Recently, in R v Desautel, the Supreme Court of Canada (SCC) found that “[t]he Aboriginal peoples of Canada under [section] 35(1) are the modern successors of those Aboriginal societies that occupied Canadian territory at the time of European contact.”[1] This was a significant decision because it recognizes, for the first time, that a person does not need to be a citizen or resident of Canada to have Aboriginal rights under section 35 of the Constitution Act, 1982.

In a previous article, we reviewed the reasons for the Court’s decision and the criteria to establish whether a particular community is one of the “Aboriginal peoples of Canada” under section 35. This article will explore the Court’s assessment of how this decision may affect other areas of Aboriginal law[2] in Canada: (1) the Crown’s obligations under the duty to consult doctrine; (2) the test for justifying an infringement of Aboriginal rights; and (3) the interpretation of modern treaties. Finally, the article will review some questions that the Court left unanswered and will consider its brief comments about the role of Aboriginal peoples in defining themselves.

Impact on Other Aspects of Aboriginal Law

Duty to Consult: The Crown’s Constructive Knowledge of Aboriginal Rights

The Crown’s duty to consult Aboriginal peoples arises “when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.”[3] For example, a proposed development project could affect an Aboriginal people’s treaty right to hunt in the potentially impacted area, so the Crown would have a duty to consult that people before pursuing the project. In this example, the Crown would presumably have “real knowledge” of the relevant right because that right was agreed to in treaty. However, as noted above, the Crown is also under a duty to consult when it has “constructive knowledge” that its actions may adversely impact Aboriginal rights. This means that an adverse impact on Aboriginal “rights may reasonably be anticipated”[4] by the Crown.

The Court in Desautel acknowledged that real or constructive knowledge typically stems from years of interactions between the Crown and Aboriginal peoples in Canada.[5] When the Aboriginal group is not within Canada, though, the Crown might not have had many, if any, interactions with them and is therefore less likely to have real or constructive knowledge of their Aboriginal rights.[6] This raises the question of whether the Crown must seek out Aboriginal peoples outside of Canada for the purpose of meeting their duty to consult obligations.

The Court decided that the Crown is not obliged to search for these Aboriginal groups, but must “determine whether a duty to consult arises and … what the scope of the duty is”[7] when it is put on notice that such a group exists.[8] “It is for the groups involved to put the Crown on notice of their claims.”[9]

Justifying an Infringement on Aboriginal Rights: Is Canadian Citizenship Relevant?

A section 35 Aboriginal right is not absolute. Under the Sparrow test, the Crown may limit Aboriginal rights when it is justified by the interests of the broader community.[10] The test for such justification is highly contextual and is based on the facts of each case.[11] This begs the question of whether it is easier to justify limiting the rights of a non-Canadian claimant who resides outside of Canada.

The Court found that “the fact that an Aboriginal group is outside Canada is relevant to the [legal] test for justifying an infringement of an Aboriginal or treaty right.”[12] It did not specify how courts must consider this factor, but framed it as a matter of “reconciling the interests of an Aboriginal people with the interests of the broader community of which it is a part.”[13] This implies that the degree of connection between the Aboriginal group and the Canadian public is relevant to determining whether the Crown is justified in infringing that group’s Aboriginal rights. In other words, it may be easier to justify infringing the rights of persons who are not Canadian citizens or residents of Canada.

What if This Definition Conflicts with Modern Treaties?

Modern treaties are agreements between Aboriginal peoples and the Crown that were entered into after 1982, when Aboriginal and treaty rights were recognized and affirmed in the Constitution Act, 1982.[14] Some modern treaties grant rights to non-Canadian citizens while others exclude them. This raises the question: does the content of modern treaties affect whether a person is a member of one of the Aboriginal peoples of Canada?

In Desautel, the Court reaffirmed previous SCC decisions which found that modern treaties form part of “our constitutional fabric”[15] and should be “considered with great respect.”[16] However, the Court noted that the content of modern treaties does not determine whether a person is a member of one of the Aboriginal peoples of Canada under section 35. Further, it noted that a person who does not belong to one of the Aboriginal peoples of Canada under its new definition can still have rights arising from treaties.[17] In other words, the rights belonging to the Aboriginal peoples of Canada are separate and distinct from the rights which arise from treaties.

Some Questions are Better Left for Another Day

After considering the implications of the Desautel decision on the three issues described above, the Court identified a number of questions to be left for another day. It is not unusual for courts to remain silent on issues that are not determinative of the main question in the case, and is in fact standard judicial practice. Some of the questions that the Court identified but did not address were:

• How the test for “Aboriginal peoples of Canada” must be amended to accommodate Métis peoples located outside of Canada.[18]
• Whether the scope of the Crown’s duty to consult (i.e. the depth of consultation required) might differ when the Aboriginal group is located outside of Canada.[19]
• Whether Aboriginal peoples of Canada located outside of Canada may hold Aboriginal title to land located in what we today call Canada.[20]

Justice Côté’s dissent raised further questions that were not addressed in the majority’s decision:

• Whether non-Canadian Aboriginal peoples must take part in the constitutional conferences provided for by section 35.1 of the Constitution Act, 1982.[21]
• What are the Crown’s obligations under the duty to consult doctrine when the interests of Canadian rights holders do not align with the interests of rights holders from outside of Canada?[22]
• Whether individuals from outside of Canada might hold common law Aboriginal rights.[23]

Remarks on Vindicating Aboriginal Rights

The Court also made some important remarks in obiter which suggest that it is ultimately for Aboriginal peoples to define themselves. Remarks in obiter are comments that do not affect the outcome of the case and are not legally binding, but are still important because they reveal courts’ thinking on matters that they consider important.

First, the Court reaffirmed the courts’ role as the “guardians of the Constitution and of individuals’ rights under it.”[24] This means that the authority to interpret section 35(1), including the phrase “Aboriginal peoples of Canada,” rests with the courts. However, the Court then stated that “[i]t is for Aboriginal peoples … to define themselves and to choose by what means to make their decisions, according to their own laws, customs and practices.”[25] This suggests that the question of who belongs to one of the “Aboriginal peoples of Canada” has two aspects: (1) whether a community is an Aboriginal people under section 35(1) of the Constitution Act, 1982; and (2) whether that community will regard a particular section 35 claimant as one of its members. The first is a question for the Canadian courts, and the second is a question for Aboriginal communities themselves. In other words, the Court recognizes that Aboriginal peoples — not courts — have the authority to determine who is a member of their own communities.

Conclusion: A New Branch on the “Living Tree” of Canadian Constitutionalism

Although this decision answered the important question of who are the “Aboriginal peoples of Canada” under section 35(1) of the Constitution Act, 1982, it raised a new set of questions. The Court provided guidance on only three of these questions and decided to leave the bulk to be decided another day.

Lord Sankey, a 20th century British jurist famously compared the Canadian Constitution to “a living tree capable of growth and expansion within its natural limits.”[26] This “living tree” metaphor has been interpreted to mean that the Constitution is capable of growing and changing over time while still remaining true to its original purpose.[27] The Court’s decision in Desautel signals that a new branch of the constitutional tree is emerging. By defining the term “Aboriginal peoples of Canada” in a way that opens up more questions than it answers, the Court is giving future courts the task of nurturing and developing the new bud it has created. In this way, a new branch of constitutional law will emerge and the Constitution of Canada will continue to grow and change like a living tree.

[1] R v Desautel, 2021 SCC 17 (CanLII) at para 31 .

[2] Aboriginal law governs the constitutional relationship between the Crown and the Aboriginal peoples of Canada through colonial laws such as the Royal Proclamation of 1763, the Indian Act, the Constitution Act, 1867, and the Constitution Act, 1982. It is distinct from Indigenous law, which refers to the legal traditions of Indigenous peoples themselves.

[3] Desautel, supra note 1 at para 72 (citing Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 (CanLII) at para 35 ).

[4] Ibid at para 72 (quoting Rio Tinto Alcan Inc v Carrier Sekani Tribal Council, 2010 SCC 43 at para 40).

[5] Ibid at para 75.

[6] Ibid at para 74.

[7] Ibid at para 76.

[8] Ibid at paras 74-75.

[9] Ibid at para 75.

[10] See R v Sparrow, 1990 CanLII 104 (SCC) ; and Desautel, supra note 1 at para 79 (citing R v Gladstone, 1996 CanLII 160 (SCC) at para 73 ; and R v Nikal, 1996 CanLII 245 (SCC) at para 92).

[11] See Desautel, supra note 1 at para 78 (citing Sparrow, supra note 11 at 1111; and Gladstone, supra note 11 at para 56).

[12] Ibid at para 77.

[13] Ibid at para 79 (emphasis added).

[14] See Quebec (Attorney General) v Moses, 2010 SCC 17 (CanLII) at para 82.

[15] First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58 (CanLII) at para 1 (cited by Desautel, supra note 1 at para 82) .

[16] Desautel, supra note 1 at para 82 (citing Nacho Nyak Dun, supra note 16 at paras 1, 33 and 38).

[17] Ibid.

[18] Ibid at para 32. Under section 35(2) of the Constitution Act, 1982, the “’[A]boriginal peoples of Canada’ includes the … Métis peoples of Canada.” In a 2003 decision, the Supreme Court of Canada defined “Métis” as “distinctive peoples who, in addition to their mixed [Aboriginal and European] ancestry, developed their own customs, way of life, and recognizable group identity” (R v Powley, 2003 SCC 42 (CanLII) at para 10). Métis peoples would fail to meet the definition of “Aboriginal peoples of Canada” in Desautel because in this decision, the ancestral peoples must have occupied Canadian territory “at the time of European contact.”

[19] Ibid at para 76. The scope and content of the Crown’s duty to consult is proportionate to a preliminary assessment of the strength of the case for an Aboriginal or treaty right and the seriousness of the potential adverse effects on that right (see Haida, supra note 3 at para 39). The scope of the Crown’s duty to consult will vary according to the circumstances. “Deep” consultation might require formal participation by Aboriginal peoples in the decision-making process and the provision of written reasons for the Crown’s decision explaining how Aboriginal concerns were considered. “Lower” consultation may be achieved through written notice, disclosure, and the discussion of any issues raised in response (see Haida, supra note 3 at paras 43-44).

[20] Desautel, supra note 1 at paras 80-81 (Justice Côté’s dissent considers this question at para 124).

[21] Ibid at para 122 (citing Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at ss 35 and 25). Article 35.1 obliges the Prime Minister to “invite representatives of the [A]boriginal peoples of Canada to participate in the discussions on [any amendment made to section 91(24) of the Constitution Act, 1867, section 25 of the Constitution Act, 1982, or Part II of the Constitution Act, 1982 on the Rights of the Aboriginal Peoples of Canada].”

[22] Ibid at para 123.

[23] Ibid at para 140.

[24] Ibid at para 84 (citing Hunter v Southam Inc, 1984 CanLII 33 (SCC) at 169).

[25] Ibid.

[26] Edwards v Canada (Attorney General), 1929 CanLII 438 (UK JCPC) at 106-107.

[27] Peter W Hogg, Constitutional Law of Canada, vol 2, 5th ed (Scarborough: Thomson, 2007) at 36.8(a).

“Aboriginal peoples of Canada” have special Aboriginal and treaty rights that are protected under section 35 of the Constitution Act, 1982.[1] But who are the “Aboriginal peoples of Canada”?

The Supreme Court of Canada (SCC) considered this question for the first time in R v Desautel,[2] a case where an American citizen living in Washington State claimed that he has an Aboriginal right to hunt in his ancestors’ traditional territories near Castelgar, British Columbia. In a 7:1 decision,[3] a strong majority of the Court agreed with Mr Desautel and found that:

The Aboriginal peoples of Canada under s. 35(1) are the modern successors of those Aboriginal societies that occupied Canadian territory at the time of European contact. This may include Aboriginal groups that are now outside Canada.[4]

This article will review the SCC’s decision in Desautel and a second article will examine its potential consequences. Specifically, this article will examine: (1) the background of the case; (2) the underlying principles that informed how the Court came to its decision; and (3) the new legal test that the Court specified for identifying the “Aboriginal peoples of Canada.”

Background: Does Mr Desautel Have an Aboriginal Right to Hunt?

Mr Desautel is an American citizen living in Washington State and a member of the Lakes Tribe of the Colville Confederated Tribes, a successor group of the Sinixt people. The Sinixt people traditionally occupied the territory from north of Revelstoke, British Columbia to Kettle Falls in Washington State. In the latter half of the nineteenth century, the Sinixt people were forced out of their Canadian territories into the United States. More than a century later, in October of 2010, Mr Desautel shot a cow-elk near Castlegar, British Columbia, which is on traditional Sinixt territory. He was charged with violating the British Columbia Wildlife Act for hunting without a license and for hunting big game while not being a resident of British Columbia.[5] Mr Desautel claimed that, as a member of a successor group of the Sinixt people, he has an Aboriginal right to hunt in his traditional territories.

Section 35 of the Constitution Act, 1982 protects the “existing [A]boriginal and treaty rights” of the “[A]boriginal peoples of Canada.”[6] In other words, the question of who belongs to an “Aboriginal people … of Canada” is a threshold question in the test for whether a claimant has a protected Aboriginal right. This question is usually easy to answer, but it was complicated by the fact that Mr Desautel is an American citizen living in Washington State. Therefore, before the Court could determine if Mr Desautel has an Aboriginal right to hunt in what was once Sinixt territory, it first had to decide, for the first time, whether someone who is neither a citizen nor resident of Canada can nonetheless belong to one of the “Aboriginal peoples of Canada.”

A Purposive Interpretation of Section 35: Prior Occupation and Reconciliation

The Court stated that the legal definition of “Aboriginal peoples of Canada” is implicit in the “doctrinal structure” of Aboriginal law[7] and the principles upon which it is based.[8]

To start, the Court reaffirmed that section 35(1) must be interpreted purposively[9] with a view to achieving the two purposes of “recogniz[ing] the prior occupation of Canada by organized, autonomous societies and … [reconciling] their modern-day existence with the Crown’s assertion of sovereignty over them.”[10]

The Court then drew from a long history of previous Supreme Court decisions to show how these dual purposes are grounded in Aboriginal law and the principles that underlie it.[11] It also noted that these same two purposes give rise to the legal tests for Aboriginal rights and title, and the principle of honour of the Crown.[12] Read together, the various elements of this overview[13] provide a rich understanding of what these dual purposes mean and how they are reflected in Canadian constitutional law.

Purpose 1: Prior Occupation

According to the Court, one of the fundamental purposes of section 35 is the recognition of “prior occupation.” This means acknowledging that Aboriginal peoples lived on the land we call Canada long before European settlers arrived.[14] They lived in “organized, autonomous societies”[15] under their own systems of law[16] and had strong connections to their traditional territories.[17] The Crown then asserted its sovereignty over what is now Canadian territory,[18] imposing its own laws and customs upon these preexisting Aboriginal societies.[19]

Purpose 2: Reconciliation

The second purpose that the Court attributed to section 35 is “reconciliation,” a term which it used in two distinct ways:

• In the context of defining the dual purposes of section 35(1) jurisprudence. Here, “reconciliation” means to make consistent two seemingly incompatible legal realities: (1) the Crown imposed its sovereignty and continues to assert its sovereignty over what is now Canada; and (2) the lands over which sovereignty was asserted were already occupied and remain occupied by Aboriginal societies with their own laws, cultures, and traditions.[20]
• In the context of explaining the principle of honour of the Crown. Here, “reconciliation” means to “[look] back to this historic impact … [and] also look … forward to reconciliation between the Crown and Aboriginal peoples in an ongoing, mutually respectful long-term relationship.”[21]

With these two purposes in mind, the Court looked back at the history of Aboriginal peoples whose ancestral lands were divided by international boundaries, and who moved or were forcibly displaced by European settlers. It then looked forward and found that excluding from the definition of “Aboriginal peoples of Canada” those “Aboriginal peoples who were forced to move out of Canada would risk perpetuating the historical injustice suffered by [A]boriginal peoples at the hands of colonizers.”[22]

Defining “Aboriginal peoples of Canada” in Theory and in Practice

The Aboriginal peoples of Canada under s. 35(1) are the modern successors of those Aboriginal societies that occupied Canadian territory at the time of European contact. This may include Aboriginal groups that are now outside Canada.[23]

In Theory: Aboriginal Peoples of Canada Needn’t Be Canadian

The Court’s purposive interpretation of section 35 led it to define “Aboriginal peoples of Canada” as the modern-day successors of the Indigenous peoples who occupied the land we now call Canada “at the time of European contact.”[24] Accordingly, the constitutional guarantees provided by section 35 are not limited to residents and citizens of Canada, but may be extended to include peoples whose ancestors were separated from their traditional territories by the establishment of international boundaries or through forcible displacement.

Justice Côté was the only judge to disagree on this point. Writing in dissent, she defined “Aboriginal peoples of Canada” more narrowly as “Aboriginal groups that are members of, and participants in, Canadian society.”[25]

In Practice: The “Modern Successors of … Aboriginal Societies”

Who are “the modern successors of … Aboriginal societies”? The Court in Desautel set out guidance to help future courts answer this question. It is not a strict test, but rather a contextual analysis based on the facts of each case. Every case will require consideration of different factors which may be weighted differently from one case to the next. However, the Court was clear that all Aboriginal peoples of Canada must have occupied Canadian territory at the time of European contact.

The Court tells us that, when a claimant lives outside of Canada, they must establish a link between their modern-day community and the historic Aboriginal society that once occupied territory in what is today known as Canada. Legally, this link is called “successorship.” Successorship is not a clearly defined concept and the Court did not establish a minimum threshold that section 35 claimants must meet.

In addressing a particular claim, courts may draw from a wide variety of evidence to establish successorship, such as common “ancestry, language, culture, law, political institutions and territory.”[26] They must consider the possibility that a community might have split or merged or been forcibly displaced over time. Courts will need to assess the circumstances of each particular case to decide whether one criterion is more significant than the other, and to ultimately establish (or not establish) successorship.

The New Definition Applied to Mr Desautel’s Case

The Court found that Mr Desautel was a member of an Aboriginal people of Canada. Their decision was based on the two key criteria discussed above: (1) the Lakes Tribe are the modern-day successors of the Sinixt people and they did not lose this identity or the rights that derive from it after being forced to leave their ancestral lands; and (2) the Sinixt people had occupied the territory around Castlegar, British Columbia at the time of European contact.

Mr Desautel therefore met the threshold test for who belongs to an Aboriginal people of Canada. The Court then proceeded with the test for whether he had an Aboriginal right under section 35. In this regard, the Court found that Mr Desautel has a right to hunt in the Sinixt people’s traditional territories in British Columbia.[27] In other words, the sections of the British Columbia Wildlife Act that prohibit hunting without a license and hunting big game while not being a resident of British Columbia do not apply to Mr Desautel.

Conclusion

This decision is significant because the Supreme Court of Canada recognized that Aboriginal rights claimants under section 35 of the Constitution Act, 1982 do not need to be citizens or residents of Canada. It emphasizes the underlying principles of Aboriginal Law: to “recognize the prior occupation of Canada by organized, autonomous societies and reconcile their modern-day existence with the Crown’s assertion of sovereignty over them.”[28] It also sets out guidance for future courts to determine whether a person belongs to one of the “Aboriginal peoples of Canada” and therefore has Aboriginal rights under section 35. The impact that this decision could have on other areas of Aboriginal law will be addressed in a second article o

[1] Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at ss 35 and 25 .

[2] 2021 SCC 17 (CanLII) .

[3] Justice Moldaver was prepared to “assume, without finally deciding,” that Mr Desautel is a member of one of the Aboriginal peoples of Canada (ibid at para 143). Justice Côté wrote a dissenting opinion contesting the majority’s ruling that Mr Desautel belongs to one of the Aboriginal peoples of Canada.

[4] Desautel, supra note 2 at para 31.

[5] Ibid at paras 3-6 (citing Wildlife Act, RSBC 1996, c 488).

[6] Constitution Act, 1982, supra note 1.

[7] Aboriginal law is the body of law which governs the constitutional relationship between the Crown and the Aboriginal peoples of Canada through colonial laws such as the Royal Proclamation of 1763, the Indian Act, the Constitution Act, 1867, and the Constitution Act, 1982 (see e.g. Bora Laskin Law Library, “Welcome to Aboriginal Law Research” (last updated 19 May 2021), online: Bora Laskin Law Library <https://guides.library.utoronto.ca/aboriginallaw>; and JFK Law, “Making Space for Indigenous Law” (12 Jan 2016), online (blog): JFK Law Corporation < https://jfklaw.ca/making-space-for-indigenous-law/>). Aboriginal law is separate and distinct from “Indigenous law”, even if the two are sometimes interconnected. Indigenous law refers to the legal traditions of the Indigenous peoples themselves. Indigenous legal traditions have ancient roots, flow from many sources, and are expressed in a multitude of ways, including oral traditions, story, song, wampum belts, etc. (see John Borrows, Canada’s Indigenous Constitution, Toronto: University of Toronto Press, 2010) at ch 1-3. See also JFK Law, supra).

[8] Desautel, supra note 2 at para 31.

[9] Ibid at para 21 (citing R v Sparrow, 1990 CanLII 104 (SCC) at 1106 ; and R v Van der Peet, 1996 CanLII 216 (SCC) at paras 21-22 . A purposive interpretation means that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” — Rizzo & Rizzo Shoes Ltd (Re), 1998 CanLII 837 (SCC) at para 21, citing Elmer Driedger, Construction of Statutes, 2nd ed (Toronto: Butterworths, 1983) at 87. In other words, when interpreting a law purposively, the courts do not analyze it based on its text alone, but with an eye towards achieving its underlying purpose).

[10] Ibid at para 22.

[11] Ibid at para 31.

[12] Ibid at para 23.

[13] Ibid at paras 24-30.

[14] Ibid at para 24 (citing Calder v Attorney-General of British Columbia, 1973 CanLII 4 (SCC) at 328).

[15] Ibid at paras 24 (citing Sparrow at 1094) and 26 (citing Van der Peet, supra note 10 at para 43).

[16] Ibid at para 28 (citing R v Marshall, 2005 SCC 43 at para 129).

[17] Ibid at para 46.

[18] Ibid at para 26 (citing Van der Peet, supra note 10 at para 43).

[19] Ibid at para 30 (citing Manitoba Metis, supra note 2 at para 67).

[20] Ibid at paras 22 and 26.

[21] Ibid at para 30 (citing Little Salmon/Carmacks at para 10, internal quotations removed). “Reconciliation” in this context is similar to the Truth and Reconciliation Commission’s use of the term, which means “coming to terms with events of the past in a manner that overcomes conflict and establishes a respectful and healthy relationship among people, going forward”. However, since the Court did not cite this reference, we should not conflate the two. Canada’s residential schools: the final report of the Truth and Reconciliation Commission of Canada, vol 6 (Montreal: McGill-Queen’s University Press, 2015) at 3. See generally Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada, (Ottawa: Library and Archives Canada).

[22] Ibid at para 33.

[23] Ibid at para 31.

[24] Ibid.

[25] Ibid at para 105.

[26] Ibid at para 49.

[27] Ibid at para 62.

[28] Ibid at para 22.

In 2018, the federal government put a price on greenhouse gas emissions across Canada with its Greenhouse Gas Pollution Pricing Act (“GGPPA” or “the Act”).[1] Since its inception, the GGPPA’s validity has been contentious. The provinces of Alberta, Ontario, and Saskatchewan asked their respective Courts of Appeal whether the federal government has the constitutional power to enact the GGPPA. While both Ontario’s and Saskatchewan’s Courts of Appeal ruled that the GGPPA was within the federal government’s power and therefore valid, Alberta’s Court of Appeal found that it was not.

Finally, on March 25, 2021, the Supreme Court of Canada weighed in on the issue and released its References re Greenhouse Gas Pollution Pricing Act (“GGPPA Reference”) decision.[2] A majority of the Court found that the GGPPA is constitutional. To reach its decision, the Court had to determine the law’s “pith and substance” (or its “essential character”) before asking whether the Constitution permits the federal government to make such a law.[3] This article is Part 1 of a two-part series that reviews the Supreme Court of Canada’s majority decision in the GGPPA Reference. Part 1 examines how the GGPPA prices carbon-based products, and what the law’s essential character is. Part 2 will examine how the Supreme Court of Canada determined that the GGPPA is a valid exercise of Parliament’s legislative power.

The Division of Powers: No, the Federal Government Cannot Make Laws on Everything

The main question in the GGPPA Reference is whether the federal government has the constitutional power to make laws that create minimum standards for pricing greenhouse gas emissions. This issue exemplifies Canada’s federal system in which two levels of government, the federal and the provincial, have powers to govern in particular areas. In this regard, sections 91 and 92 of the Constitution Act, 1867 divide legislative powers between the provincial legislatures and federal Parliament. This means that the federal Parliament cannot make laws relating to just any matter it finds important. Instead, federal laws must be within Parliament’s legislative authority as set out by the Constitution.

Insofar as it concerns Parliament’s constitutional power (or lack thereof) to enact the GGPPA, the GGPPA Reference is a federalism-based constitutional challenge. Courts approach these federalism-based issues by way of a division of powers analysis. First, a court must characterize the law. To do this, the court will consider the purpose and effects of the impugned legislation to identify its essential character or “pith and substance.” Second, once the court identifies the law’s pith and substance, it must classify the law under section 91 or 92 of the Constitution Act, 1867. This article focuses only on the first of these steps: the characterization or “pith and substance” analysis.

Climate Change is a “grave threat to humanity’s future”[4] and the GGPPA is Parliament’s Response to This Threat

To clarify, the GGPPA’s pricing schemes only apply to provinces that lack a sufficiently stringent carbon pricing scheme of their own. Whether a specific person or organization is responsible for paying the charges depends on which part of the Act applies to that particular party. The GGPPA has 4 parts in total, but only Parts 1 and 2 were at issue in the GGPPA Reference.

Part 1: Fuel Charge

Part 1 of the GGPPA establishes a fuel charge on certain carbon-based fuel products specified in the Act. This fuel charge applies to producers, distributors, and importers. Although this charge is not directly levied on consumers of energy products, the cost of the charge will likely be indirectly passed onto consumers through higher energy prices.[8] Despite paying higher energy prices upfront, consumers can expect to get some money back. Currently, 90% of the funds generated by this fuel charge are distributed through consumer rebates.[9]

Part 2: Industrial Greenhouse Gas Emissions

Industrial facilities are not exempt from charges. Part 2 of the GGPPA sets out a separate carbon pricing system for industrial facilities that emit large amounts of greenhouse gas emissions.[10] This system is called an output-based pricing system (“OBPS”). The OBPS only applies to covered facilities. A covered facility does not have to pay the fuel charge set out in Part 1 of the Act. However, the OBPS requires industrial facilities to pay for emissions in excess of a set limit.

Not all industrial facilities will qualify as a covered facility. The Output-Based Pricing System Regulations set out the criteria for a covered facility.[11] If a facility does not meet the criteria, the Minister of the Environment has the authority to designate a facility as a covered facility.

The GGPPA Sets Out Minimum National Standards that Operate as a Backstop

One of the Court’s findings in the GGPPA Reference was that the GGPPA acts as a backstop and does not displace the ability of provinces or territories to create their own carbon pricing systems.[12] As such, provinces and territories can create their own policies to meet greenhouse gas emission reduction targets that reflect their own circumstances as long as the policies meet the minimum standards imposed by the GGPPA.

Parts 1 and 2 of the GGPPA will not apply to a province or territory that has implemented a sufficiently stringent greenhouse gas pricing system. The GGPPA’s fuel charge and OBPS will only apply in a province or territory if:

• the Governor in Council determines that the province or territory does not have a sufficiently stringent system in place to meet the minimum national standards;
• the province or territory requests that it apply; or
• the province or territory does not have any greenhouse gas pricing system in place.[13]

Characterization: The Pith and Substance of the GGPPA is to Establish Minimum National Standards of Greenhouse Gas Price Stringency

To determine whether the federal government can validly enact legislation creating minimum standards for greenhouse gas pricing schemes across Canada, the Supreme Court first had to “characterize” the GGPPA.  That is, the Court had to identify the law’s essential character (known as its “pith and substance”). In doing so, the Court adopted a narrow characterization of the GGPPA: “the true subject matter of the GGPPA is establishing minimum national standards of GHG price stringency to reduce GHG emissions.”[14]

To arrive at this characterization, the Court considered intrinsic and extrinsic evidence regarding the GGPPA’s purpose, as well as its legal and practical effects. It first considered the intrinsic evidence, which involves an assessment of the legislation itself to determine what it really means. To be more precise, this entailed an analysis of the GGPPA’s text including the statute’s long and short title, the preamble, and its references to the UNFCCC, the Paris Agreement, and the Pan-Canadian Framework.[15] Next, the Court looked to the extrinsic evidence regarding the law’s purpose, which included parliamentary debates and background documents. This provided the law’s background and historical context, which led the Court to conclude that the GGPPA is concerned with pricing greenhouse gas emissions.[16]

Finally, the Court assessed both the legal and practical effects of the GGPPA. Beginning with the legal effects, the Court found that Parts 1 and 2 of the GGPPA create a greenhouse gas pricing scheme that prices emissions in a way that is consistent with other provinces in Canada.[17] Due to the GGPPA’s backstop nature, these legal effects only apply if the Governor in Council determines that Part 1 or 2 of the Act should apply to a specific province. As such, provinces and territories are still able to establish their own greenhouse gas pricing policies to meet emission reduction targets as long as they meet the standards set out by the GGPPA. These legal effects show that the GGPPA focuses on setting minimum standards for greenhouse gas pricing.

With respect to the practical effects, the Court noted that it is difficult to definitively say what the GGPPA’s consequences are because the legislation has been in force for a short time.[18] However, the Court found that practically, the only thing a province or territory cannot do under the GGPPA is to not implement a greenhouse gas pricing scheme at all or to implement one that does not meet the GGPPA’s national standards.[19] After considering the purpose and effects of the GGPPA, the Court finally concluded that the pith and substance of the GGPPA is “establishing minimum national standards of GHG price stringency to reduce GHG emissions.”[20] This narrow construction of the law’s pith and substance led the majority to later classify the law as a matter of national concern and, hence, as constitutionally valid exercise of Parliament’s legislative power. The GGPPA’s classification is the focus of Part 2 of this article series.

Broad or Narrow Characterization? Does it Matter?

How a law is characterized, narrowly or broadly, has the potential to impact how a court determines the constitutionality of an impugned law. If a law’s pith and substance is characterized too broadly, it can be difficult to fit it under a specific head of power without intrusions on another level of government’s jurisdiction. A narrow characterization, on the other hand, will likely interfere less with another jurisdiction’s legislative authority.

The GGPPA Reference demonstrates the consequences of choosing a narrow characterization over a broad one. While the majority adopted a narrow view of the law’s pith and substance, Justice Brown (with Justice Rowe agreeing on this point) took a more expansive, broad view in dissent. Parts 1 and 2 of the Act were characterized separately by the dissenters: Part 1 as reducing GHG emissions by “raising the cost of fuel” and Part 2 as reducing GHG emissions by “pricing emissions in a manner that distinguishes among industries based on emissions intensity and trade exposure.”[21] This broad characterization likely led to the dissenting Justices finding that the GGPPA constitutes an impermissible intrusion on provincial jurisdiction.

Conclusion

Since the enactment of the GGPPA in 2018, there has been polarized debate on whether the federal government has the power to put a price on greenhouse gas emissions. Finally, the Supreme Court of Canada weighed in with its judgment in the GGPPA Reference. The majority of the Supreme Court of Canada concluded that Parliament’s GGPPA is constitutional. This means that the federal government can validly put a price on greenhouse gas emissions.

Identifying a law’s pith and substance is an important first step in determining whether a government has the power to enact a certain law. Once the law’s essential character is identified, courts can determine whether it falls under a provincial or federal head of power. In the GGPPA Reference, the majority adopts a narrow view of the GGPPA, concluding that the GGPPA’s pith and substance concerns the reduction of greenhouse gas emissions by establishing minimum national standards of greenhouse gas pricing.

A second article will continue reviewing the Court’s division of powers analysis by looking at its next step: classification under a head of power.

[1] Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, s 186 .

[2] References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 .

[3] “Pith and Substance” (18 June 2021 last visited), online: Centre for Constitutional Studies <https://www.constitutionalstudies.ca/2019/07/pith-and-substance/>.

[4] GGPPA Reference, supra note 2 at para 2.

[5] Government of Canada, “The Paris Agreement” (6 January 2016), online: Government of Canada <https://www.canada.ca/en/environment-climate-change/services/climate-change/paris-agreement.html>.

[6] GGPPA Reference, supra note 2 at para 13.  

[7] GGPPA, supra note 1, Preamble.

[8] GGPPA Reference, supra note 2 at para 30.

[9] Ibid at para 31.

[10] Ibid at para 34.

[11] Output-Based Pricing System Regulations, SOR/2019-266.

[12] GGPPA Reference, supra note 2 at para 27.

[13] Ibid at paras 18, 27.

[14] Ibid at para 57.

[15] Ibid at paras 58-61.

[16] Ibid at paras 62-69.

[17] Ibid at para 71.

[18] Ibid at para 78.

[19] Ibid at para 79.

[20] Ibid at para 80.

[21] Ibid at para 340.

How does the Charter of Rights and Freedoms empower courts to repair the damage of unconstitutional government action? In a recent decision, Conseil scolaire francophone de la Colombie-Britannique v British Columbia (Conseil Scolaire), the Supreme Court of Canada (SCC) considered, inter alia, whether monetary damages can be awarded where government policy decisions are later held to violate fundamental rights under the Charter.[1] Prior to this decision, the SCC had held that “if [a government] act[s] in good faith and without abusing their power under prevailing law and only subsequently are their acts found to be unconstitutional, they will not be liable.”[2] By affording governments this kind of “limited immunity”[3] from monetary liability, the courts have sought “a means of creating a balance between the protection of constitutional rights and the need for effective government.”[4] Such immunity is generally recognized where it is required by considerations[5] like “the existence of alternative remedies and concerns for good governance.”[6] This prevents the “effectiveness and efficiency of government action” from being “excessively constrained” by potential liability.[7]

In Conseil Scolaire, the SCC assessed whether the above concerns for effective governance require that governments are shielded from liability “for decisions made in accordance with government policies.”[8] The following sections explain what constitutional remedies are available under Canadian law, before providing a brief commentary on the Supreme Court’s ruling in Conseil Scolaire.

The courts have access to three potential constitutional remedies

The Constitution Act, 1982 contains three provisions that dictate the remedies available to the courts where there is a finding of unconstitutionality. Section 24(1) of the Charter provides remedies against unconstitutional government action;[9] section 24(2) provides for the exclusion of evidence obtained in violation of the Charter;[10] and section 52(1) provides that a law that is inconsistent with the Constitution is, “to the extent of the inconsistency, of no force or effect.”[11] In other words, section 24(1) is available where a Charter violation occurs as a result of discretionary government action, but where the legislation that empowered the state actors is not itself unconstitutional.[12] Section 24(2) relates to the collection and admission of evidence. Section 52(1) applies when a Charter violation occurs because of unconstitutional legislation. Although possible, a claimant will rarely receive section 24(1) damages when a section 52(1) remedy has been granted.[13] As neither section 24(2) nor section 52(1) were at issue in Conseil Scolaire, they will not be discussed further in this article.

In Conseil Scolaire, the SCC determined that a Charter violation occurred as a result of discretionary government policy, so they focused on section 24(1) Charter remedies. Section 24(1) states:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

If such an infringement or denial has been established, and if the government fails to justify the infringement, section 24(1) empowers courts to offer claimants a broad range of remedies.[14] This includes monetary remedies for Charter violations, also known as Charter damages or constitutional damages.[15] Charter damages encourage governments and state agents to avoid actions that violate the Charter by holding the government accountable for past actions.[16] Other forms of relief, such as injunctions, do not compensate victims of past violations; they only prevent violations from continuing in the future.[17]

Section 24(1) damages are uncommon, in part due to accessibility.[18] Provincial criminal courts do not have the jurisdiction to award damages, so at a minimum the claimant must bring a claim to the province’s superior court, such as Alberta’s Court of Queen’s Bench.[19] The cost of bringing these claims is prohibitive, particularly because the amount of money received through Charter damages is usually relatively small compared to litigation costs.[20] For instance, in Vancouver (City) v Ward (Ward), Mr. Ward’s eight-year legal battle culminated in an award of only $5,000 in damages under section 24(1) of the Charter.[21] Fortunately, Mr. Ward was represented for free (pro bono) at all levels of court, but not all complainants are so lucky.[22]

Charter damages are also uncommon because they are still a relatively “new endeavor.”[23] Other remedies are available under section 24(1) that may be more appropriate for resolving a Charter breach, such as a declaration of invalidity.[24] The Supreme Court of Canada (“SCC”) has suggested that the courts’ approach to determining when Charter damages are appropriate should develop incrementally over time.[25] In the 2010 judgment mentioned above, Ward, the SCC began this process by developing the framework for awarding a monetary remedy through section 24(1).[26]

The Ward methodology for establishing section 24(1) Charter damages

Vancouver (City) v Ward paved the way for the legal recognition of damages as an appropriate and just remedy for Charter breaches. The Supreme Court determined that Mr. Ward’s Charter rights were infringed when he was unnecessarily detained and strip-searched by police.[27] The SCC upheld the lower court’s decision to award $5,000 in damages for the strip search (i.e. arbitrary detention),[28] and set out the following steps to help courts assess section 24(1) claims for Charter damages in the future:[29]

1. Establish a Charter breach.
2. Determine if damages are appropriate and just and fulfill at least one of the following objectives:
3. Compensate the claimant for personal loss;
4. Vindicate the Charter right by emphasizing the importance and gravity of the breach, and/or;
5. Deter state agents from committing future Charter breaches.
6. Determine if the state has established that other considerations render damages inappropriate or unjust (e.g. the existence of alternative remedies or concerns for good governance).
7. If appropriate and just, assess the amount of damages.

Steps two and three of this process address competing considerations. If the claimant demonstrates that damages are a just and appropriate remedy, then the government can attempt to show that other factors defeat the objectives of compensation, vindication, and deterrence, rendering Charter damages inappropriate or unjust.[30] The state can argue that damages are inappropriate or unjust due to the availability of alternate remedies, such as private law remedies for personal injury, or another public law remedy like a declaration of invalidity.[31] Where such countervailing considerations are present, the government will receive limited immunity from paying Charter damages.[32]

Granting governments limited immunity balances “the need for effective government” against the need to robustly protect constitutional rights.[33] The rationale behind this is to give state agents the ability to carry out their governmental functions without an overarching threat of monetary damages.[34] A full list of countervailing considerations does not exist, so judges may add new considerations as the law in this area matures.[35] In Conseil Scolaire, the case under examination here, the SCC examined whether limited government immunity could apply to “decisions made in accordance with government policies”[36] that are later found to violate fundamental rights under the Charter.[37]

The Supreme Court found that limited immunity does not apply to unconstitutional government policies

In Conseil Scolaire, the Supreme Court confirmed its general rule in Ward, that governments may avoid liability for the payment of damages by raising considerations such as the promotion of good governance or the existence of alternative remedies.[38] However, the Court found that limited government immunity from damages awards does not apply to decisions made in accordance with unconstitutional government policies.[39] The SCC differentiated between actions carrying out a law and actions based on discretionary policy. The Court wrote that “[w]hen the legislative branch enacts a law, it confers powers on the executive branch” to carry out actions pursuant to that law.[40] The legislative branch cannot be held liable for exercising its lawmaking powers,[41] so when it confers powers on the executive branch it also confers its limited immunity from liability.[42] According to the Court, this limited immunity is justified because “the legislature and those who enforce laws must be able to perform their functions without fear of reprisals.”[43] Their conduct must cross a “minimum threshold of gravity”[44] including conduct that is “clearly wrong, in bad faith or an abuse of power”[45] before damages are awarded.[46] In contrast, “[w]hen the executive branch adopts a government policy, it confers powers on itself,” so it does not receive the immunity afforded to the legislative branch.[47] The Court reasoned that ““government policy” [as a] concept has not been defined,”[48] in contrast to legislation which is prepared through a “transparent public process that is central to the democratic process.”[49] Granting governments immunity for their policies would be a “very broad” application of limited immunity that may “reduce [a claimant’s] chances of obtaining access to justice” and a remedy for a violation of their Charter rights.[50] As such, the SCC determined that discretionary policy decisions do not receive the same limited immunity conferred on government actions stemming from laws.[51]

In the case under examination here, a Minister of the Government of British Columbia had made decisions regarding school transportation and grant funding that did not stem from a law about school funding; they were policy decisions made at the discretion of the executive.[52] The Court concluded that these funding decisions were not shielded from liability and that an appropriate remedy would be the payment of damages.[53]

The SCC assessed the amount of Charter damages owed and ordered the Government of British Columbia to pay the school board $6 million in damages for underfunding its school bus transportation system, and an additional $1.1 million for operations.[54]

Conclusion

The SCC has determined that “where there is a right, there must be a remedy.”[55] To support this declaration, there are three constitutional provisions that allow courts to remedy a violation of fundamental rights. A key result from Conseil Scolaire is the court’s finding that section 24(1) Charter damages may be available to compensate claimants for government policy decisions that are later found to violate the Charter. The Court’s decision limited the scope of government immunity from paying damages and resulted in the Court ordering B.C. to pay additional Charter damages. These types of monetary awards are still uncommon, but the relatively large Conseil Scolaire award may encourage more litigants to pursue such damages despite the adverse cost of litigation.

[1] Conseil scolaire francophone de la Colombie-Britannique v British Columbia, 2020 SCC 13 at paras 164, 171 .

[2] Mackin v New Brunswick (Minister of Justice), 2002 SCC 13 at para 79 .

[3] Ibid at para 78.

[4]  Ibid at para 79.

[5] See Conseil Scolaire, supra note 1, at para 167. New considerations for limited immunity “may be identified over time”.

[6] Ibid at para 167.

[7] Ibid.

[8] Ibid at para 166.

[9] Canadian Charter of Rights and Freedoms, s 24(1), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[10] Ibid, s 24(2).

[11] Ibid, s 52(1).

[12] Schachter v Canada, [1992] 2 SCR 679, 1992 CanLII 74 (SCC) at 720.

[13] Ibid.

[14] Vancouver (City) v Ward, 2010 SCC 27 at paras 16-17 .

[15] Ibid at para 21.

[16] See Marilyn L Pilkington, “Damages as a Remedy for Infringement of the Canadian Charter of Rights and Freedoms,” (1984) 62 Can Bar Rev 517 at 540.

[17] Ibid.

[18] See Akash Toprani, “A tale of two section twenty-fours: towards a comprehensive approach for Charter remedies,” (2012) 70:2 UT Fac L Rev 141 at 163.

[19] Ibid.

[20] Ibid.

[21] Ibid at 143.

[22] Ibid at 163.

[23] Ward, supra note 14 at para 21.

[24] Ibid.

[25] Ibid.

[26] Ibid at para 15.

[27] Ibid at paras 65, 66.

[28] Ibid at paras 11, 73.

[29] Ibid at paras 15, 31.

[30] Ibid at para 33.

[31] Ibid at para 34.

[32] Ibid at paras 33, 40.

[33] Mackin, supra note 2 at para 79.

[34] Conseil Scolaire, supra note 1 at para 164.

[35] Ward, supra note 14 at para 33.

[36] Conseil Scolaire, supra note 1 at para 164.

[37] Ibid at para 171.

[38] Ibid at paras 167-168.

[39] Ibid at para 179.

[40] Ibid at para 177.

[41] Ibid at para 176.

[42] Ibid at para 177.

[43] Ibid at para 168.

[44] Ibid, citing Ward, supra note 14 at para 39.

[45] Conseil Scolaire, supra note 1 at para 168, citing Mackin, supra note 2 at para 78.

[46] Ibid at para 168.

[47] Ibid.

[48] Ibid at para 173.

[49] Ibid.

[50] Ibid.

[51] Ibid.

[52] Ibid.

[53] Ibid at para 180.

[54] Ibid at paras 185-186.

[55] Doucet Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 at para 23.

How does the Charter of Rights and Freedoms regulate provincial governments’ funding decisions with respect to minority language schools? In a recent decision, Conseil scolaire francophone de la Colombie-Britannique v. British Columbia (Conseil Scolaire),[1] the Supreme Court of Canada (SCC) confronted this question in relation to French-language education in British Columbia. Prior to this decision, Canadian courts had repeatedly confirmed the existence of a link between language, culture and the overall sense of well-being for individuals and linguistic communities.[2] The SCC has stressed that “[l]anguage is more than a mere means of communication, it is part and parcel of the identity and culture of the people speaking it.”[3] School plays a role in promoting the development of minority linguistic communities as “a setting for socialization where students can converse with one another and develop their potential in their own language and, in using it, familiarize themselves with their culture.”[4] This begins to explain why the right to receive instruction in one of Canada’s official languages is entrenched in the Canadian Constitution under section 23 of the Canadian Charter of Rights and Freedoms, 1982.[5]

The Conseil scolaire francophone de la Colombie‑Britannique (CSF) is the only French‑language school board in British Columbia, with responsibility for 37 schools across the province.[6] In 2010, CSF, the Fédération des parents francophones de Colombie‑Britannique (a provincial French parents’ association), and three parents filed a civil claim against the province.[7] They argued the B.C. government was violating section 23 of the Charter by not funding Francophone schools to the same standard as Anglophone schools.[8] The following sections will explain what section 23 rights encompass before providing additional information about CSF’s claim against the B.C. government.

Section 23 promotes Canada’s two official languages

Section 23 of the Charter protects minority language education rights by imposing a positive obligation on governments to offer publicly funded elementary and secondary education in the official minority language of a province.[9] This encompasses an obligation to provide public instruction in the language of the minority wherever there are sufficient numbers of eligible students to warrant the expense.[10] The correlative rights are conferred on parents rather than children and extend to:

1. Canadian parents whose first language is the French or English minority language in their province (except Quebec);
2. Canadian parents whose primary school instruction in Canada was in French or English and who live in a province where this is the minority language, and;
3. Canadian parents with one child who attended or is attending school in a minority language.[11]

In general, section 23 rights holders have the right to have their children instructed in their first language, and to a standard comparable to that provided to the majority language population in their province. Where numbers warrant, section 23 rights holders also have the right to their own educational facilities, such as separate classrooms or schools, and a measure of management and control over the education program.[12] The purpose of these rights is threefold: “to prevent the erosion of official language communities, redress past injustices and promote the development of [minority official language] communities.”[13]  In doing so, the rights “enhance Canada’s bilingualism and biculturalism, and maintain the unique partnership between language groups that sets the country apart among nations.”[14]

CSF claimed the B.C. government violated their section 23 Charter rights

In its legal action against the B.C. government, Conseil scolaire francophone de la Colombie-Britannique claimed that the province violated its section 23 rights by underfunding its French-language schools and failing to provide money to upgrade school buildings and property.[15] They cited numerous funding shortfalls that included not receiving “an annual grant for building maintenance,” “a lack of funding for school transportation,” and “a lack of space for cultural activities.”[16] CSF also claimed that the B.C. government failed to provide new schools in eight communities where census numbers showed a large enough Francophone population to sustain homogeneous French-language schools.[17] This shortfall meant Francophone parents were faced with a difficult choice between enrolling their children in a Francophone school with a substandard learning environment or an Anglophone school with a better learning environment but a much higher risk of linguistic assimilation (and the erosion of the Francophone community in B.C.).[18]

In response, B.C. claimed that fulfilling these obligations would be too costly, as most communities in the province lack enough Francophone students to justify the spending needed to achieve educational parity.[19] In making this claim, the province argued that the application of section 23 rights depends on a “proportionality” criterion regarding the number of Francophone versus Anglophone students.[20] The assumption underlying this criterion is that “the quality of a school depends primarily on the size of its student body,”[21] so a smaller student body should expect a school of inferior quality.

Prior to the Supreme Court decision, the case wove through an initial trial and then an appeal at the British Columbia Court of Appeal. The trial judge awarded damages[22] to CSF as a remedy for the government’s failure to provide adequate funding of school transportation.[23] The trial judge also concluded that some communities were entitled to “substantively equivalent” French-language facilities and experience, but that certain smaller communities were only entitled to a “proportionately equivalent” experience.[24] When CSF appealed and B.C. cross-appealed, the Court of Appeal determined that the trial judge was correct in her analysis of the rights at stake, but set aside her award of damages to CSF.[25] In the wake of this ruling,[26] the SCC granted CSF’s request to hear an appeal, which resulted in the decision under examination here. The SCC took the opportunity to clarify the approach courts should use when assessing section 23 claims.

The SCC clarified a “sliding scale approach” for minority language education requirements

When a claimant alleges that their Charter rights have been violated, courts generally ask two questions: 1) has a Charter right been violated, and 2) is that violation nonetheless legally justifiable? When addressing the first of these questions in relation to a section 23 claim, the SCC has emphasized the applicability of a “sliding scale approach,” which the Court clarified in Conseil Scolaire. The “sliding scale” approach is a three-part test for determining the type and level of rights and services appropriate to provide minority language instruction for the number of students involved. As the number of eligible students rises in a community, so does the amount of control the minority are legally entitled to over the provision of instruction.[27] At the low end of the scale, section 23 rights holders are entitled to have their children receive education in the official language minority, but have no right to management or control over instruction.[28] In the middle of the scale, the minority language group might are entitled to control over a classroom or part of the school, as well as hiring of teaching staff and certain expenses.[29] At the high end of the scale, the minority language group is entitled to control over separate educational facilities, referred to as homogeneous schools.[30]

The sliding scale analysis involves three steps:

1. Establish the number of students eligible to receive the minority language schooling in a given area.[31]
2. Compare these numbers with the numbers of students attending majority language schools located across the province to determine an appropriate minimum number of students from the standpoint of teaching and cost.[32]
3. Determine the appropriate level of services for the number of eligible students.[33]

The SCC examined CSF’s claim to homogeneous schools for communities with 55 to 98 eligible Francophone students.[34] However, when using the above approach to compare the number of eligible students in these communities to English language schools across the province, the SCC found comparable communities with majority language schools instructing a similar number of students.[35] This meant that from the standpoint of teaching resources and costs, separate schools within this same range are acceptable to the province.[36] The SCC found that most of the communities with eligible students had comparable enrolment to small majority language schools.[37] For the court, this meant that these communities fall at the high end of the sliding scale, and are entitled to homogeneous minority language schools.[38]

The SCC also found that where the number of official language minority students is not comparable to the numbers of majority language students, the students must nonetheless have “substantive equivalence” in “the quality of [their] educational experience.”[39] This means that the quality of instruction and facilities must not be “meaningfully inferior” to that which majority language students receive.[40] Communities with 55 (or fewer) eligible Francophone students fall below the comparable number of majority language students at small schools in B.C. The SCC held that in such cases, “where the number of students falls in the middle or at the low end of the sliding scale, deference must be shown to the level of services contemplated by the school board.” [41] CSF did not have the opportunity to make submissions in court about the services they would provide for the students in such communities.[42] Therefore, the question of providing a homogeneous school for a community of 55 or fewer students could only be decided back at the court of local jurisdiction.[43]

Section 23 violations should be difficult for the government to justify

Even if a law or government policy is found to violate a Charter right, a claimant’s Charter action will fail if the government can convince the court that its actions are nonetheless legally justifiable through the balancing section of a Charter analysis. To do this, the government must demonstrate two things. First, it must show that its public interest goals are pressing and substantial enough to potentially override the negative effects of its action – that is, the impact resulting from the violation of the right to education in a minority language. Second, it must show that the means chosen to pursue these important goals are “proportionate.” A measure is proportionate if:

1. It is rationally connected to the government’s important goals;
2. It impairs the “right or freedom in question as little as possible,”[44] and;
3. It has a benefit that is substantial enough to outweigh the harm of the Charter

Writing for the SCC majority in Conseil Scolaire, Chief Justice Wagner found that three factors weigh in favor of applying a very stringent version of this test to make it difficult for the government to justify violations of a section 23 right.[45] “First, the framers of the Charter imposed positive obligations on the provincial and territorial governments in s. 23.”[46] In other words, to fulfill their obligations, governments must provide public funding for minority language instruction; they cannot simply decide not to act. Second, section 23 is excluded from the scope of the notwithstanding clause in section 33 of the Charter.[47] This means that a legislature cannot “opt out” of its positive obligations toward minority language groups within its jurisdiction; these obligations are non-negotiable.[48] Third, section 23 contains an internal limit, in that the right to minority language instruction is only warranted if there is a sufficient number of children.[49] This takes into account the financial burden section 23 rights place on a provincial government, and balances the costs of minority language education with the right to receive this instruction by setting a minimum threshold.[50]

The B.C. government argued that “the fair and rational allocation of limited public funds” justified the section 23 violation.[51] However, Chief Justice Wagner rejected this argument, noting that “public funds are limited by definition,” and that the “fair and rational allocation of limited public funds represents the daily business of government.”[52] If the court were to allow a government to use this “daily business” as an excuse for violating Charter rights, then it would “risk watering down the scope of the Charter.”[53] The Chief Justice accordingly concluded that the daily objective of the government cannot double as a “pressing and substantial” objective for the purposes of justifying a violation of Charter rights.[54]

Conclusion

The key takeaway from Conseil Scolaire is that provinces and territories owe a positive duty to official linguistic minority groups in their jurisdictions under section 23 of the Charter. It is not enough for the province to provide minimum minority language instruction; “the quality of the overall educational experience must be meaningfully similar to that of the experience provided to the majority.”[56] Provincial and territorial governments that fail to provide adequate minority language education to rights holders may be liable to pay Charter damages to remedy the shortfall.

[1] Conseil scolaire francophone de la Colombie-Britannique v British Columbia, 2020 SCC 13 .

[2] Ibid at paras 13, 14.

[3] Mahe v Alberta, [1990] 1 SCR 342, 1990 CanLII 133 (SCC) at 362.

[4] CSF SCC, supra note 1 at para 1.

[5] Ibid.

[6] Ibid at para 27.

[7] Ibid at para 28.

[8] Ibid.

[9] Ibid at para 190.

[10] Canadian Charter of Rights and Freedoms, s 23, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[11] Ibid.

[12] CSF SCC, supra note 1 at para 24.

[13] Ibid at para 15.

[14] Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2016 BCSC 1764, at para 123.

[15] CSF SCC, supra note 1 at para 28.

[16] Ibid.

[17] Ibid.

[18] Stephanie Chouinard, “SCC decision sends stern message to provinces, but for official-language minorities, the battle continues” iPolitics (16 June 2010), online: https://ipolitics.ca/2020/06/16/scc-decision-sends-stern-message-to-provinces-but-for-official-language-minorities-the-battle-continues/.

[19] CSF SCC, supra note 1 at para 144.

[20] Ibid at para 117.

[21] Ibid at para 119.

[22] A discussion on damages is beyond the scope of this article.

[23] CSF SCC, supra note 1 at para 166.

[24] Ibid at para 38.

[25] Ibid at paras 48-49.

[26] Ibid at paras 29, 48, 49.

[27] Ibid at para 24.

[28] Ibid.

[29] Ibid.

[30] Ibid.

[31] Ibid at para 98.

[32] Ibid at para 99.

[33] Ibid at para 92.

[34] Ibid at para 98.

[35] Ibid at para 101.

[36] Ibid.

[37] Ibid.

[38] Ibid.

[39] Ibid at para 123.

[40] Ibid.

[41] Ibid at para 102.

[42] Ibid.

[43] Ibid at para 103.

[44] Ibid at para 146.

[45] Ibid at para 147.

[46] Ibid at para 147.

[47] Ibid at para 148.

[48] Ibid.

[49] Ibid at para 150.

[50] Ibid.

[51] Ibid at para 152.

[52] Ibid at para 153.

[53] Ibid.

[54] Ibid at paras 153-154.

[55] Ibid at paras 185-186.

[56] Ibid at para 105.

Creating a balance of workplace power between employers and employees is difficult. The Government of Alberta is currently addressing what it perceives to be a balance too favourable for employees with Bill 32: The Restoring Balance in Alberta’s Workplaces Act, 2020 [Bill 32 or the Bill].[1] According to the Government, the Bill aims to foster economic recovery in the province and “get Albertans back to work” by reducing regulatory burdens on employers.[2] Unions and other labour groups view the Bill differently. They claim the Bill is an attack on workers’ rights. Gil McGowan, president of the Alberta Federation of Labour, called the Bill a “fundamental attack on worker rights and democracy.”[3] McGowan claims the Bill introduces a double-standard by loosening regulatory burdens on businesses while increasing the burdens on unions.[4] While many of the Bill’s changes do not implicate the Constitution, some of its changes potentially violate workers’ rights that are protected by the Canadian Charter of Rights and Freedoms.[5]

Bill 32 Overhauls Labour Relations in Alberta

 When Jason Copping, Minister of Labour and Immigration, first introduced Bill 32, he said the Bill would “provide employees and employers with clearer and more transparent rules, promoting fairness and productivity.”[6] It attempts to do so in part by reducing “red tape.”[7] Minister Copping said the Bill’s purpose is to increase economic activity in the province by “reducing burdens on job creators.”[8] Alberta Premier Jason Kenney said the Bill will help Alberta “keep jobs, create jobs, and support economic growth.”[9] The Bill is aimed at shifting the balance of workplace power toward employers and away from employees. The governing United Conservative Party seems to believe the previous government of the New Democratic Party shifted the balance of workplace power too far in favour of workers and unions.[10]

Bill 32 is complex, amending at least six different labour and employment relations acts.[11] Jason Foster, associate professor of human resources and labour relations at Athabasca University, called Bill 32 the “single biggest overhaul of labour relations in thirty years.”[12] Outlining all of Bill 32’s changes is outside the scope of this article. Instead, this article will focus on two tasks. First, it will focus on summarizing some of Bill 32’s changes that are likely not open to constitutional challenges. It will then focus on two changes which may, according to some critics and commentators, violate workers’ Charter rights.

Bill 32 Amends the Employment Standards Code

Bill 32 makes several significant changes to the Employment Standards Code [“ESC”].[13] The ESC establishes the minimum standards of employment in Alberta in several areas including pay, work hours, overtime, holidays, and termination.

Bill 32 changes “averaging agreements” into “averaging arrangements.”[14] Averaging agreements were agreements between an employer and an employee that “averaged” the employees’ work hours over a span of weeks or months. These agreements reduced the amount of overtime pay the employee received.[15] For example, the employee may have worked 60 hours one week and 20 hours the following week. Their hours could then be “averaged” over the two-week span so that the employer pays the employee for two 40-hour weeks, saving the employer from paying any overtime.

Bill 32 makes two major changes to averaging agreements. First, it allows employers to unilaterally impose averaging arrangements on employees without the employees’ consent.[16] Second, it extends the amount of time over which employers can average an employee’s pay from 12 weeks to 52 weeks.[17]

Another change Bill 32 makes to the ESC concerns how employees take breaks on the job. The Bill brings back the break period scheme that existed prior to amendments made by the previous NDP government.[18] Employees must now work five hours to qualify for a 30-minute break.[19] Employees must work ten hours to qualify for two 30-minute breaks. If the employer and employee do not reach an agreement on when the employee will take a break, the employer can choose when the employee will take their break.[20]

Bill 32 Amends the Labour Relations Code

Bill 32 also modifies the Labour Relations Code [“LRC”].[21] The LRC outlines the rights and responsibilities of employers, unions, and employees in labour relations.[22] One change concerns how certification votes must take place. The certification process is the process by which a union becomes the formal collective bargaining agent for a group of employees. To become a union, the group must meet certain requirements set by the LRC. If the potential union meets the requirements, the Labour Relations Board will hold a vote, called a certification vote, with the employees. If most of the employees choose to be represented by that union, the Labour Relations Board will certify that union as their representative.[23] Previously, this vote had to take place within certain strict timelines. Bill 32 removes many of these timelines and greatly lengthens others.[24] Critics of the Bill allege that this will reduce representation by giving employers time to “dissuade and intimidate workers” to vote against unionization.[25]

Potential Charter Challenge 1: Restrictions on Secondary Picketing

In addition to the above changes, Bill 32 makes two changes which some unions and labour rights advocates, as well as academics and legal analysts, say may violate workers’ Charter rights.[26] The first such change is a restriction on secondary picketing. Bill 32 requires labour groups to get approval from the Labour Relations Board before engaging in secondary picketing.[27] Picketing normally occurs at the site of the labour dispute: the workplace. Secondary picketing instead occurs at an offsite location that is related to the employer. For example, in a famous Canadian case on secondary picketing, Pepsi-Cola employees in Saskatchewan were in a labour dispute with the regional Pepsi-Cola distributor. In addition to picketing the factory, the workers also engaged in secondary picketing at some of Pepsi-Cola’s retail outlets.[28]

Unions and labour organizations allege that by requiring them to get approval from the Labour Relations Board before engaging in secondary picketing, Bill 32 violates their Charter right of freedom of expression.[29] These groups say the Bill restricts unions’ speech by removing secondary pickets from their expressive vocabulary unless the Labour Relations Board authorizes them.

The Supreme Court of Canada held in 2002 that the Pepsi-Cola employees’ Charter right to freedom of expression protected their peaceful secondary picketing.[30] Secondary picketing is a form of expression by labourers. The Supreme Court of Canada has said that labour expression is “fundamental not only to the identity and self-worth of individual workers…but also to the functioning of a democratic society.”[31] Where this expression takes place, be it at the workplace or at a secondary site, is irrelevant; all picketing is generally acceptable unless it is otherwise criminal or unlawful.[32] For example, picketing which devolves into intimidation, trespass, or criminal harassment will be unlawful, regardless of where it occurs.[33]

This decision by the Supreme Court of Canada means that to the extent Bill 32 places limits on or discourages secondary picketing, it may violate workers’ Charter right to freedom of expression. However, rights in the Charter are not absolute. The government is allowed to violate Charter rights so long as it can justify its violation. To justify a violation, the government must show that the violation is a rational and proportionate way to achieve a pressing goal.

As the Supreme Court discussed in the Pepsi-Cola case, specific picketing activities can be unlawful, and as such can be limited.[34] Subject to the general constraint that they must “respect the Charter value of free expression and be prepared to justify limiting it,” the government is free to develop their own “policies governing secondary picketing.”[35] This means that while Bill 32’s restriction on secondary picketing may violate workers’ freedom of expression, it may also be legally justifiable and hence constitutional. For example, limiting secondary pickets that cause harm to unaffiliated third-parties may be a justified limit on unions’ expressive freedom. The courts will have to determine whether Bill 32’s provisions regarding secondary picketing are constitutional by balancing the workers’ Charter right to free expression with the Government’s justifications.

Potential Charter Challenge 2: Restriction on the Use of Union Dues for “Political Purposes”

 A second potentially unconstitutional change Bill 32 makes concerns how unions spend their collected union dues. Union dues are financial payments paid by workers to fund the union. Dues cover the cost of collective bargaining, the cost of taking grievances to arbitration, the cost of surviving strikes or lockouts, and more.[36] Bill 32 requires unions to obtain the consent of each worker to use union dues for “political purposes.”[37] The definition of “political purposes” is broad. It includes:

• General social causes or issues,
• Charities or non-governmental organizations,
• Organizations or groups affiliated with or supportive of a political party, and
• Any other activities the government adds through regulations.[38]

Under Bill 32, unions must provide their members with detailed information on the amount of union dues that they will use for such political purposes before obtaining each member’s consent. The new rules create an “opt-in” scheme: a member’s dues cannot be used for any of the listed “political purposes” unless that member opts-in.[39]

Unions allege that this is an attack on workers’ ability to pool their money to advocate for themselves. They claim the opt-in scheme makes it more difficult to advocate for political change for their members.[40] In response, the Government’s justification for the scheme appears to be that it gives workers more choice in how unions spend their members’ money. During legislative debate on the Bill, Jason Copping, Minister of Labour and Immigration, said that the shift to an opt-in scheme gives Albertans “the right to make their own decisions” about how their union dues are spent.[41] Of course, it is worth remembering that union leadership is typically elected. As such, workers already have a say in how unions spend their dues – by electing leaders with whom they agree.

The Opt-In Scheme and Freedom of Association

The opt-in scheme may be a violation of workers’ right to freedom of association. Freedom of association protects the ability to work together to achieve common goals.[42] It often arises in labour contexts because it protects workers’ right to join unions, to bargain collectively, and to strike.[43]

The Supreme Court has previously held that legislation allowing unions to spend dues on political activities with which a member disagrees is allowable. In the case of Lavigne v Ontario Public Service Employees Union, an Ontario community college teacher was required to pay union dues under a collective bargaining agreement.[44] The teacher objected to the union spending some of the dues on political campaigns for Ontario’s New Democratic Party. The teacher alleged that this violated their freedom of association because it forced them to participate in the union’s political activities. All seven judges agreed that the rules allowing the use of union dues for political purposes with which a member disagrees were constitutional.[45]

Bill 32 creates the opposite issue. In Lavigne, the issue was an employee frustrated with the political expenditures of their union. Bill 32, on the other hand, makes it harder for unions to spend for political purposes. However, in Lavigne, all the justices seemed to agree that collective bargaining, the core purpose of unions, is not fully separable from political purposes.[46] Supreme Court Justice La Forest was concerned that allowing opt-outs on political uses of union dues could hamper unions’ ability to engage in core union practices like collective bargaining.[47] In particular, Justice La Forest felt that drawing a line separating a union’s core purposes from its political purposes will depend on “one’s political and philosophical predilections, as well as one’s understanding of how society works.”[48]

The key test for a violation of the right to freedom of association is whether the legislation “substantially interferes” with the meaningful process of collective bargaining.[49] Substantial interference is anything which seriously inhibits the employees’ ability through the union to bargain collectively. The issue for the court to decide is whether by requiring unions to obtain consent from employees before spending dues on the listed “political purposes,” Bill 32 is substantially interfering with unions’ ability to engage in meaningful collective bargaining on their members’ behalf.[50] If the line between core union activities and a union’s political purposes is hard to draw, then this limit on “political purposes” spending may end up substantially interfering with a union’s ability to engage in its core activities. If so, Bill 32 may violate workers’ freedom of association right. Again, though, the Government may be able to justify their violation of the right by showing the violation proportionately pursues important state goals.

The Opt-in Scheme and Freedom of Expression

Rather than arguing that Bill 32 violates workers’ right to freedom of association, a challenge to Bill 32’s union dues changes may target its impact on freedom of expression. A freedom of expression challenge to the opt-in scheme could claim that the changes violate unions’ freedom of expression by reducing although not formally removing their capacity to engage in political expression.[51]

A freedom of expression challenge seems unlikely to succeed, though, because even if a court finds the union dues rules to be a violation of expression rights, the Government may be able to justify them in several ways. First, Bill 32 does not forbid unions from spending dues on political purposes, it only requires them to keep detailed accounting of political expenses and get consent from members before spending. Second, Bill 32 does not simply limit freedom of expression, but also enhances it by giving individual members more say over how unions spend their money. Third, Bill 32 falls in a sphere of policy in which the courts will typically defer significantly to legislatures.[52] As the Supreme Court has said, policy-making “in the domain of labour relations is better left to the political process, as a general rule.”[53]

However, some critics allege that this change only appears insidious when viewed in its entire context.[54] These critics point to the fact that most unions in Alberta support the Government’s opposition, the New Democratic Party. They suggest that part of the Government’s purpose in changing to the opt-in scheme is to make it harder for their political opponents to fundraise. This argument is supported by United Conservative Party press releases suggesting that the Bill’s targeting of unions political spending is in part due to their prior support of the NDP.[55]

The argument that Bill 32 is, at least in part, a partisan attack on political opponents could cause trouble for the Government in the courts. One of the first things a court does when determining if a violation of a right is justified is determine if the objective of the law is “pressing and substantial.”[56] In addressing this issue, the courts need not accept the government’s own description of the law’s objective. If a court held that Bill 32’s objective was “decreasing the fundraising potential of political opposition,” they would likely hold the Bill’s objective not to be pressing and substantial, and thus the Bill’s violation of Charter rights to be unjustified.

Conclusion

As of July 29, 2020, Bill 32 is law in Alberta.[57] Its changes will come into effect over the coming weeks and months. A number of Alberta’s largest unions have indicated they will challenge Bill 32’s constitutionality in the courts. The Alberta Federation of Labour, with its 25 associated public and private sector unions,[58] Unifor, Canada’s largest private sector union,[59] and the Canadian Union of Public Employees[60] have all indicated they will support legal opposition of Bill 32. As of now, it is unclear which provisions of Bill 32 these groups will challenge. It is very likely, however, that they will challenge either the secondary picketing changes or the changes to union dues on some of the grounds discussed above.

[1] Restoring Balance in Alberta Workplaces Act, SA 2020, c 28 .

[2] Overview, “Restoring balance in Alberta’s workplaces,” Government of Alberta (last visited 3 August 2020), online: <www.alberta.ca/restoring-balance-in-albertas-workplaces.aspx>.

[3] Alberta Federation of Labour, “‘This is a dark day in Alberta history,’” Alberta Federation of Labour (7 July 2020), online: <www.afl.org/_this_is_a_dark_day_in_alberta_history>.

[4] Ibid.

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

[6] Alberta, Legislative Assembly, Hansard, 30th Leg, 2nd Sess, No 40 (7 July 2020) at 1760 (Hon Jason Copping).

[7] Ibid.

[8] Ibid.

[9] Jason Kenney, “Bill 32 fulfills a big promise we made: no longer will union workers be forced to fund political campaigns of union bosses! We’re also bringing back more balance to our labour laws to help us keep jobs, create jobs, and support economic growth as part of Alberta’s Recovery Plan,” (31 July 2020 at 18:18), online: Twitter <www.twitter.com/jkenney/status/1289354658205532163>.

[10] For some of the labour law changes introduced under the previous NDP government, see Staff, “A closer look at proposed changes to Alberta’s workplace rules,” Global News (24 May 2020), online: <www.globalnews.ca/news/3476166/a-closer-look-at-proposed-changes-to-albertas-workplace-rules/>; John Cotter, “NDP announces labour law changes to bring ‘Alberta’s workplaces in to the 21st century,” Global News (24 May 2017), online: <www.globalnews.ca/news/3476075/ndp-announces-labour-law-changes-to-bring-albertas-workplaces-into-the-21st-century/>.

[11] Jason Foster, “Alberta’s Bill 32 is a Seismic Break in Labour and Employment Law,” Canadian Law of Work Forum (10 July 2020), online: <www.lawofwork.ca/albertas-bill-32-is-a-seismic-break-in-labour-and-employment-law/>.

[12] Jason Foster, “Taking Aim at Unionized Workers: The Impacts of Bill 32 (Part 1),” Parkland Institute Blog (15 July 2020), online: <www.parklandinstitute.ca/bill_32_part_1>.

[13] Employment Standards Code, RSA 2000, c E-9.

[14] Bill 32, supra note 1, part 1, ss 1-7.

[15] Jason Foster, “Increasing Employer Power at the Workplace: The Impacts of Bill 32 (Part 2),” Parkland Institute Blog (21 July 2020), online: <www.parklandinstitute.ca/bill_32_part_2>. See also Government of Alberta, “Averaging agreements,” Government of Alberta (last visited 3 August 2020), online: <www.alberta.ca/averaging-agreements.aspx>.

[16] Bill 32, supra note 1, part 1, ss 7-8.

[17] Ibid, s 11(a)(ii).

[18] “Bill 32: Restoring Balance in Alberta’s Workplaces Act, 2020,” Neuman Thompson (last visited 3 August 2020), online: <www.neumanthompson.com/bill-32-restoring-balance-albertas-workplaces-act-2020>.

[19] Bill 32, supra note 1, part 1, ss 9-10.

[20] Ibid, s 9.

[21] Labour Relations Code, RSA 2000, c L-1.

[22] Alberta, Alberta Labour Relations Board, A Guide to Alberta’s Labour Relations Laws, (last visited 3 August 2020), online (pdf): <www.alrb.gov.ab.ca/guide/guide.pdf>.

[23] Alberta Labour Relations Board, “FAQ: Certification – Unionizing a Workplace,” (last visited 3 August 2020), online: <www.alrb.gov.ab.ca/faq_certifications.html>.

[24] Bill 32, supra note 1, part 2, s 13.

[25] Jason Foster, “Taking Aim at Unionized Workers: The Impacts of Bill 32 (Part 1),” Parkland Institute Blog (15 July 2020), online: <www.parklandinstitute.ca/bill_32_part_1>.

[26] See National Union of Public and General Employees, “Bill 32 a direct attack on workers’ rights,” National Union of Public and General Employees (8 July 2020), online: <www.nupge.ca/content/bill-32-direct-attack-workers-rights>; Chelsea Nash, “AUPE preparing members for strike action in wake of Alberta’s Bill 32,” Rabble (21 July 2020), online: <www.rabble.ca/news/2020/07/aupe-preparing-members-strike-action-wake-albertas-bill-32>.

[27] Bill 32, supra note 1, part 2, s 24.

[28] R.W.D.S.U., Local 558 v Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, at para 1 .

[29] See National Union of Public and General Employees, supra note 26; Nash, supra note 26. See also Alberta Federation of Labour, supra note 3.

[30] RWDSU, supra note 28 at para 101.

[31] Ibid at para 69.

[32] Ibid at para 103.

[33] Ibid.

[34] Ibid at para 107.

[35] Ibid.

[36] “Fact Sheet: Union Dues and the Rand Formula,” Canadian Union of Public Employees (28 August 2013), online: <www.cupe.ca/fact-sheet-union-dues-and-rand-formula>.

[37] Bill 32, supra note 1, part 1, s 9.

[38] Ibid.

[39] Colin Feasby, “Restoring Balance? Bill 32, the Charter, and Fair Democratic Process,” ABLawg (15 July 2020), online: <www.ablawg.ca/2020/07/15/restoring-balance-bill-32-the-charter-and-fair-democratic-process/>.

[40] Alberta Federation of Labour, supra note 3. See also Nash, supra note 26.

[41] Alberta, Legislative Assembly, Hansard, 30th Leg, 2nd Sess, No 52 (28 July 2020) at 2569 (Hon Jason Copping).

[42] Mounted Police Association of Ontario v Canada, 2015 SCC 1 at para 54 .

[43] Ibid at paras 52-54.

[44] Lavigne v Ontario Public Service Employees Union, 1991 CanLII 68 (SCC) .

[45] Ibid at paras 95, 191, 279, 281.

[46] See Dennis Buchanan, “Restricting a Union’s Political Activities: The Constitutionality of Alberta Bill 32,” Law of Work (27 July 2020), online: <www.lawofwork.ca/bill32-charter/>.

[47] Lavigne, supra note 44.

[48] Ibid.

[49] MPAO, supra note 42 at para 80. See also Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 at para 78.

[50] See Buchanan, supra note 46.

[51] Feasby, supra note 39.

[52] R v Advance Cutting & Coring Ltd., 2001 SCC 70 at para 257.

[53] Ibid.

[54] Feasby, supra note 39.

[55] United Conservative Party of Alberta, “If groups like the AFL, that are embedded in the NDP constitution, want to use dues collected from workers to oppose pipelines and run big campaigns, their members deserve *a choice* on whether or not their money is used to fund AFL's political activism!” (8 July 2020 at 13:33), online: Twitter <www.twitter.com/Alberta_UCP/status/1280948014786334721>.

[56] See R v Oakes, 1986 CanLII 46 at para 69.

[57] Alberta, Bill Status, “Bill 32: Restoring Balance in Alberta’s Workplaces Act, 2020,” (last visited 4 August 2020), online: <www.assembly.ab.ca/net/index.aspx?p=bills_status&selectbill=032&legl=30&session=2>.

[58] Alberta Federation of Labour, “Jason Kenney’s anti-worker, anti-union Bill 32 will be challenged in the courts,” Alberta Federation of Labour (27 July 2020) online: <www.afl.org/jason_kenney_s_anti_worker_anti_union_bill_32_will_be_challenged_in_the_courts>.

[59] Unifor, “Unifor vows to continue fighting Kenney’s anti-worker law,” Unifor News (29 July 2020), online: <www.unifor.org/en/whats-new/press-room/unifor-vows-continue-fighting-kenneys-anti-worker-law>.

[60] “Kenny passes union busting bill 32,” Canadian Union of Public Employees (29 July 2020), online: <www.cupe.ca/kenney-passes-union-busting-bill-32>.

The Canadian Charter of Rights and Freedoms protects several foundational rights, but only from violations by the Canadian government, not by private individuals or bodies.[1] As a result, it is important to know just who, and what, qualifies as “government.” Nearly three decades ago the Supreme Court of Canada ruled that universities are not “government.”[2] However, the Supreme Court left open the possibility that the Charter may apply to some university actions.[3] In a recent decision, the Alberta Court of Appeal decided that when universities restrict student’s expression on campus they are subject to the Charter.

The Debate Between Pro-Life and the University of Alberta

UAlberta Pro-Life [“Pro-Life”] is an anti-abortion student organisation at the University of Alberta [“the University”]. They aim to “raise awareness that abortion is a human rights violation” and to “start a conversation with peers about abortion on campus.”[4] In March 2015, they held an event on the Quad, a central, high-traffic area on the University Campus.[5] The event was met by protesters, some of whom held “signs and banners blocking the displays.”[6] University Protective Services became involved, separating protesters from Pro-Life.[7] Pro-Life later filed complaints with University Protective Services against several protesters.[8]

In early 2016, Pro-Life sought to hold a second event, also in the Quad.[9] Because the first event required additional security, the University imposed a security cost of $17,500 on Pro-Life to hold the event.[10] Pro-Life challenged the high cost, alleging it violated their Charter right to freedom of expression.[11] Since they could not afford to pay the security costs, they could not hold the event. They took the University to court. In response, the University argued that the Charter does not apply to them.[12]

Charter Application: Only the Government is Subject to the Charter

Section 32 of the Charter defines the scope of the Charter’s application, who and what is bound to respect the rights and freedoms it describes. It makes clear that the Charter only applies to the federal and provincial governments.[13] The Supreme Court of Canada has also reinforced that the Charter only constrains governments and their actions, not private citizens or companies.[14] Section 32 makes clear that the Constitution acts as a regulator of the government.^[15] The Supreme Court of Canada has said that section 32 expresses that the Charter is “an instrument for checking the powers of government over the individual.”[16]

There are two ways the Charter can apply to an entity (i.e. a person or organization whose actions are in question).[17] First, the Charter applies if the entity is by nature a governmental entity. In other words, if the entity is government. This includes the federal and provincial governments, municipal governments, and government officials acting in the scope of their duties.[18] If an entity is government by nature, all its actions are subject to the Charter.[19]

Second, the Charter applies if a non-government entity engages in governmental action. Typically, government actions are acts which implement a specific government policy or program.[20] For example, in the case Eldridge v British Columbia (Attorney General), the Supreme Court of Canada held that in delivering healthcare, hospitals were engaged in governmental action.[21]

This second pathway to Charter application exists to prevent government from avoiding Charter scrutiny by granting powers to implement their policies to otherwise private entities.[22] If an entity is acting ‘governmentally,’ then that action alone, and not the rest of their actions, is subject to the Charter.[23]

Regulating Speech on Campus is a Governmental Action (In Alberta)

A trial court first heard, and dismissed, Pro-Life’s case.[24] The trial judge did not decide whether the Charter applied to the University’s decision to impose the security cost on Pro-Life. The judge instead found that the University “voluntarily assumed responsibility for considering freedom of expression.”[25] Pro-Life appealed the trial judge’s decision to the Alberta Court of Appeal.

The Court of Appeal decided it had to rule on whether the Charter applied to the University’s action. It ruled that a university action is governmental if the university acts “for the state more broadly and not just for internal University objectives.”[26] Internal university objectives likely include the aims any private organization would hold, like the hiring and firing of staff or entering business deals. Acts “for the state more broadly” are acts done for the goals of the government. The question then is whether the way the University regulated students’ expression was for the state more broadly or just for internal objectives.[27]

The Court found that when the University regulates student expression on campus they are engaged in governmental action.^[28] They gave five reasons why the University was acting for state purposes when they regulated speech on campus[29]:

1. The “core purpose” of the University is the “education of students largely by means of free expression.”[30] Government gave the University this purpose “under both statute and the Constitution Act, 1867.”[31]
2. The University and others recognize that the University’s core purpose is the education of students.[32]
3. The “grounds of the University are physically designed to ensure” all students can “learn, debate and share ideas.”[33]
4. Finding that the Charter applies to universities’ regulation of speech on campus “is a visible reinforcement of the great honour system which is the Rule of Law.”[34] Also, ensuring the Charter applies anywhere the government is present reinforces Canada’s “core values of human rights and freedoms.”[35]
5. Recognizing that the Charter applies to universities’ regulation of speech on campus “does not threaten the ability of the University to maintain its independence or to uphold its academic standards or to manage its facilities and resources.”[36]

The Court highlighted that the provincial government founded the University through legislation in 1906.[37] It is clear, the Court said, that “the University and its purposes were a subject of great significance to the Crown when it enacted the University into existence.”[38]

In short, the provincial government gave the University the mission of educating students “by means of free expression.”[39] Because the government gave the University this mission, the University’s actions in implementing that goal are governmental action. Since the regulation of speech on campus is a governmental action, the Charter applies to how the University regulates speech on campus.

The Court gave “no opinion regarding the University’s ability to justify” their imposition of the security costs on Pro-Life.[40] In future cases, universities could attempt to justify their restriction of student expression. The Court noted that the University is “specially experienced and equipped to accommodate hubbub” that may come with controversial speech.[41] In doing so, the University will have to balance competing values. Sometimes, it will be justified in limiting expression; for example, if the expression is “violent, obscene, freedom suppressing or intimidating in its nature.”[42]

Finding the University was subject to the Charter in this case is consistent with prior Alberta cases. In a 2012 Alberta Court of Appeal case, one judge held that the Charter applied to how the University of Calgary disciplined students for Facebook posts criticizing a professor.[43] Some students posted comments on Facebook criticizing how a professor taught a University course.[44] The University found the students (some of whom only joined the Facebook page, but did not post comments) guilty of non-academic misconduct and punished them with, among other things, a 24-month probation.[45] The students challenged the decision in court, and eventually Justice Paperny of the Alberta Court of Appeal found that the university was both subject to the Charter and had violated the student’s freedom of expression.[46] In disciplining the students, the University of Calgary was using power given to it by the government and was therefore acting governmentally. As such, its decisions had to comply with the Charter.[47]

The Alberta Court of Appeal’s Decision is Inconsistent with Other Jurisdictions

The Alberta Court of Appeal’s decision is inconsistent with decisions in similar cases in in Ontario and British Columbia. In those cases, courts found that the Charter does not apply to university actions regulating expression on campus.

In Ontario, the leading case on the application of the Charter to university action is Lobo v Carleton University.[48] In Lobo, students of Carleton University sought to set-up anti-abortion demonstrations in a busy location on campus. The University requested the students organise elsewhere, a request the students appear to have ignored. In turn, the University charged the students with trespassing and prevented them from demonstrating on campus. The students in turn sued the University for “failing to allocate the desired space” for their demonstrations.[49] The Ontario Court of Appeal dismissed the student’s case, noting that booking space for “non-academic extra-curricular” is not a “specific government policy or program.”[50] The Alberta Court of Appeal in UAlberta discussed Lobo, but found it was “not of penetrating effect” to their decision.[51]

In British Columbia, the case BC Civil Liberties Association v University of Victoria dealt with Charter application to universities.[52] There, a University of Victoria anti-abortion student group received approval from the Vice-President of the University to hold a demonstration on campus. Shortly thereafter, following the advice of the Student Society, the Vice-President revoked the approval and informed the group as such.[53] Despite this, they proceeded with their event. The University responded by suspending their outdoor booking privileges for one year.[54] The student group appealed this decision to the courts.

The British Columbia Court of Appeal concluded that the University of Victoria’s actions were not governmental. The Court found that in deciding how to use campus space it was not implementing a government policy or program.[55] The Alberta Court of Appeal did not explicitly state why they disagreed with the British Columbia Court of Appeal’s finding. They did, however, mention that the University, who relied on the BC Civil Liberties case in their argument, may be giving section 32 of the Charter “a pinched and technical reading.”[56]

Conclusion

Until the Supreme Court of Canada rules on a case like this one and sets a Canada-wide standard on the Charter’s application to university actions limiting expression, the Charter’s applicability to universities seems to depend on where you live. Regardless, university administrators deciding how to handle the expression of student groups like Pro-Life must act carefully.[57] In Alberta, their decisions must be Charter compliant.

Further Reading

Katherine Creelman, “Free expression: Do Canadian universities make the grade?” Centre for Constitutional Studies (23 October 2017), online.

Dwight Newman, “Application of the Charter to Universities’ Limitation of Expression” (2015) 45 R Dr U Sherbrooke 133.

[1] 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 .

[2] McKinney v University of Guelph, 1990 CanLII 60 (SCC) .

[3] Ibid. See also Atrisha S. Lewis, Adam Goldenberg & Marco Fimiani, “Free speech on campus is subject to the Charter – but only in Alberta” McCarthy Tetrault (15 January 2020), online: <www.mccarthy.ca/en/insights/blogs/canadian-appeals-monitor/free-speech-campus-subject-charter-only-alberta>.

[4] “UAlberta Pro-Life” University of Alberta Bears Den: Student Organizations (last visited 21 July 2020), online: <www.alberta.campuslabs.ca/engage/organization/ualbertaprolife>.

[5] See UAlberta Pro-Life v Governors of the University of Alberta, 2020 ABCA 1 at para 8 .

[6] Ibid at para 10.

[7] Ibid at paras 11-12.

[8] Ibid at para 13. These complaints resulted in a second issue discussed by the Alberta Court of Appeal: whether the University’s decision to not punish the protesters was reasonable. See Ibid at paras 37-101.

[9] Ibid at para 16.

[10] Ibid at para 18.

[11] Ibid at para 20.

[12] Ibid at para 146.

[13] Charter, supra note 1, s 32.

[14] See RWDSU v Dolphin Delivery Ltd., 1986 CanLII 5 (SCC) at para 34 .

[15] See Peter Hogg, Constitutional Law of Canada, 5th ed (Toronto: Carswell, 2007) (loose-leaf updated 2019, release 1), at 37.2(h).

[16] McKinney, supra note 2.

[17] Greater Vancouver Transportation Authority v Canadian Federation of Students – British Columbia Component, 2009 SCC 31 at paras 15-16.

[18] Dolphin Delivery, supra note 14 at para 33.

[19] See Eldridge v British Columbia (Attorney General), 1997 CanLII 327 (SCC) at para 40 . See also Lavigne v Ontario Public Service Employees Union, 1991 CanLII 68 (SCC).

[20] Eldridge, supra note 19 at paras 41-42.

[21] Ibid at para 50.

[22] Eldridge, supra note 19 at para 42. See also McKinney, supra note 2.

[23] Eldridge, supra note 19 at para 44.

[24] UAlberta, supra note 5 at 23.

[25] UAlberta Pro-Life v Governors of the University of Alberta, 2017 ABQB 610 at para 46.

[26] UAlberta, supra note 5 at 139.

[27] Ibid.

[28] Ibid at para 148.

[29] See also Linda McKay-Panos, “Alberta Court of Appeal Concludes that University of Alberta is Subject to the Charter,” ABLawg (25 February 2020), online: <www.ablawg.ca/2020/02/25/alberta-court-of-appeal-concludes-that-university-of-alberta-is-subject-to-the-charter/>.

[30] UAlberta, supra note 5 at para 148.

[31] Ibid. See also paras 105-109.

[32] Ibid at para 148.

[33] Ibid.

[34] Ibid.

[35] Ibid.

[36] Ibid.

[37] Ibid at para 105.

[38] Ibid at para 106 [emphasis in original].

[39] Ibid at para 148.

[40] Ibid at para 230.

[41] Ibid at para 205.

[42] Ibid.

[43] Pridgen v University of Calgary, 2012 ABCA 139.

[44] Ibid at para 5.

[45] Ibid at paras 17-22.

[46] Ibid at para 128.

[47] Ibid at para 105.

[48] Lobo v Carleton University, 2012 ONCA 498 .

[49] UAlberta, supra note 5 at para 141.

[50] Lobo, supra note 48 at para 4.

[51] UAlberta, supra note 5 at para 141.

[52] BC Civil Liberties Association v University of Victoria, 2016 BCCA 162.

[53] Ibid at para 1.

[54] Ibid.

[55] Ibid at para 33.

[56] UAlberta, supra note 5 at para 144.

[57] Michael Larsen, “University Spaces and the Freedom of Expression” Mondaq (17 February 2020), online: <www.mondaq.com/canada/trials-appeals-compensation/894154/university-spaces-and-the-freedom-of-expression>.

Recently, the Supreme Court of British Columbia ruled that certain provisions of BC’s Civil Forfeiture Act,[1] which allows the BC government to seize property allegedly “tainted” by crime, were an unconstitutional overreach of the province’s legislative authority.[2] The twist? The constitutional challenge was brought forth by the BC chapter of the Hells Angels. Hells Angels spokesperson Rick Ciarniello acknowledged the irony of the situation, noting that they were probably the wrong people to challenge the law, but they were the ones who had the resources and the wherewithal to do it.[3] Ciarniello also pointed out the importance of fighting this law, as it was not only the interests of the Hells Angels that were being affected, but those of all British Columbians.[4]

BC’s Civil Forfeiture Office was trying to seize three Hells Angels clubhouses

In late 2007, British Columbia’s Civil Forfeiture Office launched proceedings against the Hells Angels to seize their Nanaimo clubhouse. In 2012, they launched proceedings to seize their Vancouver and Kelowna clubhouses.[5] The Civil Forfeiture Act (“CFA” or “the Act”) grants the director of the Civil Forfeiture Office the power to seize property that is an “instrument of unlawful activity,” and to determine how it is to be redistributed.[6] The Act defines an instrument of unlawful activity as property that has been used in the past to engage in unlawful activity,[7] or property that is likely to be used in the future to engage in unlawful activity.[8] The clubhouses had been used in the past for three cocaine and methamphetamine deals.[9] The director of the Civil Forfeiture Office claimed that the clubhouses would be used for crime in the future because the Hells Angels had used them for crime in the past.[10] The director abandoned the “past use” claim in August of 2015, making the forfeiture case solely about the likelihood that the clubhouses would be used in the future for unlawful activity.[11] While the director was no longer using the past use claim in seeking to seize the property, the Hells Angels still challenged the “past use” provision’s constitutionality.[12] Ultimately, the judge determined that the director was unable to prove the clubhouses or their contents were likely to be used in the future for unlawful activity.[13] Therefore, the clubhouses could not be seized and were to be returned to the Hells Angels.[14] However, that is not where this case ends. In addition to their challenge of the order to forfeit their clubhouses, the Hells Angels also challenged the constitutionality of the very Act that gave the director of the Civil Forfeiture Office the power to seize their clubhouses; the CFA’s “past use” and “future use” provisions.

The Civil Forfeiture Act has been criticized as being an overreach of power

Concerns have been raised alleging that the CFA gives the Civil Forfeiture Office sweeping powers.[15] Initially, the Civil Forfeiture Office was established to fight organized crime, but an investigation by The Globe and Mail determined that the Office was affecting more than just those involved in organized crime.[16] The Hells Angels claimed it was important for them to challenge the constitutionality of the CFA in the interest of other British Columbians who were being taken advantage of by allegedly unconstitutional legislation.[17]

British Columbia introduced a procedure called “administrative forfeiture” in 2011 which makes it easier for the government to seize property with a value under $75,000 if authorities believe it to be a product of unlawful activity.[18] Civil forfeiture cases do not require criminal charges or conviction.[19] It is the responsibility of the individual seeking to keep their property to challenge the forfeiture order and justify why they should keep their property. This is the reverse of a criminal proceeding where the government has the responsibility to prove why an individual should be convicted.[20] Jay Solomon, a Vancouver lawyer who has handled civil forfeiture cases, argued that the administrative forfeiture process should not exist, and that the seizure of allegedly “tainted” property should go through the courts automatically.[21] This is arguably supported by the moral thrust of the Canadian Charter of Rights and Freedoms, which grants individuals a right to be presumed innocent of a crime until proven guilty by the state.[22] In civil forfeiture proceedings, by contrast, it is the suspect who must prove why their property should not be seized. In this sense, they are essentially presumed “guilty” unless they prove otherwise (although the consequences of a failure to rebut this presumption differ from the full consequences of criminal conviction).

When commencing an administrative forfeiture case, the Civil Forfeiture Office must notify the owner of the property by mail, or by publication of a notice in the newspaper. If the property owner does not respond within approximately two months, the property is seized. If the owner contests the seizure within two months, the case will go to court.[23]

However, challenging a forfeiture case in court can be extremely expensive. Often, the value of the seized property will be less than the legal costs, leading many people to simply walk away.[24] Those with limited means who are unable to qualify for legal aid cannot afford to fight forfeiture.[25] Morgan Fane, another Vancouver lawyer who has worked on civil forfeiture cases, has stated that “(u)nless you’re somebody who wants to fight this thing on principle, the economic answer is usually just, ‘Forget it.’ Regardless of any injustices involved, it's not worth your time.”[26] As it turns out, for the Hells Angels, it ended up being well worth their time.

The Court had to determine whether the provisions fit under provincial or federal legislative jurisdiction

In the case of BC v Angels Acres Recreations and Festival Property, the Hells Angels challenged the constitutionality of the “instrument of unlawful activity” provisions of the Civil Forfeiture Act.[27] More specifically, they challenged the “past use” and “future use” provisions.[28] They claimed that those provisions were outside of the province of British Columbia’s legislative jurisdiction.[29]

In Canadian constitutional law, “federalism” is the term used to describe the federal and provincial governments’ division of powers. Both levels of government have areas of “legislative jurisdiction” within which they (for the most part)[30] have to operate. The matters about which the federal and provincial governments can legislate (or their “heads of power”) are assigned by the Constitution Act, 1867.[31] For example, provinces have jurisdiction over the operation of hospitals within their territorial boundaries,[32] whereas the federal government has jurisdiction over the postal service.[33] That’s why we have Alberta Health Services and the Canada Post!

If a government legislates outside its assigned jurisdiction, then the piece of legislation can be found to be “ultra vires” (Latin for “beyond the powers”) and unconstitutional. If a government legislates within its legislative jurisdiction, then the legislation is found to be “intra vires” (Latin for “within the powers”).

In order to determine if the past and future use provisions of the Civil Forfeiture Act were within or beyond the legislative jurisdiction of the government of British Columbia, the Supreme Court of BC had to engage in a federalism analysis. When undertaking such an analysis, a court first needs to establish what the law’s true “character” is. This is done using a pith and substance approach.[34]

Writing for the BC Supreme Court, Justice Davies concluded that the purpose of the Act was to take profit out of unlawful activity, to prevent the usage of property to unlawfully obtain wealth or cause bodily harm, to compensate victims of crime, and to fund crime prevention programs.[35] He also concluded that the practical effects of the Act were to deter the commission of crime by taking the profit out of it.[36]

Once the true character of the Act is determined, the Court must then determine under which head of power it fits. The two heads of power relevant to the Hells Angels case are the provincial jurisdiction over “property and civil rights”[37] and the federal jurisdiction over “criminal law and procedure in criminal matters.”[38] Whether the past and future use provisions are constitutional or not depends on which head of power applies. If the Court finds the provisions fit under the “property and civil rights” head of power, then the provisions would be within the province’s jurisdiction. If the provisions fit under the “criminal law” head of power, then they would extend beyond the province’s jurisdiction.

The “past use” provision was found to be within the province’s legislative jurisdiction

Justice Davies determined the past use provision not to be “in essence” a criminal law; therefore, it fit within the province’s legislative jurisdiction.[39] Essentially, provinces are allowed to create civil consequences for criminal actions as long as it is done within the proper jurisdiction and does not impede the Criminal Code’s functioning.[40] As noted above, the purpose of the provision is to take the profit out of crime, to compensate victims, and to prevent the use of property to unlawfully acquire wealth.[41] While there is a “punitive” aspect to the forfeiture of property, the Supreme Court of Canada previously noted that there will inevitably be overlap in measures used to prevent crime.[42] In the Chatterjee case, the Supreme Court found that the Ontario Civil Remedies Act had been enacted “in relation to” property and civil rights, while only incidentally affecting criminal law and procedure without violating the division of powers.[43] The forfeiture of property tainted by a past unlawful act is sufficiently connected to the province’s ability to legislate in relation to property.[44] Therefore, the past use provision was within British Columbia’s legislative jurisdiction.

The “future use” provision was found to be beyond the province’s legislative jurisdiction

In contrast, the Court found the future use provision to be unconstitutional as it intruded into the federal government’s exclusive jurisdiction over criminal law.[45] The future use provision was found to be “in essence” a criminal law.[46] The dominant purpose of the future use provision is the creation of a new offence that punishes individuals based on their likelihood of committing a crime. The new offence accomplishes this by imposing the penalty of property forfeiture, either by itself or in addition to a criminal penalty already imposed on an offender.[47] Unlike the past use provision, the future use provision does not require a link between an already committed criminal act and the property in question, but is solely based on the apparent likelihood that an individual will commit a crime.[48] In this sense, the property taken would not truly be “tainted” by crime, but would rather be “tainted” by association on the basis of an individual’s predicted criminality.[49]

The future use provision substantially intrudes into criminal law matters by re-penalizing criminal acts that have already been punished.[50] To illustrate this, Justice Davies uses the example of an individual previously convicted of dangerous driving, who then purchases a new vehicle; that vehicle could be seized due to the likelihood of the individual using the vehicle to commit a future unlawful act (in other words, future dangerous driving).[51] The provision allows for an individual who has already been punished under criminal law to be punished again even if they have not committed another crime.

Conclusion

The ultimate decision delivered by the Supreme Court of British Columbia did not comment on whether the Civil Forfeiture Act is a good law or not. Concerns with the Act, such as the cost of fighting forfeiture orders, and the onus of proof falling to individuals instead of the government, were not deciding factors here. Simply put, the province created a law that intruded into the federal government’s jurisdiction, and that is the reason it is unconstitutional. Perhaps this decision will act as encouragement for other provinces to look at the constitutionality of their own civil forfeiture programs. Concerns have been raised about the civil forfeiture programs of other provinces,[52] so it may not be surprising to see an argument similar to the one advanced by the Hells Angels raised in those provinces. If the BC case is appealed, it will be interesting to see what the British Columbia Court of Appeal may say about the Civil Forfeiture Act. In the meantime, it appears that the Hells Angels struck a win for British Columbians against questionable civil forfeiture legislation.

[1] Civil Forfeiture Act, SBC 2005, c 29 .

[2] British Columbia (Director of Civil Forfeiture) v Angels Acres Recreation and Festival Property Ltd, 2020 BCSC 880 .

[3] Mike Hagar, “BC Supreme Court strikes down Civil Forfeiture Act provisions in Hells Angels case”, (14 June, 2020), The Globe and Mail online: <https://www.theglobeandmail.com/canada/british-columbia/article-bc-supreme-court-strikes-down-civil-forfeiture-act-provision-in/> at paras 4-5 [Hagar].

[4] Ibid.

[5] Ibid at para 7.

[6] Civil Forfeiture Act, supra note 1 ss 3(2), 22(2), 22(3).

[7] Ibid, s 1(1)(a).

[8] Ibid, s 1(1)(b).

[9] Hagar, supra note 3 at para 6.

[10] Angels Acres, supra note 2 at para 57.

[11] Ibid at para 17.

[12] Ibid.

[13] Ibid at paras 1320-1321.

[14] Ibid at para 1323.

[15] Hagar, supra note 3 at para 1.

[16] Sunny Dhillon, “It’s easy – perhaps too easy – for BC authorities to seize property worth less than $70,000”, (30 January, 2014), The Globe and Mail online: < https://www.theglobeandmail.com/news/british-columbia/its-easy-perhaps-too-easy-for-bc-authorities-to-seize-property-worth-less-than-75000/article16601751/> at para 5 [Dhillon].

[17] Hagar, supra note 3 at paras 4-5.

[18] Dhillon, supra note 16 at para 6.

[19] Ibid.

[20] Ibid at para 20.

[21] Ibid at para 21.

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

[23] Dhillon, supra note 16 at para 9; see also British Columbia, Civil Forfeiture Office, Administrative Forfeiture, (British Columbia: Civil Forfeiture Office) <https://www2.gov.bc.ca/gov/content/safety/crime-prevention/civil-forfeiture-office/administrative> accessed 29 July 2020.

[24] Dhillon, supra note 16 at para 10.

[25] Hagar, supra note 3 at para 8.

[26] Dhillon, supra note 16 at para 11.

[27] Angels Acres, supra note 2 at para 1324.

[28] Ibid at para 1327.

[29] Ibid at para 1324.

[30] For a more detailed discussion about the federal and provincial government being able to legislate outside of their legislative jurisdiction, see the Ley Terms on Co-operative Federalism and Watertight Compartments.

[31] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5, s 91, 92 .

[32] Ibid, s 92(7).

[33] Ibid, s 91(5).

[34] For a more detailed discussion about the pith and substance approach, see the Key Term on pith and substance.

[35] British Columbia (Director of Civil Forfeiture) v Onn, 2009 BCCA 402; cited in Angels Acres, supra note 2 at para 743; see also R v Wolff, 2012 BCCA 473 at paras 15-16.

[36] Angels Acres, supra note 2 at para 1398.

[37] CA 1867, supra note 31 s 92(13).

[38] Angels Acres, supra note 2 at para 1385; CA 1867, supra note 31 s 91(27).

[39] Angels Acres, supra note 2 at para 1413.

[40] Chatterjee v Ontario (Attorney General) , 2009 SCC 19 at para 40; cited in Ibid at para 1407.

[41] Angels Acres, supra note 2 at para 1415.

[42] Chatterjee, supra note 40 at para 24; cited in Ibid at para 1417.

[43] Chatterjee, supra note 40 at para 30; cited in Ibid at para 1417; see also Adam Badari, “Chatterjee v. Ontario (Attorney General): Provincial Law on Proceeds of Crime (2009)”, Centre for Constitutional Studies (12 May, 2009), online: <https://www.constitutionalstudies.ca/2009/05/chatterjee-v-ontario-attorney-general-provincial-law-on-proceeds-of-crime-2009/>.

[44] Angels Acres, supra note 2 at para 1419.

[45] Ibid at para 1499.

[46] Ibid at para 1466.

[47] Ibid at para 1471.

[48] Ibid at paras 1482-1485.

[49] Ibid at paras 1490-1492.

[50] Ibid at para 1497.

[51] Ibid at para 1494.

[52] See Sunny Dhillon, “BC, Ontario civil-forfeiture programs get failing grades, report says”, (7 March, 2016), The Globe and Mail online: <https://www.theglobeandmail.com/news/british-columbia/bc-ontario-civil-forfeiture-programs-get-a-failing-grade-report-says/article29067454/>.

On 17 June 2020, the Government of Alberta released the Fair Deal Panel’s report.[1] The Fair Deal Panel, created by Premier Jason Kenney, interviewed and curated responses from Albertans on “the necessity of a fair deal for the province within Confederation.”[2] After attending 25 town halls across the province and combing through over 40,000 survey responses, the Panel issued 25 recommendations.[3] Among these recommendations is a call for Alberta to hold a referendum on the equalization program – the system of transfer payments made by the federal government to provincial governments with below average revenue.

While concerns with the equalization program are nothing new, the Panel’s recommendations present a particularly strong call for change.[4] Though the equalization program began in the 1950s, since 1982 the Constitution requires the federal government make these transfers.[5] This presents a challenge for those calling for their abolition, since changing the Constitution requires the use of an amending formula. Just what is the equalization program, how does it work, and what can Alberta (or any other province) do to change it?

Alberta’s Fair Deal Panel and Their Recommendations

Premier Jason Kenney established the Fair Deal Panel in November 2019, tasking it with determining Albertans’ opinion of Alberta’s place in Confederation.[6] After hosting 25 town halls across the province, collecting over 40,000 survey responses, and reading many emails, the Panel submitted their report.[7] They found that a “substantial majority of Albertans do not believe they are receiving a fair deal from the federal government” and “want the Government of Alberta to reassert its position in Confederation and minimize Ottawa’s overreach”.[8]

The Panel chose to place its recommendation concerning the equalization program at the front of their report. Their second recommendation is that the Government of Alberta:

Proceed with the proposed referendum on equalization, asking a clear question along the lines of: ‘Do you support the removal of Section 36, which deals with the principle of equalization, from the Constitution Act, 1982?’[9]

The Equalization Program: How does it Work?

Equalization payments are monetary transfers from the federal government to the provincial governments. The transfers aim to ensure the residents of provinces with a lower capacity to generate revenues can nonetheless access similar quality public services as those in wealthier provinces without having to pay substantially higher provincial taxes to fund those services.[10] A related program, the Territorial Formula Financing program, plays a similar role for the territorial governments.[11]

While the equalization program began in 1957[12], it only became part of the Constitution in 1982.[13] Section 36 of the Constitution Act, 1982 states:

36. (1) Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to

(a) promoting equal opportunities for the well-being of Canadians;

(b) furthering economic development to reduce disparity in opportunities; and

(c) providing essential public services of reasonable quality to all Canadians.

(2) Parliament and the government of Canada are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.[14]

Because the Constitution includes the equalization program, the federal government must continue making equalization payments until a constitutional amendment occurs. The Constitution does not, however, specify the formula used to calculate the equalization payments. The federal government is free to set this formula as it sees fit.[15] Provinces do not play a formal role in this process, though the federal government typically consults the provinces before changing the formula.[16]

How Does the Equalization Formula Work Today?

The equalization formula has changed many times since its inception. Today, the formula is based on ‘fiscal capacity.’ Fiscal capacity is a province’s ability to generate revenue. The current formula determines a province’s fiscal capacity by analyzing five categories: personal income tax, business income tax, consumption taxes (like provincial sales taxes), property taxes, and natural resource revenues.^[17] For the first four of these, the formula estimates how much revenue each province could generate if all provinces used an identical tax rate.^[18]

The formula assesses natural resource revenue differently, calculating 50% or 0% of a province’s actual natural resource revenue, whichever yields the higher equalization payment.^[19] The formula operates this way to avoid disincentivizing resource development.^[20] Including 100% of actual natural resource revenue would incentivize provinces to not develop their natural resources, since doing so could raise their fiscal capacity, barring them from receiving equalization payments.

Once the formula has determined the fiscal capacity of all 10 provinces, it compares each provinces’ fiscal capacity to the 10-province average fiscal capacity.^[21] If a province’s fiscal capacity is below the 10-province average, that province is eligible for equalization payments. If the province is above the average, it is not eligible for payments.^[22]

The federal government transfers monies to the “have-not” provinces to make up some of the difference between their fiscal capacity and the average fiscal capacity. The funds transferred come entirely from the federal government’s general revenue – the monies the federal government earns, for instance through federal taxes.[23] Provincial governments do not pay into the equalization program.

What is so Controversial About the Equalization Program?

The equalization program has been the subject of criticism for years. For example, during a 2006 debate about changes to the equalization formula, then Alberta Premier Ralph Klein threatened to walk Alberta away from the equalization program entirely.[24] The dollar value of the transfers alone is staggering. Since 1957, estimates place the total amount transferred through the equalization program at roughly $450 billion.[25]

One major source of criticism concerns the fact that some provinces have perennially received transfers, while others have rarely received them. Québec has historically received the largest share of transfers, with estimates placing their total amount received through the equalization program at roughly $230 billion.[26] Alberta, on the other hand, is a typical example of a “have” province, having only received eight transfers since the program’s inception totalling roughly $92 million.[27] Historically, calls to amend or scrap the equalization program have come from perennial “have” provinces like Alberta.[28]

Changing the Equalization Program Method 1: Changing the Formula

There are two main ways the equalization program could be changed. The easiest way is to change the formula used to calculate the transfers. The federal government can unilaterally amend the formula, though they usually consult with the provinces before making any changes.[29] A new formula could change the total amount transferred or calculate the transfer differently.

The federal government has made many changes to the equalization formula over the years. One of the most significant recent changes came in 2007 under Prime Minister Stephen Harper following the advice of the “2006 Expert Panel on Equalization and Territorial Formula Financing.”^[30] Prior to 2007, the fiscal capacity calculation included 100% of actual provincial revenue from natural resources.[31] Prime Minister Harper amended the formula to include either 50% of actual natural resource revenue or 0% of actual natural resource revenue, whichever yields the higher per capita equalization payment.[32] This decision was likely a political compromise. The Expert Panel recommended the formula calculate 50% of actual provincial natural resource revenue, to take account of the wealth generated by natural resources while still incentivizing further natural resource generation. However, Prime Minister Harper chose the compromise instead, likely because his Conservative Party had stated prior to the 2006 election that they would exclude natural resources from the formula entirely.[33]

Changing the Equalization Program Method 2: Amending the Constitution

If the federal government chose to amend the equalization formula, the next governing party could undo the changes at will. As such, such changes may be viewed as temporary solutions. Perhaps for this reason, the Fair Deal Panel recommends Alberta hold a referendum asking Albertans if Canada should remove the equalization program from the Constitution entirely.[34] Since the equalization program is constitutionally entrenched, removing it entirely requires constitutional amendment.

Constitutional amendment in Canada is difficult. Canada’s Constitution lays out the foundational laws and values of the country. Changing these foundational laws is purposefully difficult. By making the foundational rules of the country difficult to change, the Constitution more effectively forces the government to comply with these foundational laws and values. If the Constitution was easy to change, the government could change it whenever it wanted to violate those foundational rules and values.

The framers of the Constitution Act, 1982 recognized that sometimes the Constitution would need amending. As such, the Constitution includes several different amending formulas. Which formula must be used depends on which component of the Constitution is being amended.^[35] To remove the equalization program from the Constitution requires using the general amending formula. This formula, used for most amendments, requires approval from the federal House of Commons and Senate, as well as the legislatures of at least two-thirds of the provinces that together represent at least 50% of the population of the provinces.[36] This amending procedure is sometimes called the seven-fifty formula, since it requires the approval of seven provinces representing half of Canada’s provincial population.[37]

Achieving such a consensus across Canada today would be difficult. Provinces which rely on equalization payments to fund public services are unlikely to agree to abolish the program. While minor constitutional amendments have succeeded, major attempts at change, like the Meech Lake and Charlottetown Accords, have failed.[38] The more minor changes succeed largely because they require a more lenient amending formula. For example, in 2001 Newfoundland and Labrador, together with the federal government, amended the Constitution to change the province’s name from “Newfoundland” to “Newfoundland and Labrador.”[39] This change required only the approval of the federal government and of Newfoundland and Labrador’s government.[40]

Conclusion

Calls to amend or entirely abolish the equalization program are not new, and will likely remain for some time. Despite opposition, the program serves an important unifying purpose. It is a powerful tool for strengthening national unity and rectifying the inequities that can emerge in a nation as diverse and broad as Canada.[41] As the 2006 Expert Panel on Equalization noted, the equalization program reflects a “distinctly Canadian commitment to fairness.”[42] It is the “glue that holds our federation together,” ensuring that all Canadians have access to quality public services, regardless of where they live.[43]

No province can change the equalization program on their own. The easiest way to amend the equalization program is through a change to the formula used to calculate the payments. The federal government can make this change alone, though they usually do so in consultation with the provinces.

While the equalization program is perhaps the most controversial, there are other federal-to-provincial monetary transfer programs. For example, through the Fiscal Stabilization Program, the federal government transfers funds to provinces when a province’s “revenues drop suddenly from one year to the next.”[44] It does this to soften the financial blow of large year-over-year economic drops.[45] Alberta, for example, received a $248 million stabilization payment in 2015-16 following a severe drop in provincial revenues.[46] The Fair Deal Panel also recommended this program be amended, since its current form caps the maximum rebate allowable at $60 per capita.[47]

Removing the equalization program entirely requires constitutional amendment. Because of the difficulty inherent in satisfying the seven-fifty amending formula, this is unlikely to occur anytime soon. At the time of writing, five provinces are receiving equalization payments and five are not.

Receiving equalization payments: Alberta, British Columbia, Newfoundland and Labrador, Ontario, and Saskatchewan.

Not receiving equalization payments: Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, and Quebec.[48]

Given this split, it is hard to imagine the requisite agreement across enough of the country. Even assuming the five provinces not receiving equalization payments agreed to abolish the program, two provinces currently receiving equalization payments would need to agree to achieve the seven-province minimum.

While a provincial referendum on the equalization program has no power to mandate constitutional amendment, it may, as the Fair Deal Panel suggests, pressure or “morally obligate” the federal government and other provincial governments to negotiate changes to the equalization formula.[49]

[1] See Tom Ross, “Fair Deal Panel report released in Alberta,” CityNews (17 June 2020), online: <www.edmonton.citynews.ca/2020/06/17/fair-deal-panel-report-released-in-alberta/>.

[2] Alberta, Fair Deal Panel, Report to Government, online (pdf): <www.open.alberta.ca/publications/fair-deal-panel-report-to-government> at 5.

[3] Ibid at 9.

[4] See e.g. Steven Chase, “Alberta withdraws objection to new equalization formula,” The Globe and Mail (12 March 2007), online: <www.theglobeandmail.com/news/national/alberta-withdraws-objection-to-new-equalization-formula/article680817/>; Kevin Maimann, “Is Alberta really getting shafted on Equalization payments? We talked to an expert,” The Star (24 June 2018), online: <www.thestar.com/edmonton/2018/06/24/is-alberta-really-getting-shafted-on-equalization-payments-we-talked-to-an-expert.html>; Peter Zimonjic, “Fixing equalization will not be easy, but there are other options, say experts,” CBC News (16 November 2019), online: <www.cbc.ca/news/politics/fixing-Equalization-formula-challenge-options-1.5362056>; CBC News, “Bringing clarity to the sometimes murky world of equalization payments,” CBC News (12 September 2019), online: <www.cbc.ca/news/politics/canada-votes-2019-equalizthus%20are%20ayments-provinces-kenney-1.5281736>;

[5] See Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 36(2).

[6] Fair Deal Panel, supra note 2.

[7] Ibid at 9.

[8] Ibid at 6.

[9] Ibid.

[10] See Expert Panel on Equalization and Territorial Formula Financing, Achieving A National Purpose: Putting Equalization Back on Track, (Ottawa, May 2006), online (pdf): <www.publications.gc.ca/collections/Collection/F2-176-2006E.pdf> at 2.

[11] See Canada, Library of Parliament, Canada’s Equalization Formula, (In Brief), by Édison Roy-César (Ottawa: Library of Parliament, 2008, Publication No. 2008-20-E), revised September 2013, 1.

[12] See Jim Feehan, “Canada’s Equalization Formula: Peering Inside the Black Box… and Beyond,” (2014) 7:24 School of Public Policy, online (pdf): <www.policyschool.ca/wp-content/uploads/2016/03/feehan-equalization.pdf>.

[13] Constitution Act, 1982, supra note 5, s 36.

[14] Ibid.

[15] Roy-César, supra note 11.

[16] Ibid.

[17] Ibid at 2.

[18] Ibid.

[19] See Trevor Tombe “Unpacking Canada’s Equalization Payments for 2018-19”, Policy School (17 January 2018), online: <www.policyschool.ca/unpacking-canadas-equalization-payments-2018-19/>.

[20] See Daniel Béland, André Lecours, Gregory P. Marchildon, Haizhen Mou, Rose Olfert, “The challenge for Canada’s equalization program,” Policy Options (18 July 2018), online: <www.policyoptions.irpp.org/magazines/july-2018/challenge-canadas-equalization-program/>. See also Expert Panel on Equalization and Territorial Formula Financing, supra note 10.

[21] Roy-César, supra note 11.

[22] Ibid at 2.

[23] Ibid at 1.

[24] See CBC News, “Klein threatens to abandon equalization” CBC News (25 May 2006), online: <www.cbc.ca/news/canada/calgary/klein-threatens-to-abandon-equalization-1.596652>.

[25] See Glen Kobussen, Sureesh Kalagnanam, and Whitney Loerzel, “Why Canada’s equalization program needs a major overhaul” The Conversation (March 26 2020), online: <www.theconversation.com/why-canadas-equalization-program-needs-a-major-overhaul-132233>.

[26] Ibid.

[27] Ibid.

[28] See e.g. Daniel Béland, Gregory P. Marchildon, Andre Lecours, Rose Olfert, “Premier Moe’s equalization plan would curb redistribution,” Regina Leader-Post (27 June 2018), online: <www.leaderpost.com/opinion/columnists/premier-moes-equalization-plan-would-curb-redistribution>.

[29] Feehan, supra note 12 at 3.

[30] See Expert Panel on Equalization and Territorial Formula Financing, supra note 10. See also “Minister of Finance Announces Members of Expert Panel on Equalization and Territorial Formula Financing,” Government of Canada (21 March 2005), online: <www.canada.ca/en/news/archive/2005/03/minister-finance-announces-members-expert-panel-equalization-territorial-formula-financing.html>. See also Feehan, supra note 12 at 6

[31] Roy-César, supra note 11.

[32] Ibid.

[33] Ibid.

[34] Fair Deal Panel, supra note 2 at 7.

[35] Constitution Act, 1982, supra note 5, ss 38-49.

[36] Ibid, s 38(1).

[37] See Peter W Hogg, Constitutional Law of Canada, vol 1, 5th ed (Scarborough: Thomson, 2007) (loose-leaf 2010 supplement) at 4.3(a).

[38] See Richard Albert, “The Difficulty of Constitutional Amendment in Canada,” (2015) 53:1 Alta L Rev 85-113 at 2.

[39] See CBC News, “Newfoundland’s Name Change Now Official,” CBC News (6 December 2001), online: <www.cbc.ca/news/canada/newfoundland-s-name-change-now-official-1.279040>.

[40] Constitution Act, 1982, supra note 5, s 43.

[41] Béland, Lecours, Marchildon, Olfert, supra note 20.

[42] Expert Panel on Equalization and Territorial Formula Financing, supra note 10.

[43] Ibid.

[44] Trevor Tombe, “An (Overdue) Review of Canada’s Fiscal Stabilization Program” (2020) IRPP Insight 31. Montreal: Institute for Research on Public Policy, 4-24 at 4.

[45] See “Backgrounder: The Fiscal Stabilization Program,” Government of Canada Department of Finance (last modified 23 February 2016), online: <www.canada.ca/en/department-finance/news/2016/02/backgrounder-the-fiscal-stabilization-program.html>.

[46] See Bev Dahlby, “Reforming the Federal Fiscal Stabilization Program” (2019) 12:18 School Public Policy Publications 1 at 1.

[47] Fair Deal Panel, supra note 2 at 16. See also Ryan Tumilty, “Bill Morneau prepared to talk to provincial finance ministers about ‘equalization rebate’,” National Post (10 December 2019), online: <www.nationalpost.com/news/bill-morneau-prepared-to-talk-to-provincial-finance-ministers-about-equalization-rebate>; James Keller and Daniel Leblanc, “Bill Morneau expects to announce changes to fiscal-stabilization program as Western provinces push for reforms,” The Globe and Mail (19 January 2020), online: <www.theglobeandmail.com/politics/article-bill-morneau-expects-to-announce-soon-changes-to-fiscal-stabilization/>. See also Lisa Johnson, “Fairness Alberta calls on Ottawa to increase stabilization payment from $500 million to nearly $7 billion,” Edmonton Journal (9 June 2020), online: <www.edmontonjournal.com/news/politics/fairness-alberta-calls-on-ottawa-to-increase-stabilization-payment-from-500-million-to-nearly-7-billion>.

[48] See “Major federal transfers,” Government of Canada (last visited 29 June 2020), online: <www.canada.ca/en/department-finance/programs/federal-transfers/major-federal-transfers.html>.

[49] Fair Deal Panel, supra note 2 at 18.

The official stance of the Chinese Embassy in Canada is that the “Meng Wanzhou case is by no means an ordinary judicial case, but a serious political incident.”[1] In 2018, Canadian authorities arrested Meng Wanzhou, a well-known Chinese citizen, in accordance with an extradition treaty with the United States.[2] The Chinese government demanded that Canada release Meng immediately, ignoring the binding nature of Canada’s extradition treaty, and the very nature of the rule of law in our democratic system.[3] Ten days after Meng Wanzhou’s arrest, China arrested and detained two Canadians in what appeared to be a retaliatory measure.[4]

This article will explain how Canada’s independent judiciary protects the courts from political interference. It will bring together three major constitutional principles: rule of law, judicial independence, and separation of powers. These flow from written and unwritten principles in our Constitution and are key to understanding Canada’s stance in relation to the Meng Wanzhou extradition case.

China’s response to Canada’s extradition treaty

China has warned Canada that it could face consequences for aiding the United States in the Meng Wanzhou case.[5] These consequences appear to include blocking or limiting Canadian farm exports and arresting two Canadians under questionable circumstances.[6] China’s apparent retaliation against Canada has worsened since a B.C. Supreme Court Justice determined that Meng Wanzhou’s extradition case can proceed.[7] On June 19, 2020, shortly after the BC Court decision was issued, Chinese prosecutors charged the two detained Canadians with spying in a potential bid to step up pressure on Canada to drop the U.S. extradition request.[8] It appears that Chinese authorities expect the Canadian government to bow to their expectations, and to the pressures they are exerting in relation to the Meng Wanzhou case. Meanwhile, the Canadian government has stood by its constitutional principles in refusing to interfere with the judicial process and with the terms of its extradition treaty with the United States.[9]

Canada’s Constitution is the supreme law in Canada

The Constitution is the supreme law in Canada. It structures the government, and all laws in the country. The Constitution includes both written and unwritten principles. The written principles are stated in the Constitution Acts, 1867 to 1982,[10]  and the unwritten principles are implied and unstated assumptions in the Constitution.[11] Unwritten principles are the norms that existed in the United Kingdom’s legal system from which the Canadian Constitution emerged.[12] The preamble of the Constitution Act, 1867 encourages courts to use these unwritten principles to fill in the gaps in the written text.[13] The rule of law, the separation of powers, and judicial independence are all unwritten constitutional principles that are at the heart of Canada’s approach to the Meng Wanzhou case. President Xi JinPing of China has stated, “We must never follow the path of Western ‘constitutionalism,’ ‘separation of powers,’ or ‘judicial independence’”[14], implying that the judiciary in China may not operate independently as it does in Canada. Canada’s separation of powers, rule of law, and judicial independence protect its judiciary from political interference.

Separation of powers protects the judiciary from interference

The unwritten constitutional principle of separation of powers protects the judiciary from political influence. Canada’s system of government has three branches: judicial, executive, and legislative. The separation of those branches ensures their independence from one another, creates a system of checks and balances, and prevents power from concentrating in one area of the system.[15]

The executive branch prioritizes issues, and proposes new laws or changes to existing laws,[16] while the legislative branch passes, rejects, or revises these legislative changes in the form of bills.[17] These bills become laws once signed by the Governor General.[18] The judicial branch makes decisions based on these laws, and reviews any new or changed law to ensure it aligns with the Constitution, including the Charter.[19] By impartially ruling on individual cases that come before the courts, the judicial branch protects the Constitution and our fundamental values, including the rule of law, fundamental justice, equality, and the democratic process.[20]

Rule of law levels the legal playing field

The Chinese government’s demands that Canada release Meng Wanzhou and ignore its own laws and precedents, spotlight the difference between the Canadian and Chinese systems of government. Canada abides by the rule of law. The Supreme Court of Canada has described the rule of law as “conveying… a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority.”[21] This means that the government must comply with the law and specifically, with the rulings of the courts. The Supreme Court has also said that “at its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action.”[22] While politicians may come and go, the law provides a stable, predictable and ordered society. The judiciary operates independently from the executive branch, which includes the Prime Minister and their Cabinet. The executive cannot tell the judiciary what to do, and the executive cannot ignore the rule of law.

Judicial independence ensures that politicians do not control Canadian judges

Judicial independence is essential for upholding the rule of law.[23] Prime Minister Justin Trudeau responded to China’s demands by saying that “Canada has an independent judicial system that functions without interference or override by politicians.”[24] His statement meant that he and his government would not bow to political pressure from China, because, first, Canada respects the extradition treaty that it has signed, and second, Canadian judges must decide cases on law and evidence alone.

Judicial independence is a consequence of the separation of powers.[25] The concept of an independent judiciary is enshrined in the Charter section 11(d), which states that every one has the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”.[26] There are two dimensions of judicial independence: the individual independence of a judge, and the collective independence of the court.[27] These dimensions are protected by the core characteristics of judicial independence.[28] Namely, judges have complete independence in assigning and managing cases.[29] Judges’ salaries are fixed regardless of the individual decisions they make, providing them with financial security.[30] They cannot be fired for making a decision that the government does not like, giving them security of tenure.[31] Judges also have legal immunity, meaning they do not have to be worried about being sued for their decisions.[32] Finally, the Canadian Judicial Council (CJC)responsible for promoting “efficiency, consistency, and quality judicial service”.[33] One of their tasks is to investigate complaints about the conduct of judges inside and outside the courtroom.[34] The CJC  may make a recommendation to remove a judge from the bench, which is voted on by both houses of Parliament or a provincial legislature.[35]

These protections ensure that a judge will be impartial to the greatest extent possible.[36] They allow courts to apply the rule of law guaranteed under the Constitution.

Conclusion

The arbitrary detention of two Canadians raises concerns about the possibility of China’s further retaliation if Canada continues to detain Meng Wanzhou and then extradites her to the United States. There are compelling arguments for and against releasing Meng Wanzhou from Canadian custody. On one side, a former minister of justice and former Supreme Court justice, amongst others, cite a provision of the Canadian Extradition Act,[37] which gives the federal Minister of Justice the power to intervene at any point, even when the case is before a judge.[38] These high-profile Canadians are publicly pressing the current Minister of Justice, David Lametti, to order Meng Wanzhou’s release.[39] They argue that the Minister of Justice should use his formal legal power to intervene in exchange for the release of the two Canadians detained in China.[40]

On the other side, critics of Meng Wanzhou’s release argue that bending to ‘blackmail’ from China would create a “false equivalence between Canada’s legitimate arrest of Meng in accordance with our legal obligations” and China’s detention of  the two Canadians.[41] In addition, Canada’s national security advisor advised the Prime Minister shortly after Meng Wanzhou’s arrest that “there are no examples of the [justice] minister discharging a case for political or diplomatic reasons.”[42]

Canadians who want the Prime Minister to intervene to release Meng Wanzhou will be disappointed. Prime Minister Trudeau has followed the advice of his national security advisor. He responded to the calls for release by stating, “If countries around the world, including China, realize that by arbitrarily arresting random Canadians they can get what they want out of Canada politically, well, that makes an awful lot more Canadians who travel around the world vulnerable to that kind of pressure.”[43]

Canada has an independent judiciary that is insulated from political interference. As the Department of Justice has said, barring non-political or diplomatic reasons, “the Minister [of Justice] does not personally make any decisions related to an extradition proceeding until and unless the judge commits the person for extradition.”[44] As long as the matter is before the courts, judges will decide the Meng Wanzhou extradition case based on the law and the evidence without fear of retaliation from the executive branch. So far, BC Superior Court Associate Chief Justice Holmes has found that the alleged fraud that Meng Wanzhou is accused of committing by the United States would be considered a crime in Canada if it happened here.[45] Next, Justice Holmes must determine whether Meng Wanzhou’s Charter rights were violated when she was arrested, and if the United States has provided sufficient evidence to justify hypothetically prosecuting Meng Wanzhou in Canada.[46] After a judge is satisfied that the evidence provided by the United States would be sufficient to commit Meng Wanzhou for trial in Canada should the conduct have occurred in this country, then, and only then, will the Minister of Justice be tasked with deciding based on his consideration of the Charter, the Extradition Act, and the extradition treaty with the United States, whether Meng Wanzhou should be extradited. [47] That is how our Canadian democracy functions – the rule of law, an independent judiciary, and a separation of powers that do not allow the government to dictate how this case will proceed.

[1] Embassy of the People’s Republic of China in Canada, “Remarks of the Spokesperson of the Chinese Embassy in Canada on the US's Request to the Canadian Side for the Extradition of a Chinese Citizen” (29 January 2019) online: <http://ca.china-embassy.org/eng/sgxw/t1633677.htm>

[2] Moira Warburton, “Timeline: Key Events in Huawei CFO Meng Wanzhou’s extradition case” (27 May 2020) Reuters, online: <https://www.reuters.com/article/us-usa-huawei-tech-canada-events-timelin/timeline-key-events-in-huawei-cfo-meng-wanzhous-extradition-case-idUSKBN233179>.

[3] Ibid.

[4] Ibid.

[5] Embassy of the People’s Republic of China in Canada, “China urges Canada to immediately release Meng Wanzhou” (27 May 2020) online: <http://ca.china-embassy.org/eng/zjwl/t1783360.htm>.

[6] Ibid.

[7] Jason Proctor, “Huawei CFO Meng Wanzhou loses key court battle as B.C. judge rules extradition bid should proceed” CBC News (27 May 2020), online: <https://www.cbc.ca/news/canada/british-columbia/meng-wanzhou-extradition-decision-1.5585737>.

[8] The Associated Press, “China Charges 2 Canadians with spying in Huawei-linked case”, CBC News (19 June 2020), online: <https://www.cbc.ca/news/world/kovrig-spavor-china-espionage-1.5618674>.

[9] The Associated Press, “Timeline: The China-US-Canada battle over Huawei (29 January 2019), Associated Press News, online: <https://apnews.com/e9b6190b97944ffd88ab645fae837405>.

[10] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5; Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[11] Reference re Secession of Quebec, [1998] 2 SCR 217, 161 DLR (4th) 385 at para 50.

[12] Reference re Remuneration of Judges of the Provincial Court (PEI), [1997] 2 SCR 3 at para 96 .

[13] Ibid at paras 95, 104.

[14] Charlotte Gao, “Xi: China Must Never Adopt Constitutionalism, Separation of Powers, or Judicial Independence” The Diplomat (19 Feb 2019), online: < https://thediplomat.com/2019/02/xi-china-must-never-adopt-constitutionalism-separation-of-powers-or-judicial-independence/>.

[15] Beauregard v The Queen, [1986] 2 SCR 56, 1986 CanLII 24 (SCC) at para 23 .

[16] “The Judiciary” (last modified 9 September 2016), online: Department of Justice <https://www.justice.gc.ca/eng/csj-sjc/ccs-ajc/05.html> [The Judiciary].

[17] Ibid.

[18] Ibid.

[19] Ibid.

[20] Beauregard, supra note 15 at para 24.

[21] Reference re Resolution to Amend the Constitution, 1981 CanLII 25 (SCC), [1981] 1 SCR 753 at 806.

[22] Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 SCR 217 at para 70.

[23] Beverley Mclachlin, “The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence?” (28 September 2017), online: Supreme Court of Canada <https://www.scc-csc.ca/judges-juges/spe-dis/bm-2017-09-28-eng.aspx>.

[24] Amanda Connolly, “Trudeau says China ‘doesn’t seem to understand’ Canada’s judicial independence” (21 May 2020), Global News, online: <https://globalnews.ca/news/6968640/justin-trudeau-china-meng-wanzhou/>.

[25] Remuneration, supra note 12 at para 130.

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

[27] Remuneration, supra note 12 at para 118.

[28] Ibid.

[29] The Judiciary, supra note 16.

[30] Ibid.

[31] Ibid.

[32] “An Independent and Impartial Judiciary” (2018), online: The Canadian Superior Courts Judges Association <http://www.cscja.ca/judges/an-independent-and-impartial-judiciary/>.

[33] Ibid.

[34] The Judiciary, supra note 16.

[35] Ibid.

[36] Ibid.

[37] Extradition Act, SC 1999, c 18, s 23(3).

[38] John Paul Tasker & Brennan MacDonald, “Former parliamentarians, diplomats pen letter calling on Canada to release Meng”, CBC News (24 June 2020), online: <https://www.cbc.ca/news/politics/letter-release-meng-1.5625669>.

[39] Sean Fine, “Ottawa has authority to free Meng Wanzhou now, former justice minister, Supreme Court justice say”, The Globe and Mail (22 June 2020), online: <https://www.theglobeandmail.com/canada/article-ottawa-has-authority-to-free-meng-wanzhou-now-former-justice-minister/>.

[40] Ibid.

The arguments in support of releasing Meng Wanzhou may complicate the application of rule of law and separation of powers in this case. However, an in-depth discussion of these concepts in the context of extradition is beyond the scope of this article.

[41] Patricia Adams et al, “Canada must reject calls to release Meng Wanzhou: an open letter to Prime Minister Trudeau” (26 June 2020), online: <https://www.macdonaldlaurier.ca/canada-must-reject-calls-release-meng-wanzhou-open-letter-prime-minister-trudeau/>.

[42] Joan Bryden & Jim Bronskill, “Canada never drops extradition cases for ‘political, diplomatic reasons,’ Trudeau advised” Global News (26 June 2020), online: < https://globalnews.ca/news/7111061/canada-china-extradition-requests/>.

[43] Amanda Connolly, “Caving to China’s demand to release Meng Wanzhou would put Canadians in danger: Trudeau” Global News (25 June 2020), online: <https://globalnews.ca/news/7106759/justin-trudeau-meng-wanzhou-judicial-interference/>.

[44] Jolson Lim & Marco Vigliotti, "Huawei's Meng Wanzhou loses bid to end extradition process", iPolitics (27 May 2020), online:https://ipolitics.ca/2020/05/27/huaweis-meng-wanzhou-loses-bid-to-end-extradition-process/.

[45] United States v Meng, 2020 BCSC 785 at para 88.

[46] Ibid at para 90.

[47] See Government of Canada, “General Overview of the Canadian Extradition Process” (26 July 2019), online: <https://www.justice.gc.ca/eng/cj-jp/emla-eej/extradition.html>.