Increased scrutiny of the verdicts in sexual assault cases shows that the Canadian judiciary is not immune to sexual assault myths and stereotypes. Judges are not required to have a criminal law background to be appointed and “judge school”- which contains a sexual assault training component - did not become mandatory for new federal judges until April 2017.[1]

Bill C-337, the Judicial Accountability Through Sexual Assault Training Act is Parliament’s attempt to ensure that new federally appointed judges receive up-to-date and comprehensive sexual assault training. The Bill also aims to enhance transparency and accountability of the judiciary in sexual assault cases.

The Bill is currently being debated in the Senate. Notably, many critics, including Senator Mobina Jaffer and the Canadian Judicial Council (“CJC”) which oversees federal judges, have expressed concerns over the threat that the Bill poses to the unwritten constitutional principle of judicial independence.[2]

What changes does the Bill propose?

Bill C-337 has three major impacts: it ensures that applicants to superior courts receive sexual assault training, imposes reporting requirements on the CJC, and it requires judges to provide written reasons in sexual assault cases.[3]

The Bill would amend the federal Judges Act so that applicants must complete up-to-date and comprehensive sexual assault training to be eligible for a judicial appointment to a superior court.[4] This training would be designed in consultation with sexual assault survivors as well as the groups and organizations that support them – for example the Women’s Centre for Social Justice.[5]

If the Bill passes, the CJC will be required to report annually to Parliament about the content and duration of the training sessions, the number of judges who attend them, which court the judges belong to, as well as the number of sexual assault cases heard by judges who did not receive the training.[6]

What is judicial independence?

Judicial independence is the unwritten constitutional principle that courts must be “completely independent of any other entity,” including from other branches of government and the public.[7] Independence allows judges to make decisions “free of influence and based solely on fact and law.”[8]

The Supreme Court of Canada has described judicial independence as the “lifeblood of constitutionalism in democratic societies.”[9] The judiciary protects individual rights, upholds the rule of law, and ensures that the government does not overstep its power.

How does the Bill threaten judicial independence?

Currently, the judiciary controls ongoing education for judges.[10] The new Bill threatens judicial independence because another branch of government – the executive - is imposing mandatory education requirements on the judiciary, and special interest groups are dictating the educational content of training for judges.[11]

Judicial independence requires judges to be free of outside influence, whether it be from another branch of government or the public. An unelected and independent judiciary is able to protect the values of the Constitution without being afraid of making controversial decisions. For example, in the case of PHS Community Services Society v Canada (Attorney General), the Supreme Court of Canada was not afraid to order the Federal Minister of Health to continue exempting Insite, a safe injection facility, from the application of criminal drug possession laws to protect the right of drug addicts to life, liberty, and security of the person.[12]

The CJC is concerned that the annual reports to Parliament could indirectly identify the judges who did not receive sexual assault training.[13] Parliament could evaluate the decisions made by these judges and look to potentially discipline them.[14] This type of external evaluation threatens the administrative independence of the judiciary, meaning their independence to manage themselves.[15]

If the government were allowed to discipline the judiciary, a judge’s decisions could be compromised out of fear of the repercussions that might flow from a decision that the government is not satisfied with. This could also potentially threaten the rule of law because the judiciary frequently judges disputes that involve the government.

Proposals for changes from the Canadian Judicial Council

The CJC’s proposed alternative to Bill C-337 is to require applicants to superior courts to comply with the Council’s new education policies.[16] In April 2017, the CJC changed its education policies to require that newly appointed judges attend “judge school,” which contains a sexual assault education component.[17] The Council encourages continuing education for judges for 10 days per year.[18]

In response to Bill C-337, the CJC also proposes to publish annual reports containing the following:[19]

• The title, description, and overview of all education seminars approved by the CJC in the previous year;
• The dates and duration of each seminar; and,
• The number of judges who attended each seminar.

Conclusion

Judicial education in the area of sexual assault is necessary for survivors of sexual violence to have confidence in the fairness and impartiality of our justice system. Judges are accountable to the public in a sense because court proceedings are generally open to the public.[20] However, the judiciary itself is ultimately responsible for disciplining judges.

Striking the appropriate balance between judicial independence and accountability to the public is difficult. There is a risk that the CJC’s proposed changes will not be adequate to address the issues surrounding judging in sexual assault trials. Mandatory education for judges imposed by the government sets a dangerous precedent. It is a possible threat to the independence of judges and it could lead to required educational training for political reasons, thus potentially threatening the rule of law.[21]

Judicial independence is fundamental to our democratic system and thus, to the extent that Bill C-337 threatens this unwritten constitutional principle, it may come at too high of a cost.

[1] Canadian Judicial Council, “Submissions on Bill C-337” (20 April 2017), online: <www.cjc-ccm.gc.ca/cmslib/general/Judicial Training/2017-04-20 Council's response to Bill C-337.pdf> at 4 .

[2] “Bill C-337, Judicial Accountability through Sexual Assault Law Training Bill”, 2nd reading, Debates of the Senate, 42nd Parl, 1st Sess, (15 June 2017) (Hon Mobina SB Jaffer) . CJC Submissions, supra note 1 at 4-6.

[3] Ibid, cl 5.

[4] Bill C-337, supra note 2, cl 3(2)(b)(i).

[5] Ibid.

[6] Ibid, cl 4.

[7] Ref re Remuneration of Judges of the Prov Court of PEI; Ref re Independence and Impartiality of Judges of the Prov Court of PEI [1997] 3 SCR 3 at para 83. Mackin v New Brunswick, 2002 SCC 13 at para 35.

[8] Department of Justice, “The Judiciary”, online: <www.justice.gc.ca/eng/csj-sjc/ccs-ajc/05.html>.

[9] Beauregard v Canada [1986] 2 SCR 56 at para 24.

[10] CJC Submissions, supra note 1 at 2-3.

[11] Ibid at 4. Joanna Smith, “Judicial council fears ‘special interest groups’ shaping sexual assault training”, The Star (16 May 2017), online: <www.thestar.com/news/canada/2017/05/16/judicial-council-fears-special-interest-groups-shaping-sexual-assault-training.html>.

[12] PHS Community Services Society v Canada (AG), 2011 SCC 44.

[13] CJC Submissions, supra note 1 at 5.

[14] Ibid at 4. Thomas Harrison, “Judicial education doesn’t breach independence, but Bill C-337 might” (22 May 2017), Policy Options, online: <policyoptions.irpp.org/magazines/may-2017/judicial-education-doesnt-breach-independence-but-bill-c-337-might/> [Harrison].

[15] CJC Submissions, supra note 1 at 6.

[16] Ibid.

[17] Ibid at 1.

[18] Ibid at 4.

[19] CJC Submissions, supra note 1 at 5.

[20] Ibid at 2.

[21] Harrison, supra note 14.

Solitary confinement – a prisoner’s isolation from other inmates and prison staff for 22 hours or more a day– can have major negative impacts on human health.[1] Its use can cause or exacerbate mental illnesses, increase the risk of prisoners committing suicide, and, according to the United Nations Special Rapporteur on Torture, it may constitute torture when used for periods longer than 15 consecutive days.[2]

What protections do prisoners in Canada have against this kind of confinement?

This article outlines how the current federal laws on administrative segregation – one form of solitary confinement used in Canada – may engage the rights of prisoners that are guaranteed by the Canadian Charter of Rights and Freedoms.[3]

Solitary confinement in Canada

In Canada, solitary confinement used within prisons is referred to as “segregation.” A prisoner can be placed in segregation for general safety or security reasons (called “administrative segregation”), or as a punishment for their conduct while in prison (called “disciplinary segregation”).[4] Unlike segregation used for disciplinary reasons, the use of administrative segregation does not require that a prisoner first receive a hearing before an independent adjudicative body, and there is no strict time limit on the isolation period.[5]

Administrative segregation continues to be widely used in Canada’s federal prisons. In 2015, the average segregation period for prisoners in federal penitentiaries was 27 days, and 48 percent of inmates had experienced segregation at least once.[6]

Current use of administrative segregation in federal prisons

Administrative segregation is the practice of placing a prisoner in solitary confinement to ensure the safety of the prisoner, his or her fellow inmates, or the penitentiary, or to stop interference with an ongoing investigation.[7]

The Corrections and Conditional Release Act (CCRA) says that a prison’s “institutional head” can use administrative segregation when he or she believes on “reasonable grounds” that it is necessary for an ongoing investigation or safety reason, and when there is “no reasonable alternative.”[8] Section 31(2) of the CCRA states that a prisoner should be released from segregation “at the earliest appropriate time.” Current federal corrections policy also says that prisoners can remain in solitary confinement for 23 hours each day.[9]

Critics point out that the CCRA places no strict time limits on how long a prisoner can remain in administrative segregation.[10] In addition, a prison’s institutional head makes the decisions to use this form of segregation with minimal independent, external review or oversight.[11]

Lawsuits that are proceeding to trial in both British Columbia and Ontario in 2017 claim that the provisions of the CCRA that govern administrative segregation, and the way that those provisions have been applied in federal prisons, violate the Charter.[12]

The devastating results

The use of administrative segregation in Canada’s federal prisons has produced several tragic stories over the past decade.

In 2007, 19-year old Ashley Smith strangled herself to death while in segregation at a federal prison in Kitchener, Ontario. Smith, whose significant mental health issues and history of self-harm were well known, spent the last 11.5 months of her life in segregation status within federal prisons.[13]

Three years later, Edward Snowshoe, a 24-year old man of Aboriginal descent, killed himself after spending 162 days in administrative segregation in federal prisons.[14] In 2017, a 38-year old Metis inmate, Guy Langlois, hung himself in his prison cell after spending 118 days in segregation.[15]

While the use of administrative segregation has been reduced in recent years, as of June 19, 2017, 399 federal inmates were in segregation, and 94 of those inmates had been in solitary confinement for more than 60 days.[16]

Charter rights engaged

The Charter guarantees prisoners, like all Canadians, the right to life, liberty, and security of the person (section 7), the right to be free from cruel and unusual punishment (section 12), and equality rights (section 15). Prisoners, therefore, are protected from solitary confinement laws and practices that violate these constitutionally protected rights.

A majority of the Supreme Court of Canada in the case of Sauvé v Canada (Chief Electoral Officer) found that while some rights may be justifiably limited for criminals, prisoners are not “temporary outcasts from our system of rights and democracy.”[17] Inmates therefore continue to hold on to their rights and freedoms while in prison, including those rights guaranteed by sections 7, 12, and 15 of the Charter.

Section 7

Section 7 of the Charter guarantees “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. Government laws and actions violate section 7 if they both deprive an individual of life, liberty, or security of the person and are not in accordance with the principles of fundamental justice.[18]

Administrative segregation engages the right to liberty because confining an individual to a cell for 23 hours a day physically constrains and restricts a prisoner’s freedom in a way that differs from inmates held in the general (unsegregated) prison population.[19] In the case of Bacon v Surrey Pretrial Services Centre (Warden), the Supreme Court of British Columbia found that the placement of a prisoner awaiting trial into solitary confinement was one way that his liberty had been reduced.[20]

In some cases, administrative segregation will engage the right to security of the person because of the severe mental and physical suffering that can be caused by long-term isolation from meaningful human contact.[21]

The right to life may also be engaged by the use of lengthy terms of administrative segregation, given that prisoners are more likely to commit suicide in those circumstances.[22]

The British Columbia Civil Liberties Association (BCCLA) and the John Howard Society of Canada (JHSC) argue that current laws on administrative segregation also fail to comply with the principles of fundamental justice. These groups argue that the CCRA includes no definite time limits on administrative segregation and that its use in prisons has significant impacts on prisoners that outweigh the law’s benefit and purpose (which together, indicate arbitrariness and gross disproportionality).[23] The minimal level of oversight and independent decision-making for the imposing of, and release from segregation, is flagged for potentially failing to meet the requirement for procedural fairness when life, liberty, or security interests are engaged.[24]

Section 12

Section 12 of the Charter guarantees the rights of federal inmates not to be subjected to cruel and unusual treatment or punishment. However, the bar is set high for what kind of treatment is considered “cruel and unusual.”[25] To violate section 12, treatment must be "so excessive as to outrage the standards of decency" or “grossly disproportionate to what would have been appropriate.”[26]

Despite the high bar for what constitutes “cruel and unusual” treatment, the current laws on administrative segregation and how those laws have been applied may engage the section 12 rights of prisoners. Critics, including the BCCLA and the JHSC, argue that this form of solitary confinement is excessive and that it violates basic decency and human dignity because of the harm it can have on the human mind and body.[27] Notably, the B.C. Supreme Court in Bacon found that a prisoner held in administrative segregation had been subjected to conditions that were “condemned by the international community” and amounted to cruel and unusual treatment.[28]

Section 15

Section 15 of the Charter guarantees equality before and under the law, and the right to the equal protection and equal benefit of the law without discrimination based on grounds including race, national or ethnic origin, and mental or physical disability.

Statistics show that Aboriginal people are more likely than non-Aboriginals to be placed in administrative segregation.[29] Similarly, prisoners who have been identified as having mental health or “cognitive” issues are more likely to have spent time in segregation.[30] These prisoners who suffer from mental illnesses before being isolated from human contact also frequently experience some of the severest negative impacts to their health.[31]

It may be possible for some prisoners to prove that administrative segregation is imposed upon them differentially or impacts them more significantly than other prisoners because of their race or mental disability.[32] They may also be able to show that the differential treatment disadvantages them by perpetuating prejudice or stereotyping, which will amount to a violation of section 15 of the Charter.[33] This is one of the claims being made in the court challenge brought against the federal government in B.C.

Moving forward

The BCCLA and the JHSC have filed a lawsuit against the federal government in B.C., claiming that the CCRA’s provisions that govern administrative segregation, and how those provisions have been applied in federal prisons, violate the Charter rights of prisoners. In Ontario, the Canadian Civil Liberties Association and the Canadian Association of Elizabeth Fry Societies have also filed a lawsuit that challenges the laws on administrative segregation, and how those laws have been used.

In B.C., the trial proceedings for the constitutional challenge began on July 4, 2017, while the challenge brought in Ontario is scheduled to be heard on September 11, 2017.[34]

Meanwhile, the federal government has already proposed changes to the CCRA in Bill C-56: An Act to amend the Corrections and Conditional Release Act and the Abolition of Early Parole Act.[35] One proposed change is that prisoners placed in administrative segregation will be released after 15 days of confinement, unless ordered otherwise by the institutional head. External review by an independent party will be triggered when a prisoner remains in segregation longer than 15 days, in which case the reviewing party will make a recommendation as to whether or not the confinement should continue.[36]

The court challenges will go ahead despite the proposed changes to the law, which critics claim do not go far enough to make the CCRA compliant with the Charter.[37] And so, the solitary saga continues…

[1] The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), GA Res 70/175, UNODC, 77th sess, UN Doc A/RES/70/175 (2015), r 44.

[2] Interim report of the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment, UNODC, 66th sess, UN Doc A/66/150 (2011) at para 76 ; Lisa Coleen Kerr, “The Chronic Failure to Control Prisoner Isolation in US and Canadian Law” (2015) 40:2 Queen's LJ 483 at paras 17-18 (QL).

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

[4] Kerr, supra note 2 at paras 16, 31; Correctional Service Canada, “Profile of Offenders in Administrative Segregation: A Review of the Literature”, by Shauna Bottos, 2008 No B-39 (September 2007), online: <www.csc-scc.gc.ca/research/b39-eng.shtml>.

[5] Ibid; Corrections and Conditional Release Act, SC 1992, c 20, s 44(1)(f) ; Corrections and Conditional Release Regulations, SOR/92-620, s 40(2).

[6] Canada, Office of the Correctional Investigator, Annual Report of the Office of the Correctional Investigator 2014-2015, by Howard Sapers (26 June 2015), online: <www.oci-bec.gc.ca/cnt/rpt/annrpt/annrpt20142015-eng.aspx#s1> [Correctional Investigator, Annual Report].

[7] CCRA, ss 31(1),(3).

[8] Ibid, s 31(3). The “institutional head” is the person who is normally in charge of the prison.

[9] Correctional Investigator, Annual Report, supra note 6; Kerr, supra note 2 at para 8.

[10] Kerr, ibid at paras 8, 16, 31.

[11] Ibid.

[12] British Columbia Civil Liberties Association v Canada (AG) (21 June 2017), Vancouver, BC SC 150415 at 8 (amended statement of claim) ; Canadian Civil Liberties Association v Canada (AG) (27 January 2015), Toronto, Ont Sup Ct 15-520661 at 9-10 (statement of claim) .

[13] Correctional Investigator of Canada, “A Preventable Death”, by Howard Sapers (20 June 2008) at 3, 5-6, online: <www.oci-bec.gc.ca/cnt/rpt/pdf/oth-aut/oth-aut20080620-eng.pdf>; The Canadian Press, National Post Staff & Postmedia News, “Ashley Smith death ruled a homicide by inquest jury”, National Post (19 December 2013), online: <nationalpost.com/news/canada/ashley-smith-death-ruled-a-homicide-by-inquest-jury/wcm/9be701b4-8f24-49df-9b81-a57b6ad26b94>.

[14] The Honourable Judge James K Wheatley, Report to the Attorney General:Public inquiry into the death of Edward Christopher Snowshoe (Edmonton: Justice and Solicitor General, 2014), online: <open.alberta.ca/publications/fatality-inquiry-2014-july-8>.

[15] Alison Crawford & Philippe-Vincent Foisy, “Federal inmate dies by suicide after 118 days in solitary confinement”, CBC News (23 May 2017), online: <www.cbc.ca/news/politics/suicide-solitary-confinement-csc-guy-langlois-1.4127975>.

[16] Correctional Service Canada, “Trends in Administrative Segregation 2014 to 2016”, by Larry Motiuk& Mike Hayden, RIB 16-05 (June 2016), online: <www.csc-scc.gc.ca/research/005008-rib-16-05-eng.shtml>; “Solitary confinement: How four people’s stories have changed hearts, minds and laws on the issue” The Globe and Mail (21 June 2017), online: <www.theglobeandmail.com/news/national/solitary-confinement-canada-required-reading/article35391601/>.

[17] 2002 SCC 68 at paras 40, 47.

[18] Robert J Sharpe & Kent Roach, The Charter of Rights and Freedoms, 5th ed (Toronto: Irwin Law, 2013) at 232.

[19] BCCLA Statement of Claim, supra note 12. See also Canada, Department of Justice, Charter Statement - Bill C-56: An Act to amend the Corrections and Conditional Release Act and the Abolition of Early Parole Act, online: <www.justice.gc.ca/eng/csj-sjc/pl/charter-charte/c56.html> . Note that the Charter Statement for Bill C-56 examines the Charter rights of prisoners that may be engaged by an amended version of the provisions of the CCRA that relate to administrative segregation.

[20] 2010 BCSC 805 at paras 322-324 .

[21] See BCCLA Statement of Claim, supra note 12 at 8; Bacon, ibid at paras 305, 316-317, 324; Interim report of the UN Special Rapporteur, supra note 2 at para 76; Kerr, supra note 2 at para 17.

[22] BCCLA Statement of Claim, supra note 12; Correctional Investigator, Annual Report, supra note 6.

[23] BCCLA Statement of Claim, ibid at 8-9.

[24] Ibid at 9; Kerr, supra note 2 at para 29; Howard v Stony Mountain Institution, 19 DLR (4th) 502 at 517.

[25] Debra Parkes, “A Prisoners' Charter?: Reflections on Prisoner Litigation Under the Canadian Charter of Rights and Freedoms” (2007) 40 UBC L Rev 629 at para 41 (QL).

[26] R v Smith, [1987] 1 SCR 1045 at 1072.

[27] BCCLA Statement of Claim, supra note 12 at 10; Kerr, supra note 2 at para 29; CCLA Statement of Claim, supra note 12.

[28] Bacon, supra note 20 at para 303.

[29] Correctional Investigator, Annual Report, supra note 6; Canada, Office of the Correctional Investigator, “Administrative Segregation in Federal Corrections: 10 Year Trends” (28 May 2015) at 2-3, 14-15, online: <www.oci-bec.gc.ca/cnt/rpt/pdf/oth-aut/oth-aut20150528-eng.pdf> [Correctional Investigator, “10 Year Trends”].

[30] Correctional Investigator, Annual Report, ibid; Correctional Investigator, “10 Year Trends”, ibid at 20-21.

[31] Correctional Investigator, Annual Report, ibid; Interim report of the UN Special Rapporteur, supra note 2 at para 68.

[32] BCCLA Statement of Claim, supra note 12 at 10; Kerr, supra note 2 at para 29.

[33] BCCLA Statement of Claim, ibid; Andrews v Law Society of British Columbia, [1989] 1 SCR 143 at 182; R v Kapp, 2008 SCC 41 at paras 17-18.

[34] British Columbia Civil Liberties Association, “Justice, not torture: challenging solitary confinement in Canadian prisons” (2017), online: <bccla.org/our-work/solitary-confinement/>; Canadian Civil Liberties Association, “Court Denies Canada’s Attempt to Adjourn CCLA’s Segregation Challenge” (6 July 2017), online: <ccla.org/court-denies-canadas-attempt-adjourn-cclas-segregation-challenge/>.

[35] 1st Sess, 42nd Parl, 2017, (first reading 19 June 2017); Charter Statement, supra note 19.

[36] Ibid.

[37] See Patrick White, “Ottawa attempts to stall solitary-confinement lawsuit”, The Globe and Mail (21 June 2017, online: <www.theglobeandmail.com/news/national/ottawa-attempts-to-stall-solitary-confinement-lawsuit/article35416108/>; Sunny Dhillon, “Court rejects Ottawa's bid to adjourn B.C. solitary confinement lawsuit”, The Globe and Mail (27 June 2017), online: <www.theglobeandmail.com/news/british-columbia/court-rejects-bid-to-adjourn-bc-solitary-confinement-lawsuit/article35477159/>; Canadian Civil Liberties Association, supra note 34.

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:

• When Charter Rights Collide: Trinity Western University at the British Columbia Court of Appeal
• Trinity Western University v. Ontario and Nova Scotia

[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.

One year ago, the majority of the Supreme Court of Canada in R v Jordan set new timelines for completing criminal trials, giving new life to an accused person’s right to be tried within a reasonable time.[1] The Court stated that complacency in the justice system needed to be addressed and it hoped that the new time limits would lead to significant changes.[2] Controversially, the decision has resulted in cases as serious as murder and major sexual assaults being dismissed. The risk of losing public confidence in criminal justice is forcing the entire system to scramble to find solutions to combat trial delays.[3] One year has passed since the decision. Was it really a game changer?

Jordan changes the test for assessing unreasonable delay

The majority of the Supreme Court in Jordan introduced new timelines by which criminal trials should be completed before the delay is assumed to be unreasonable: 18 months for provincial court cases and 30 months for superior court cases.[4] Unreasonable delays violate the constitutionally protected right of a person charged with an offence to be tried within a reasonable time (section 11(b) of the Canadian Charter of Rights and Freedoms). If a court finds that the delay for completing a trial is unreasonable, the remedy is a judicial stay of proceedings - meaning that the case gets dismissed. This is regardless of the seriousness of the offence.[5]

Cases dismissed since Jordan

Since the release of the Jordan decision, there have been over 1000 stay applications by defence lawyers across the country. However, only a small percentage of applications have resulted in a stay being granted:

• Quebec: 889 applications as of May 18, 2017. Stays granted: 61.[6]
• Ontario: 296 applications from July 26, 2016 - March 15, 2017. Stays granted: 68.[7]
• Alberta: 107 applications from October 25, 2016 – June 22, 2017. Seven stays have been granted.[8]
• Manitoba: Over 60 applications. Two stays have been granted.[9]
• Saskatchewan: Nine applications. Four stays have been granted.[10]

A study by a law professor and law student at Dalhousie University showed only a 12% increase in successful stay applications since the Jordan decision.[11] The study compared all of the reported decisions found on legal databases that involved section 11(b) stay applications six months before and after the Jordan decision.[12] The authors note that all of the successful applications would have also succeeded under the previous legal test for unreasonable delay.[13]

According to law professor Stephen Coughlan, despite the limited increase in successful applications, defence lawyers now perceive stay applications as being worthwhile again.[14] In other words, Jordan has made the right to be tried within a reasonable time meaningful again.

Governments respond to Jordan

Likely the largest impact of the Jordan decision is that it has forced governments across Canada to turn their attention to combatting trial delays. In response to the decision, various provinces are increasing funding for the court system:

• The Quebec government announced that it will invest $175.2 million over the next four years to recruit more judges, prosecutors, and support staff as well as to add new courtrooms.[15]
• Ontario plans to invest $25 million to hire 13 judges, 32 Crown attorneys, and 16 legal aid lawyers, and 26 court staff.[16]
• Alberta announced that it will invest $14.5 million to hire 50 Crown prosecutors and 30 support staff.[17]

Since the Jordan decision, the federal government has announced 80 new judicial appointments across Canada.[18] They also made changes to the 2017 federal budget to include additional funding for the appointment of 28 judges across the country: $55 million over five years, and $15.5 million per year afterwards.[19]

In April 2017, the federal Justice Minister had an “emergency meeting” with a number of her provincial and territorial counterparts to discuss ways to deal with delays.[20]

The Justice Ministers identified certain areas as priorities for reform, such as the bail system and mandatory minimum penalties.[21] While bail itself does not cause delays to trial, conducting bail hearings and managing the increasing number of people held in pre-trial detention requires a significant number of resources that are already limited.[22] Mandatory minimum penalties  contribute to delays because they affect the ability of Crown prosecutors to offer lighter sentence recommendations to an accused person for pleading guilty and often lead to pointless “nothing-to-lose” trials.[23]

The Justice Ministers are meeting again in early September to consider what changes can be made to existing laws or what new laws can be introduced to address the problems they identified.

Unique provincial approaches to deal with delays

Several provinces have developed unique approaches for responding to delays in the trial process. The approaches signal a recognition that there are a host of problems in the criminal justice system that contribute to trial delay.

As an example of unique provincial approaches, part of Ontario’s plan to speed up the resolution of criminal cases is to improve the bail system by making it faster and more effective.[24] One initiative is providing greater access to duty counsel - defence lawyers who provide legal information and assistance to accused persons who do not have a lawyer.[25] In addition, Ontario plans to modernize the bail policies and procedures of Crown prosecutors, as well as to hire Crown attorneys to take on active roles in the bail process.[26] Ontario is also providing programs for greater bail supervision and support for low-risk vulnerable groups such as the mentally ill, homeless, and Indigenous people so that they can be safely released into the community.[27]

In the prairies, Alberta has implemented a triage protocol - named after the medical practice of prioritizing patient treatment based on the severity of their condition.[28] Applied to criminal law, the triage approach provides Crown prosecutors with a standardized method for assessing files to determine which files will be prosecuted and how.[29] The goal is to prioritize resources for the most serious and violent crimes.

The resources dedicated to each case are determined by factors such as the seriousness of the crime and the likelihood of conviction.[30] Cases that are unlikely to result in a conviction are dropped. The protocol also offers the Crown prosecutors guidelines on how to efficiently manage cases and how to encourage early resolution of cases.[31]

Meanwhile, in Nova Scotia, a working group of lawyers and judges developed a simple one-page form for Crown prosecutors to use for less complicated offences such as minor property offences to encourage early case resolution.[32] The form allows the Crown prosecutor to clearly outline what they recommend as a sentence. The lighter sentence outlined in the form has an expiry date, which provides an incentive for accused persons to plead guilty early on.[33] This approach is currently being tested in Halifax and Dartmouth, Nova Scotia.[34]

The future of Jordan

If there was ever any doubt about the Supreme Court of Canada’s resolve to protect the right to be tried within a reasonable time, it was dispelled when it unanimously reaffirmed the Jordan framework in R v Cody on June 16, 2017.[35] The Court was clear that the Jordan framework must be followed and that it will not be “lightly discarded or overruled.”[36]

The Jordan decision made it apparent that the criminal justice system requires major reform. Undeniably, the decision has made an impact. It has forced the criminal justice system to address delays that had become pervasive and unacceptable for all parties involved.

One year after the decision, all signs seem to say that Jordan decision is indeed a game-changer. Going forward, the question remains whether all actors within the justice system will continue to work proactively to combat trial delays after the issue fades away from the public spotlight.

For more information:

• Waiting for justice: R v Jordan and the new framework for delay

[1] R v Jordan, 2016 SCC 27 .

[2] Ibid at paras 4-5.

[3] Sean Fine, “Courts shaken by search for solutions to delays”, The Globe and Mail (08 June 2017), online: <www.theglobeandmail.com/news/courts-shaken-by-search-for-solutions-todelays/article34275019/>.

[4] Jordan, supra note 1 at para 5.

[5] Ibid at para 81.

[6] “Man accused of killing Montrealer with a machete has charges stayed due to Jordan ruling”, CBC News (19 May 2017), online: <www.cbc.ca/news/canada/montreal/man-accused-of-killing-montrealer-with-a-machete-has-charges-stayed-due-to-jordan-ruling-1.4124735>.

[7] Andrew Duffy, “Ontario has had 68 criminal cases stayed since Jordan: ministry”, Ottawa Citizen (03 May 2017), online: <ottawacitizen.com/news/local-news/ontario-has-had-68-criminal-cases-stayed-since-jordan-ministry>.

[8] Alberta Justice and Solicitor General, “Jordan Applications”, online: <justice.alberta.ca/programs_services/criminal_pros/Pages/Jordan_Applications.aspx>.

[9] Katie May, “Supreme Court doubles down on court delays”, Winnipeg Free Press (16 June 2017), online: <www.winnipegfreepress.com/local/supreme-court-doubles-down-on-court-delays-429010303.html>.

[10] Andrea Hill, “Four cases dismissed due to delays following Supreme Court decision”, Saskatoon Star Phoenix (23 June 2017), online: <thestarphoenix.com/news/local-news/four-cases-dismissed-due-to-delays-following-supreme-court-decision>.

[11] Cristin Schmitz, “Supreme Court ‘got it right’ on speedy trial right, law professor says”, The Lawyer’s Daily (21 April 2017), online: <www.thelawyersdaily.ca/articles/2962/supreme-court-got-it-right-on-speedy-trial-right-law-professor-says>.

[12] Ibid.

[13] Ibid.

[14] Tonda MacCharles, “Fears of widespread trial dismissals not borne out, says law professor”, The Star (10 April 2017), online: <www.thestar.com/news/canada/2017/04/10/fears-of-widespread-trial-dismissals-not-borne-out-says-law-professor.html>.

[15] Luis Millan, “Quebec boosts spending on justice system”, The Lawyer’s Daily (12 January 2017), online: <www.thelawyersdaily.ca/articles/3497/quebec-boosts-spending-on-justice-system>.

[16] Jacques Gallant, “Ontario to tackle court delays by hiring more judges, prosecutors”, The Star (01 December 2016), online: <www.thestar.com/news/queenspark/2016/12/01/ontario-to-tackle-court-delays-by-hiring-more-judges-prosecutors.html>.

[17] Michelle Bellefontaine, “Alberta hiring 50 new Crown prosecutors, 30 support staff to deal with court backlogs”, CBC News (09 March 2017), online: <www.cbc.ca/news/canada/edmonton/kathleen-ganley-new-court-staff-budget-1.4017382>.

[18] Department of Justice Canada, “Judicial Appointments”, online: <www.justice.gc.ca/eng/news-nouv/ja-nj.asp?action=tdetail&tid=4&year=2017>.

[19] Government of Canada, Building a Stronger Middle Class, 22 March 2017, at 190.

[20] Cristin Schmitz, “Justice ministers agree on post-Jordan action plan to combat trial delays”, The Lawyer’s Daily, online: <www.thelawyersdaily.ca/articles/3060/justice-ministers-agree-on-post-jordan-action-plan-to-combat-trial-delays>.

[21] Department of Justice Canada, “Minister Wilson-Raybould Issues Statement on the Cody Decision” (16 June 2017), online: <www.canada.ca/en/department-justice/news/2017/06/minister_wilson-raybouldissuesstatementonthecodydecision.html>.

[22] The Standing Senate Committee on Legal and Constitutional Affairs, Delaying Justice is Denying Justice, June 2017 at 133-34 . The Canadian Bar Association, “Delays in Canada’s criminal justice system” (October 19 2016), online: <www.cba.org/CMSPages/GetFile.aspx?guid=b48953fa-cbab-4940-b70d-86ca3e05ad0b>.

[23] Delaying Justice, ibid at 53.

[24] Ministry of the Attorney General, “About Ontario’s Plan for Faster, Fairer Criminal Justice” (01 December 2016), online: <news.ontario.ca/mag/en/2016/12/about-ontarios-plan-for-faster-fairer-criminal-justice.html>.

[25] Ibid.

[26] Ibid.

[27] Ibid.

[28] Alberta Justice and Solicitor General, “Triage” (2017), online: <justice.alberta.ca/programs_services/criminal_pros/Documents/TriageProtocol.pdf>.

[29] Ibid.

[30] Ibid at 2-4.

[31] Ibid at 4-6.

[32] The Criminal Justice Transformation Group, “Early Resolution Initiative of the Criminal Justice Transformation Group” (07 Feb 2017), online: <nsbs.org/early-resolution-initiative-criminal-justice-transformation-group>.

[33] Shaina Luck, “N.S. prosecutors encouraged to offer plea bargains for minor crimes as cases pile up”, CBC News (18 February 2017), online: <www.cbc.ca/news/canada/nova-scotia/n-s-prosecutors-encouraged-to-offer-plea-bargains-for-minor-crimes-as-cases-pile-up-1.3989246>.

[34] Ibid.

[35] R v Cody, 2017 SCC 31.

[36] Ibid at para 3.

What happens when two rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms[1], such as equality rights and the freedom of religion, come into conflict with each other? How do the courts strike a balance between the rights?

The British Columbia Court of Appeal was tasked with engaging in such a balancing exercise in the case of Trinity Western University v Law Society of British Columbia, where the equality rights of lesbian, gay, bisexual, transgender, and queer (LGBTQ) individuals collided with the religious freedoms of evangelical Christians.[2]

This article gives an overview of the dispute between the Law Society of British Columbia (LSBC) and Trinity Western University (TWU), and how the Court of Appeal weighed the Charter rights in conflict.

Trinity Western University and the Covenant

TWU is a private, evangelical Christian school located in Langley, B.C. that would like to establish its own law program.[3]

Before being admitted to TWU’s law program, students are required to agree to a Community Covenant (“Covenant”).[4] The Covenant stipulates that students may only engage in sexual conduct that occurs within a heterosexual marriage, meaning that pre-marital sex and sexual intimacy within a same-sex marriage is not allowed.[5] A student who violates the Covenant can face significant consequences, including suspension or expulsion from TWU.

The dispute

Law societies have the role, granted to them by provincial governments, to set legal education requirements and to decide who can enter the legal profession within their respective provinces.[6] The LSBC refused to recognize graduates of TWU’s proposed law program as having the legal education required to practice law in B.C.[7] The refusal to “accredit” TWU’s law graduates means that the graduates will be unable to apply to practice law in B.C. immediately after completing their law degree.[8]

TWU challenged the LSBC’s accreditation decision in the B.C. courts, arguing that the Law Society’s decision infringes the religious freedoms of its prospective Christian students (as well as the rights of TWU’s faculty, and potentially, the University itself) because the Covenant is an integral part of the beliefs and way of life at TWU.[9] Meanwhile, the Law Society argued that approving of TWU’s law school, which discriminates against LGBTQ students “in terms of admission to, and life at, TWU,” would amount to a failure to protect LGBTQ equality rights.[10]

The role of the Law Society of British Columbia

When making its decision about the accreditation of graduates, the LSBC is exercising powers given to it by the B.C. government in the Legal Profession Act.[11] Therefore, as with all government decisions, the decision must comply with the Charter.[12] In complying with the Charter, the LSBC’s decision must reflect a reasonable balance between the LSBC’s objectives (which include “protecting the rights and freedoms of all persons”) and the Charter rights of TWU’s prospective Christian and LGBTQ students.[13] The LSBC’s decision must be balanced –denying accreditation must not disproportionately impact religious freedoms in an attempt to protect equality rights.

What the courts decided

At the Supreme Court of British Columbia, the Court set aside the LSBC’s decision to refuse to recognize the education of TWU’s law graduates.[14] The LSBC appealed the Supreme Court’s decision to the British Columbia Court of Appeal (BCCA).

A key issue before the BCCA was whether the Law Society’s decision appropriately balanced its objectives and the rights and freedoms in question. [15] That is, did it properly weigh the impact of the decision on religious freedoms versus protecting LGBTQ students from discrimination?

The BCCA found that the LSBC failed to engage in a proper balancing of its objectives and sections 2(a) and 15 of the Charter – religious freedom and equality rights. It also determined that the LSBC’s decision disproportionately harmed religious freedoms compared to the impact that accrediting TWU’s graduates would have on LGBTQ equality rights.

How the BCCA weighed the rights in conflict

Freedom of Religion

Section 2(a) of the Charter guarantees freedom of religion. This guarantee means that an individual is free to hold and practice the religious beliefs of their choice and to be free from government constraints on those beliefs.[16]

In this case, the BCCA found that the LSBC’s accreditation decision has a severe negative impact on the religious freedoms of TWU’s prospective Christian students. [17] The LSBC’s decision has stopped TWU from establishing its law program because the B.C. government revoked its approval of the program immediately following the decision.[18] Therefore, Christian students are now denied the opportunity to study law within a community that fosters their sincerely held religious beliefs and values.[19]

Equality Rights

Section 15 of the Charter protects members of the LGBTQ community against laws and government actions that discriminate against them on the basis of their sexual orientation.[20]

The equality rights of LGBTQ students are engaged in this case because the LSBC’s decision affects whether or not those students will be protected from discrimination.[21] LGBTQ students are unlikely to sign a Covenant that restricts sexual conduct to married, heterosexual individuals. Because those LGBTQ students are unlikely to agree to the Covenant, they will be unable to attend TWU’s law school.[22] LGBTQ students who do attend TWU will “have to either ‘live a lie to obtain a degree’ and sacrifice important and deeply personal aspects of their lives, or face the prospect of disciplinary action.”[23]

The BCCA concluded that an approval of TWU’s law school would indirectly result in discrimination against LGBTQ students in terms of access to a legal education and the legal profession. However, in the Court’s view, the impact on those students would be minimal.[24] LGBTQ students would still have options available to them, outside of TWU, for attending law school.[25] Also, while LGBTQ individuals will be less likely than heterosexual students to enter TWU’s law program, an overall increase in the number of law school seats available across Canada could improve the chances of LGBTQ students being admitted elsewhere.[26] The LSBC’s decision to deny accreditation to TWU’s graduates, on its own, will not increase the law school opportunities available to LGBTQ students.[27]

The Court of Appeal’s conclusion

The BCCA ultimately found that the LSBC’s refusal to accredit TWU graduates was unreasonable because it had a severe detrimental impact on religious freedoms that outweighed the minimal positive effect of the decision on LGBTQ students.[28] As a result, the LSBC’s decision was overturned.

What the future holds in store

Since the release of the BCCA ruling in November 2016, the LSBC has appealed the decision to the Supreme Court of Canada.

The Supreme Court has agreed to hear both the BCCA case, as well as the decision in the appeal from the Ontario Court of Appeal, in November 2017. Although there is no set date for a decision, Canada’s highest court will ultimately need to determine how to resolve this clash of religious freedoms and equality rights.

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

[2] 2016 BCCA 423 .

[3] Ibid at para 5.

[4] Ibid at para 7; Trinity Western University, “Community Covenant Agreement” (2014), online: <https://www8.twu.ca/studenthandbook/university-policies/community-covenant-agreement.html> .

[5] Covenant, ibid.

[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. The provincial law societies in Ontario and Nova Scotia also refused to accredit the graduates of TWU’s proposed law program, and have subsequently been challenged by TWU in the courts of their respective provinces.

[8] Ibid at para 168. It has been noted that graduates of TWU’s law program may still be able to practice law in provinces where the governing law society has refused to recognize TWU as an “approved” or “accredited” faculty if 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 2013 at 167.

[9] Trinity Western BCCA, ibid at paras 102-107.

[10] Ibid at paras 170-171.

[11] Supra note 6.

[12]Doré v Barreau du Quebec, 2012 SCC 12 at paras 35, 55-58 ; Trinity Western BCCA, supra note 2 at para 80.

[13] Doré, ibid at paras 56-58; Loyola High School v Quebec (AG), 2015 SCC 12 at paras 4, 39; Trinity Western BCCA, ibid, 164-166; LPA SBC, supra note 6, s 3.

[14] Trinity Western University v The Law Society of British Columbia, 2015 BCSC 2326 at para 152.

[15] Trinity Western BCCA, supra note 2 at para 98, 120, 133.

[16] Ibid at para 99, citing R v Big M Drug Mart Ltd, [1985] 1 SCR 295 at 346-347, Dickson J.

[17] Ibid at para 168.

[18] Ibid at paras 31, 168. Also note that 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 be viewed by the University as pointless, and could effectively stop the program from opening.

[19] Ibid at paras 116, 167-168.

[20] Ibid at para 108; Vriend v Alberta, [1998] 1 SCR 493 at paras 90, 101-104, 107.

[21] Trinity Western BCCA, ibid at paras 108, 113, 170.

[22] Ibid at para 171.

[23] Ibid at para 172.

[24] Ibid at paras 179, 191.

[25] Ibid at para 178.

[26] Ibid at para 179.

[27] Ibid at paras 175, 180.

[28] Ibid at para 191.

When Canadians face a health or safety risk, they can look to sections 91 and 92 of the Constitution Act, 1867 to figure out whether the provincial or federal government has the power to help them.[1] But what about when a species such as our giant sea-faring cousin, the North Atlantic right whale[2] (the “right whale”) is in danger? What does the Constitution have to say about that?

A species on the brink

Since June 7, 2017, six right whales have been found dead in the Gulf of Saint Lawrence.[3] The six deaths amount to a loss of more than one percent of the estimated 500 right whales that remain on the planet today.[4] Such a loss is a major blow for a species whose population was reduced by unrestricted hunting in the 19th and early 20th centuries to a fraction of what previously existed.[5]

Are the right whales a provincial or federal responsibility?

Sections 91 and 92 of the Constitution Act, 1867 outline which areas are under the authority of the federal and provincial governments (referred to as the “division of powers”), but neither section specifically mentions the “environment.” As a result, both the provinces and the federal government can make laws on a specific environmental matter, as long as it can be connected to a power granted to them in the Constitution.[6]

In the case of right whales, the federal government’s authority to create laws and regulations is relatively clear. The federal government has control over areas such as the sea coast and inland fisheries, navigation and shipping, criminal laws (including laws that prohibit the dumping of harmful substances into the water), and obligations that arise from international treaties (like the Convention on Biological Diversity).[7] More broadly speaking, the federal government also has the power to make laws for the peace, order, and good government of Canada on matters of national concern (such as marine or interprovincial water pollution).[8]

In contrast, a provincial government may also provide some protections to right whales, as provinces have the power to pass laws relating to property and civil rights (which may include controls on polluting emissions or hunting), trade of animals or animal products within the province, and subjects that provinces have delegated to municipalities (like development, waste management, and wastewater).[9]

At the end of the day, while the federal government has primary authority to protect the right whale, the necessary clean-up, necropsies (procedures used to determine cause of death), and future protections will likely require a collaborative effort between the federal and provincial governments.

What protections are in place?

The right whale is listed as an endangered species in the federal Species at Risk Act, and the federal government has both identified its critical habitat, and developed an action plan for the recovery of the species.[10] Some protections from disturbances and hunting also exist in the Marine Mammal Regulations under the federal Fisheries Act.[11]

In light of the tragedy this June, questions surely to be asked in the days to come are whether more protections are needed, and how the provinces and federal government can best use their respective powers to help.

For related reading see:

• Federal Government: Constitutional Protector of Frogs

[1] Constitution Act, 1867 (UK), 30 & 31, c 3, reprinted in RSC 1985, Appendix II, No 5 .

[2] The scientific name for the North Atlantic Right Whale is Eubalaena glacialis. For more information on the species, see: Species at Risk Public Registry, “North Atlantic Right Whale”, Species Profile (2017), online: <www.registrelep-sararegistry.gc.ca/species/speciesDetails_e.cfm?sid=780>.

[3] Jordan Gill, “‘Unprecedented event’: 6 North Atlantic right whales found dead in June”, CBC News (24 June 2017), online: <www.cbc.ca/news/canada/new-brunswick/six-dead-right-whales-1.4176832>.

[4] Ibid; Fisheries and Oceans Canada, “Action Plan for the North Atlantic Right Whale (Eubalaena glacialis) in Canada: Fishery Interactions [Proposed]”, Species at Risk Act Action Plan Series (Ottawa: Fisheries and Oceans Canada, 2016).

[5] Sarah Gibbens, “In Unprecedented Loss, Endangered Whales Die of Mysterious Cause”,

National Geographic (26 June 2017), online: <news.nationalgeographic.com/2017/06/north-atlantic-right-whale-deaths-st-lawrence-spd/>; Species at Risk Public Registry, supra note 2.

[6] See Meinhard Doelle & Chris Tollefson, Environmental Law: Cases and Materials, 2nd ed (Toronto: Thomson Reuters Canada, 2013) at 166. See also Friends of the Oldman River Society v Canada, [1992] 1 SCR 3; R v Crown Zellerbach Canada Ltd, [1988] 1 SCR 401 .

[7] Constitution Act, 1867, supra note 1, ss 91(10),(12),(27), 132; Penny Becklumb, Economics, Resources and International Affairs Division, “Federal and Provincial Jurisdiction to Regulate Environmental Issues”, Publication No 2013-86-E (Ottawa: Library of Parliament, 24 September 2013) at 2.1, 3.3.2, online: <lop.parl.ca/Content/LOP/ResearchPublications/2013-86-e.htm#a5>; R v Hydro-Québec, [1997] 3 SCR 213.

[8] Constitution Act, 1867, ibid, s 91; Becklumb, ibid at 2.1; Crown Zellerbach, supra note 6.

[9] Constitution Act, 1867, ibid, ss 92(8),(13); Becklumb, ibid at 2.2.

[10] Species at Risk Public Registry, supra note 2; Fisheries and Oceans Canada, supra note 4; Species at Risk Act, SC 2002, c 29.

[11] Species at Risk Public Registry, ibid; Fisheries Act, RSC 1985, c F-14; Marine Mammal Regulations, SOR/93-56.

Three summer students from the Centre for Constitutional Centre recently had the once in a lifetime opportunity to sit down and chat with one of the founding fathers of the Constitution Act 1982 - Dr. Peter Meekison.

Meekison is a renowned political scientist, a distinguished professor emeritus at the University of Alberta, and was Deputy Minister of Intergovernmental Affairs during the negotiations that led to the patriation of Canada’s Constitution and the creation of the Charter of Rights and Freedoms. Meekison saw it all as he represented Alberta alongside Premier Peter Lougheed at the patriation negotiations and during the Meech Lake and Charlottetown Accord discussions.

Here are a few highlights from the conversation with Dr. Meekison.

1) Federalism “caught his eye” from an early age.

It may come as a surprise that such a renowned political scientist actually started off his studies in engineering. Although Dr. Meekison says his engineering grades “weren’t the best”, he realized that what he enjoyed most in his undergraduate experience was his involvement in student politics as Students’ Union president at the University of British Columbia. Following his engineering degree, he had a conversation with the “Dean of Men” who encouraged him to try political science. He started a new course of studies in the subject and “got riveted” about federalism. This led him to pursue both his Masters and Doctoral level studies on federalism, eventually becoming an expert in the subject.

2) From university professor to trusted government advisor.

In 1964, Dr. Meekison became a professor in the political science department at the University of Alberta. Some of his former students had been working at the newly-created Department of Federal and Intergovernmental Affairs in the province and came to visit him in 1974. When asked about why he switched from the academic world to the governmental, Meekison explained that his former students visited and said: “they don’t know anything about federalism in the department!” and asked him to work with them. He said, “I went for one year. To make a long story short, one year became ten years and I went to all the constitutional negotiations.” In those ten years, Dr. Meekison attended the patriation, Meech Lake, and Charlottetown Accord negotiations.

3) There was a lot of “give and take” during Charter negotiations.

There was a back-and-forth dynamic at many of the constitutional negotiations. Provinces had different goals or certain outcomes that they wanted. Dr. Meekison described one such instance at the Victoria Charter negotiations in 1971, when he was a junior advisor. This was one of the first major constitutional conferences for negotiating a package of changes to the Constitution, including fundamental freedoms, political rights, language rights, and a constitutional amending formula. This conference ultimately failed when Quebec did not agree and other provinces followed suit.

“Bill Bennett was the premier of British Columbia and for a long time they didn’t have anybody on the Supreme Court of Canada from [BC]. So he said to [Prime Minister] Trudeau, I think we should have at least one seat on the Court – Quebec can have so-many, and Ontario can have so-many, we should at least have one guaranteed. So then... Smallwood [Premier of Newfoundland] put up his hand and said “Prime Minister, put me down for one [seat] too!” You watched the give and take happen.”

4) One of Lougheed’s firm stances was for provincial equality.

Peter Lougheed was premier of Alberta from 1971-1985. From 1974 to 1984, Meekison served as Lougheed’s trusted advisor.

Dr. Meekison had this to say about Premier Lougheed: “[He], in many respects, was a real visionary, and he was a believer in provincial equality... Some of the smaller provinces like [Prince Edward Island], people didn’t take seriously, but they’re still a province. And they have to be respected. Lougheed worked very hard in making sure that Alberta’s interests were looked after. He was not into first and second-class provinces, we were all equal.”

One major instance in which Lougheed fought for provincial equality was by supporting the Alberta Amending Formula, which Dr. Meekison drafted. This amending formula was meant to apply to any changes to the Constitution, and took away Ontario and Quebec’s previously-held veto power, thus keeping all the provinces equal when voting on constitutional amendments.

5) Where are we going from here? Reflections on Canada 150 and Charter 35

When asked to reflect on what he thought was the most Canadian way to celebrate Canada Day this July 1, Dr. Meekison smiled and laughed. He shrugged a little, paused, and said: “We [Canadians] are a happy people – by and large, Canadians look out for each other. This is manifested in things like equalization, the sharing of the benefits flows in different directions. I think we’re a very fortunate country. Whether you agree or disagree with the Charter, I think the Charter has just revolutionized the country. I think, for the better. I think we’re very fortunate and I can’t think of a better place to live.”

Meeting with Dr. Meekison allowed the students to attribute a face, smile and personality to a father of patriation. In talking about his experiences with the constitutional negotiations, Dr. Meekison said multiple times that they “had a lot of fun” and that everyone, regardless of the province they came from, worked well together. The conversation made the students think about how there are differences across Canada with respect to where we come from provincially, but the Constitution continues to bind us together as a nation.

The British North America Act, 1867 (“BNA Act”) – now called the Constitution Act, 1867[1] – created Canada at Confederation, and has been around for a whole 150 years since being made into law by the British Parliament. Although much has changed since 1867, the BNA Act continues to have an impact on the daily lives of Canadians 150 years later.

Here are seven reasons why you should care about the BNA Act.

1) It affects drinking age, drivers’ licences, your money, and so much more.

The assignment of different responsibilities to the federal and provincial governments (what we call the “division of powers”) is one of the most important aspects of the BNA Act and affects your everyday life more than you would think.

The division of powers prescribes what each level of government has the authority to do. Federal powers are listed in section 91 and deal with national matters like criminal law and the military, while provincial powers listed in section 92 outline matters of local and regional interest, such as education and natural resources.

Currency is controlled by the federal government, so you never have to worry about doing a currency exchange when you travel between provinces. The minimum wage, the legal drinking age, and traffic safety laws vary between provinces because of the division of powers (the provinces are typically responsible for those issues).[2] So if you are standing in line at the registry wondering why you have to get a new license after moving to another province, you have the BNA Act to thank!

2) It preserves the love-hate relationship between Canadians and taxes

Taxes are probably best known for the dent that they leave in your wallet. But, we also know that our taxes pay for things that we don’t want to live without, including basic healthcare, roads, and public education (from kindergarten to grade 12). And like many other government powers, taxation has its roots in the BNA Act.

Sections 91(3) and 92(2) of the Act give the federal and provincial governments power to tax Canadians within their areas of jurisdiction. Those sections are why the provincial government can impose a carbon tax, the federal government can make you pay GST, and why your local city government (acting with powers delegated to it by the province) can demand property taxes from you.

Notably, the BNA Act also says that a tax may only originate from the House of Commons or a provincial legislature, which ensures that taxes are only created by people elected to office by you.[3]

3) It is the reason you have a voice in the House of Commons

Are you part of the conversation when the government makes decisions? Of course! The BNA Act ensures that your voice is heard by setting up the system of voting your representative to the House of Commons.  The House of Commons drafts legislation such as the federal budget and changes to the Criminal Code. Members of Parliament (the representatives elected by you!) debate ongoing issues, legislation, and raise the concerns of their constituents.[4]

The BNA Act lays out the rules for the House in sections 37 to 52, including how the speaker is elected and how electoral districts were originally divided.[5] The Act specifies how many representatives each province gets. However, Canada’s population is much different than it was in 1867.Because Canada follows the principle of population by representation, the BNA Act outlines the process to re-adjust the number of representatives per province as the population changes.[6]

4) It has your back! The Senate is there to take a second look at laws

Although the House of Commons can draft legislation, it cannot just pass whichever laws it wants. Proposed laws must first pass through the Senate – the house of sober second thought and the second part of Canada’s two-house system. The BNA Act outlines the powers and duties of the Senate – namely to review legislation passed by the House of Commons.[7] Each province is entitled to a specific number of Senators,[8] who are appointed by the Governor General and must retire at the age of 75.[9]

Recently, the Senate appears to have ‘woken up’ and nearly refused to pass the federal government’s budget bill for 2017.[10] It has also made strong recommendations regarding, for example, changes that need to be made to the Indian Act to bring it into compliance with the Charter of Rights and Freedoms.

As a result, some people have dubbed it the “FrankenSenate” – meaning that it is doing all sorts of things it was not meant to do.[12] Others argue that the Senate is finally doing its job of thoroughly reviewing legislation and rejecting or changing it when it doesn’t make the cut! [13]

5) It led to creation of the courts – the guardians of the Constitution

Our courts are tasked with deciding how laws of the country are interpreted and whether they are constitutional or not. They not only apply the laws of the land and uphold the rule of law, but they ensure that the government does not overstep its power. For example, the Supreme Court struck down the Criminal Code provision prohibiting medically-assisted dying in Carter v Canada (AG) as unconstitutional.[14]

The BNA Act created Canada’s court structure, setting up our system of provincial and federal courts. The Act outlines which courts are managed by the province and which are managed by the federal government.[15] The Act also gives the federal government the authority to create a “General Court of Appeal for Canada,” which allowed them to create the Supreme Court of Canada in 1875.[16] Prior to 1949, decisions of the Supreme Court could still be appealed to the UK’s highest court – the Judicial Committee of the Privy Council. It was not until 1949 when the Court became “supreme” as the highest court in Canada. [17]

6) It’s why Ottawa is our capital city

Why was Ottawa, of all the cities at the time of Confederation, made our nation’s capital? In 1858, Queen Victoria chose Ottawa as the capital city because of its central location between Montreal and Toronto, its distance from the American border (making it safer from attack), and its convenient placement for travel to and from the western territories.[18] In 1867, Ottawa’s official status as capital city was sealed with section 16 of the BNA Act, which states: “[u]ntil the Queen otherwise directs, the Seat of Government of Canada shall be Ottawa.” Neither Queen Victoria, nor the kings and queen who have succeeded her, have ever directed otherwise, so Ottawa remains our nation’s capital 150 years later!

7) It’s the reason you count – literally – in the national census

Did you know that the national census has its foundation in the BNA Act? Section 8 of the Act required that a census be completed in 1871 and repeated every ten years thereafter. Originally, the main purpose of the census was to determine the population of each province for representation in Parliament – a function it still serves today.[19] Eventually, Statistics Canada became responsible for conducting the census.[20]

Today, the federal Statistics Act requires that Statistics Canada conduct a census every five years.[21] The information collected is important for ensuring that effective policies and programs, such as daycare programs and special employment programs for visible minorities, are developed that reflect the make-up of Canadian society.[22] So being part of the census gives you the ability to shape government action.

These are seven of the many reasons why you should care about the BNA Act – the constitutional document that created Canada and that continually helps to define who we are as a country, even 150 years later.

Want to learn more?

• Read the British North America Act, 1867 (“Constitution Act, 1867”)
• Get a quick briefer on the BNA Act (Constitutional Keyword)

[1] Constitution Act, 1867 (UK), 30 & 31, c 3, reprinted in RSC 1985, Appendix II, No 5

[2] Jason Tchir, “Why don’t we have the same driving laws all across Canada?”, The Globe and Mail (13 December 2016), online: <www.theglobeandmail.com/globe-drive/culture/commuting/why-dont-we-have-the-same-driving-laws-all-across-canada/article33303547/>; Kevin B Kerr, “Federal Minimum Wages and Low-Income Workers in Canada” (5 November 2008), Library of Parliament Research Publications, online: <lop.parl.ca/Content/LOP/ResearchPublications/prb0839-e.htm?cat=business>.

[3] Constitution Act, 1867, supra note 1, ss 53, 90; Re Eurig Estate, [1998] 2 SCR 565 at para 30.

[4] Constitution Act, 1867, ibid, s 37.

[5] Ibid, ss 37–52.

[6] Ibid, ss 40, 51.

[7] Ibid, ss 21-36.

[8] Ibid, s 29(2).

[9] Ibid.

[10] John Paul Tasker, “Senate passes budget bill with no amendments as Parliament breaks for summer”, CBC News (22 June 2017), online: <www.cbc.ca/news/politics/senate-backs-down-budget-bill-1.4173090>.

[11] Gloria Galloway, “Senators amend legislation aimed at removing sexism from Indian Act”, The Globe and Mail (24 May 2017), online: <www.theglobeandmail.com/news/politics/senators-amend-legislation-aimed-at-removing-sexism-from-indian-act/article35110342/>.

[12] Tony Keller, “Mr. Trudeau’s FrankenSenate: It’s alive, and it’s dangerous”, Editorial, The Globe and Mail (14 June 2017), online: <www.theglobeandmail.com/opinion/mr-trudeaus-frankensenate-its-alive-and-its-dangerous/article35309120/>.

[13] Emmett Macfarlane, “Proposing amendments isn’t Senate activism. It’s the Senate’s job”, Editorial, Maclean’s (19 June 2017), online: <www.macleans.ca/opinion/proposing-amendments-isnt-senate-activism-its-the-senates-job/>.

[14] Carter v Canada (Attorney General), 2015 SCC 5.

[15] Constitution Act, 1867, supra note 1, ss 92(14), 96.

[16] Ibid, s 101.

[17] Adam Dodek, “The Supreme Court at Canada’s 150th”, Policy Magazine (July-August 2017) 24, online: <www.policymagazine.ca/pdf/27/PolicyMagazineJulyAugust-2017-Dodek.pdf>.

[18] The Canadian Encyclopedia, “Capital Cities”, Historica Canada, online: <www.thecanadianencyclopedia.ca/en/article/capital-cities/>; Parliament of Canada, “Why Ottawa?”, Our Country, Our Parliament, online: <lop.parl.ca/About/Parliament/Education/ourcountryourparliament/html_booklet/why-ottawa-e.html>.

[19] Statistics Canada, “History of the Census” (2011), online: <www12.statcan.gc.ca/census-recensement/2011/ref/about-apropos/history-histoire-eng.cfm>; Statistics Canada, “Overview of the Census of Population” (2011), online: <www12.statcan.gc.ca/census-recensement/2011/ref/overview-apercu/pop2-eng.cfm>.

[20] Ibid.

[21] Statistics Act, RSC 1985, c S-19, ss 19-20.

[22] Statistics Canada, “Census of Population” (2016), online: <www23.statcan.gc.ca/imdb/p2SV.pl?Function=getSurvey&SDDS=3901>. Statistics Canada, “How census data are used” (2006), online: <www12.statcan.gc.ca/census-recensement/2006/ref/dict/overview-apercu/pop9-eng.cfm>.

A constitution 150 years in the making sure comes with some interesting stories. Here are 10 fun facts you might not know about Canada’s Constitution.

1) Dude... where’s my Constitution?

The original copy of the law that created Canada is not even in Canada! Any day of the week, Americans can visit their National Archives in Washington, D.C. to see original copies of their Constitution and Declaration of Independence, but Canadians cannot do the same here at home.[1] The law that formed the Dominion of Canada – the British North America Act, 1867 (now called the Constitution Act, 1867) – was enacted by the British Parliament, and England is where that document remains.[2]

2) Home at last

The Constitution could have come home to Canada in 1931, but it did not arrive until 1982 – a whole 51 years later! In 1931, Britain passed the Statute of Westminster, which gave Canada the power to make its own laws, but left Britain in control of changes to the Constitution.[3] Canada asked Britain to keep this control because the provinces just could not agree on an amending formula (a way to change the document in years to come).[4]

3) Dude… also, where’s my official Proclamation?

In 1982, Queen Elizabeth signed the document (the official Proclamation) that gave Canada its Charter of Rights and Freedoms and a Constitution that Canada could change on its own.[5]  Canadians may be unable to view the original copy of their 1867 Constitution, but at least they can see a pristine, original draft of the official Proclamation at any time, right? Wrong! In 1983, an art student poured red paint on the original, signed document to protest U.S. missile testing in Canada.[6] The paint stain remains on the official Proclamation because specialists feared that any attempt to remove the paint would cause even more damage.[7] As such, the originals are now locked up in a vault and not on public display.

4) Wait, women are persons too?

For the first 60 years after Canada’s Constitution was created in 1867, women were not even allowed to sit on the Senate. This was because initially women were not considered “qualified persons” who could become senators within the meaning of section 24 of the Constitution Act, 1867. That all changed in 1929, when Canada’s highest court at the time, the UK’s Judicial Committee of the Privy Council, said that “persons” in the Constitution included both men and women.[8] Within a year of that decision, Cairine Wilson was appointed as Canada’s first female Senator.[9]

5) Getting drunk on the job

Back in 1864, it took 23 delegates and a $200,000 champagne budget (in today’s dollars) to make some headway on forming the Constitution. The 1864 Charlottetown Conference was the moment that a union between the original provinces of Canada (Ontario, Quebec, New Brunswick, and Nova Scotia) became feasible.[10] The Conference also created a broad outline for what eventually became the British North America Act, 1867.[11] Who knows if this outcome would have been possible if not for the roughly $8,600 of champagne available to each delegate.[12]

6) Getting back at your boss, the Oliver Mowat story

Oliver Mowat was one of the 36 founding fathers of Canada - the group of men who brought the country together at Confederation. [13] Mowat was trained as a lawyer at the age of 15 by Canada’s first Prime Minister, John A. MacDonald.[14] Flash forward to 1872, when Mowat was the third premier of Ontario and often in opposition to MacDonald.[15] Mowat was determined to ensure that provinces kept control over alcohol sales.  His work is one of the major reasons why each province has its own liquor commission.[16] It looks like MacDonald trained him well...maybe a little too well for MacDonald’s liking.

7) Prime Minister ain’t no thang

The role of the Prime Minister is not well-defined anywhere in the written Constitution. A reference to the “Prime Minister” showed up for the first time in 1982 in sections 35.1 and 49 of the Constitution Act, 1982.[17] These sections relate to the planning of constitutional conferences. Based purely on the words in our Constitution, it may seem that the PM is simply a glorified event planner![18] The Prime Minister gets his powers from the many unwritten rules and conventions of the Constitution and not from the written text alone.

8) More than just a pretty face

Commonly known for its friendliness and maple syrup, Canada is also a constitutional trendsetter! Canada’s Charter of Rights and Freedoms helped guide the drafting of a bill of rights for South Africa, Hong Kong, and New Zealand.[19] Even United States Supreme Court Justice Ruth Bader Ginsburg recommended the use of Canada’s Charter as a guide for creating Egypt’s Constitution over that of the United States.[20]

9) The Constitution Express: rallying together for Aboriginal rights

As crazy as it sounds, it was not until 1982 that Aboriginal rights became recognized in our Constitution.[21] One powerful force for this change was Aboriginal leader George Manuel who, in 1980, led two chartered trains full of Indigenous people – called the Constitution Express -- from Vancouver to Parliament Hill in Ottawa to peacefully protest the absence of Aboriginal rights in Canada’s Constitution.[22] What started as a train eventually became a movement that gained traction outside of Canada from New York to Europe, and encouraged the federal government to make sure that the new Constitution was going down the right track.[23]

10) The Supreme what?

The Supreme Court of Canada, our highest Court, is not expressly mentioned in the written Constitution from 1867 ­– but we sure need it![24] The Court receives between 550 and 650 applications for appeals of cases every year and hears approximately 80 of them.[25] Even though the Supreme Court is not specifically mentioned in the Constitution, it is Canada’s highest court (as of 1949) and can strike down laws that violate the Constitution.[26] A Constitution without a Supreme Court would be like a hockey game without a referee!

These are ten of the many fun facts about our Constitution. Stay tuned for the next 150 years of quirky stories that accompany our Constitution as it continues to adapt to the needs and values of this diverse, beautiful country we call Canada.

This article was written by the Centre's three summer law students.

[1] The U.S. National Archives and Records Administration, “The National Archives in Washington, DC” (2017), online: <https://www.archives.gov/dc-metro/washington>.

[2] Adam Dodek, The Canadian Constitution, 2nd ed (Toronto: Dundurn Press, 2016) at 166 [Dodek, The Canadian Constitution]; Constitution Act, 1867 (UK), 30 & 31, c 3, reprinted in RSC 1985, Appendix II, No 5.

[3] Dodek, The Canadian Constitution, ibid at 25.

[4] Ibid.

[5] Ibid at 167; Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 .

[6] “1984: Missile protester sentenced for defacing Constitution”, CBC News (9 October 1984), online: <www.cbc.ca/archives/entry/1984-missile-protester-sentenced-for-defacing-constitution>.

[7] Dodek, The Canadian Constitution, supra note 2 at 167-168. Queen Elizabeth actually signed two copies of the Royal Proclamation, one of which was damaged by rain on the day that it was signed. The second copy is now permanently stained with paint and neither copy is on public display. See Joe O’Connor, “A blot on Canadian history: First the Queen signed our Constitution, then an activist threw paint on it” (19 July 2013), National Post, online: <nationalpost.com/news/canada/a-blot-on-canadian-history-first-the-queen-signed-our-constitution-then-an-activist-threw-paint-on-it/wcm/d9e26d93-386c-4119-b93b-6d701498f10a>.

[8] Edwards v Canada (AG) (1929), [1930] AC 124 (UK PC).

[9] Robert J Normey, “Taking it Personally: The Persons Case”, Law Now 18:2 (October 1993) 11 at 13.

[10] Rev Francis WP Bolger, “The Charlottetown Conference and its Significance in Canadian History” (1960) 27 CCHA 22.

[11] Ibid at 12.

[12] David Berry, “Drunk History: Canada’s Booze-Soaked Beginnings” CBC News (9 September 2014), online: <hazlitt.net/blog/drunk-history-canadas-booze-soaked-beginnings>.

[13] Tracey Lindeman, “Fun facts about Canada’s founding fathers”, CBC News (1 July 2016), online: <www.cbc.ca/news/canada/canada-150-founding-fathers-1.3654893>.

[14] Kingston Historical Society, “MacDonald’s Kingston” (2011), online: <kingstonhistoricalsociety.ca/jamkingston.html>.

[15] Lindeman, supra note 13.

[16] Ibid.

[17] Dodek, The Canadian Constitution, supra note 2 at 166.

[18] Ibid; Adam Dodek, “Canadians don’t know much about the Constitution”, National Post (17 April 2013), online: <news.nationalpost.com/opinion/adam-dodek-book-excerpt>.

[19] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11; David S Law & Mila Versteeg, “The Declining Influence of the United States Constitution” (2012) 87:3 NYUL Rev 762 at 810-811; Sujit Choudhry, “Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation” (1999) 74:3 Ind LJ 819 at 821-822.

[20] Justice Ruth Bader Ginsburg, Gillian Metzger & Abbe Gluck, "A Conversation with Justice Ruth Bader Ginsburg" (2013) 25 Colum J Gender & L 6 at 22-23.

[21] Constitution Act, 1982, supra note 5, s 35.

[22] Erin Hanson, “Constitution Express”, online: <indigenousfoundations.adm.arts.ubc.ca/constitution_express/>.

[23] Bob Joseph, "The Constitution Express and its Role in Entrenching Aboriginal Rights" (17 October 2016), Working Effectively with Indigenous Peoples (blog), online: <www.ictinc.ca/blog/the-constitution-express-and-its-role-in-entrenching-aboriginal-rights>.

[24] Dodek, The Canadian Constitution, supra note 2 at 138.

[25] Ibid.

[26] Note that the Supreme Court Act was found to be constitutional in Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21.

Alberta’s administrative license suspension program immediately suspends the driver’s license of those individuals charged with an alcohol-related driving offence under the Criminal Code.[1] In May 2017, the majority of the Alberta Court of Appeal in Sahaluk v Alberta (Transportation Safety Board) found that this program is unconstitutional because it violates the Canadian Charter of Rights and Freedoms, specifically, the right to liberty in section 7 and the right to be presumed innocent until proven guilty in section 11(d).[2]

Alberta’s administrative license suspension program

In Alberta, individuals that are charged with an alcohol-related driving offence under the Criminal Code face an immediate license suspension that continues until the criminal charge is resolved, whether that is through a guilty plea or following the end of a trial. People found guilty of or who plead guilty to the criminal offence face a mandatory one-year license suspension.[3] During that period, they can apply (if eligible) to drive with an ignition interlock device, which prevents a vehicle from starting unless the driver provides a suitable breath sample.[4]

Statistics show that the average time between the date of the offence and a scheduled trial date for cases to that point was over nine months.[5] One problem arising was that, for an accused person, immediately pleading guilty shortened the suspension by an average of about seven months.[6] In addition, about 20% of those charged were ultimately found not guilty; however, they still lost the ability to drive while awaiting trial.[7]

Although the administrative license suspension program allows drivers to appeal their suspension to the Alberta Transportation Safety Board, this only happens in limited circumstances.[8] The Board can only set aside a suspension if it determines that the accused did not commit the offence on a balance of probabilities.[9] A large number of appeals do not get heard by the Board.[10] Of those heard, only one-third were successful.[11]

The effect of the program on the right to be presumed innocent

Section 11(d) of the Charter guarantees that any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing.[12] The majority in Sahaluk concluded that the administrative license suspension program offends this right in several ways:[13]

• The punishment (the suspension) is imposed immediately following a criminal charge, before the guilt of the driver is proven at trial.[14] In criminal law, the accused has a right to a fair trial. The onus is on the Crown to prove the accused committed the criminal offence. [15] Any punishment received occurs after a guilty verdict is reached.[16] In the case of the suspension, however, the punishment occurs before the accused person’s trial.
• Those who are eventually found not guilty still suffer a lengthy suspension during the time they wait for their trial date.[17]
  
• Further, the program encourages people to give up their right a fair trial because losing at trial results in a longer overall suspension compared to pleading guilty at the earliest possible date.[18] In other words, it encourages people to plead guilty to avoid a longer suspension.

The program’s impact on the right to liberty

The majority of the Court compared the immediate suspension of a person’s driver’s license to a restriction on free movement. They concluded that the suspension limits the accused’s section 7 Charter right to liberty. While driving a vehicle is not in and of itself a liberty interest, the majority noted that being punished for one’s conduct in a context that is closely tied to the criminal prosecution does engage the protected liberty interests in the Charter.[19]

The majority’s conclusion that the program violated section 7 of the Charter was closely connected to the fact that it offends the presumption of innocence.[20] The reach of the program also goes too far in trying to achieve public safety because it punishes everybody, regardless of whether they are innocent or a danger to public.[21]

Further, the measures taken to achieve the objectives of the program were grossly disproportionate.[22] The length of the suspension before trial varies for reasons that have nothing to do with traffic safety or the blameworthiness of the driver.[23] Immediately suspending the licenses of everyone charged as if they are or will become repeat offenders is excessive because the suspension’s increased effect on deterrence is not significant.[24]

Result

In this case, the administrative license suspension regime’s violation of the Charter rights is clear, broad, and harmful.[25] As the program could not be justified, the majority concluded that the administrative license suspension program is unconstitutional. However, the Court issued a suspended declaration which means that, though the law is unconstitutional the province is given one year to fix it.[26] Meanwhile the law is temporarily still valid until the one-year period expires.

As of June 26, 2017, there has been no appeal filed to the Supreme Court of Canada.

This article was written by a law student for the general public.

[1] Sahaluk v Alberta (Transportation Safety Board), 2017 ABCA 153 at para 1.

[2] Ibid at paras 78-81.

[3] Ibid at para 12.

[4] Ibid at para 13.

[5] Ibid at para 30.

[6] Ibid at para 48.

[7] Ibid at para 2.

[8] Ibid at paras 39-44.

[9] Ibid at para 40.

[10] Ibid at para 44

[11] Ibid.

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

[13] Sahaluk, supra note 1 at para 99.

[14] Ibid.

[15] Ibid at para 81.

[16] Ibid.

[17] Ibid.

[18] Ibid at paras 99-100.

[19] Ibid at paras 94, 111-112.

[20] Ibid at paras 79, 115.

[21] Ibid at paras 122, 129.

[22] Ibid at paras 132-34

[23] Ibid at para 132.

[24] Ibid at para 133.

[25] Ibid at para 3.

[26] Ibid at para 151.