Introduction

Section 12 of the Canadian Charter of Rights and Freedoms protects against “any cruel and unusual treatment or punishment.” Like other Charter rights, section 12 can only be triggered by government action. For example, a parent using corrective force in a family setting is not bound by section 12, because a parent is not the government.[1] On the other hand, imposing mandatory minimum prison sentences is considered government action, and therefore, could be the subject of a section 12 Charter challenge. In such a case, the length or the mandatory nature of the sentence could be considered cruel and unusual treatment or punishment.

In order to engage section 12 of the Charter two issues must be considered:

1. treatment or punishment
2. cruel and unusual

Treatment or Punishment

First, a court must ensure that there is actual treatment or punishment inflicted on a person. The primary purpose of the law does not have to be for punishment in order for section 12 to be engaged. For example, in R v Wiles, the Supreme Court of Canada confirmed that prohibiting a convicted drug offender from possessing firearms could be considered punishment under section 12.[2] In that case, the purpose of that prohibition was to take away the privilege to possess weapons, but the court held that the offender’s section 12 right was still affected because not allowing the possession of the firearm could have some punitive effect on that person.[3] However, the court held that Mr. Wiles had not established that his section 12 Charter right was violated in this case, because prohibiting weapons relates to a “valid and important” state interest: protecting the public and the police officers involved with enforcing drug offences.[4] Here, the court confirmed that Parliament can prohibit a person from possessing firearms “upon conviction of certain criminal offences where it deems it in the public interest to do so.”[5]

Cruel and Unusual

Once a court has established that there has been treatment or punishment, it must then determine whether the treatment or punishment is both cruel and unusual.[6] It is not enough to be one or the other. The treatment or punishment must be both. The terms “cruel” and “unusual” have not been concretely defined, nor has it been fully determined what makes an action both cruel and unusual. However, Canadian courts have narrowed the definitions of these terms to include the following categories:

1)      treatment or punishment that is barbaric in itself

This includes any treatment or punishment that would be considered cruel and unusual as the penalty for any offence, no matter the severity of the crime.[7] Examples include lobotomizing dangerous offenders or castrating sexual offenders.[8]

2)      treatment or punishment that is grossly disproportionate to the offence

According to the Supreme Court’s decision in R v Smith, treatment or punishment is grossly disproportionate if the punishment imposed on the offender is too severe or excessive for that specific crime or where there are specific circumstances surrounding the offender or the case that create a gross disproportionality.[9] Some factors that a court would consider include the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case.[10] Like Smith, much of the law on gross disproportionality thus far has focused on mandatory minimum sentences, which are a form of punishment. In the 2015 case of R v Nur, the Supreme Court of Canada shed more light on whether a mandatory minimum prison sentence is both cruel and unusual, because it is grossly disproportionate to the offence.

To determine whether treatment or punishment – in this case, a mandatory minimum sentence - is grossly disproportionate, the court in Nur suggested a two-step process. First, the court must determine whether the mandatory minimum imposes a cruel and unusual punishment for the person bringing the case forward.[11] The individual circumstances of the person convicted must be considered. An example of this could be a law that imposes a minimum 10-year sentence for illegally possessing firearms where the convicted person doesn’t have any prior firearm offences. The length of sentence would be disproportionate given the person’s lack of prior criminal activity.

Next, the court must consider whether it is reasonably foreseeable that the mandatory minimum could impose cruel and unusual punishment on other offenders.[12] For example, Mr. Nur did not argue that the mandatory minimum was too severe for him, but that it could be too severe for others. In that case, the court decided that the mandatory three-year sentence could be cruel and unusual punishment for some people, such as for those who have no prior firearm offences.[13] Therefore, because the mandatory minimum sentence could be considered grossly disproportionate in some cases, the court decided that the mandatory minimum sentence was a violation of section 12 of the Charter.

Thus, section 12 protects individual offenders from receiving punishments that are grossly disproportionate to their particular circumstances, but section 1 allows this right to be “overridden to achieve some important societal objective.”[14]

Conclusion

The courts have not yet provided a concrete definition of cruel and unusual punishment. Most of the law surrounding section 12 of the Charter to date has focused on mandatory minimum sentences. These sentences have a role in deterring and denouncing specific crimes, but the Charter ensures that a court weighs whether these sentences are disproportionate to the offences to which they are attached. If the punishment is too severe for the offence given the offender’s circumstances, the mandatory minimum sentence would be considered both cruel and unusual.

[1] Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCR 1 at para 48.

[2] R v Wiles, 2005 SCR 84 at para 3 .

[3] Peter Hogg, Constitutional Law of Canada 5th ed (Toronto: Carswell, 2007) at 53-2 .

[4] Wiles, supra note 2 at para 9.

[5] Ibid.

[6] Hogg, supra note 3at 53-3.

[7] Ibid.

[8] R v Smith, [1987] 1 SCR 1045 at para 56 .

[9] Ibid at para 55.

[10] Ibid.

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

[12] Ibid at para 58.

[13] Ibid at para 83.

[14] Smith, supra note 8 at para 55.

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

Introduction

2015 is the 800-year anniversary of Magna Carta, a medieval agreement that limited the English king’s power. It has been popularly thought of as a symbol of rights, freedoms, and the rule of law.

Magna Carta – The “Great Charter”

Magna Carta was first sealed in 1215 in Runnymede, a meadow near London. It was an agreement between unpopular King John I and his English barons, who were unhappy with his arbitrary rule. Magna Carta was a product of its times, and dealt with contemporary social and political issues that may seem bizarre to a modern Canadian. For example, some of the terms included that no family heir could owe interest to Jews until they came of age, and that women could only be witnesses in murder trials if their husband was the victim.[1]

Most important, and most relevant to us today, Magna Carta limited the king’s power. It established the idea that the king was not above the law.[2] For instance, clause 61 of Magna Carta in 1215 authorized a council of barons to seize royal lands if the king did not respect the agreement terms of Magna Carta.[3] Additionally, the agreement included protections for “free men” (a term that included all free tenants).[4] Magna Carta forbade illegal and arbitrary and imprisonment. Free men would have to be tried by the judgment of their peers, or by the law of the land (later clarified as the familiar term “due process of law.”)[5] As well, it stipulated that justice could not be sold, denied, or delayed.[6]

Will the Real Magna Carta Please Stand up?

Magna Carta in 1215 was historically significant and novel, but in practical terms, it was largely a failure. Neither the barons, nor the king really stood behind their commitments and King John had the entire document annulled by the Pope later that year. This led to the First Barons’ War, a civil war that lasted from 1215-1217. King John himself died in 1216.[7]

Magna Carta was then reissued as part of the peace treaty ending the First Barons War in 1217, with some modifications. It was reissued again by Henry III in 1225 in its authoritative version, as a trade-off to levy new taxes, and then again in 1297.[8] As such, when looking at Magna Carta and its importance, it is more appropriate to think of it as a series of charters, rather than as one single document.

An Important Symbol

Over time, Magna Carta lost some practical legal significance. However, it became an important symbol for rights and the rule of law. In the 15th and 16th centuries, English kings tried to reassert their powers. Lawyers such as Edward Coke looked to Magna Carta as evidence that Englishmen had an ‘ancient constitution’ of rights, and it was used to combat the idea that monarchs had a divine right to rule.[9]

Magna Carta and its influence spread to the New World and the thirteen colonies that became the United States of America, where it was revered as a source of liberties, especially by the American founding fathers.[10] It also contributed ideals and principles to Canadian Confederation. Our fathers of confederation adopted a constitution “similar in Principle to that of the United Kingdom,” including the foundation principle of the rule of law.[11]

In the modern world, Magna Carta was a guiding symbol in the creation of the United Nation’s Universal Declaration of Human Rights, a cornerstone in international law and universal human rights. On a domestic note, Magna Carta is an ancestor to our constitutional Canadian Charter of Rights and Freedoms, with many common law rights, influenced by Magna Carta, being incorporated into the Charter.[12]

In Conclusion

The first Magna Carta in 1215 may not have been a political success, but over time Magna Carta became a renowned source of rights, as well as a symbol of freedom. It became an important part of English common law and political life, and its influence spread though out the world. Magna Carta itself is an iconic symbol of rights, freedoms, and the rule of law, and the rights it informed are still relevant today.

[1] Magna Carta 1215, clauses 10, 54, 12;

[2] Carolyn Harris, Magna Carta and Its Gifts to Canada: Democracy, Law and Human Rights (Dundurn, Toronto: 2015) at 39-40

[3] Supra note 1, clause 61: please note that this clause was not included in later versions of Magna Carta

[4] Nigel Saul, ed, The Oxford Illustrated History of Medieval England, (Oxford: Oxford University Press, 1997) at 99

[5] Supra note 1, clause 39; Ralph V Turner, The Meaning of Magna Carta since 1215, History Today, 53:9 (9 September 2003)

[6] Supra note 1, clause 40

[7] Danny Danziger & John Gillingham, 1215: The Year of Magna Carta (Hodder & Stoughton, London: 2003) at 270, 277; supra note 2 at 46-49

[8] Supra note 5

[9] Ibid; supra note 2 at 64-66

[10] Supra note 2 at 80-84

[11] Ibid at 91-95; Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5, Preamble

[12] Supra note 2 at 98-102, 106-108

Image: King John signs the Magna Carta, from James William Edmund Doyle, A Chronicle of England: B.C. 55 – A.D. 1485 (London: Longman, Green, Longman, Roberts & Green, 1864). Engraver: Edmund Evans. https://upload.wikimedia.org/wikipedia/commons/d/d6/A_Chronicle_of_England_-_Page_226_-_John_Signs_the_Great_Charter.jpg

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

Introduction

Magna Carta is not formally part of Canada’s Constitution, but it played an important role in its creation. Concepts such as the rule of law and many common law principles derive from it, and these do form part of our Constitution.

Not Formally Our Constitution, but Influences It

Constitutional expert Peter Hogg and court cases such as R v Dobell and R v Jebbett argue that Magna Carta is not a “constitutional document” in Canada.[1] That said, Canada’s founding constitutional document at Confederation was the British North America Act, 1867 (now known as the Constitution Act, 1867). The Preamble of the Constitution Act, 1867 states that Canada adopts a constitution “similar in Principle to the United Kingdom,” which does include principles from Magna Carta.[2] Much of the actual text of Magna Carta was formally removed from the statute books by the British Parliament a few years before Confederation, but Magna Carta principles such as the rule of law shaped our Constitution at Confederation.[3]

While Magna Carta principles may have been viewed as a cornerstone for our system of democracy and the rule of law at Confederation, the common law rights and protections that it influenced did actually become part of our Constitution, as they informed our Canadian Charter of Rights and Freedoms.[4]

3) The Rule of Law

The rule of law is the idea that no one is above the law, and that includes the government. It has its roots in Magna Carta.[5] Magna Carta limited the king’s power and prevented him from acting arbitrarily. Further, any sort of legal punishment would have to be according to the due process of law.[6]

As noted in the previous section, the rule of law is embodied in the Constitution Act, 1867, since we inherited a constitution similar in principle to Britain. However, the rule of law is also explicitly stated in the Charter, whose preamble states that Canada is “founded on principles that recognize… the rule of law.”[7] Further, section 52 of the Charter states that the Constitution is the supreme law of Canada, and any laws that are inconsistent with the Constitution are of no force or effect.[8]

4) Magna Carta, Common Law Protections and our Charter

Related to the rule of law, Magna Carta forbade illegal imprisonment, and required a fair justice system that followed the due process of law.[9] These are important protections for people that have since developed through the common law, influenced by Magna Carta.

For example, habeas corpus, the ability to challenge an imprisonment as illegal, is thought to have come from Magna Carta, or at least to have been affirmed by it. However, this is inaccurate and likely skewed by influential English jurist Edward Coke’s view of Magna Carta.[10] That said, common law protections such as the right to be tried by a jury of one’s peers and the right to speedy and fair trials (“To no one will we sell, to no one deny or delay right or justice”), have roots in Magna Carta.[11]

Magna Carta’s text may not be part of our Constitution, but crucial common law rights and principles that it influenced have been incorporated into our Charter. Magna Carta’s requirement that legal action follow due process of law has also been described as “fundamental justice,” which is included in section 7 of the Charter.[12] Clause 39 of Magna Carta protected “free men” from illegal and arbitrary detainment.[13] This is echoed in Section 9 of the Charter, which guarantees “the right not to be arbitrarily detained or imprisoned.”[14] Magna Carta promised timely and fair justice, along with a person being judged by their peers.[15] Mirroring this, Section 11 of the Charter guarantees the right “to be informed without unreasonable delay of the specific offence,” the right “to be tried within a reasonable time,” the right to a fair hearing, and the right to a jury for serious offences.[16]

5) Magna Carta – A Symbol and More

Magna Carta has often been valued as a symbol of freedoms, liberties, and the rule of law. While it does have symbolic value in Canada, its value extends beyond that. Through its reflection in our Constitution, it has affected Canadian life in a practical way. It may not formally be part of Canada’s Constitution, but important principles and rights descend from it that do form part of our Constitution, and thus its influence can be seen to this day.

[1] R v Dobell, [1978] BCJ No 1041 (SC), R v Jebbett 2003 BCCA 69 at para 4

[2] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5, Preamble

[3] Ralph V Turner, The Meaning of Magna Carta since 1215, History Today 53:9 (9 September 2003); Carolyn Harris, Magna Carta and Its Gifts to Canada: Democracy, Law and Human Rights (Dundurn, Toronto: 2015) at 91-95

[4] Harris, supra note 3at 91, 106-108

[5] Ibid at 39-40

[6] Magna Carta, 1215, clause 39

[7] 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, Preamble

[8] Ibid, s 52

[9] Supra note 6, clauses 39, 40

[10] Turner, supra note 3

[11] Supra note 6, clauses 39, 40; Harris, supra note 3 at 43-44

[12] Harris, supra note 3 Canada at 41-43; supra note 7, s 7

[13] Supra note 6, clause 39

[14] Supra note 7, s 9

[15] Supra note 6, clauses 39, 40

[16] Supra note 7, s 11(a), (b), (d), (f)

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

Introduction

The Canadian Charter of Rights and Freedoms protects some of our basic human rights. However, those rights can sometimes conflict with one another. While one group might view its actions as protected by one right, another group might see those actions as intruding upon a different right. It’s the court’s job to strike a balance between those competing rights.

Trinity Western University is an evangelical Christian university in Langley, British Columbia. The university has a code of conduct called the Community Covenant, which prohibits students from engaging in sexual relations outside of traditional marriage (which the university defines as between one man and one woman). Trinity Western wishes to open a law school. Some law societies in provinces across Canada have voted to deny accreditation to the law school.

A law society is a professional body that has the authority to regulate the practice of law within the province and determine who can and cannot practise law in a province. The law societies’ decision to deny Trinity Western accreditation means they would not recognize law degrees from that school. Consequently, Trinity Western graduates would not be permitted to practise law in those provinces.

Trinity Western argues that denying the law school accreditation violates its right to freedom of religion, which is protected by section 2(a) of the Charter. The law societies argue that the university’s covenant discriminates against LGBT+ persons. Section 15(1) of the Charter protects these individuals from discrimination. This article summarizes the decision of two courts involving the law societies of Nova Scotia and Ontario. It focuses on how each court reconciled these two competing rights, and came to different conclusions.

Facts for Both Cases

On April 24, 2014, the Law Society of Upper Canada (Ontario law society) voted to deny accreditation to Trinity Western. On April 25, 2014, the Nova Scotia Barristers’ Society (Nova Scotia law society) voted not to allow graduates from Trinity Western to practise in Nova Scotia, unless the law students are exempted from the Community Covenant, or Trinity Western changes its covenant on sexual relations. Trinity Western challenged the decisions in both provinces.

Issues in Both Cases

The courts in Ontario and Nova Scotia dealt with two issues:

(1)   Did the law society have the authority to deny Trinity Western accreditation?

(2)   Did the law society’s decision violate freedom of religion?

The Nova Scotia Decision

First, the Supreme Court of Nova Scotia held that the law society did not have the authority to deny Trinity Western accreditation because its decision was an attempt to indirectly regulate Trinity Western’s internal policies.[1] Second, the Court held that even if the law society had the authority to make that decision, it would violate Trinity Western’s right to freedom of religion. The Nova Scotia Barristers’ Society prevented Trinity Western graduates from exercising their right to obtain a legal education in an institution that is consistent with their beliefs.[2]

The Ontario Decision

First, the Court held that Ontario’s law society had the authority to deny Trinity Western accreditation because the law society was acting in the public interest.[3] Second, the Court held that the law society’s decision was reasonable, even though it violated the university’s right to freedom of religion. The Court held that Trinity Western’s covenant is discriminatory, and that the law society reasonably balanced the harmful effect of discrimination with the right to freedom of religion.[4] It was perfectly reasonable to decide that the harm of discrimination outweighed the harm to violating freedom of religion in this case.

A Comparison of the Decisions 

Both Ontario and Nova Scotia superior courts acknowledged that the decisions of the law societies involved a balance between freedom of religion and equality rights. Furthermore, both courts accepted that giving Trinity Western accreditation could be viewed as condoning discrimination.[5]

However, the Nova Scotia Court held that the Nova Scotia Barristers’ Society’s decision did not actually protect LGBT persons from discrimination. First, both sides accepted that graduates from Trinity Western would not practise discriminatory behaviour. Second, Justice Campbell noted that the Barristers’ Society made its decision based on public disapproval of Trinity Western’s covenant, and not on any evidence that LGBT+ persons would be protected by denying Trinity Western accreditation. In conclusion, the decision of the Nova Scotia Barristers’ Society violated the right to freedom of religion without sufficient justification.

The Ontario Court agreed that the Law Society of Upper Canada violated the right to freedom of religion. However, the Court held that the law society reasonably balanced freedom of religion with equality rights because it acted in the public interest. Justice Nordheimer held that Trinity Western’s Community Covenant is discriminatory, and that condoning discrimination can be as harmful as discrimination itself. [6] It was therefore reasonable for the law society to deny Trinity Western accreditation.[7]

The Ontario Court also distinguished its decision from the Nova Scotia Court’s decision, which had come out earlier in the year. The Ontario Court held that the Law Society of Upper Canada was not trying to regulate Trinity Western’s internal policies. Rather, it was acting in the public interest. Justice Nordheimer stated that the right to open a law school with a discriminatory policy does not mean that the Ontario law society was compelled to support that right by granting the school accreditation.

As we know, the Nova Scotia Court came to a different decision. Justice Campbell emphasized that the Nova Scotia Barristers’ Society’s decision not to recognize a law degree from Trinity Western was unrelated to the quality of the degree itself.[8] The Nova Scotia Barristers’ Society based its decision on the university policy, not the quality of the law degree. In deciding that a law degree from Trinity Western was invalid unless the university changed its policy, the law society was attempting to regulate the school itself.[9] The Nova Scotia Barrister's’ Society does not have this authority.[10]

Conclusion

These two cases demonstrate how conflict can arise between different Charter rights. It also reveals the importance of perspective. The Nova Scotia court focused primarily on the fact that the law society was attempting to interfere with Trinity Western’s policy, while the Ontario court focused more on the discriminatory aspect of the covenant. These cases will likely reach the Supreme Court of Canada for a final decision. Which decision do you find more persuasive?

[1] Trinity Western University v Nova Scotia Barristers’ Society, 2015 NSSC 25 at paras 171-175

[2] Ibid at para 235

[3] Trinity Western University v The Law Society of Upper Canada, 2015 ONSC 4250 at para 52

[4] Ibid at paras 108-125

[5] Supra note 1 at para 209

[6] Supra note 3 at para 116

[7] Ibid at para 117

[8] Supra note 1 at para 170

[9] Ibid at paras 170-172

[10] Ibid at para 173

This article was written by law students for the general public.

What’s the Issue?

Cryonics is a method of preserving dead bodies. The process uses low temperatures to avoid decomposition. This allows people to have their bodies frozen after death, with the hope of eventual resuscitation.

Section 14 of the Cremation, Interments and Funeral Services Act makes selling cryonics services illegal in British Columbia.[1] The Lifespan Society of British Columbia wants to sell cryonics services to Mr. Keegan Macintosh. Lifespan and Mr. Macintosh want the law prohibiting cryonics to be declared unconstitutional. They claim it violates section 7 of the Charter of Rights and Freedoms, which is part of the Canadian Constitution.[2] Section 7 protects the right to life, liberty and security of the person.[3]

Things to Consider

Life – The applicants claim that the Cremation, Interments and Funeral Services Act violates the right to life. They say it denies people the chance of extending their life through cryonics. This could be a problem because the applicants define cryonics as preservation of the body after clinical death.[4] So, does the right to life extend past death, like the applicants suggest? This would be a very novel interpretation of the right to life.

Liberty – The applicants say the prohibition against cryonics also violates the right to liberty. They claim it interferes with liberty because people cannot dispose of their bodies as they wish, nor can they seek care after clinical death. People can donate organs after they die, and can choose to be cremated or buried. So, why not allow cryonics? However, to demonstrate that a potential harm will infringe the section 7 liberty right, there needs to be a connection between the government action and the potential harm. This link must be probable and capable of proof.[5] In this case, that link might be difficult to establish because Lifespan does not promise resuscitation. Instead, they say that cryonics “offers a possibility of resuscitation,” depending on the future of medicine.[6]> So, is the link between the cryonics prohibition and the denial of future treatment established?

Security of the Person – Finally, the applicants claim that the security of the person right is infringed, since the people who sell cryonics can face jail and fines. Imprisonment is a physical deprivation of a person’s liberty.[7] As such it, seems like the possibility of jail would more likely affect the liberty right. Additionally, economic consequences, such as fines, are not protected by section 7.[8] A court will have to look at whether the ban on selling cryonics reaches this threshold. So, does the Cremation, Internments and Funeral Services Act violate the personal security of cryonics providers because of possible imprisonment and fines?

The constitutional issues raised in this case are complex. It will be very interesting to see how the courts deal with them.

This article was jointly written by Mark Moore, Filippo Titi and Juliana Ho.

[1]Cremation, Interment and Funeral Services Act, SBC 2004, c-35, s 14

[2] Lifespan Society of British Columbia and Keegan Macintosh v British Columbia, BCSC (Plaintiffs’ Notice of Civil Claim)

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

[4] Supra note 2 at para 7

[5] Operation Dismantle v The Queen, [1985] 1 SCR 441 at 456-458

[6] Supra note 2 at para 11

[7] Reference Re BC Motor Vehicle Act,  [1985] 2 SCR 186 at 515

[8] Blencoe v British Columbia (Human Rights Commission), [2000] 2 SCR 307 at 53

This article way jointly written by Mark Moore, Filippo Titi and Juliana Ho

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

Introduction

When a person is accused of a crime, section 11(b) of the Canadian Charter of Rights and Freedoms protects his or her right to a trial within a reasonable time. Quick trial dates help ensure that the accused is treated “humanly and fairly” because an accused need not spend an unreasonably long time in custody before a trial takes place and evidence linking the accused to the crime is as fresh as possible.[1] They can also reduce the stigma of being exposed to criminal proceedings when one is not guilty and can often reduce an accused person’s anxiety.

However, scheduling trials quickly can be difficult because of limited court resources. In R v MacPherson, the Alberta Court of Appeal had to consider whether an institutional delay breached the accused’s right to be tried within a reasonable time. The Court balanced limited resources with making sure accused persons do not spend unreasonably long periods of time in custody before trials take place.

Facts

In 2012, Mr. MacPherson was charged with 11 offences related to armed robberies. The Crown decided to proceed with two of these charges. However, the Crown and defence counsel couldn’t find mutually compatible times to meet during available court times. This delayed Mr. MacPherson’s hearings from fall 2012 to fall 2013. Mr. MacPherson remained in continuous custody during the delay, which grew lengthier because of packed court schedules. The time between Mr. MacPherson’s arrest and the expected end date for sentencing ended up being more than 20 months.[2]

Case History

The trial judge found that Mr. MacPherson’s section 11(b) Charter right to be tried within a reasonable time had been infringed.[3] The Crown appealed this decision to the Alberta Court of Appeal.

Issue

Does the 20-month delay between arrest and sentencing breach Mr. MacPherson’s section 11(b) Charter right to be tried within a reasonable time? At what point does institutional delay become unreasonable?

Decision

The Alberta Court of Appeal agreed with the trial court and decided that Mr. MacPherson’s right to be tried within a reasonable time had been violated. The period of institutional delay was unreasonable because of its length. Further, Mr. MacPherson suffered substantial prejudice because of the delay, which he had no part in causing.

Analysis

In R v Morin, the Supreme Court of Canada decided that a total of 14 to 18 months is considered acceptable institutional delay when a case is before a Provincial Court.[4] However, the Courtacknowledged that this guideline is merely a suggestion and should not be considered a rigid formula when determining whether a period of delay is reasonable in every case.[5] Therefore, it highlighted four factors that should be considered to determine the reasonableness of institutional delays:[6]

1)      the length of the delay

2)      periods of time waived by the accused

3)      the reasons for the delay

4)      any prejudice caused to the accused because of the delay

Accordingly, the Court in MacPherson relied on the Morin decision and considered these four factors to determine whether Mr. MacPherson’s period of delay was reasonable. First, it decided that the acceptable delay in this case should be less than the suggested 14 to 18 months considered acceptable in R v Morin. This was because, unlike the facts in the Morin case, Mr. MacPherson did nothing to cause any part of the delay, and his actions “were consistent with a desire for an early trial date.”[7] Therefore, the court decided the delay was caused by institutional issues, rather than any fault of Mr. MacPherson’s. Finally, Mr. MacPherson experienced substantial prejudice while in pretrial custody.[8] He remained in custody during the entire period of delay and, as a result, was unable to work or eat what he wanted.[9] Therefore, the Court decided his Charter right to be tried within a reasonable time was violated.[10] 

Conclusion

In R v MacPherson, the Alberta Court of Appeal acknowledged that institutional delays can happen because of “the court system’s inability to accommodate parties.”[11] However, the Court also noted that, even when they are the result of this inability to accommodate parties, delays are not always justifiable. In addition to protecting the rights of the accused, there is a clear and important societal interest in making sure that people accused of breaking the law do not spend a long time in pretrial custody, as this merely offsets the strain on resources from courts to remand centres.[12] This case reaffirms the importance of trial within a reasonable time – both from the perspective of the accused and from the perspective of society as a whole.

[1] R v MacPherson, 2015 ABCA 139 at para 15 .

[2] Ibid at para 11.

[3] Ibid at para 15.

[4] Ibid at para 30.

[5] R v Morin, [1992] 1 SCR 771 at 797.

[6] Ibid at787-788.

[7]MacPherson, supra note 1at para 24.

[8] Ibid at paras 30-31.

[9] Ibid at para 24; Ibid at para 32.

[10] Ibid at para 37.

[11] Ibid at para 27.

[12] Ibid at para 37.

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

Introduction

The final step to become a Canadian citizen is the oath of citizenship. Citizenship and Immigration Canada requires citizenship candidates to remove full or partial face coverings while taking the oath.

Zunera Ishaq is devout Muslim who wears a niqab.[1] She was granted citizenship as of January 2, 2014, but has not yet taken the oath. Ms. Ishaq is willing to remove her veil for identification purposes before the ceremony. However, she refuses to remove her veil when she takes the oath.

Ms. Ishaq argues that this policy interferes with her right to freedom of religion, which is protected by section 2(a) of the Canadian Charter of Rights and Freedoms. She challenged the policy in the Federal Court, and won. The federal government appealed the decision to the Federal Court of Appeal, and lost for a second time. At the time of writing, the federal government plans to appeal the decision to the Supreme Court of Canada. Therefore, it has requested a stay of the Federal Court of Appeal decision.

Section 2(a): Freedom of Conscience and Religion

The Charter of Rights and Freedoms is part of Canada’s Constitution, and protects some of our basic human rights and freedoms. Freedom of conscience and religion protects the right to hold, declare, and openly express one’s beliefs.[2] It also guarantees that no one can be forced to follow another religion, or act contrary to one’s beliefs.[3] Religious beliefs and expressions do not need to be recognized by other members of the faith to receive protection.

Freedom of religion is violated when: (1) a person holds a sincere belief associated with religion and (2) a law interferes with that person’s ability to act according to this belief.[4] The interference must be more than trivial, and will depend on the context.[5]

Like all other Charter rights, freedom of religion is not absolute. It can be limited for “public safety, order, health, or morals or the fundamental rights and freedoms of others.”[6] For example, the government can restrict religious activities that harm others.[7] A court must balance a person’s right to religious expression with other Charter rights and government objectives.

Previous Case on the Niqab

In 2012, the Supreme Court of Canada decided whether a woman could testify as a witness in a criminal trial while wearing the niqab.[8] The Court determined that a witness who wishes to wear the niqab for sincere religious reasons would only be required to remove it if:

(1)   It is necessary to prevent a serious risk to the fairness of the trial, which is protected by section 11(d) of the Charter

(2)   The beneficial effects of removing the niqab outweigh the negative effects of doing so[9]

In other words, the Court decided that a woman could wear the niqab as long as doing so would not harm another Charter right or be outweighed by other negative effects.

The Niqab at the Citizenship Ceremony

Ms. Ishaq has a sincere belief that her faith requires her to wear the niqab. Forcing her to remove her niqab would interfere with this very important belief. Ms. Ishaq also risks losing her citizenship status if she chooses not to remove her veil. Therefore, the policy likely interferes with Ms. Ishaq’s beliefs in a crucial way.

The government will likely have a difficult time justifying its position. Prime Minister Stephen Harper has stated in the House of Commons that the practice of wearing the niqab is “rooted in a culture that is anti-women,” which is contrary to Canadian values.[10] However, there is no doubt that Ms. Ishaq sincerely believes it is her duty to wear the niqab, and that she is not being forced to do so.

Finally, it is not likely that wearing a niqab while taking the oath violates other Charter rights. Ms. Ishaq has already agreed to remove her niqab for identification and security purposes at the ceremony. It’s hard to see any reason beyond needing identification for reasons of fraud or security that should prevent Ms. Ishaq from wearing the niqab.

The Federal Court of Appeal Decision

Interestingly, the Federal Court of Appeal did not deal with Ms. Ishaq’s complaint by referring to the Charter. The Federal Court of Appeal made its decision on administrative grounds. The Citizenship Act gives the Governor in Council the authority to make regulations regarding the taking of the oath of citizenship.[11] However, the policy of uncovering one’s face while taking the oath was made into a mandatory policy change without being adopted by the Governor in Council.[12] Therefore, the Court dismissed the government’s appeal.

Conclusion

The Federal Court of Appeal made its decision quickly as it wanted to leave open the possibility that Ms. Ishaq could acquire her citizenship in time for her to vote in the upcoming election.[13] However, the federal government plans to appeal this decision to the Supreme Court, and has therefore applied for a stay of the Court of Appeal decision. If the stay is granted, Ms. Ishaq will not be allowed to wear her niqab while taking the citizenship oath.

If the Supreme Court grants leave to appeal the Court of Appeal decision, it is  likely that the government will lose its argument that the niqab cannot be worn while taking the citizenship vote for a third time.

Religious freedom is at the heart of Canadian values, and the courts have ruled thus far that religious freedom cannot be limited because of the government’s views about a particular religious belief or practice. The Charter exists to protect Canadian citizens against government action that violates their rights and freedoms. The Ishaq case is a classic case in this regard.

[1] A niqab is a veil worn on the head that only reveals the eyes. A description of the different head gear can be seen here: <http://www.bbc.co.uk/newsround/24118241>

[2] Mouvement laïque québécois v Saguenay (City), 2015 SCC 16 at para 69, 382 DLR (4th) 385

[3] Ibid

[4] Whatcott v Saskatchewan Human Rights Tribunal, 2013 SCC 11 at para 155

[5] Syndicat Northcrest c Amselem, 2004 SCC 47 at para 59

[6]R v Big M Drug Mart Ltd, [1985] 1 SCR 295, [1985] SCJ 17, at para 95

[7] Young v Young, [1993] SCJ 112, 108 DLR (4th) 193, at para 225, McLachlin J

[8] See R v S(N), 2012 SCC 72, [2012] 3 SCR 726

[9] Ibid at para 3

[10] Steven Chase, “Niqabs ‘rooted in a culture that is anti-women,’ Harper says”, Globe and Mail (10 March 2015) <http://www.theglobeandmail.com/news/politics/niqabs-rooted-in-a-culture-that-is-anti-women-harper-says/article23395242/>

[11] Citizenship Act, RSA 1985, c C-29, para 27(1)(h)

[12] Canada (Citizenship and Immigration) v Ishaq, 2015 FCA 194 at para 3

[13] Ibid at para 5

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

Introduction

The right to vote is essential to a democracy. That is because the people need to be in charge of selecting who will govern them. However, every democracy recognizes that some voting restrictions, such as citizenship status, are necessary for preserving the integrity of the elections process. In 2014, the Conservative government passed the Fair Elections Act, which places new restrictions on the types of identification that can be used to allow voters to vote in an election.[1]

These new voter ID rules have raised concerns because they might prevent certain voters from being able to vote in elections, including the upcoming federal election on October 19, 2015. For that reason, the new rules might violate section 3 of the Charter of Rights and Freedoms, which protects the right to vote.[2]

The Fair Elections Act

The Fair Elections Act gives voters three options for presenting identification to vote:

(1)   One piece of government-issued ID that includes a photo and address

(2)   Two pieces of ID, both with the voter’s name, and at least one with the voter’s address

(3)   The vouching system: The voter must present two pieces of ID containing his or her name, and then swear an oath to establish his or her address. Another person must vouch for the voter by swearing an oath. The voucher must have the appropriate identification to vouch for the voter.

The types of ID that are acceptable for use can be found on the Elections Canada website.[3] The Chief Electoral Officer also has the authority to authorize any ID that is not listed.

The Fair Elections Act makes some major changes to the old voter ID rules. Prior to the Fair Elections Act, a voter identification card was one of the acceptable forms of ID approved by the Chief Elections Officer. Now, the voter identification card is no longer acceptable. Another major change made by the Fair Elections Act is in the vouching system. The old rules did not require a voter to present any identification when being vouched for, and the voucher did not have to swear an oath.

The issue with these new voter ID rules is that they might prevent certain members of the population from voting. Those members include students, Aboriginals, elderly persons, and the homeless. These groups of individuals are less likely to have the required ID. According to Stephen Shrybman, a lawyer who sought an injunction against the rule on voter ID cards and the vouching process, an estimated 250,000 Canadians will not be able to vote in the upcoming election.[4]

In July 2015, an Ontario Court decided against Mr. Shrybman, and did not allow an injunction against any of the voter ID rules.[5] Because of this decision, the rule against using voter ID cards will apply during this election. The Fair Elections Act is also being challenged on constitutional grounds – that it violates section 3 of the Charter. This decision on constitutionality will be delivered after the October 2015 election.

Are The New Voter ID Rules Constitutional?

Henry v Canada: A Past Case on the Old Voter ID Laws

In 2007, the federal government changed the voter ID laws and these laws were challenged in the British Columbia courts. The Court of Appeal decided that the voter ID laws at the time violated section 3 of the Charter because they interfered with the right to vote for some members of the population.[6] However, the government was able to justify this violation.

First, the government’s goal was to prevent voter fraud and the harm it causes to the elections process. The Court found this to be an important objective, and the use of stricter voter ID laws was a logically valid way of meeting that objective. The Court also found that the government had no other reasonable means to prevent voter fraud without compromising its goal.[7] Finally, the positive effect of creating stricter voter ID rules outweighed the negative effect of some voters potentially not being able to vote.[8] The government won and the decision was not appealed to the Supreme Court.

The Fair Elections Act

The issue for a court that considers the new voter ID laws will be whether the new ID rules violate section 3 of the Charter – the right to vote – and whether the government can convince the court that they are necessary.

The Supreme Court of Canada has held that section 3 of the Charter ensures “each citizen is entitled to be represented in government” and that we have a right to play a meaningful part in the democratic process. [9] If a law interferes with the capacity of a citizen to play a meaningful role in the electoral process, it violates section 3 of the Charter.

The government’s objective in the Fair Elections Act continues to be preventing voter fraud. The new rules, from the government’s perspective, are a logical way of achieving this goal. In Henry v Canada (the B.C. case), the Court of Appeal concluded that there was no “alternative, less drastic means of achieving the [government’s] legislative goals in a real and substantial manner.” [10] However, the new ID laws are much stricter. The government will need to explain why the laws need to be changed – why the old rules aren’t sufficient. It will also need to convince the court that there is no better way of preventing voter fraud.

The government will also have to show that the benefit of their new rules outweighs the negative impact on certain peoples’ right to vote. If it can be shown that too many Canadians will be prevented from voting because of the new rules, then a court might strike the new rules down based on a violation of section 3 of the Charter. Making it difficult for people to vote interferes with their constitutional, Charter-protected right. That interference can only be justified if the government makes strong arguments about why the new rules are necessary. 

Conclusion

The new voter ID rules in the Fair Elections Act might be unconstitutional because they violate the right to vote for a number of Canadians. A court will have to decide whether the government can justify these new rules in the face of evidence that some Canadians, many of whom are poor or disenfranchised, might not be able to vote. Unfortunately, the decision on the new act’s constitutionality will not be decided before the next federal election on October 19th. The controversy surrounding the Fair Elections Act should motivate Canadians to exercise their fundamental democratic right in this upcoming election.

[1] Fair Elections Act, SC 2014, c 12.

[2] 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.

[3] See: http://www.elections.ca/content.aspx?section=vot&dir=ids&document=index&lang=e.

[4] John Nicol, “Fair Elections Act ID rules block voting, groups argue in court challenge”, Canadian Broadcasting Corporation (02 July 2015) online: CBCnews http://www.cbc.ca/news/canada/fair-elections-act-id-rules-block-voting-groups-argue-in-court-challenge-1.3136431.

[5] Mr. Shrybman made an application to appeal the decision in July, but the appeal was denied.

[6] Henry v Canada, 2014 BCCA 30 at para 70.

[7]Ibid at para 93.

[8] Ibid at para 100.

[9] Reference re Provincial Electoral Boundaries, [1991] 2 SCR 158, [1991] SCJ No 46 at para 26, emphasis in original text; Figueroa v Canada, 2003 SCC 37at para 25, [2003] 1 SCR 912.

[10] Ibid at para 93.

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

Introduction

The right to be tried by a jury of one’s peers stretches back to the signing of the Magna Carta in 1215. The right is essential to the effective functioning of our justice system and it is protected in the Canadian Charter of Rights and Freedoms: Section 11(f) of the Charter guarantees the right to a trial by jury and section 11(d) guarantees the right to a fair trial by an impartial tribunal. Because of its importance, the selection process for jury members and the jury’s representativeness are  essential to trial fairness.

Jury composition and representativeness were the central issues in the recent case of R v Kokopenace.[1] The case is significant because it was the first time the Supreme Court ruled on the representativeness of juries. The majority of the Supreme Court held that a jury is representative if the selection process for jurors is fair. The final composition of the jury does not matter.

Facts

In 2008, Clifford Kokopenace was convicted of manslaughter. He is Aboriginal and from a reserve in the District of Kenora.[2] At the end of the trial, his lawyer learned that there might have been problems including on-reserve Aboriginal residents on the jury role. Therefore, the jury might not have been representative.[3] A jury roll is a list of people who have been randomly selected from the community in a judicial district, and who can sit on a jury.

In Ontario, the process for selecting on-reserve Aboriginals to sit on a jury is separate from the process used for the non-reserve population. First, a provincial official must create a list of names of residents who live on each of the reserves. In this case, the province relied on Band lists. From those lists, the province then randomly selects members to be put on the jury roll. Jury notices are sent to every person on the jury roll, and those persons can be selected to sit on a jury.

The on-reserve adult population makes up between 21 to 32 per cent of the total adult population in Kenora. However, the province had difficulties obtaining accurate lists as well as issues with sending out jury notices. Many of the lists that were used for the jury roll were outdated, and many residents on the reserves do not have a mailbox for jury notices to be sent to. Finally, four of the reserves were accidentally excluded.

Ontario made efforts to improve the accuracy of the lists and increase response rates to jury notices. First, it tried to acquire updated lists of the on-reserve adult population by contacting chiefs several times, but it was unable to gather recent lists. Second, Ontario increased the number of jury notices sent out to the reserves by 50 per cent. Unfortunately, the outdated lists and absence of personal mailboxes on the reserves affected the quality of delivery.

In the end, only 10 per cent of the on-reserve adult population responded to a jury notice in the year of Mr. Kokopenace’s trial. Only 5.7 per cent of on-reserve residents who responded to the jury notice were eligible to serve as jurors.

Issues

What makes a jury representative and how does that representativeness factor into sections 11(d) and 11(f) of the Charter? Did Ontario meet its obligation to select a representative jury in this case?

Summary of the Decision

The majority of the Supreme Court held that a representative jury depends upon a fair selection process, not upon the final composition of the jury. For a jury selection process to be fair, the state must make reasonable efforts to:

(1)   Randomly select individuals from source lists that draw from a broad cross-section of society

(2)   Send each of the individuals selected a jury notice.

In this case, Ontario satisfied these requirements. Ontario took reasonable efforts to ensure that the jury was representative.

Analysis

Representativeness

The Court decided that representativeness depends upon the process of compiling a jury roll, not the jury’s final composition.[4] There is no constitutional right to a jury that “proportionately represents all the diverse groups in Canadian society”.[5]Requiring a jury of proportional representation would be impractical because of the numerous classifications based on race, religion, age, gender, and so on.[6] It could also stall the criminal justice system.[7]

There are three requirements for ensuring representativeness in the jury roll process. First, the state must create lists that draw from a broad cross-section of society.[8] Second, the state must randomly select individuals from the list to place on the jury roll.[9] Every individual must have an equal chance of being selected from the list. [10]Third, everyone selected from the list must receive a jury notice.[11] Delivery of the jury notice must be adequate, which depends upon the circumstances.[12]

The state must make a reasonable effort to satisfy each of these requirements and “the quality of the state’s efforts will determine if the process is adequate.”[13] There is no obligation to actively encourage responses to a jury notice or to ensure that a jury is proportionately representative.[14] Finally, while the court acknowledged that there has been historical discrimination against Aboriginal peoples, the state is not obliged to address historical discrimination in the jury selection process.[15]

Section 11(d) of the Charter

The Court decided that a representativeness problem violates section 11(d) of the Charter only if it undermines the court’s independence or impartiality.[16] In this case, the Court only focused on impartiality. Impartiality comes only from the process of compiling the jury, not its final composition.[17] Impartiality is violated in two ways: (1) deliberate exclusion of a particular group; or (2) a process so deficient that it creates the appearance of bias.[18] In this case, Ontario did not violate section 11(d) of the Charter because it did not deliberately exclude on-reserve Aboriginal adults, and it took reasonable efforts to ensure the process was fair.

Section 11(f) of the Charter

Representativeness is required for an accused’s right to a fair trial.[19] Like section 11(d), section 11(f) of the Charter also protects the right to an adequate jury selection process. However, section 11(f) provides broader protection than section 11(d). The reason is that a problem with representativeness will violate section 11(f), the right to a fair trial, even if it does not violate impartiality; that is, deliberate exclusion of a group or a seemingly biased process.[20] In this case, the Supreme Court decided that Ontario’s efforts in compiling the jury roll did not impair Mr. Kokopenace’s right to a fair trial.

Did Ontario Meet Its Representativeness Obligation?

The Court decided that Ontario took reasonable efforts in the circumstances to fulfill the requirements for representativeness. It requested updates from the chiefs of reserves and sought the help of a Deputy Grand Chief. It also increased the number of jury notices to improve response rates. These efforts were sufficient to meet the requirements for representativeness. Ontario was not obliged to take more active and substantive measure to get response for jury notices.

Conclusion

R v Kokopenace is an important case because of what it says about the constitutionality of a representative jury. A jury’s composition does not have to be proportionate to all the diverse groups in a particular district. The important part of creating a representative jury is to ensure that the process in compiling the jury roll is fair. This means that the accused does not have a right to a jury with members that share the same racial, religious, or other characteristics as themselves.

The decision raises a number of issues around representativeness. It is interesting that the majority of the Supreme Court interpreted representativeness in the way that it did. Should a jury have members who can understand an accused’s experiences as belonging to a particular group? Or is the composition of the jury irrelevant when deciding how to weigh the evidence in a trial? What do you think representativeness means for a jury?

[1] R v Kokopenace, 2015 SCC 28

[2] Ibid at para 4

[3] Ibid at para 5

[4] Ibid at para 40

[5] Ibid at para 39

[6] Ibid at para 73

[7] Ibid at para 76

[8] Ibid at para 40

[9] Ibid at para 40

[10] Ibid at para 42

[11] Ibid at para 40

[12] Ibid at para 45

[13] Ibid at para 63

[14] Ibid at para 64

[15] Ibid at para 64

[16] Ibid at para 48

[17] Ibid at para 51

[18] Ibid at para 50

[19] Ibid at para 55

[20] Ibid at para 58

Introduction

The final step in becoming a Canadian citizen is the oath of citizenship. Citizenship and Immigration Canada requires citizenship candidates to remove full or partial face coverings while taking the oath.

Zunera Ishaq is devout Muslim who wears a niqab.[1] She was granted citizenship as of January 2, 2014, but has not yet taken the oath. Ms. Ishaq is willing to remove her veil for identification purposes before the ceremony. However, she refuses to remove her veil when she takes her oath.

Ms. Ishaq argues that this policy interferes with her right to freedom of religion, which is protected by section 2(a) of the Canadian Charter of Rights and Freedoms. She challenged the policy in the Federal Court, and won. The federal government has since appealed the decision.

Section 2(a): Freedom of Conscience and Religion

The Charter of Rights and Freedoms is part of Canada’s Constitution, and protects some of our basic human rights and freedoms. Freedom of conscience and religion protects the right to hold, declare, and openly express one’s beliefs.[2] It also guarantees that no one can be forced to follow another religion, or act contrary to one’s beliefs.[3] Religious beliefs and expressions do not need to be recognized by other members of the faith to receive protection.

Freedom of religion is violated when: (1) a person holds a sincere belief associated with religion and (2) a law interferes with that person’s ability to act according to this belief.[4] The interference must be more than trivial, and will depend on the context.[5]

Like all other Charter rights, freedom of religion is not absolute. It can be limited for “public safety, order, health, or morals or the fundamental rights and freedoms of others.”[6] For example, the government can restrict religious activities that harm others.[7] A court must balance a person’s right to religious expression with other Charter rights and government objectives.

Previous Case on the Niqab

In 2012, the Supreme Court of Canada decided whether a woman could testify as a witness in a criminal trial while wearing the niqab.[8]The Court determined that a witness who wishes to wear the niqab for sincere religious reasons would only be required to remove it if:

(1)   It is necessary to prevent a serious risk to the fairness of the trial, which is protected by section 11(d) of the Charter

(2)   The beneficial effects of removing the niqab outweigh the negative effects of doing so[9]

In other words, the Court decided that a woman could wear the niqab as long as doing so would not harm another Charter right or be outweighed by other negative effects.

The Niqab at the Citizenship Ceremony

Ms. Ishaq has a sincere belief that her faith requires her to wear the niqab. Forcing her to remove her niqab would interfere with this very important belief. Ms. Ishaq also risks losing her citizenship status if she chooses not to remove her veil. Therefore, the policy likely interferes with Ms. Ishaq’s beliefs in a crucial way.

The government will likely have a difficult time justifying its position. Prime Minister Stephen Harper has stated in the House of Commons that the practice of wearing the niqab is “rooted in a culture that is anti-women,” which is contrary to Canadian values.[10] However, there is no doubt that Ms. Ishaq sincerely believes it is her duty to wear the niqab, and that she is not being forced to do so.

Finally, it is not likely that wearing a niqab while taking the oath violates other Charter rights. Ms. Ishaq has already agreed to remove her niqab for identification and security purposes at the ceremony. It’s hard to see any reason beyond needing identification for reasons of fraud or security that should prevent Ms. Ishaq from wearing the niqab.

Conclusion

It is likely that Ms. Ishaq will be allowed to wear her niqab while taking the oath. Absent any harm to the Charter rights of others, a person is free to express their religious beliefs. Religious freedom is at the heart of Canadian values, and should not be limited because of the government’s views about a particular religious belief or practice.

[1] A niqab is a veil worn on the head that only reveals the eyes. A description of the different head gear can be seen here: <http://www.bbc.co.uk/newsround/24118241>

[2] Mouvement laïque québécois v Saguenay (City), 2015 SCC 16 at para 69, 382 DLR (4th) 385

[3] Ibid

[4] Whatcott v Saskatchewan Human Rights Tribunal, 2013 SCC 11 at para 155

[5] Syndicat Northcrest c Amselem, 2004 SCC 47 at para 59

[6] R v Big M Drug Mart Ltd, [1985] 1 SCR 295, [1985] SCJ 17, at para 95

[7] Young v Young, [1993] SCJ 112, 108 DLR (4th) 193, at para 225, McLachlin J

[8] See R v S(N), 2012 SCC 72, [2012] 3 SCR 726

[9] Ibid at para 3

[10] Steven Chase, “Niqabs ‘rooted in a culture that is anti-women,’ Harper says”, Globe and Mail (10 March 2015) <http://www.theglobeandmail.com/news/politics/niqabs-rooted-in-a-culture-that-is-anti-women-harper-says/article23395242/>