for a variety of approaches to be tried, with Indigenous peoples pursuing paths they consider most appropriate for their own communities and practices of self-government. This might prove empowering for Indigenous peoples rebuilding their own forms of self-government, allowing them to shape the application of the Charter within their own communities in accordance with their own traditions, legal principles, and norms.


Q&A with Professor Colton Fehr: R v Hills and the Constitutionality of Mandatory Minimums

In this Q&A session, CCS summer student Anisa Hussain talks to Professor Colton Fehr (Thompson Rivers University, Faculty of Law) about the Supreme Court’s recent decision in R v Hills, a case concerning the constitutionality of a mandatory minimum under section 12 of the Charter (the Charter’s prohibition on “cruel and unusual” punishment).


Q: Could you briefly explain the legal claim that was recently addressed by the Supreme Court of Canada (SCC) in R v Hills?


A: The offender (Mr Hills) was convicted of discharging a firearm at a residence contrary to section 244.2(1)(a) of the Criminal Code of Canada, RSC 1985, c C-46. At the time of the offence, a mandatory minimum sentence of four years imprisonment was in place. Notably, these minimums and those at issue in the companion case of R v Hilbach were repealed prior to the Supreme Court hearings. The Court nevertheless considered the merits of the challenges given the Alberta Court of Appeal’s decision below, which fundamentally challenged the basic structure of section 12 of the Charter: the prohibition against subjecting anyone to cruel and unusual treatment or punishment.


The Supreme Court, Justice Côté dissenting, decided that the impugned mandatory minimum sentences violated section 12 of the Charter. According to longstanding jurisprudence, a mandatory minimum sentence will be found unconstitutional if the punishment is “grossly disproportionate” when compared to the appropriate punishment in a real or a “reasonable hypothetical” case. Relying upon a hypothetical scenario, the Court found that a variety of weapons meeting the definition of a “firearm” could not perforate the wall of a typical residence. It followed, the majority concluded, that a person firing a paintball gun at a residence would be subjected to a lengthy prison term under the law — a result that, in its opinion, violated section 12 of the Charter. Given this factual finding, it would be surprising if any jurisdiction even considered imposing a custodial sentence for such a hypothetical offender, let alone a lengthy penitentiary sentence.


Q: Why did the SCC criticize and overrule the Alberta Court of Appeal’s decision in Hills?


A: The most contentious decisions at the Alberta Court of Appeal were written by Justices Wakeling and O’Ferrall. While these decisions were quite nuanced, and prolifically written, they effectively denied core elements of the Supreme Court’s jurisprudence under section 12 of the Charter. The precise wording of that provision states that “[e]veryone has the right not to be subjected to any cruel and unusual punishment or treatment.” In its critique, the Alberta Court of Appeal seized upon two words in this provision.


First, the Justices contended that the conjunction “and” meant that a punishment or treatment must be both cruel and unusual to violate section 12. As something like a prison sentence is not “unusual,” they maintained, a mandatory minimum sentence could never violate the Charter. Second, and alternatively, the Justices maintained that the word “subjected” meant that the person pleading that a mandatory minimum sentence is unconstitutional must actually be the subject of the unconstitutional punishment. If true, then it would not be possible to rely upon “reasonable hypothetical” scenarios in challenging the law. While a less extreme option than the first, this argument would require that the individual challenging a mandatory minimum sentence actually be liable to a grossly disproportionate punishment.


At the heart of the Alberta Court of Appeal’s arguments was a general distaste for interfering with Parliament’s decisions on the appropriate sentences for crimes. In jurisdictions where similar constraints are not in place, such as the United States, it is common for penalties to be significantly higher than in Canada. The Supreme Court nevertheless provided two general responses. Doctrinally, it observed that both its generous interpretation of the word “subjected” as permitting reliance upon reasonable hypotheticals and its interpretation of the phrase “cruel and unusual” as the expression of a single norm were long accepted in the Charter jurisprudence, even if similar wording in section 2(b) of the Canadian Bill of Rights resulted in adoption of the narrower interpretations supported by the Alberta Court of Appeal. As the Court held in R v Henry, compelling reasons are required before the Court would abandon a precedent with a diminishing impact on rights.


The Court also rejected the Alberta Court of Appeal’s proposed overhaul of the section 12 jurisprudence for normative reasons. As Justice Martin observes for the majority, abandoning reasonable hypotheticals “would dramatically curtail the reach of the Charter and the ability of the courts to discharge their duty to scrutinize the constitutionality of legislation and maintain the integrity of the constitutional order.” The fact that it is the “nature of the law” at issue in a constitutional challenge — not the rights claimant’s status — makes it sufficient “for a claimant to allege unconstitutional effects in their case or on third parties.” “If the only way to challenge an unconstitutional law were on the basis of the precise facts before the court, bad laws might remain on the books indefinitely.” For these reasons, Justice Martin agreed with my prior work that the broader reading of section 12 “is more likely to further the purpose of the Charter: protecting citizens from abuse of state power.”


Q: Given the risk of disproportionality, and the risk of exacerbating inequities in the justice system, why is the use of mandatory minimums ever constitutionally permissible?


A: The answer to this question derives from the wording of section 12 of the Charter. The prohibition prevents “cruel and unusual punishment or treatment.” This is an exacting standard, and one that the Supreme Court reasonably concluded requires grossly disproportionate conduct. As the Court observes in Hills, it has elsewhere described this standard as prohibiting only punishments or treatments that “outrage standards of decency,” are “abhorrent or intolerable,” or “shock the conscience.” Given this high bar, there cannot be a requirement that Parliament impose a “proportionate” or “fit” sentence in all circumstances. Instead, Parliament will sometimes place emphasis on denunciation and deterrence in an effort to respond to what it thinks are improper uses of judicial discretion in crafting sentence ranges with respect to various offences. Parliament no doubt does so in response to public cries to be “tough on crime,” a tactic that can be politically prosperous for parties pressing to protect or procure political power (alliteration intended).


This can lead to devastating impacts on criminal defendants, especially Indigenous people and members of other minority groups who are subjected to the criminal law at an unjust rate. This issue arose in R v Sharma, which was decided just two months before Hills. In Sharma, a narrow majority rejected a constitutional challenge to laws limiting who could receive a conditional sentence order, effectively a “jail in the community” sentence. While not so obvious to some of the judges on the Court, it seems intuitive that a provision of this sort will result in many more members of minority groups serving time in prisons. The main argument put forward was that such a result violates section 15 of the Charter — the equality rights section — due to its adverse effects on Indigenous people in particular. Yet, this argument is difficult to accept as a matter of constitutional interpretation as it effectively circumvents the deferential punishment standard provided for in section 12 of the Charter. For my broader views on this tension, your readers may be interested in my recent article “Reflections on the Supreme Court of Canada’s Decision in R. v. Sharma” (2023) 60 Alberta Law Review 933.


I raise Sharma tangentially so as to provide context for what I think is another positive aspect of the Hills case. Faced with a distasteful argument that Indigeneity is irrelevant to crafting a “reasonable hypothetical offender,” Justice Martin relied upon past jurisprudence considering the sorts of personal characteristics with which a hypothetical offender may be imbued under section 12 analysis and held that Indigeneity should be a common feature of any such offender. This is a positive development for two reasons. First, it ensures that the history of colonialism will feature strongly in determining what punishments are too severe to pass constitutional muster. As this history tends to militate in favour of using a more rehabilitative lens when sentencing an offender, it can be expected to place downward pressure on what punishments will be unconstitutionally severe. Second, it allows equality as a value to impact the scope of criminal justice rights. Scholars have long lamented the criminal law’s failure to incorporate equality into its reasoning, and the majority should be commended, in my estimation, for pushing that project forward.


Q: Mandatory minimums run a high risk of imposing disproportionate sentences on offenders. Aside from striking them down on constitutional grounds, as the Court did in Hills, are there other ways in which the disproportionate effects of mandatory minimums might be mitigated?


A: Courts have been asked by Crown attorneys to consider several other means for circumventing mandatory minimum punishments that operate in an unconstitutional manner. The first of these options assumes that such punishments will rarely if ever occur because prosecutors will exercise their discretion in a quasi-judicial manner, thereby avoiding such effects in practice. While prosecutors no doubt will at times allow an accused to plead to lesser offences with an agreed upon sentence to avoid the harshness of a mandatory minimum sentence, relying upon prosecutorial discretion is not a cure for an unconstitutional mandatory minimum sentence. As the Supreme Court explained in R v Smith (1987), such an approach ignores the language of section 52 of the Constitution Act 1982, which requires that “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” The Court in R v Nur further observed that such an approach would conflate the appropriate roles of courts and prosecutors. Put differently, it “would result in replacing a public hearing on the constitutionality of [a law] before an independent and impartial court with the discretionary decision of a Crown prosecutor, who is in an adversarial role to the accused.”


Courts have also been asked to carve out judicially constructed constitutional exemptions to avoid striking down a mandatory minimum sentence because it applies unconstitutionally in some narrow case. In R v Ferguson (2008), the Supreme Court rejected this option. As Chief Justice McLachlin observed, “[t]he divergence between the law on the books and the law as applied — and the uncertainty and unpredictability that result — exacts a price paid in the coin of injustice.” Building on this reasoning in Nur, Chief Justice McLachlin suggested that constitutional exemptions deprive “citizens of the right to know what the law is in advance and to govern their conduct accordingly, and … encourage … the uneven and unequal application of the law.” For Chief Justice McLachlin, “bad law, fixed up on a case-by-case basis by prosecutors, does not accord with the role and responsibility of Parliament to enact constitutional laws for the people of Canada.”


But this does not mean that a similar approach could not be adopted via legislation. The best proposal the Supreme Court has offered is to adopt a “safety valve” clause that allows courts to impose a lesser sentence after demonstrating that imposition of a mandatory minimum sentence would result in an unconstitutionally severe punishment. I suspect some politicians would be apprehensive about this approach, but it arguably strikes the best middle ground as it would avoid the need to consider any real or reasonable hypothetical case when considering a mandatory minimum sentence’s constitutionality under section 12 of the Charter. If such a case arose, the Court would simply employ the safety valve exception to impose a fit sentence.


Thanks for reading!

Call for Papers: Constitutional Forum/Forum Constitutionnel

Call for Papers


Special Issue
Criminal Sentencing and the Charter

Guest Editor: Professor Colton Fehr (Thompson Rivers)

Over the last two years, the Supreme Court has written extensively on the law of sentencing and its relationship with section 12 of the Canadian Charter of Rights and Freedoms. This jurisprudence both resisted challenges to its core framework and provided an innovative lens for assessing whether treatment or punishment is impermissible: the concept of human dignity. The Court further considered the role of the right to equality in determining the constitutionality of sentencing laws, sharply disagreeing on its appropriate role in shaping sentencing policy. While not implicating a constitutional challenge, the Court also developed a unique approach to the “starting point” method of sentencing.

This Call for Papers asks authors to critically engage with these and related developments in Canadian constitutional sentencing jurisprudence. How will the Supreme Court’s understanding of human dignity impact the law of sentencing moving forward? Can the Charter contribute to meaningful and lasting change with respect to the disparate impact of sentencing law on minority populations? Was the Court correct to preserve the “severity” track of analysis under section 12 of the Charter? If so, does the Court’s reliance on hypothetical scenarios unduly interfere with Parliament’s role in crafting sentences? Is the Court’s stamp of approval on “starting point” sentencing a positive development? Articles considering other questions broadly related to the constitutional boundaries of sentencing law are also welcome.

We invite submissions for this special issue of the Constitutional Forum from scholars, lawyers, and students in the field of law and other related disciplines. The special issue will be edited by Professor Colton Fehr, a Research Affiliate with the Centre for Constitutional Studies. The deadline for submissions is 1 March 2024. We will aim to publish the issue by mid-May. It is preferable for submissions to be between 3,000 and 6,000 words, including footnotes. Please send submissions, expressions of interest, and queries to: mailey@ualberta.ca.

Lecture: Notwithstanding Rights, Review, or Remedy? w/ Professor Gregoire Webber

The Canadian Charter’s notwithstanding clause (section 33) makes exception to something, but what is that something?

Received readings of the notwithstanding clause assume that it makes exception to rights or to judicial review. In this lecture, however, Professor Gregoire Webber (Queen's Law) argues that the clause makes exception to the remedy that follows from a finding that legislation is inconsistent with targeted rights and freedoms.

Doug Ford, Voting Rights, and the Notwithstanding Clause: Interview with Professor Mike Pal