Call for Papers: Constitutional Forum/Forum Constitutionnel

Call for Papers

SUBMISSION DEADLINE: MARCH 1, 2024

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.

Bill C-7: Addressing the Gaps in the Regulation of Medical Assistance in Dying (MAID)

Medical assistance in dying, or MAID, is a controversial topic that has generated much constitutional debate and litigation in Canada. For some people, providing legal access to MAID enhances the personal autonomy and dignity of people with serious illnesses, giving them “control over the manner of … [their] death.”[1] For others, though, it’s a dangerous medical advancement that “devalues the … lives” of already marginalized people and “renders them vulnerable to unwanted assistance in dying.”[2] In 2016, the Canadian Parliament weighed in on this debate when it legalized MAID for people who meet certain eligibility requirements. In 2021, the government then enacted Bill C-7 to address what it regarded as holes in the 2016 legislation.[3]

The History of MAID in Canada

Helping a person to commit suicide was, and still is, illegal under section 241(1)(b) of the Criminal Code.[4] However, through a series of amendments to the Criminal Code, exemptions were made in 2016 for medical practitioners and healthcare providers who provide MAID in accordance with certain legislative guidelines.[5]

The story of these amendments began in 1993, when the Supreme Court of Canada ruled on a case called Rodriguez v British Columbia (AG). In Rodriguez, the Court upheld the original Criminal Code provisions, which prohibited MAID under all circumstances.[6] By a 5-4 majority, the Court rejected the claim that the Criminal Code provisions unjustifiably infringed various Charter rights, including the rights contained in sections 7, 12, and 15 of the Charter. The Court held that even if section 15 — the equality rights section of the Charter — had been infringed, the blanket prohibition on assisted suicide was still legally justified because it protected vulnerable people who are at risk of being pressured into ending their lives prematurely.[7]

Just over two decades later, the Supreme Court unanimously overturned Rodriguez in Carter v Canada (AG), recognizing that people who are “grievously and irremediably ill … may be condemned to a life of severe and intolerable suffering”[8] without medical assistance in dying. In arriving at this decision, the Court considered the public’s evolving sentiments regarding MAID, as well as international precedents that had legalized MAID in other places since the Rodriguez ruling. In light of these factors, the Court held that the blanket prohibition of MAID unjustifiably violated section 7 of the Charter, which protects each individual’s right not to be deprived of life, liberty, or security of the person in a way that breaches “the principles of fundamental justice.”[9] Having dealt with the case under section 7, the Court found it unnecessary to consider whether the prohibition also violated the equality rights section of the Charter (section 15).[10]

In a rare move, then, the Supreme Court of Canada had overturned its previous ruling in Rodriguez. Rather than striking down the blanket prohibition on MAID immediately though, the Court issued a suspended declaration of invalidity so that Parliament would have time to create its own regulatory framework.[11] This prompted Parliament to pass Bill C-14, which created exemptions to the blanket prohibition by allowing medical professionals to administer MAID in accordance with strict safeguards and eligibility requirements.[12] If these requirements were met, medical practitioners would not be held criminally responsible for providing MAID.[13]

Although Bill C-14 opened the door to MAID in Canada, its eligibility requirements and safeguards were still subject to challenges under the Charter of Rights and Freedoms. These challenges were at the heart of a 2019 Quebec Superior Court case, Truchon c Procureur général du Canada.[14]

Charter Challenges to Bill C-14

The Truchon case brought up two main Charter challenges under sections 7 and 15. These challenges were directed at the requirement that a person’s natural death must be “reasonably foreseeable” before they will be eligible for MAID.

The Section 7 Challenge

In Truchon, the Superior Court found that the “reasonably foreseeable” requirement violated the liberty and personal security of people who are suffering from grievous and irremediable illnesses but are barred from accessing MAID because their natural deaths are not reasonably foreseeable.[15] More specifically, the requirement infringed on the liberty of such individuals because it prevented them from making important medical choices,[16] and it threatened their security of the person by potentially prolonging their suffering.[17] While such infringements are permissible under section 7 if they are found to be “in accordance with the principles of fundamental justice,” the Court decided that this was not the case here, since the infringements were overbroad and grossly disproportionate to the law’s intended purpose: namely, the goal of protecting vulnerable people from being taken advantage of.[18]

As with other Charter violations, a section 7 violation will be upheld by a court if it is shown to be “demonstrably justified in a free and democratic society”[19] (this possibility is laid out in section 1 of the Charter). To determine whether a violation is “demonstrably justified,” courts use a two-step test known as the Oakes test, which requires that the violation serves a “pressing and substantial objective” and is “proportionate.”[20] In Truchon, the Court concluded that the violation of section 7 could not be saved under the Oakes test. In the Court’s view, the violation was not “proportionate” because it did not “minimally impair” the claimants’ section 7 rights,[21] and because the law’s potential benefits did not outweigh its deleterious effects on seriously ill people whose deaths are not reasonably foreseeable.[22]

The Section 15 Challenge

The claimants in Truchon also asserted that the “reasonably foreseeable” requirement violated their section 15 equality rights. The claimants argued that the law discriminated against people based on the nature of their disability or illness. While a person with grievous and irremediable physical disabilities would be unable to legally obtain MAID if their natural death wasn’t reasonably foreseeable, access could be legally provided to a person with comparably serious disabilities whose natural death was reasonably foreseeable. The Court agreed with the claimants that this constituted a violation of section 15 of the Charter and could not be saved under the Oakes test.[23]

Parliament’s Response: Bill C-7

In 2021, in response to the Truchon ruling, the Canadian government introduced Bill C-7.[24] This Bill modified the eligibility requirements and safeguards for accessing MAID in an attempt to address the section 7 and section 15 Charter violations that were recognized in Truchon. To do this, Bill C-7 expanded legal MAID access by creating two sets of safeguards.[25]

On the one hand, for people whose deaths are reasonably foreseeable, Bill C-7 removed the final consent requirement and allowed them to give consent to MAID in advance (of course, they can still withdraw consent anytime).[26] This addressed concerns about people choosing to end their lives early due to fear of losing their capacity to consent.

On the other hand, for people whose deaths are not reasonably foreseeable, Bill C-7 applied slightly more stringent safeguards while now allowing them to legally access MAID. For example, Bill C-7 created a mandatory 90-day assessment period for people whose deaths are not reasonably foreseeable — a requirement that doesn’t exist for people whose deaths are naturally foreseeable.

For many, these amendments mark important step in rectifying the section 7 and 15 infringements recognized in Truchon.[28] While the safeguards are different for people whose natural deaths are not immanent, many more people who are suffering from grievous and irremediable illnesses will now have legal access to MAID, regardless of the nature of their illness.[29]

Did Bill C-7 Solve the Issues With MAID in Canada?

Although Bill C-7 addressed some of the more prevalent Charter challenges to MAID laws, it is still possible for new Charter challenges to come up in the future. For example, MAID is currently unavailable to those who are suffering solely from mental illness, which could be framed as a violation of equality rights under section 15 of the Charter insofar as it entails another distinction based on the nature of a person’s illness or disability. Whether MAID laws in Canada will be subject to further constitutional challenges will accordingly depend, in part, on whether new legislation opens up access to MAID for people suffering solely from mental illness (note: new legislation is expected by the end of March 2023).

 

[1] Carter v Canada (AG), 2015 SCC 5 at para 10 [Carter].

[2] Ibid at para 10.

[3] Bill C-7: An act to amend the Criminal Code (medical assistance in dying) (September 2021), online: Charter Statements <https://www.justice.gc.ca/eng/csj-sjc/pl/charter-charte/c7.html>.

[4] Criminal Code, RSC 1985, c C-46, s 241(1)(b).

[5] Ibid at s 241(2).

[6] Rodriguez v British Columbia (AG), [1993] 3 SCR 519, 107 DLR (4th) 342.

[7] Ibid.

[8] Carter, supra note 1 at para 1.

[9] Ibid.

[10] Ibid at para 93.

[11] Ibid at para 128.

[12] Bill C-14, An Act to amend the Criminal Code and to make amendments related to other Acts (medical assistance in dying), 1st Sess, 42nd Parl, 2016, (assented to 16 June 2016) SC 2016 c 3.

[13] Ibid at cl 1.

[14] Truchon c Procureur général du Canada, 2019 QCCS 3792 [Truchon].

[15] Ibid at para 522.

[16] Ibid at para 527.

[17] Ibid at para 528.

[18] Ibid at paras 536-544.

[19] 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 1.

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

[21] Truchon, supra note 14 at para 617.

[22] Ibid at para 637.

[23] Ibid at para 690.

[24] Bill C-7, An Act to amend the Criminal Code (medical assistance in dying), 2nd Sess, 43rd Parl, 2021, (assented to 17 March 2021) SC 2021 c 2.

[25] Bill C-14, supra note 12 at cl 1(3.1).

[26] Criminal Code, supra note 4, s 241.2(3).

[27] Ibid, s 241.2(3.1).

[28] Dying With Dignity, “A Triumph of Compassion and Choice: Bill C-7 Receives Royal Assent” (March 17, 2021), online: Dying With Dignity <https://www.dyingwithdignity.ca/blog/bill_c7_royal_assent/>.

[29] However, it should be noted that there is still strong opposition to Bill C-7 and MAID laws in general, and some individuals and organizations believe that MAID inherently devalues the lives of people suffering from disabilities. See PRESS RELEASE: MAiD Bill violates equality rights of people with disabilities (February 2020), online: Inclusion Canada <https://inclusioncanada.ca/2020/02/28/medical-assistance-in-dying-bill-violates-equality-rights-of-people-with-disabilities-it-must-be-stopped/>.

 

 

 

 

 

Are Protests Illegal in Alberta? Charter Issues with Bill 1

In February 2020, amidst protests across the country interfering with railways and pipeline construction, the Government of Alberta introduced the Critical Infrastructure Defence Act. More commonly known as Bill 1, it outlaws interference with “essential infrastructure”. Several commentators oppose the Bill, arguing it violates the Charter of Rights and Freedoms.[1] A group of professors from the University of Calgary called on the Government to recognize “that Bill 1 violates the Charter”.[2] This article will summarise the Bill and analyze some of the key ways in which it may violate the Charter. (more…)

Analogous Grounds

The equal rights guarantee under section 15 of the Canadian Charter of Rights and Freedoms is an inclusive one, in the sense that equality is guaranteed not only on the enumerated grounds of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability, but also on ‘analogous grounds’ of discrimination. In its decision in Miron v. Trudel ([1995] 2 S.C.R. 418), the Supreme Court of Canada identified a number of factors to consider in determining whether a group or personal characteristic is analogous to those enumerated under section 15, and so deserving of Charter protection.

Such factors include whether the group sharing the characteristic has been the object of historical stereotyping, prejudice or disadvantage; whether the group constitutes a “discrete and insular minority” which is lacking in political power or influence; whether the characteristic is beyond an individual’s control or “changeable only at unacceptable personal cost”; and whether the characteristic is recognized as a prohibited ground of discrimination under other human rights laws, or is similar in any other way to the grounds explicitly included under section 15.

Among the analogous grounds of discrimination recognized by the Supreme Court are citizenship status (see Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, Lavoie v. Canada, [2002] S.C.J. No. 24), sexual orientation (see Egan v. Canada, [1995] 2 S.C.R. 513, Vriend v. Alberta, [1998] 1 S.C.R. 493), marital status (see Miron v. Trudel, above) and off-reserve band member status (Corbiere v. Canada, [1999] 2 S.C.R. 203).

Sources:

Equality Through Affirmative Action – Section 15(2)

15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.[1]

Equality Rights: How Sections 15(1) and 15(2) Work Together

Section 15 of the Canadian Charter of Rights and Freedoms requires that the government respect equality rights. The section contains two subsections that work together towards the goal of preventing discrimination and promoting equality for everyone before and under the law.[2] Section 15(1) aims to prevent governments from discriminating based on personal characteristics such as race, sex, or age.[3] Section 15(2) allows governments to establish programs to improve the situation of specific disadvantaged groups, so that equality with all other groups can be achieved.[4]

In order to approach equality for everyone before and under the law, the impact of the law on the individual or group affected must be considered.[5] The concept of equality in section 15 recognizes that not all differential treatment between individuals results in inequality and that treating everyone the same can sometimes lead to serious inequality due to the differences between individuals.[6]

For example, in the Supreme Court of Canada case of Eldridge v British Columbia (Attorney General), the deaf were unable to benefit in the same way as other patients from the government-funded hospital services because of the government’s decision to not provide funding for sign language interpreters.[7]

In this case, the lack of sign language interpreters made it difficult for a deaf patient who was giving birth to effectively communicate with her doctor.[8] Her twin babies were taken from her immediately after birth following a medical complication, but no one could effectively communicate the reason to her.[9] The Court stated that the government’s failure to provide sign language interpreters for the deaf patient did not allow for equal access to the government-funded hospital services, and was contrary to the equality guarantee of section 15.[10]

The Purpose of Affirmative Action Programs in Section 15(2)

The purpose of including the affirmative action programs in section 15(2) of the Charter is to protect government programs that only benefit specific disadvantaged groups from otherwise being viewed as discriminatory under section 15.[11] Disadvantaged groups include those that may have been historically marginalized because of their race, sex, age, or mental or physical disability. Section 15(2) allows governments to establish programs that aim to improve the situation of such groups, so that equality with all other groups can be achieved.[12]

How is Section 15(2) Used?

The government can use section 15(2) as a defence when an individual or group can show that a government program treats them differently based on personal characteristics.[13]

For example, in the Supreme Court of Canada case of R v Kapp, non-Aboriginal commercial fishers argued that a government program discriminated against them on the basis of race by granting Aboriginal fishers an exclusive fishing license.[14] Even though the non-Aboriginal fishers were able to show that the government gave preferential treatment to Aboriginal fishers because of their race, the program was still allowed because it was a valid affirmative action program within the scope of section 15(2).[15] The government was able to show that the program was aimed at improving the situation of the Aboriginal fishers who have been historically disadvantaged.[16]

[1] Canadian Charter of Rights and Freedoms, s 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[2] R v Kapp, 2008 SCC 41 at para 16 .

[3] Ibid.

[4] Ibid.

[5] Andrews v Law Society of British Columbia, [1989] 1 SCR 143, at para 8 .

[6] Ibid.

[7] Eldridge v British Columbia (AG), [1997] 3 SCR 624.

[8] Ibid at paras 6-7.

[9] Ibid at para 6.

[10] Ibid.

[11] Kapp, supra note 2, at para 33.

[12] Ibid at para 16.

[13] Ibid at para 40.

[14] Ibid.

[15] Ibid.

[16] Ibid at para 58.

Equality Rights

Section 15 of the Canadian Charter of Rights and Freedoms states:

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.[1]

Equality rights in section 15(1) of the Charter

Section 15(1) of the Charter is meant to promote equality and protect Canadians from laws and government actions that discriminate against them because of who they are.[2] A law or government action violates the Charter’s equality guarantee when it creates a distinction between people based on grounds such as sex, race, age, or disabilities (referred to as “enumerated grounds”), and causes a discriminatory impact.[3]

The Supreme Court of Canada has also stated that Canadians can be protected from discrimination on the basis of grounds other than those expressly listed in section 15(1) (referred to as “analogous grounds”).[4] These grounds must be accepted by a court. Examples of analogous grounds recognized by the Supreme Court so far include sexual orientation, marital status, and citizenship status.[5]

Equality rights before the Charter

Prior to the Charter, the Canadian Bill of Rights included a guarantee of equality rights.[6] The Supreme Court interpreted this equality guarantee simply to mean that similarly situated people (individuals within the same distinct group) should be treated the same way.[7]

In the case of Bliss v Canada (AG), the Supreme Court said that a law does not violate the Bill’s equality guarantee by treating one group differently from other Canadians as long as the law’s objective is valid rather than discriminatory.[8]

The issue in Bliss was whether a law that denied unemployment benefits to a pregnant woman discriminated against women and violated the equality guarantee in the Bill of Rights.[9] The Court found no violation of Ms. Bliss’ equality guarantee because the law that denied her unemployment benefits had a valid objective (it set out the requirements for different groups to receive unemployment benefits) and did not discriminate, as it treated all pregnant women the same way.[10] The Court said that any inequality present was created by nature rather than law.[11]

Examples of section 15(1) of the Charter in practice

After the Charter became part of the Constitution, the Supreme Court rejected the former standard for equality that focused on providing like-treatment for like-individuals – what has become known as “formal equality.”[12] Instead, it interpreted section 15(1) to guarantee “substantive equality,” which requires attention to “the full context of the case, including the law’s real impact on the claimants and members if the group to which they belong.”[13] The SCC has therefore found that a government action or law that treats all people the same can still violate the Charter’s equality guarantee if the impact of the action or law is that someone or some group receives less protection or benefit compared to others based on their sex, race, or any other enumerated or analogous ground.[14]

In Eldridge v British Columbia (AG), the Supreme Court considered whether the British Columbia government’s failure to fund interpretation services for the deaf when they receive medical services violated the equality guarantee in section 15(1).[15]

Unlike hearing persons, the deaf patients who relied on sign language interpreters faced a significant communication barrier when accessing medical services if no sign language interpreter was present.[16] As a result, a visit to the doctor for a deaf patient was especially confusing, stressful, and came with a higher likelihood of misdiagnosis and ineffective treatment.[17]  The Court said that the failure to fund interpretation services violated the equality guarantee in section 15(1) because it denied deaf persons equal benefit of the law and therefore, discriminated against them.[18]

The Supreme Court also found that a law that denied unemployment benefits to a woman because she was over the age of 65 violated the Charter’s equality guarantee in the case of Tétreault-Gadoury v Canada (Employment and Immigration Commission).[19] The law had the effect of perpetuating the stereotype that people over the age of 65 are no longer part of the active working population, and should therefore not receive the same unemployment benefits as those younger than age 65.[20] Justice La Forest stated for the unanimous Court that it was irrelevant that the law did not intend to discriminate.[21]

In Fraser v Canada (Attorney General), the SCC confirmed that a law may still be discriminatory even when it appears to treat everyone equally, and any negative consequences are not explicitly based on enumerated or analogous grounds. This is known as “adverse impact” discrimination, and its occurs when “instead of explicitly singling out those who are in the protected groups for differential treatment, the law indirectly places them at a disadvantage.”[22]

In Fraser, three retired female RCMP officers claimed that they faced discrimination as a result of the RCMP’s pension program. The three members worked reduced hours for a period during their careers through a “job-sharing” arrangement and were thus not entitled to the pension for full-time members for that period. The job share program was used exclusively by women from 2010-2014, and many of those participants cited childcare as their reason for working reduced hours.[23] Other members who were not considered full-time for other reasons were given the option to “buy back” credit towards their pensions.[24] This option was unavailable to those women who took part in the job-sharing program. The program was designed to be “mutually beneficial,” however the SCC still found that the adverse impacts on the pensions of the women in the program offended section 15(1).

The role of section 15(2)

Section 15(2) allows governments to give preferential treatment to a disadvantaged group through programs that will give the group opportunities that they would not otherwise have.[25] In this way, affirmative action programs are recognized as furthering the goal of equality in section 15 of the Charter.[26] For more information on section 15(2), check out our keyword on Equality Through Affirmative Action.

For more information:

[1] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 15 .

[2] Andrews v Law Society of British Columbia, [1989] 1 SCR 143 at 163-164; 171-174, McIntyre J ; R v Kapp, 2008 SCC 41 at paras 14-18 .

[3] Andrews, ibid at 182. See also Kapp, ibid at paras 17-18; Ontario (AG) v Fraser, 2011 SCC 20 at para 116.

[4] See eg Andrews, ibid at 175, 182-183; Egan v Canada, [1995] 2 SCR 513; Corbiere v Canada, [1999] 2 SCR 203 . See generally Robert J Sharpe & Kent Roach, The Charter of Rights and Freedoms, 5th ed (Toronto: Irwin Law, 2013) at 351-354.

[5] Andrews, supra note 2; Egan, ibid; Miron v Trudel, [1995] 2 SCR 418.

[6] SC 1960, c 44, s 1(b).

[7] Andrews, supra note 2 at 165-168; Bliss v Canada (AG), [1979] 1 SCR 183 ; Canada (AG) v Lavell, [1974] SCR 1349.

[8] Bliss, ibid at 194, citing Prata v Minister of Manpower and Immigration, [1976] 1 SCR 376 at 382; The Queen v Burnshine, [1975] 1 SCR 693 at 707-708, Martland J.

[9] Bliss, ibid.

[10] Ibid at 186, 192-194; Andrews, supra note 2 at 167-168.

[11] Bliss, ibid at 190.

[12] Andrews, supra note 2 at 165-168; Sharpe & Roach, supra note 4 at 332-334.

[13] Withler v Canada (Attorney General), 2011 SCC 12 at para 2.

[14] Andrews, ibid; McKinney v University of Guelph, [1990] 3 SCR 229 at 279 .

[15] Eldridge v British Columbia (AG), [1997] 3 SCR 624.

[16] Ibid at paras 5-7, 71.

[17] Ibid at paras 1, 5.

[18] Ibid at paras 80, 95.

[19] [1991] 2 SCR 22.

[20] Ibid at 40-41.

[21] Ibid at 41, citing McKinney, supra note 14 at 279.

[22] Fraser v Canada (Attorney General), 2020 SCC 28 at para 30 .

[23] Ibid at para 10.

[24] Ibid at para 14.

[25] Kapp, supra note 2 at paras 33, 40-41.

[26] Ibid at paras 16, 37.

Equal Pay for Equal Work? Not in Alberta

Introduction

Students aged 13 to 17 will soon have to accept a lower minimum wage than the rest of Alberta workers. The Government of Alberta recently amended the Alberta Employment Standards Regulations to introduce a $13 per hour youth minimum wage.[1] Workers 18 years and older will continue to receive the $15 per hour minimum wage already in place. The sharp distinction being made on the basis of age raises the question: is this change in the youth minimum wage legal?

Alberta’s Employment Standards Code and the Changes to Minimum Wage

The Alberta Employment Standards Code  sets the minimum rules for conditions of employment in the province. These include hours of work, minimum wage, overtime, holidays, and rules for employing youth.[2] The Regulations determine the actual amount that constitutes minimum wage.

The Government of Alberta’s amendments to the Regulations reduced the minimum wage payable to students aged 13 to 17 from $15 to $13 per hour. During the school year, students must receive a minimum wage of $13 per hour for the first 28 hours worked per week. After 28 hours, minimum wage will increase to $15 per hour for the remainder of the week. The youth minimum wage will apply to all hours worked by youth during the summer months.[3]

The Government has stated that this change in minimum wage is an attempt to get more youth working part-time during the school year.[4] The idea is the reduced minimum wage makes it more economical for employers to hire youth. Alberta is not the first province to introduce a youth minimum wage. Ontario introduced a similar regime in 2016 and it is still in place.

The Point of Contention: Does the New Youth Minimum Wage Violate the Charter?

The Charter protects certain human rights and freedoms.[5] It safeguards Canadians from government actions that violate these rights.[6] All laws enacted by the Government of Alberta must comply with the Charter in order to be constitutional. The question this new youth minimum wage raises is whether the Government is discriminating against youth on the basis of age and therefore breaching the equality rights section of the Charter.

Section 15 – Equality Rights

Section 15, the equality rights section, of the Charter is designed to promote equality and ensure that government action does not discriminate based on protected grounds such as age, sex, race, colour, or religion.[7]

An individual cannot be discriminated against on the basis of age. The proposed youth minimum wage arguably discriminates on this basis. For example, a 17-year-old café employee could have three years’ work experience at the café. The employer is only required to pay the 17-year-old $13 per hour. The employer could then hire an 18-year-old with little to no work experience. The 18-year-old is entitled to receive $15 per hour, $2 more per hour than the 17-year-old. This wage discrepancy has nothing to do with either employee’s capabilities, it is simply due to the fact that one employee is considered a youth and the other is 18 years old.

In order to determine whether the new minimum wage is actually unconstitutional, a challenge to the Regulations would have to be brought to court. A court would analyze whether the youth minimum wage infringes on an individual’s equality rights. The court would ask the following questions:

  1. Whether, on its face or in its impact, the law creates a distinction on the basis of a protected ground such as age, sex, race, etc.;
  2. Whether the law fails to respond to the actual capacities and needs of the members of the group and instead imposes burdens or denies a benefit in a manner that has the effect of reinforcing or worsening their disadvantage[8]

The first part of the analysis is likely easily satisfied. The changes to minimum wage make a distinction on the basis of age – individuals between the ages of 13 to 17 are to receive a lower minimum wage than individuals ages 18 and older.

Under the second part of the test, it could be argued that youth can have the skills to do the same work as those marginally older than them – especially in the fact situation outlined above. In this way, the reduced minimum wage is not responding to their actual capacity. The new minimum wage denies youth the benefit of receiving equal pay for equal work. Youth arguably face many disadvantages; they can be economically disadvantaged, face higher unemployment and are ineligible to vote. Further, youth are legally required to attend school until they are 16 years old.[9] As a result, they are not able to work as much as someone who is not in school.

The youth minimum wage could arguably worsen these disadvantages by further reducing youth’s economic opportunity:

At a glance, it appears there is an argument that the minimum wage amendments discriminate on the basis of age, thus violating the equality rights section of the Charter. The Regulations amendment would be rendered unconstitutional if a court were to make such a finding.

Section 1 – Justification

If a court finds that a law infringes an individual’s Charter rights, that law may be upheld if the government can justify the infringement – that is, if the government can show the court that the law has a valid purpose and that there is no better way to effect that purpose. A court must balance the effects of the Charter infringement and the government’s justification to determine whether a law can be upheld. A law will be constitutional if the positive benefits of the government’s actions outweigh the negative effects of the Charter infringement.

Assuming the minimum wage reduction is found to infringe the equality rights of youth on the basis of age, the Government of Alberta may have a number of arguments justifying the changes to minimum wage. Alberta’s minimum wage saw drastic increases over the past three years, having risen from $10.20 per hour to $15 per hour. In a survey conducted by the Canadian Federation of Independent Business of Ontario members, over half the respondents indicated that they planned to reduce or eliminate young workers as a result of increasing minimum wages in Ontario.[13] Further, a Bank of Canada report predicted that 60,000 jobs would be reduced through to early next year as a result of provincial policy changes. The report explained that employers tend to shift away from inexperienced workers when minimum wage rates rise. The effect is strongest for those aged 15 to 19.[14] The research indicates there may be an advantage in reducing the minimum wage in an effort to increase youth employment.

The Government of Alberta could argue that this new minimum wage is making youth more employable. The economic benefit to hiring a youth may encourage more business owners to seek out young workers. The argument might be that youth are able to get jobs they would not have been considered for prior to a lower youth minimum wage. Further, by making youth more employable, the government is targeting some of the disadvantages youth face.

In the event this issue makes it to court, the court will be tasked with balancing the government’s reasons for imposing this new minimum wage with the effects the minimum wage has on youth’s equality rights. This may be a tough task given that there appear to be strong arguments on both sides.

Conclusion 

The new youth minimum wage will take effect on June 26, 2019. Youth currently making minimum wage may see a pay decrease after this change takes effect. The new minimum wage may violate youth’s equality rights as it creates a distinction on the basis of age and potentially exacerbates disadvantages youth face when it comes to financial stability and employment. The Government of Alberta may justify this change on the basis that it will make youth more employable, thus alleviating some of the disadvantages youth currently face. In order to determine whether the new minimum wage is constitutional, a challenge will likely have to be brought in court. Until then, youth will have to accept a lower minimum wage.

 

 

 

 

[1] Employment Standards (Minimum Wage) Amendment Regulation, OC 99/2019 (Employment Standards Code).

[2] Government of Alberta, “Alberta Employment Standards” (2019), online: <https://www.alberta.ca/improved-employment-standards.aspx>.

[3] Supra note 1.

[4] James Keller, “Alberta slashes minimum wage for teen students”, The Globe and Mail (May 27, 2019), online: < https://www.theglobeandmail.com/canada/alberta/article-alberta-slashes-minimum-wage-for-teen-students/>.

[5] 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.

[6] 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 .

[7] Ibid, s 15(1).

[8] Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 at paras 19-21.

[9] School Act, RSA 2000, c S-3, s 13(1)(c).

[10] Alberta, Alta Reg 14/1997, s 52(1).

[11] Canada, Expert Panel on Youth Employment, Understanding the Realities Youth Employment in Canada - Interim Report Of The Expert Panel On Youth Employment 2016, (2016) at 10.

[12] Ibid at 12.

[13] Peter Shawn Taylor, “Canada’s youth are the clear losers from a higher minimum wage”, MacLean’s (January 8, 2018), online: < https://www.macleans.ca/opinion/canadas-youth-are-the-clear-losers-from-a-higher-minimum-wage/>.

[14] Ibid.

Dismantling the Safe Third Country Agreement

Introduction

There are increasing calls on the Canadian government to suspend, and then end the Safe Third Country Agreement between Canada and the United States. These calls have been prompted by recent developments in the United States regarding immigrants, asylum-seekers and refugees, and the increase in the number of asylum-seekers entering Canada irregularly.

If the government does not act to suspend or end the Safe Third Country Agreement, the Agreement could still be altered by the courts. Three families are challenging the Agreement as a violation of their rights under sections 7 and 15 of the Canadian Charter of Rights and Freedoms. This challenge will be heard by the Federal Court in January 2019.[1]

A Backgrounder – The Safe Third Country Agreement

The Safe Third Country Agreement (officially the Agreement between the Government of Canada and the Government of the United States of America for cooperation in the examination of refugee status claims from nationals of third countries)[2] is an agreement between Canada and the United States requiring that an asylum seeker make their asylum claim in the first “safe” country they land in, after leaving their own. Therefore, an individual who has left their home country intending to make an asylum claim in Canada who has traveled through the United States, may not apply for asylum in Canada. They must do so in the United States (and vice versa).[3]

An asylum seeker is a person who has fled their home country due to a fear of persecution, but who has not yet had their claim heard by the country to which they have fled.[4] To make a claim in Canada or the United States, a claimant must show they have (1) a well-founded fear of persecution that is (2) based on their race, religion, nationality, membership in a particular social group or political opinion, and (3) that the government in their country is unable or unwilling to protect them.[5]

The purpose of a safe third country agreement is to reduce abuse of the system for processing asylum claims in both participating countries - to reduce “forum shopping” and duplication of asylum claims.[6]Canada wanted to reduce the number of asylum claims that it received, and with it, the amount of time and money spent adjudicating these claims. When the Agreement came into effect, the number of claims in Canada immediately dropped by almost half.[7]

The Safe Third Country Agreement between Canada and the United States was signed in the immediate aftermath of the 9/11 terrorist attacks on the United States and came into force in 2004. The United States agreed to the Agreement in exchange for Canada implementing new border security measures aimed at improving American national security –The Smart Border Action Plan.[8]

SCTA Specifics

To designate a country as a safe third country, Canada requires that the country comply with Article 33 of the United Nations Refugee Convention[9] and Article 3 of the United Nations Convention Against Torture[10].[11] Both of these articles prohibit refoulment – sending a person back to their country of origin to face persecution.

The Agreement does not apply to unaccompanied minors, those with family in Canada, those who have valid travel documents to enter Canada, nor to public interest cases (cases where a person may face the death penalty in the United States or, should they be returned to the United States and then deported to their home country, in the country they are deported to).[12]

The Safe Third Country Agreement applies to only those at an official port of entry on a land border (between the United States and Canada) who do not meet an exception (such as for those who have family in the country, or who are unaccompanied minors).[13] It does not apply to air arrivals, nor to those making irregular crossings. For air travel, it is considered too difficult to know if a person flew through the United States or actually landed there and had any chance to make an asylum claim.[14] For irregular crossings, the government does not want to encourage human smuggling nor people hiding and living without legal status in the country.[15]

In Canada, the Agreement is interpreted as giving no discretion to border services officers – they are not allowed to decide when to apply it to an asylum applicant, even in exceptional circumstances. For example, border services officers have no discretion even where they know a claim will, in all likelihood, be accepted in Canada and will, in all likelihood, not be accepted in the United States.[16] If the asylum seeker is coming from the United States and traveling through a land border, they cannot have their claim heard. The United States interprets the Agreement as allowing their officials to exercise some discretion.[17]

Challenging the Safe Third Country Agreement

Some of those who call for abolishing the Safe Third Country Agreement argue the United States is no longer a safe country.[18] They point to the “Muslim ban,”[19] the “zero-tolerance” policy on irregular border-crossing leading to the separation of children from parents,[20] and threats to build a wall,[21] as examples of the increasing hostility towards immigrants in the United States that make it unsafe.

Others cite the futility of an Agreement that encourages asylum seekers to avoid it by entering Canada at irregular border crossings. Because the Safe Third Country Agreement does not apply to those making irregular border crossings between official ports of entry, asylum seekers are walking across the border at unmanned locations,[22] including in the middle of winter, which can be especially dangerous on the Prairies. Once in Canada, these ‘irregular’ asylum-seekers can have their asylum claims heard, despite the existence of the STCA. This seems to make one of the central rationales for the STCA, to decrease the number of claims, futile.[23]

The Canadian government could suspend the Agreement immediately or terminate it with six months’ notice without giving a reason.[24] However, this may not be a foreign policy decision the Canadian government is willing to make, given its relationship with the United States.

The Constitutional Challenge

The three families who are challenging the Agreement as a violation of their rights under the Canadian Charter of Rights and Freedoms are alleging that the agreement violates section 7 and 15 of the Charter. Section 7 of the Charter protects the right to life, liberty, and security of person.[25] Section 15 of the Charter protects equality rights and prohibits discrimination based on grounds such as race, national or ethnic origin, sex, and others.[26]

These constitutional challenges centre on the greater risk faced by these families in the United States that they will be sent back to their home countries where they will have their life, liberty, and security of person threatened; and on how the treatment of asylum seekers within the United States is an infringement on the life, liberty, and security of person of asylum seekers. The families are also challenging the disproportionate effect of certain policies on women as a violation of their section 15 rights not to be discriminated against on the basis of gender.

The fact that Canada is not the country conducting the actual violation of these Charter rights is not an issue. In the case, Suresh v Canada Minister of Citizenship and Immigration) (2002), the Supreme Court ruled that, at least for section 7 violations, “where the deprivation is an entirely foreseeable consequence of Canada's participation,” the government is still liable.[27]

Changing Standard of Proof – A Section 7 Challenge

In the United States, asylum seekers claims are adjudicated on a standard of “reasonable fear of persecution.” After one year, a person who does not have legal status in the United States and who is trying to make an asylum claim will be subject to a removal order. This removal order can be stayed (made inactive) if the claimant can establish on the standard of “more likely than not” that they will be persecuted if they are returned to their home country.[28]

This difference in standard of proof after one year - from “a reasonable fear or persecution” to  more likely than not going to be persecuted - could be a breach of section 7.[29] The risk of refoulment (being sent back to where one will be persecuted) appears to increase when the standard changes. Canada may be violating the section 7 rights of asylums seeker who present themselves at the Canadian border after spending more than a year in the United States because they stand a greater chance of being deported to their country of origin.

If the asylum seeker is facing persecution that could lead to their death, like gang violence, the right to life is engaged. If they are facing imprisonment, for example, for their political opinions, then their right to liberty is engaged. And if they are facing psychological trauma and fear, their right to security of person is engaged.

Domestic Violence Claims – A Section 7 and Section 15 Challenge

United States Attorney General Jeff Sessions announced in June 2018 that gang violence and domestic violence would no longer be grounds on which an asylum claim could be made.[30] Therefore, anyone making a claim on those grounds would be sent back to their home country.

It is possible to make a claim based on domestic abuse in Canada. Canada recognized women fleeing domestic abuse as a “particular social group” in 1995.[31] To prove the well-founded fear based on domestic abuse remains challenging - the claimant still must show that their country is unwilling or unable to protect women who face domestic abuse.[32]

In a 2014 case called Matter of A-R-C-G et al, the American courts began to recognize married women fleeing domestic abuse as a particular social group.[33] Sessions’ announcement, if integrated into policy, could undo this case precedent.

This change in United States policy could make the risk of refoulment higher for women trying to make a claim based on domestic abuse in the United States rather than Canada. If the United States does, in fact, stop considering women facing domestic abuse as a “particular social group,” and Canada does not make an exception in the application of the STCA, this could be a violation of the section 7 rights of women fleeing domestic violence. If the woman is facing physical abuse, her right to life is engaged. If she is facing emotional abuse, her right to security of person is engaged.

Further, this policy disproportionately will affect women and could therefore be a violation of section 15 as well as section 7. Section 15 prohibits discrimination based on gender – if women are disproportionately affected by a policy that makes no distinction based on gender, then a court may find that they are they being discriminated against based on their gender.[34]

Separating Families in the United States – A Section 7 Challenge

In April 2018, the President of the United States announced that more people who cross the border between ports of entry would be prosecuted for making illegal border crossings. Attorney General Jeff Session described it as a “zero-tolerance” policy for “illegal” (irregular) border crossings.[35]

The change in policy took effect in May 2018 and resulted in parents and children being separated. The children are sent to shelters while the parents are detained to await criminal prosecution before their asylum claims will be heard. There is evidence that even those that do not cross the border irregularly are being separated from their children.[36]

Since May 2018, the President has since signed an executive order to end the separations and hold the children in custody with their parents. A judge has ordered that all children must be reunited with their parents. The US border agency has also refused to send new cases for prosecution citing a lack of resources and unclear instructions.[37]

The effects on parents, and particularly the effects on children, of being separated from their family members and detained are well documented.[38] Adults, and especially children, can develop post-traumatic stress disorder (PTSD), and their risk of developing depression and anxiety disorders increases. The family separations could be found to be a breach of the section 7 rights to security of the person of asylum seekers, and in particular of their children.

Remedies in Case of a Successful Constitutional Challenge

If the constitutional challenges are successful, there are various remedies that the court can order – many of which will not result in the Safe Third Country Agreement being dismantled.

If a court finds a breach of a Charter right, then it could “read in” a number of exceptions to the existing Agreement. For example, if could add a discretionary role for the border services officers. In compelling cases, the border services officer could make an exception and not apply the Safe Third Country Agreement. In that case, the asylum seeker would not be sent back to the United States and would be allowed to make an asylum claim in Canada.

If a particular type of claim is obviously being rejected in the United States but would not be in Canada, then the court could read in an exception for these types of claims (for example, claims in which the type of persecution is domestic violence).

It is highly unlikely that the courts would strike down the entire Agreement. Courts order remedies only so far as is necessary to bring the offending legislation into line with the Constitution.[39]

Conclusions

The Safe Third Country Agreement is criticized by those who feel that the United States is no longer a safe third country. Critics believe that the United States is putting asylum seekers at risk and that is it increasing the number of irregular asylum seekers at the Canadian border.

There are political reasons why the government would not want to suspend and terminate the Safe Third Country Agreement. It has been successful in achieving its purpose - reducing the number of asylum claims adjudicated in Canada.

In the absence of political action to suspend or terminate the Safe Third Country Agreement, a constitutional challenge is an option for making changes to the application of the Agreement – and is in the works. Three families are challenging the Safe Third Country Agreement as a violation of sections 7 and 15 of the Charter.

Should the constitutional challenges to the Safe Third Country Agreement be successful, the courts would likely make changes to aspects of the existing Agreement such as providing a discretionary role for border services officers to decide on the legitimacy of claims. Those calling for the Safe Third Country Agreement to be ended should not be too hopeful that this constitutional court challenge will get rid of the Agreement in its entirety.

 

[1] Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2018 FC 396, 2018 FC 2018 (CanLII).

[2] Agreement between the Government of Canada and the Government of the United States of America for cooperation in the examination of refugee status claims from nationals of third countries, Canada and United States of America, 5 December 2002, Can TS 2004 No 2 (entered into force 29 December 2004) .

[3] STCA, supra note 2.

[4] “Asylum Seekers,” UNHCR, online: < http://www.unhcr.org/pages/49c3646c137.html>.

[5] Maciej Lipinski, “Can domestic Abuse Victims Qualify as Refugees? – A Comment on Matter of A-R-C-G et al,” theCourt.ca (29 September 2014), online: < http://www.thecourt.ca/can-domestic-abuse-victims-qualify-as-refugees-a-comment-on-matter-of-arcg-et-al/>.

[6] Richard Warnica, “Toronto faces having to close community centres, cancel programs to house migrant tide from US,” National Post (26 June 2018), online: <https://nationalpost.com/news/canada/toronto-faces-having-to-close-community-centres-cancel-programs-to-house-migrant-tide-from-u-s>.

[7] Mark Gollom, “Would scrapping Safe Third Country Agreement lead to influx of asylum seekers? Not Necessarily,” CBC News (26 June 2018), online <https://www.cbc.ca/news/canada/safe-third-country-agreement-trump-canada-asylum-refugee-1.4721151>.

In the 11-year period after the first year of the Agreement being in effect, the drop in number of asylum claims was 23%, rather than the initial 54%.

[8]Audrey Macklin, "Disappearing Refugees: Reflections on the Canada-U.S. Safe Third Country Agreement," (2005) 36:2 Colum HRLR 365 at 370.

[9]Convention Relating to the Status of Refugees, 25 July 1951, 189 UNTS 137.

[10]Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85.

[11]Immigration and Refugee Protection Act, SC 2001, c 27 s 102.

[12]STCA, supra note 2 art 6; Canada, Immigration, Refugees and Citizenship Canada, “Canada-U.S. Safe Third Country Agreement,” (last updated 23 June 2016), online: <https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement.html>.

[13]STCA, supra note 2 art 4.

[14]Macklin, supra note 8 at 373.

[15]Arron Hutchins, “Donald Trump is Canada’s nest hope for solving its border crisis,” Maclean’s (17 July 2018), online: <https://www.macleans.ca/politics/canada-border-crisis-donald-trump/>.

[16]Canadian Council for Refugees v R, 2007 FC 1262 at para 28, [2008] 3 FCR 606 .

[17]CCR 2007, supra note 16 at para 299.

[18]See, for example: Amanda Dipaolo, “Canada must end its safe third country agreement with the US,” Globe and Mail (20 June 2019), online: <https://www.theglobeandmail.com/opinion/article-canada-must-end-its-safe-third-country-agreement-with-the-us/>; Vicky Mochama, “The Safe Third Country Agreement doesn’t work. Just ask the thousands of people walking over across the Canada-US border,” The Star (30 April 2018), online <https://www.thestar.com/opinion/star-columnists/2018/04/30/the-safe-third-country-agreement-doesnt-work-just-ask-the-thousands-of-people-walking-across-the-canada-us-border.html>; Gabrielle Giroday, “Repeal Safe Third Country Agreement, says Manitoba Lawyer,” Canadian Lawyer (6 February, 2017); “Law professors call for suspension of the Safe Third Country Agreement” Osgoode Hall Law School, York University, online: <https://www.osgoode.yorku.ca/news/law-professors-call-suspension-safe-third-country-agreement/>.

[19]Meridith McGraw, “A timeline of Trump’s immigration executive order and legal challenges,” abc News(29 July 2017), online: < https://abcnews.go.com/Politics/timeline-president-trumps-immigration-executive-order-legal-challenges/story?id=45332741>.

[20]Globe and Mail, “Families separated, children detained: What we know so far about Trump’s ‘zero-tolerance’ policy,” Globe and Mail (18 June 2018, updated 27 June 2018), online: <https://www.theglobeandmail.com/world/us-politics/article-trump-family-separation-detention-camps-explainer/>.

[21]Darlene Superville, “Trump says he’s willing to shut down government over immigration,” Globe and Mail (29 July 2018), online: <https://www.theglobeandmail.com/world/us-politics/article-trump-says-hes-willing-to-shut-down-government-over-immigration/>.

[22]Hutchins, supra note 15.

[23]Michelle Zilio, “Number of asylum seekers crossing into Canada from U.S. continues to rise, feds say,” Globe and Mail (3 May 2018), online: <https://www.theglobeandmail.com/politics/article-number-of-asylum-seekers-crossing-into-canada-from-us-continues-to/>; Bryce Hope, “Asylum seeker suffers frostbite crossing borders as feds’ U.S. campaign discourages irregular migration,” CBC News (10 January 2018), online: <https://www.cbc.ca/news/canada/manitoba/manitoba-emerson-border-town-asylum-seeker-refugees-1.4480884>.

[24] STCA, supra note 2 art 10; Anna Desmarais, “Analysis: Debunking Canada’s responsibility under the Safe Third Country Agreement,” iPOLITICS (16 July 2018), online: < https://ipolitics.ca/2018/07/16/analysis-debunking-canadas-responsibility-to-the-united-states-under-the-safe-third-country-agreement/>.

[25]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 .

[26]Charter, supra note 28 s 15.

[27] Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at para 54, [2002] 1 SCR 3.

[28]CCR 2007, supra note 16 at para 142.

[29] In a 2007 case, Justice Phelan of the Federal Court of Canada found it to be a breach (CCR 2007, supra note 16 at para 154). His judgment was later overturned on appeal for unrelated reasons (CCR 2007, supra note 16 at para 285).

[30] Tal Kopan, “Trump admin drops asylum protections for domestic violence victims,” CNN Politics (11 June 2018), online: <https://www.cnn.com/2018/06/11/politics/jeff-sessions-asylum-decision/index.html>.

[31]Narvaez v Canada (Minister of Citizenship and Immigration), [1995] 2 FC 55, 1995 CanLII 3575 (FC).

[32] Lipinski, supra note 5.

[33] Matter of A-R-C-G et al, 26 I&N Dec. 388 (BIA 2014).

[34] British Columbia (Public Service Employee Relations Commission) v BCGSEU, [1999] 3 SCR 3, 176 DLR (4th) 1.

[35]Globe and Mail, supra note 20.

[36]For a list of instances, see Emma Stein, “Asylum Seeking Families, Too, Are Being Separated,” human rights first (04 June 2018), online: <https://www.humanrightsfirst.org/blog/asylum-seeking-families-too-are-being-separated>.

[37]Globe and Mail, supra note 20.

[38] Kevin Loria, “Trump now claims migrant children will be reunited with their families. Here are the lifelong psychological consequences these kids face.,” Business Insider (21 June 2018), online: < https://www.businessinsider.com/how-family-separation-and-detention-affect-children-2018-6>.

[39]Schachter v Canada, [1992] 2 SCR 679 at 695, 93 DLR (4th) 1.

Two options for pay equity: complete compensation or no laws at all

On May 10, 2018, the Supreme Court released two decisions about challenges to pay equity laws in Quebec.[1] Several unions challenged two provisions in the pay equity laws claiming they  violated equality rights under section 15 of the Canadian Charter of Rights and Freedoms.[2] Only one of the challenges was successful. As a result, companies in Quebec now have to compensate female workers for periods of time where they were underpaid relative to male workers. But the Supreme Court’s ruling may have implications for other provinces that want to follow suit.

Background

Quebec is one of only two provinces in Canada (Ontario is the other) that require pay equity in the private and public sectors. Other provinces only have pay equity for public sector jobs. In Quebec and Ontario, all companies, public and private, must pay employees equally for work of equal value. In Quebec, the Pay Equity Act,[3] passed in 1996, sets out the process for making sure that companies do this.

The right to equal pay for work of equal value had existed since 1975 in Quebec’s Charter of Human Rights and Freedoms.[4] But the right only guaranteed equal pay for employees working in the same workplace. So women were denied equal pay when, for example, there were no male colleagues to compare them to. The Pay Equity Act, passed in 1996, fixed this by giving a remedy for such workplaces. Despite its purpose of fixing wage discrimination, it faced two court challenges.

The first challenge concerned delay in putting pay equity into effect. When the Act came into force in 1997, there was no method for deciding on proper pay in situations with no male workers to compare with. The Act therefore created a Pay Equity Commission to conduct necessary research and create a method for finding the right male workers to compare with.[5] But this took time, and the rules for deciding proper wages did not come into effect until 2005—eight years later. The Pay Equity Act also allowed for a further two-year grace period, which meant that pay equity did not come into effect until 2007.[6] This meant that after the Pay Equity Act came into force, women in some workplaces continued to be underpaid for a whole decade while they waited for their claims to be resolved. The unions challenged the section of the Pay Equity Act that allowed for a grace period.

The second challenge came after Quebec changed the Pay Equity Act in 2009. The Government of Quebec had found that many companies were not following the rules. Before the change in 2009, the Pay Equity Act required companies to maintain continuous pay equity. Quebec replaced this requirement with mandatory audits that occurred only every five years.[7] When an audit found unequal pay, companies did not have to compensate women for failing to pay them up to that point—they only had to change the pay from that point on. The Act forced women to accept unequal pay between audits. The unions challenged the sections that excused companies from compensating for past wage discrimination.

Equality Rights under the Charter

The basis for the challenges was equality rights under section 15 of the Charter. As courts have interpreted it, section 15 prevents governments from creating a law that either “burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating … disadvantage.”[8]

Canadian courts currently use a two-step test to determine whether a law violates section 15.[9] First, the law must create a distinction based on a ground such as those listed in section 15 of the Charter. Second, the law must create a distinction, based on a ground that has a negative or adverse  impact on the affected group. In looking at a potential breach, courts will not look at negative attitudes toward a group. They will instead focus on how the law affects the group regardless of the attitude behind it.

Equality rights, like most rights in the Charter, are primarily negative rights. Negative rights prevent the government from acting in certain ways. For example, section 15 of the Charter prevents the government from discriminating against people based on certain characteristics, such as race, sex, or religion. Negative rights are contrasted with positive rights, which require the government to take action to achieve specific results.

Delayed access to pay equity is justifiable

Applying equality rights to the grace period, the Supreme Court said that the grace period violated women’s equality rights. This was because the delay in putting pay equity into effect meant that wage discrimination continued for longer. The law was saved, however, because even though it violated section 15 the Supreme Court thought that the violation was acceptable under of section 1 of the Charter. The delay was justifiable because the government of Quebec wanted to find a more effective solution to the problem of pay inequity.

Lack of back pay is not justifiable

The Supreme Court also found that the sections about back pay were unconstitutional and invalid. These were the sections that excused companies from compensating women for past wage discrimination.

The Supreme Court said that the way the Pay Equity Act addressed wage inequality “perpuate[d] the pre-existing disadvantage of women.”[10] Although without the Pay Equity Act there would be no laws at all that address wage inequality in the private sector, the Supreme Court still found that the Act created a disadvantage for women. The Supreme Court said that for the law to be valid, it would have to not only fix the issue of pay inequity, but also force companies to compensate women for past pay inequity. This failure to provide back pay for past wage discrimination violated section 15 of the Charter.

Some of the judges disagreed with this view and would have upheld the law as valid. Their minority opinion pointed to the nature of section 15 as a negative right and said that the majority’s decision essentially created a positive obligation for the government to obtain a specific result (pay equity, in this case). As the Pay Equity Act does not widen the wage gap between men and women, the minority said that the law “does not perpetuate pre-existing disadvantages.”[11] The Pay Equity Act has the purpose of narrowing the wage gap, but does so less completely. The minority said that this did not make the law unconstitutional.

The Future of Pay Equity

These two cases do not impose a freestanding obligation on all provinces to achieve pay equity in the private sector. But they do impose obligations on any province that chooses to address pay equity through legislation. That is, a province with no pay equity laws cannot be challenged in court for not having such a law. But once it creates a law, there may now be certain standards that its law must reach.

For the eight provinces that have not yet created pay equity laws for the private sector, these two cases may cause some hesitation in introducing pay equity legislation. This is because the Supreme Court has now given its vision of what pay equity should look like, and it is a vision that may be costlier than what some provinces are willing to implement. Provinces that want to move step by step towards pay equity without drastic changes may be put off from even trying. This could mean that introducing pay equity in the private sector could take longer. Traditionally, when a law provides a clear benefit in comparison to a situation with no law at all, legislatures are free to adopt whatever method they wish for providing that benefit. This may no longer be the case.

[1] Quebec (Attorney General) v Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 ; Centrale des Syndicats du Québec v Quebec, 2018 SCC 18 .

[2] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 .

[3] SQ 1996, c 43.

[4] SQ 1975, c 6, s 19.

[5] Pay Equity Act, supra note 3, s 114.

[6] Ibid, s 38.

[7] Alliance, supra note 1 at para 2.

[8] Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 at para 20, [2015] 2 SCR 548.

[9] Ibid at paras 18-20.

[10] Alliance, supra note 1 at para 33.

[11] Ibid at para 68.

Sex, religion, and a private university pave a bumpy road to the Supreme Court

There is nothing like sex and religion to ignite a heated debate. Once again, such a debate has found its way to the courtroom and is scheduled to be heard by the Supreme Court of Canada on November 30, 2017.

Three provincial courts of appeal have now weighed in on the dispute over a university’s proposed law program that has pitted the religious freedoms of evangelical Christians against the equality rights of lesbian, gay, bisexual, transgender, and queer (LGBTQ) individuals, both of which are guaranteed by the Canadian Charter of Rights and Freedoms.[1]

This article focuses on the key findings of the Courts of Appeal in B.C., Ontario, and Nova Scotia, some of which are being appealed further to the Supreme Court of Canada.

Sex, religion, and Trinity Western University

Trinity Western University (TWU) – a private evangelical Christian University located in B.C. – wants to offer its own law degree program. Before being admitted to the program, students must agree to follow TWU’s Community Covenant (“Covenant”), which is based on Christian beliefs derived from the Bible.[2] This is where the dispute begins.

The Covenant says that students may not engage in any sexual conduct, unless that conduct occurs within a heterosexual marriage.[3] Pre-marital sex and expressions of sexual intimacy within a same-sex union violate the Covenant, and are punishable by expulsion or suspension from TWU.[4]

Prospective LGBTQ students feel that TWU’s Covenant discriminates against them in terms of their life at and admission to TWU because the Covenant punishes same-sex couples for expressions of their sexual orientation.[5] Meanwhile, TWU argues that it is free to establish a law program with a code of conduct that fosters Christian values, and that Christian students should not be denied the opportunity to study law in such an environment.

The Law Societies

Provincial laws give law societies the power to set educational requirements and to determine who can enter the legal profession in a given province.[6] The Law Societies in B.C., Ontario, and Nova Scotia have refused to recognize the graduates of TWU’s law program as qualifying to article and practice law.[7] The program’s graduates would therefore be unable to apply to practice law in those provinces immediately after completing their law degree.[8] TWU has challenged the “accreditation” decisions made by the Law Societies in the courts of their respective provinces.

The major issues

The Courts of Appeal in B.C., Ontario, and Nova Scotia were tasked with answering the following key questions:

  1. Do the Law Societies have the authority to refuse to accredit TWU’s law school graduates?
  2. Did the Law Societies follow a decision-making process that properly weighed law society objectives against the Charter values at stake?
  3. Do the decisions of the Law Societies reasonably balance law society objectives and Charter rights?

Issue 1: Authority of law societies to refuse the accreditation of TWU’s law graduates

A law society may only refuse to admit the graduates of a particular school to the legal profession if provincial laws authorize the law society to do so.

In British Columbia, the Court of Appeal found that the Legal Profession Act granted the Law Society of British Columbia (LSBC) the power to refuse accreditation on the basis of TWU’s Covenant, because one of the Law Society’s objectives is to preserve and protect the rights and freedoms of all persons.[9]

The Ontario Court of Appeal (ONCA) similarly said that the Law Society of Upper Canada (LSUC) could deny accreditation in order to promote equality and diversity in the profession.[10]

Meanwhile, the Nova Scotia Court of Appeal (NSCA) concluded that the Nova Scotia Barristers’ Society (NSBS) acted outside of its authority when it refused to accredit TWU’s graduates.[11]

Issue 2: Weighing law society objectives against Charter values

Both the British Columbia Court of Appeal (BCCA) and the ONCA agreed that when law societies make an accreditation decision, they must carefully consider their governing objectives and the Charter rights of the people affected by their decisions.[12] The Law Societies share an overarching public interest objective, which is furthered by promoting diversity and equal opportunity in the legal profession, and protecting the rights and freedoms of all people.[13]

The BCCA found that the LSBC failed to engage in a process that first assessed the Law Society’s objectives, and then carefully balanced those objectives with concerns about the rights and freedoms of TWU, TWU’s Christian students, and the LGBTQ community.[14] Instead, the LSBC refused to accredit TWU’s graduates because that was the decision voted for by a majority of lawyers in the province.

In Ontario, the ONCA concluded that the LSUC properly weighed its objectives against the Charter values affected by its decision. The LSUC considered multiple legal opinions and reports, as well as input from the public, members of the Law Society, and TWU, and made its accreditation decision by balancing its objectives against the values expressed in that process.[15]

The NSCA did not make a finding on this issue because the Court had already set aside the NSBS’ decision for being outside of the Law Society’s powers.

Issue 3: Striking a reasonable balance between law society objectives and Charter rights

It is not only important how a law society makes its accreditation decision, but also that the decision itself be reasonable. In Doré v Barreau du Quebec, the Supreme Court of Canada said that the decision of an administrative body (such as a law society) is reasonable if it reflects a proportionate balance between Charter protections and the administrative body’s objectives.[16] Therefore, a law society’s accreditation decision must not disproportionately impact the religious freedoms of one group in order to promote the equality rights of another.

The BCCA found that the LSBC’s refusal to accredit TWU’s graduates had a severe negative impact on the religious freedoms of TWU’s prospective Christian students (and potentially, on the rights of TWU itself).[17] The immediate result of the decision was that the B.C. government retracted its approval of TWU’s law program, stopping the program from opening.[18] Christian students are now unable to study law in an environment that fosters their sincerely held religious beliefs.[19]

In comparison, the Court noted that if the LSBC had decided to accredit TWU’s graduates and therefore exposed LGBTQ students to discrimination, the impact on those students would be “minimal.” [20] LGBTQ students are not expressly barred from admission to TWU, and there are many options besides TWU available for attending law school in Canada.[21] The BCCA set aside the LSBC’s decision for being an unreasonable interference with religious freedoms.

The ONCA concluded that the LSUC’s refusal to accredit TWU’s graduates reflected a reasonable balance of Charter rights and the Law Society’s public interest objectives.[22] While the decision makes it more difficult for TWU to attract students (because they would be unable to immediately apply to article in Ontario), the LSUC’s decision does not directly stop TWU from offering a law program.[23] The Court found that the importance of the LSUC’s decision for promoting equality and diversity in the legal profession justified the decision’s impact on religious freedoms.[24]

As the balancing exercise was not an issue considered by the NSCA, the Court did not make a finding on this point.

What next?

Ultimately, the NSCA found that the NSBS acted outside of its government-granted powers when it refused to accredit TWU’s law graduates. Meanwhile, the BCCA and the ONCA agreed that the Law Societies in B.C. and Ontario had the authority to refuse to admit TWU’s graduates to the legal profession.

On the key issues of whether the Law Societies followed an appropriate rights-balancing approach while making their accreditation decisions, and whether those decisions were reasonable, the BCCA and the ONCA arrived at different conclusions. The BCCA reversed the LSBC’s decision to refuse accreditation, while the ONCA upheld the LSUC’s decision to not accredit TWU’s graduates.

The Supreme Court has now agreed to hear the appeals from the decisions made by both the BCCA and the ONCA at the end of November 2017.[25] Once a final decision is reached, we will discover how the Supreme Court reconciles the opposing conclusions formed by the Courts of Appeal. Canada’s highest court may also provide further insight into how conflicts between rights and freedoms that are guaranteed in the Charter can be resolved.

For related reading see:

 

[1] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, ss 2(a), 15.

[2] Trinity Western University v Law Society of Upper Canada, 2016 ONCA 518 at paras 6, 22 ; Trinity Western University v Law Society of British Columbia, 2016 BCCA 423 at para 7 ; Trinity Western University, “Community Covenant Agreement” (2014), online: <www8.twu.ca/studenthandbook/university-policies/community-covenant-agreement.html> .

[3] Covenant, ibid.

[4] Trinity Western BCCA, supra note 2 at para 15; Trinity Western ONCA, supra note 2 at para 28; Nova Scotia Barristers’ Society v Trinity Western University, 2016 NSCA 59 at para 8 .

[5] Trinity Western BCCA, ibid at paras 170-172; Trinity Western ONCA, ibid at para 6.

[6] See e.g. Legal Profession Act, SBC 1998, c 9, ss 3, 21(1)(b) ; Legal Profession Act, SNS 2004, c 28, s 4(2)(a)-(c); Law Society Act, RSO 1990, c L-8, s 4.1, 4.2.5 .

[7] Trinity Western BCCA, supra note 2 at para 30; Trinity Western ONCA, supra note 2 at paras 9-10, 49.

[8] Trinity Western BCCA, ibid at para 168; Trinity Western ONCA, ibid at paras 34-35, 49. It should be noted that graduates of TWU’s law program may still be able to work in provinces where the governing law society has refused to recognize TWU as an “approved” or “accredited” faculty if the students meet certain entrance requirements, similar to those set for foreign trained lawyers. See Elaine Craig, “The Case for the Federation of Law Societies Rejecting Trinity Western University's Proposed Law Degree Program” (2013) 25:1 CJWL 148 at 167.

[9] Trinity Western BCCA, ibid at paras 58-59.

[10] Trinity Western ONCA, supra note 2 at paras 108-111.

[11] Trinity Western NSCA, supra note 4 at paras 63-67, 70-74.

[12]Trinity Western ONCA, supra note 2 at paras 68, 112-113; Trinity Western BCCA, supra note 2 at paras 80, 84, 89, citing Doré v Barreau du Quebec, 2012 SCC 12 at paras 55-56 .

[13] Trinity Western BCCA, ibid at paras 152, 164; Trinity Western ONCA, ibid at paras 108-111; LPA SBC, supra note 6, s 3; LSA RSO, supra note 6, s 4.2.3.

[14] Trinity Western BCCA, ibid at paras 85, 89-91.

[15] Trinity Western ONCA, supra note 2 at paras 121-125.

[16] Supra note 12 at paras 7, 56-58.

[17] Trinity Western BCCA, supra note 2 at paras 107, 168.

[18] Ibid at paras 9, 31. Even if B.C.’s Minister of Advanced Education re-approved the opening of TWU’s law program, a program whose graduates are unable to apply to practice law in the major markets of B.C. and Ontario may potentially be viewed by the University as pointless, and could effectively stop the program from opening.

[19] Ibid at paras 116, 168.

[20] Ibid at paras 179, 191.

[21] Ibid at paras 178-179.

[22] Trinity Western ONCA, supra note 2 at paras 129, 143.

[23] Ibid at paras 97-99. The ultimate decision on whether or not a university can offer a law degree program lies with the provincial government, regardless of whether or not a law society recognizes the education of the program’s graduates.

[24] Ibid at paras 130-143.

[25] Ibid, leave to appeal to SCC granted, 37209; Trinity Western BCCA, supra note 2, leave to appeal to SCC granted, 37318.