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

British Columbians used to pay court hearing fees based on how long their trial took. B.C. was the only province with such considerable fees.[1] On October 2, 2014, the Supreme Court of Canada declared those fees unconstitutional because they could prevent people from accessing courts. The decision in Trial Lawyers Association of British Columbia v British Columbia (Attorney General) could improve access to justice.

Facts

B.C.’s court hearing fees depended on the length of the trial, but could go up to $800 a day. There was an exemption, but it was narrow and applied to “impoverished” people.[2] Ms. V set a trial date, and had to promise to pay the court hearing fee. It ended up costing her $3,600. The judge knew that the fee might be unconstitutional. As such, he asked for submissions to determine if it was.[3]

Case History

The trial judge decided the fee was unconstitutional because it blocked access to the courts, which violated section 96 of the Constitution Act 1867.[4] The B.C. Court of Appeal agreed that it was unconstitutional. However, it said court hearing fees could be saved by including the words “or in need” to widen the exemption, so that a judge could grant an exemption to people who were in need, but not impoverished. Both parties appealed to the Supreme Court.[5]

Issue

Are B.C.’s court hearing fees unconstitutional?[6]

Brief Answer

Yes, B.C.’s court hearing fees are unconstitutional because they interfere with the courts’ intended purpose of solving citizens’ legal disputes; that purpose is protected by section 96 of the Constitution Act 1867. The Supreme Court declared the fees invalid, and said it is up to the provincial government to make them constitutional.[7]

Analysis

The Supreme Court noted that our Constitution gives provinces the power to administer justice in their territory.[8] As such, provinces can charge fees to use the courts.[9] However, section 96 of the Constitution Act 1867 creates provincial superior courts and protects their jurisdiction.[10] Neither the provinces nor Parliament can make laws that intrude on these courts’ jurisdiction.[11]

B.C.’s court hearing fees meant that some people could not use the courts because of the expense. The Court said that B.C. could not prevent people from using these superior courts, because that would interfere with the courts’ intended purpose of resolving legal disputes. The Court used both written and unwritten principles in the Canadian Constitution to come to its decision. First, since section 96 constitutionally protects superior courts and their jurisdiction, provincial court hearing fees that obstruct the courts’ function are unconstitutional.[12] Additionally, the rule of law, an unwritten constitutional principle that says no one is above the law, supports the idea of section 96 protecting access to courts.[13]

The Court noted, however, that court hearing fees themselves are not unconstitutional.[14] But when they stop people from bringing valid claims because they would have to suffer undue hardship, court hearing fees can become unconstitutional.[15] The Court decided that was the case here. The fees could bar people from bringing claims, contrary to section 96 of the Constitution Act 1867.[16]

Significance

Access to justice is a major problem in Canadian society, and this case could help. [17] Cost could deter people from using courts to resolve their disputes and accessing justice. Hopefully, this decision will allow more people to have their day in court. It should also be remembered that court hearing fees in principle are not unconstitutional. There may be good reasons for fees, like preventing trivial law suits, recouping costs, and keeping trials efficient.[18] But court hearing fees cannot deny people access to bringing valid claims to court. As well, this case is a good reminder that our Constitution includes more than just the written parts – there are unwritten elements, too. In this case, the rule of law principle helped the judges interpret section 96 of the Constitution Act 1867.

[1] David Dias, “SCC strikes down B.C.’s court hearing fees” Legal Feeds, Canadian Lawyer Mag (2 October 2014).

[2] Trial Lawyers Association of British Columbia v British Columbia (Attorney General)2014 SCC 59 at paras 9-13. Hearings that are 1-3 days have no fees: hearings that 4-10 days are $500 days: hearings that are 10+ are $800 a day.

[3] Ibid at paras 3-7.

[4] Vilardell v Dunham2012 BCSC 748 at para 425.

[5] Supra note 2 at para 8.

[6] Ibid at para 14.

[7] Ibid at paras 64-69.

[8] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 92(14), reprinted in RSC 1985, App II, No 5.

[9] Supra note 2 at para 18.

[10] Ibid at para 28.

[11] Ibid at para 29-30.

[12] Ibid at paras 32-37.

[13] Ibid at paras 38-43.

[14] Ibid at para 23.

[15] Ibid at paras 45-48.

[16] Ibid at paras 49-64.

[17] Jennifer Graham, “Access to justice in Canada ‘abysmal’: CBA Report” Toronto Star (18 August 2013).

[18] Supra note 2at para 21.

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

Introduction

Should experimental drugs for the very ill be made more widely available in Canada? According to the Globe and Mail, experimental drug use is one of the “hottest political (and ethical) issues in health care today.”[1] Right now, the Food and Drug Regulations restrict experimental drugs from public sale until their safety and effectiveness can be guaranteed through clinical trials authorized by Health Canada.[2] The government’s “Special Access Programme – Drugs” can allow the seriously or terminally ill to access experimental drugs if they meet certain conditions, but this access is not guaranteed.[3] For those who cannot get access, could the seriously or terminally ill use the Charter’s section 7 right to life, liberty and security of the person to get access to unapproved, that is experimental, drugs?

Current Options for the Seriously or Terminally Ill in Canada

Currently, Canadians don’t have the right to use drugs that Health Canada has not approved. This means that even the seriously and terminally ill whose lives could be saved by using new, experimental drugs may have to wait for them to be approved for public use.

The government’s Special Access Programme (SAP) can allow Canadians with “serious or life-threatening conditions” to access these drugs if traditional treatments have failed, are unsuitable, or are unavailable.[4] However, Health Canada still gives manufacturers the final word on whether to provide early access to these drugs.[5] This means that access can be denied even if a person meets the required conditions. As the program only allows seriously or terminally ill Canadians who meet those conditions to apply, other patients have no further options if traditional treatments are not successful.[6]

Section 7 of the Charter

Could the Food and Drug Regulations and the SAP, which restricts the use of these potentially life-saving drugs, violate section 7 of the Charter, which protects a person’s right to life, liberty and security of the person?

In order to determine whether the use of section 7 is possible, the first step is to identify if the right to life, liberty, or security of the person is affected. It appears it might well be. State action that increases the risk of death usually affects the right to life. [7] Preventing access to potentially lifesaving experimental drugs might affect the right to life because it puts the lives of patients with terminal illnesses at risk.

If section 7 Charter rights are affected,the second step in determining whether the section can be used is to consider whether the law affecting those rights is consistent with the principles of fundamental justice. These principles include arbitrariness, overbreadth, and gross disproportionality.[8] In order to determine whether not allowing access to experimental drugs is consistent with the principles of fundamental justice, a court needs to consider the purpose of the law or policy. In this case, the purpose of the Food and Drug Regulations prohibiting access is to maintain “standards of composition, strength, potency, purity, [and] quality” of drugs.[9]

When restrictions produce an effect that is too extreme in response to its objective, the law is considered grossly disproportionate.[10] It is probable that it would be considered grossly disproportionate in this case. The quality and safety of experimental drugs might not be guaranteed, but potentially preventing their use even by a person who is terminally ill could be too extreme, as these drugs could save the life of someone who has no other hope for recovery. It is possible that these drugs may have unforeseen side-effects. However, are these potential safety concerns more important than potentially saving the lives of those who will otherwise eventually die from terminal illness?

If a court did find a Charter violation to the section 7 right to life, liberty and security of the person, the government could try to justify the law. The government would have to explain why maintaining tight safety and quality standards for drugs is an important objective, and how restricting and, in some cases, preventing experimental drug use is logically connected to that objective. The court would then have to decide whether there are less harmful ways of maintaining these standards and whether that law is a proportionate response to that objective. If the government failed to justify the law, this policy could violate the Charter.

Conclusion

Currently, the Special Access Programme includes those who are seriously ill and those who are terminally ill. Establishing a right to use experimental drugs for patients under section 7 of the Charter would likely not be successful in cases involving non-terminal illness. While current policy could affect their section 7 rights, there is a clear societal interest in controlling the use of drugs that could produce unpredictable or unmanageable side effects, and possibly death. Restricting and controlling access to these drugs seems logically connected to maintaining overall safety. Although the wider use of experimental drugs could diminish the psychological burden on the seriously ill, current policy might be the least harmful way of managing these safety and effectiveness concerns. It may be easier to establish a section 7 Charter claim for those who are terminally ill, as the drugs could save a patient that would otherwise die. Even in such cases, these potential safety risks still raise questions about whether more availability of experimental drugs is an option Canada should explore.

[1] André Picard, “Do the dying have the right to experimental drugs?”, The Globe and Mail (11 May 2015) online: The Globe and Mail <http://www.theglobeandmail.com/> .

[2] Food and Drug Regulations, CRC, c 870, s C.08.002 (2015) .

[3] Health Canada, “Special Access Programme – Drugs”, online: Health Canada < http://www.hc-sc.gc.ca/> .

[4] Ibid.

[5] Picard, supra note 1; Ibid.

[6] Health Canada, supra note 3.

[7] Guy Régimbald & Dwight Newman, The Law of the Canadian Constitution (Markham: LexisNexis, 2013) at 626 .

[8] Peter W. Hogg, “The Brilliant Career of Section 7 of the Charter” (2012) 58 The Supreme Court Law Review 201 .

[9] Food and Drug Regulations, supra note 2 at s A.01.002.

[10] Peter Hogg, Constitutional Law of Canada (Toronto: Thomson Reuters, 2007) at 47-7.