On May 25, 1995, the Supreme Court of Canada released three decisions dealing with the right to equality guaranteed by section 15 of the Canadian Charter of Rights and Freedoms.[1] One of these cases was Egan v. Canada, which required the Court to decide if the opposite-sex definition of common-law “spouse” used to determine Old Age Security benefits discriminated on the basis of sexual orientation.[2]

The Old Age Security program provided that the spouse of a person receiving the Old Age Security benefit could qualify for a spousal benefit if the spouse was between the ages of 60 and 65 and the couple’s combined income fell below a specified level. The definition of “spouse” included common-law heterosexual spouses, but excluded all same-sex couples.[3] James Egan and John Nesbit, who had lived together in a committed and interdependent homosexual relationship since 1948, challenged this definition. They argued that it discriminated on the basis of sexual orientation.   The case required the Court to decide for the first time whether the Charter provides protection from discrimination on the basis of sexual orientation. The case also revealed – as did the other two cases released the same day – that the Court was deeply divided on the approach it should take to equality claims.   Every claim of a breach of a Charter right proceeds through the same basic two-step process. First, it must be established that the Charter right has been infringed. Then, if such an infringement exists, the government is given the opportunity to defend the infringement as a “reasonable limit” that is “demonstrably justified in a free and democratic society.”[4] Various members of the Supreme Court took different approaches at each of these two stages.    

The Right Infringement Stage  

Section 15(1) of the Charter states:   Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.[5]   The Court divided into three camps, each taking a different approach on how to determine whether this right has been infringed.   Relevance Approach   Justice La Forest wrote for four judges – himself, Justices Gonthier and Major, and Chief Justice Lamer. He emphasized that not every distinction that disadvantages a particular group will amount to discrimination. Such a low standard would require the courts to review countless distinctions made in legislation and this, he said, “would bring the legitimate work of our legislative bodies to a standstill.”[6]For Justice La Forest, a key element of discrimination is that a distinction is based on an irrelevantpersonal characteristic.[7] Determining whether a distinction amounts to discrimination, according to him, therefore involves a three-step analysis:[8]

1. Does the law draw a distinction between the person claiming that his or her rights have been breached and others?
2. Does that distinction result in a disadvantage by imposing “a burden, obligation or disadvantage on a group of persons to which the claimant belongs which is not imposed on others, or does not provide them with a benefit” granted to others?
3. Is the distinction based on an irrelevant personal characteristic which is either listed in section 15(1) or analogous to those listed?

Justice La Forest accepted that the Old Age Security benefits made a distinction between heterosexual and homosexual couples.[9] He also accepted that this distinction resulted in a disadvantage.[10] The government argued that the couple in this case did not face a disadvantage, since they received more in combined federal and provincial benefits by claiming as individuals than they would as a couple. Justice La Forest rejected this argument because there was nothing to show that this was generally the case with homosexual couples.[11]   While sexual orientation is not one of the personal characteristics listed in section 15(1), Justice La Forest accepted that it is an analogous characteristic. Here he pointed out that there may be some controversy about whether sexual orientation in based on physiological or biological factors, but it is “a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs,” so it is analogous to the listed grounds.[12] The crucial question for him, however, was whether the distinction was relevant.   According to Justice La Forest, when assessing relevance it is wrong to focus narrowly on the provision that denies the benefit. Instead, the “functional values underlying the law” must be looked at.[13] In the case of the Old Age Pension benefits, he pointed out that the benefits for spouses were intended to take account of the greater financial needs of married couples.[14] Elderly married couples, according to Justice La Forest, were singled out for the benefit because of the central role that these couples play in society; heterosexual couples have the unique ability to procreate, and they are generally the people who nurture and care for children.[15]   Because of this special role, Justice La Forest concluded that Parliament could provide special support to the institution of marriage.[16] While Parliament did eventually extend benefits to heterosexual couples who were not legally married, it still ensured that the benefits were provided to couples who bring forth and care for children.[17] Viewing the distinction in this context, Justice La Forest saw nothing arbitrary about providing the benefits to heterosexual couples but not to homosexual couples.[18] Having concluded that the distinction was relevant, he found that it did not amount to discrimination and so did not violate the right to equality.[19]   Distinctions, Disadvantage, and Ground Approach   Four other judges took a second approach to determining whether the right to equality had been infringed. Justice Cory wrote their reasons, with Justices Sopinka, Iacobucci, and McLachlin concurring.[20] In contrast to the “relevancy approach” discussed above, Justice Cory maintained the two-step analysis that the Court had used in previous cases:[21]

1. Does the law draw a distinction, based on a personal characteristic, between the claimant and others?
2. Does the distinction result in discrimination? It is discrimination if: (a) the basis of the distinction is one of the listed grounds or one that is analogous to the listed grounds; and (b) the distinction has the effect of imposing a disadvantage, obligation, or burden that is not imposed on others, or if it withholds or limits access to benefits or advantages that are available to others.

Justice Cory pointed out that discrimination does not occur in a vacuum, but rather exists because of a difference in treatment. As a result, it is a comparative concept.[22] In other words, it can only be identified by considering the effect of the law on different groups of people. Notably absent from Justice Cory’s approach is the element of “relevance” that Justice La Forest used.   Applying the test in this case, Justice Cory concluded that Old Age Security discriminated on the basis of sexual orientation. Spousal benefits were provided to opposite-sex spouses between the ages of 60 and 64 when the combined income of the pensioner and the spouse fell below a certain level. The only requirements for eligibility were that the spouses had lived together for one year and that their combined income was below the specified level.[23] Since the legislation specifically defines a common-law spouse as a person of the opposite sex, homosexual common law spouses did not qualify for the spousal benefit. The law therefore made a distinction between heterosexual and homosexual common-law spouses.[24] This distinction resulted in a denial of the spousal benefit, so it denied equal benefit of the law.[25]   The government argued that the law was not one of general application because the legislation was only intended to benefit either heterosexual couples who have raised children or dependent female spouses. Justice Cory rejected this argument. He pointed out that the legislation made no reference at all to children, and it applied to childless heterosexual couples as well as those who had children in other relationships. As a result, Justice Cory concluded that the legislation was not intended to benefit those who had raised children.[26] Similarly, he pointed out that the spousal benefit could be provided to husbands or wives of pensioners, and so it was not intended to benefit dependent female spouses.[27]   Justice Cory also rejected the argument that the couple in this case was not denied equal benefit of the law because they were receiving more in combined federal and provincial benefits than they would if they could claim as spouses. He did so for three reasons. First, the claim of discrimination was not specific to the situation of the couple in this case. Rather, the claim was that the denial of spousal benefits discriminates against all homosexual couples.[28] Second, it is inappropriate to look to provincial legislation to correct the denial of benefit created by federal legislation; provincial laws vary and may be changed by the provincial legislature.[29] And third, equal benefit of the law is not restricted simply to economic benefits. The law can also confer benefits by allowing people to make a significant choice, such as the opportunity to represent themselves as spouses.[30]   Justice Cory then considered whether the distinction resulted in discrimination. He pointed out that the distinction was based on a personal characteristic – sexual orientation.[31] Though the legislation did not specifically mention sexual orientation, the opposite-sex definition of spouse made a distinction on this basis.[32] Justice Cory concluded that while sexual orientation is not one of the grounds listed in section 15(1), it is analogous to those grounds. “The fundamental consideration underlying analogous grounds analysis,” he said, “is whether the basis of distinction may serve to deny the essential human dignity of the Charter claimant.”[33]   He noted that homosexuals have suffered historic disadvantage by being subjected to public harassment, verbal abuse, and hate-motivated crimes. This mistreatment imposes costs on the lives of homosexuals.[34] He pointed out that sexual orientation is more than a status possessed by a person; it is also demonstrated through conduct by the choice of a partner. Just as the Charter protects both religious belief and religious practice, it should also protect both the status and conduct associated with sexual orientation.[35] He also observed that human rights laws in a number of provinces prohibit discrimination on the basis of sexual orientation. He therefore concluded that the distinction was based on sexual orientation, and that sexual orientation is analogous to the grounds listed in section 15(1).[36] As well, since the distinction relied on stereotypical reasoning about homosexual relationships, the distinction amounted to discrimination.[37]   Justice L’Heureux-Dubé’s “Subjective-Objective” Approach   Justice L’Heureux-Dubé wrote a separate judgment. While she agreed that the legislation was discriminatory, she reached that conclusion by a different analysis. She therefore enunciated a third approach to assessing when the right to equality is infringed.   She began her reasons by considering the purpose of the right to equality. In her opinion, the divisions in the Court (in this judgment, as well as in the other two released on the same day) suggested that the various judges did not have the same underlying purpose in mind.[38] She pointed out that the right guarantees a certain type of equality – equality without discrimination. She also pointed out that the nine grounds listed in section 15(1) are not the guarantee of equality, but rather are specific applications and illustrations of the ambit of the section.[39] She considered a focus on these grounds to be an indirect means of defining discrimination, whereas she preferred to give independent content to the term “discrimination.”[40]   Justice L’Heureux-Dubé emphasized that the right to equality is a commitment to recognizing every person’s equal worth as a human being. It is a commitment to not tolerate distinctions that treat certain people as second-class citizens, or otherwise offend their fundamental human dignity.[41] She pointed out that the Charter is not a charter of economic rights. While economic benefits and prejudices are relevant to claims of equality, this is because they are symptomatic of the types of distinctions that offend inherent human dignity.[42] She also emphasized that one of the purposes of the right to equality is the elimination of distinctions that may worsen the circumstances of people who already suffer from marginalization or have been historically disadvantaged, because those who are more vulnerable are likely to experience more severely the effects of a distinction.[43]   She recognized that discriminatory effects must be evaluated from the point of view of the victim of the discrimination. She emphasized that it is unrealistic to expect that nobody in society will be made to feel devalued, denigrated or debased. The appropriate perspective, according to Justice L’Heureux-Dubé, is therefore “subjective-objective.” In other words, what must be considered is “the reasonably held view of one who is possessed of similar characteristics, under similar circumstances, and who is dispassionate and fully apprised of the circumstances.”[44]   Justice L’Heureux-Dubé rejected the “relevance approach” taken by Justice La Forest, calling it a “double-edged sword.”[45] She pointed out that a distinction that is relevant to the purpose of a law may still have a discriminatory effect.[46] A relevant distinction can result in discrimination if the purpose of the legislation is itself discriminatory.[47] As well, adding “relevance” as an element of discrimination would place an additional burden on the person claiming a rights violation. To show that the distinction is irrelevant, the claimant would have to properly characterize the purpose of the legislation – but it is the government, not the rights claimant, who is in the best position to make that characterization.[48] Finally, she pointed out that “relevance” would add an internal limit on the right to equality. This limit, in her view, could be better dealt with at the second stage of analysis, when the government must justify its limitation on rights.[49]   To address these problems, Justice L’Heureux-Dubé proposed a different three-part test for establishing a violation of the right to equality:

1. that there is a legislative distinction;
2. that this distinction results in a denial of one of the four equality rights on the basis of the rights claimaint’s membership in an identifiable group;
3. that this distinction is “discriminatory” within the meaning of section 15.[50]

Referring to the third criterion, Justice L’Heureux-Dubé said that a distinction is discriminatory if it perpetuates or promotes the view that an individual is “less capable, or less worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration.”[51] This examination takes a subjective-objective perspective.[52] In assessing the effect, Justice L’Heureux-Dubé stated that courts must consider both the nature of the group affected by the distinction, and the nature of the interest that the distinction affects. The nature of the affected group must be considered, she said, because “members of advantaged groups are generally less sensitive to, and less likely to experience, discrimination than members of disadvantaged, socially vulnerable or marginalized groups.”[53] Similarly, the nature of the interest that is affected must be considered because “the more fundamental the interest affected or the more serious the consequences of the distinction, the more likely that the impugned distinction will have a discriminatory impact even with respect to groups that occupy a position of advantage in society.”[54] Rather than developing a rigid test for identifying a discriminatory distinction, Justice L’Heureux-Dubé preferred a pragmatic and functional approach to assess these various factors in a principled manner.[55]   Applying her approach to the spousal benefit scheme, Justice L’Heureux-Dubé concluded that the exclusion of same-sex couples was discriminatory. As the other judges had pointed out, the fact that a couple could actually receive less economic benefit by claiming as a couple did not mean that they were not denied a benefit. They were denied the benefit of state recognition that accompanies being able to file for benefits as a couple.[56] As well, she agreed with Justice Cory that the legislation drew a distinction on the basis of sexual orientation.[57] As a result, the first two elements of her test were satisfied.   Justice L’Heureux-Dubé then turned her attention to whether the distinction amounted to discrimination. In terms of the nature of the affected group, she stated that same-sex couples are a socially vulnerable group that has suffered from stereotyping, marginalization, stigmatization, and historic disadvantage. She also pointed out that sexual orientation is an aspect of “personhood” – quite possibly biologically based, and at least a fundamental choice. All couples that qualify for the benefit are elderly and poor, so the excluded same-sex couples are “at the margins of an already marginalized group within society.”[58] In terms of the nature of the affected interest, she noted that excluding same-sex couples from an important social institution results in a “metamessage … that society considers such relationships to be less worthy of respect, concern and consideration than relationships involving members of the opposite sex. This fundamental interest is therefore severely and palpably affected by the impugned legislation.”[59] Based on these two considerations, Justice L’Heureux-Dubé concluded that the distinction is discriminatory, so it violates the right to equality.[60]

Is the Discrimination Justifiable?

Once it is established that a Charter right has been violated, the government has the opportunity to defend the limit as reasonable and justified. Since five of the nine judges in this case – Justices L’Heureux-Dubé, McLachlin, Cory, Sopinka, and Iaccobucci – concluded that the right to equality was infringed, these judges also had to consider whether the infringement could be justified. Again, the judges divided on this issue.   Justice Sopinka, writing for himself alone, held that the legislation could be justified. He emphasized that “the government must be accorded some flexibility in extending social benefits and does not have to be pro-active in recognizing new social relationships.”[61] He expressed concern that an overly aggressive approach by the courts could make governments reluctant to create new social benefit schemes, as the assessment of the costs of such programs would depend on an accurate prediction of the outcomes of Charter challenges.[62] He pointed out that Parliament had a history of consistently expanding the groups to whom the spousal benefit was provided, and that such an incremental approach was permissible.[63] Given that recognition of same-sex couples was a novel concept, he was not prepared to conclude that the lack of government action resulted in a Charter breach.[64]   On the other hand, Justice Iacobucci – writing for himself and Justice Cory, with Justice McLachlin concurring – ruled that the discrimination could not be justified. He accepted that the spousal benefit was aimed at alleviating poverty in elderly households, and that this was a sufficiently important objective to limit a Charter right.[65] However, the legislation was underinclusive because it excluded same-sex elderly couples living in poverty.[66]   The government had argued that the additional costs of extending the benefits to same-sex couples would be between $12 million and $37 million per year, and that this cost justified limiting the benefits to heterosexual couples. Justice Iacobucci ruled that even if the figures were accurate, they did not justify discriminating against same-sex couples.[67] He also rejected the argument that provincial benefits could make up for the denial of the spousal benefit, since these benefits came from different levels of government and there was no indication that the provincial benefit was intended to “fill the gap” created by the denial of the spousal benefit.[68] As well, he rejected Justice Sopinka’s approach that allowed for incrementalism in government responses. Justice Iacobucci pointed out that this perspective raised the possibility that the government would always be able to uphold legislation that selectively and discriminatorily allocates resources, which would belittle the purpose of the Charter.[69]   Similarly, Justice L’Heureux-Dubé, writing for herself, ruled that the discrimination could not be justified. While she agreed that the objective of the legislation was pressing and substantial, she did not see the legislation as being rationally connected to that objective: “To find that this distinction is rationally connected to the objective of the legislation requires us to conclude that same-sex couples are so different from married couples that it would be unreasonable to make the same benefits available to both.”[70] She pointed out that this presumption is itself discriminatory, so it cannot justify the legislation.[71] She similarly rejected the idea that the legislation impaired the right to equality as little as possible, since there was a reasonable alternative available.[72] And finally, she pointed out that the discriminatory effects of the legislation were quite severe: the right to a basic level of income for the elderly is a fundamental interest, and the denial of the benefit was a complete denial rather than a partial one.[73] In contrast, she pointed out that the only positive effect of the legislation was savings of public funds. The estimated additional cost, however, was only 2-4% of the total cost of the old age supplement program, and she emphasized that budgetary considerations will not always justify the infringement of a Charter right. She also called these savings “ostensible” because the government would have had to pay out this money if the affected persons had been in heterosexual relationships.[74] As well, like Justice Iacobucci, she rejected Justice Sopinka’s emphasis on the novelty of the claim, saying that this approach would undermine the values the Charter was intended to protect.[75]

The End Result

In the end, four of the nine judges – Chief Justice Lamer and Justices La Forest, Gonthier and Major – concluded that the legislation did not discriminate because the distinction was relevant to the objective of the legislation. As a result, they ruled that the right to equality was not infringed. On the other hand, four other judges – Justices Cory, Iacobucci, McLachlin and L’Heureux-Dubé – concluded that the right to equality was infringed, and that that infringement could not be justified. The ninth judge, Justice Sopinka, concluded that the legislation did discriminate, but that the discrimination was justified given the novelty of recognizing same-sex couples and the need to allow the government to proceed incrementally in the extension of social benefits. As a result, a majority of the Court (five of the nine judges) upheld the legislation as constitutional.     Adam Badari (July 22, 2010)

[1] The other two cases were Miron v. Trudel, [1995] 2 S.C.R. 418, and Thibaudeau v. Canada, [1995] 2 S.C.R. 627. [2] Egan v. Canada, [1995] 2 S.C.R. 513. [3] Ibid. at para. 115. [4] Canadian Charter of Rights and Freedoms, The Constitution Act, 1982, being Schedule B to theCanada Act 1982 (U.K.), 1982, c. 11, s. 1. [5] Ibid., s. 15. [6] Egan v. Canada, supra note 2 at para. 7. [7] Ibid. at para. 8. [8] Ibid. at para. 9. [9] Ibid. at para. 10. [10] Ibid. at para. 11. [11] Ibid. at para. 12. [12] Ibid. at para. 5. [13] Ibid. at paras. 14-15. [14] Ibid. at paras. 17-18. [15] Ibid. at para. 21. [16] Ibid. at para. 22. [17] Ibid. at para. 23. [18] Ibid. at para. 25. [19] Ibid. at para. 27. [20] Ibid. at paras. 103, 113, 232. [21] Ibid. at paras. 130-31. This approach was used previously in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143. [22] Ibid. at para. 132. [23] Ibid. at para. 141. [24] Ibid. at para. 149. [25] Ibid. at para. 151. [26] Ibid. at para. 143. [27] Ibid. at para. 144. [28] Ibid. at para. 153. [29] Ibid. at paras. 155-56. [30] Ibid. at paras. 158-161. [31] Ibid. at para. 164. [32] Ibid. at para. 167. [33] Ibid. at para. 171. [34] Ibid. at para. 173. [35] Ibid. at para. 175. [36] Ibid. at para. 178. [37] Ibid. at paras. 179-80. [38] Ibid. at para. 32. [39] Ibid. at para. 34. [40] Ibid. at para. 35. [41] Ibid. at para. 36. [42] Ibid. at para. 37. [43] Ibid. at para. 38. [44] Ibid. at para. 41. [45] Ibid. at para. 43. [46] Ibid. [47] Ibid. at para. 44. [48] Ibid. [49] Ibid. [50] Ibid. at para. 55. [51] Ibid. at para. 56. [52] Ibid. [53] Ibid. at para. 58. [54] Ibid. at para. 65. [55] Ibid. at para. 67-68. [56] Ibid. at para. 86. [57] Ibid. at para. 87. [58] Ibid. at para. 89. [59] Ibid. at para. 90. [60]Ibid. at para. 91. [61] Ibid. at para. 104. [62] Ibid. [63] Ibid. at paras. 106-08. [64] Ibid. at para. 111. [65] Ibid. at paras. 183-89. [66] Ibid. at paras. 190-91. [67] Ibid. at para. 193. [68] Ibid. at paras. 199-200. [69] Ibid. at para. 216. [70] Ibid. at para. 94. [71] Ibid. [72] Ibid. at para. 97. [73] Ibid. at para. 98. [74] Ibid. at para. 99. [75] Ibid. at para. 100.

The news media play an essential role in informing the public about the criminal justice system. However, there are times when the law provides for a ban on reporting the details of court proceedings. For instance,section 517 of the Criminal Code provides that if an accused requests a ban on media reporting about his bail hearing, a publication ban must be granted. This is called a “mandatory publication ban.”   In Alberta, a man charged with murdering his wife was granted bail and released prior to his trial. He had invoked section 517 and so the public was denied any information about the reason for his release.[1] In Ontario, seventeen people were charged with terrorism-related offences. Some of them were released on bail, but a blanket publication ban kept news media out of the courtroom during their bail hearings.[2]   These two incidents prompted several media organizations, including The Toronto Star newspaper, to challenge the constitutionality of section 517. They argued that a mandatory publication ban is contrary to the open court principle of Canadian justice, and also to freedom of expression, as guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms.   In its 8-1 ruling in Toronto Star Newspapers Ltd. v. Canada, the Supreme Court of Canada recognized that “access to courts is central to democracy.”[3] Publication bans unquestionably limit access to the courts and the Charter guarantee of freedom of expression.   Having identified that mandatory publication bans breach a Charter right, the Court had to consider whether they are nonetheless a “reasonable limit prescribed by law” that  “can be demonstrably justified in a free and democratic society,” as provided by section 1 of the Charter.[4]

Trial Fairness: A Pressing and Substantial Objective

The mandatory publication ban is a part of a larger set of measures to reform the rules on bail.[5] The objective identified by the Justice Deschamps in her majority decision for the Supreme Court is “to safeguard the right to a fair trial” and “to ensure expeditious bail hearings.”[6]   In an earlier ruling, the Supreme Court dealt with trial fairness in the limited sense of averting jury bias.[7] In the Toronto Star case, Justice Deschamps identified a broader sense of trial fairness, which includes avoiding a criminal stigma which might stick even if the accused is acquitted.[8]

The Rational Connection between a Publication Ban and Trial Fairness

To allow bail hearings to proceed quickly, the process is somewhat informal. The rules of evidence are much more relaxed than in a trial. “The prosecutor may lead any evidence that is ‘credible or trustworthy,’ which might include evidence of a confession that has not been tested for voluntariness or consistency with theCharter, bad character, information obtained by wiretap, hearsay statements, ambiguous post-offence conduct, untested similar facts, prior convictions, untried charges, or personal information on living and social habits.”[9] The mandatory ban is meant to “prevent prejudicing the accused at his trial by the dissemination of prejudicial matter which would not be admissible at his trial.”[10]    

Do Mandatory Publication Bans Impair Expression as Little as Possible?

The suggested alternative to a mandatory publication ban was a discretionary publication ban based on the findings of a preliminary hearing. Justice Deschamps ruled out this alternative as ineffective in preserving trial fairness. If the accused had to make his case for a ban, it would be “an additional burden” at a time when the accused is “overwhelmed by the criminal process” and “extremely vulnerable.”[11] Preparing arguments takes time and resources that the accused needs to be putting towards his trial defense rather than an additional publication ban hearing.[12]   Justice Deschamps pointed out that this sort of ban is not absolute. The media may publish the identity of accused, comment on the facts and the charged offence, and the report that there is an application for bail.[13] Also, the ban is temporary. It ends after trial or when the accused is discharged.[14]   The majority of the Supreme Court concluded that “in light of the delay and the resources a publication ban hearing would entail, and of the prejudice that could result if untested evidence were made public, it would be difficult to imagine a measure capable of achieving Parliament’s objective that would involve a more limited impairment of freedom of expression.”[15]

Justice Abella’s Dissent

Justice Abella disagreed with the other Supreme Court judges. She would have struck down the mandatory publication ban on the grounds that its negative effects outweigh its positive effects.[16] She would have taken away the mandatory aspect of section 517 and left judges with discretion to order a publication ban.[17]   In her opinion, granting an automatic ban, without requiring the accused to demonstrate that it is necessary, goes further than the requirement of trial fairness and unduly encroaches on the right of the public to be informed of trial proceedings.[18] The bail system is a fundamental part of the criminal justice system and debate must not be shut off; the public should not have to speculate about why the accused was released.[19]   Justice Abella recognized that there may be legitimate concerns about pre-trial publicity. But in her view, these concerns may be remedied by other less impairing means, such as a change of venue. Furthermore, a properly instructed jury can disregard irrelevant information.[20]   Another flaw, in Abella’s opinion, is that the publication ban is ineffective in responding to concerns about trial fairness. The ban only deals with the bail hearing. There are other sources of information. Because the ban is porous and ineffective, it cannot be justified.[21]   Finally, Abella disputes the idea that the hearings involved in a discretionary ban would cause undue delay. Most criminal cases do not attract media attention. Only the small minority that involve high-profile accused or egregious crimes will provoke public interest and be the subject of potential publication bans. In her opinion, the added burden to the justice system would be insignificant compared with the importance of protecting the open courts principle.[22]     Jim Young (June 18, 2010)

Further Reading

Christina Kellowan, “News Update: Mandatory Publication Bans Are Constitutional” TheCourt.ca (14 June 2010).

[1] 2010 SCC 21 at para. 4. [2] Ibid. at paras. 6-7. [3] Ibid. at paras. 1, 65. [4] Ibid. at para. 2. [5] Ibid. at para 21. [6] Ibid. at para 23 [7] Ibid. at para 22, Dagenais v. Canadian Broadcasting Corp.,[1994] 3 S.C.R. 835. [8] Ibid. at para. 22. [9] Ibid. at para  28, 32. [10] Ibid. at para. 30. [11] Ibid. at para. 36 [12] Ibid. at para. 44. [13] Ibid. at para. 39. [14] Ibid. [15] Ibid. at para. 37. [16] Ibid. at para. 66. [17] Ibid. [18] Ibid. at para. 71. [19] Ibid. at para. 68. [20] Ibid. at para. 72. [21] Ibid. at para. 73. [22] Ibid. at para. 75.

This article was written by a law student for the general public.   In 1988, a prisoner serving a life sentence for first-degree murder challenged the constitutionality of the provision in the Canada Elections Act which denied prison inmates the right to vote.[1] He claimed that the legislation directly contravened section 3 of the Canadian Charter of Rights and Freedoms, which provides that “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly.”   Ruling on Sauvé v. Attorney-General of Canada, Judge Van Camp of the Ontario High Court of Justice agreed that the legislation infringed the section 3 rights of prisoners, but accepted that it could be saved as a reasonable limit on that right under section 1 of the Charter.   Three years later, in 1991, another prisoner serving a life sentence brought the same issue before the Federal Court. In Belczowski v. The Queen, Judge Strayer came to the conclusion that taking the right to vote from all prisoners was not a reasonable limitation that could save the legislation. It was therefore declared invalid.[2] This ruling was upheld by the Federal Court of Appeal.   Shortly after the Belczowski appeal, the Ontario Court of Appeal issued a ruling that reversed the trial decision in Sauvé. The appeal court agreed with the Federal Court and ruled that taking the right to vote from prisoners was unconstitutional.[3]   The Government of Canada appealed both decisions to the Supreme Court of Canada. Justice Iacobucci delivered the Supreme Court’s unanimous decision. Both appeals were dismissed; the legislation was unconstitutional and thus of no force or effect.[4]

There are No Inherent Limitations on the Right to Vote  

At the Sauvé trial, the government argued that there are inherent limitations in the right to vote, rooted in democratic theory and history. Judge Van Camp dismissed this suggestion, saying that “the wording of section 3 is clear and unambiguous” and it “does not require definition and analysis.”[5]   Judge Strayer, in his decision on Belczowski, agreed. Other sections of the Charter provide for qualified rights with such phrases as “unreasonable search or seizure” (section 8) or “arbitrarily detained or imprisoned” (section 9) or “cruel and unusual treatment or punishment” (section 12). These phrases require some interpretation by a court. There are no such qualifying words in section 3.[6]   The plain and obvious meaning of the right to vote means that any qualifications to that right must be established under the “reasonable limits” clause found in section 1 of the Charter.

The Sauvé Trial: Taking the Right to Vote from Prisoners is a Reasonable Limitation

The first step in determining whether seemingly unconstitutional legislation is actually a reasonable limitation of a Charter right is to look for a pressing and substantial objective. Judge Van Camp found such an objective in the preservation of the democratic state by a symbolic gesture of excluding indecent and irresponsible citizens from voting.[7]   The second step is to determine whether the challenged law is a proportional limit on the right that does not impair the right more than is necessary to achieve the objective. Judge Van Camp was satisfied that Parliament had crafted the law carefully enough to avoid limiting the right to vote more than is necessary. She said that the law does not go so far as to remove the other rights of citizenship. Neither does it permanently remove the right to vote. When the prisoner is released, his right to vote will be returned to him.[8] This was enough to satisfy Judge Van Camp that the law was a reasonable limit on the right to vote, and not unconstitutional.

The Belczowski Trial and Sauvé on Appeal: Taking the Right to Vote from Prisoners is Not a Reasonable Limitation  

The Ontario Court of Appeal had the benefit of reviewing the Federal Court’s Belczowski decision as well as three other provincial court decisions that had struck down similar provincial legislation.[9] The decision of the Ontario Court of Appeal in Sauvé – delivered by Justice Arbour – was essentially a reiteration of Belczowski.   Expert testimony at the Belczowski trial proposed three objectives for denying prisoners the right to vote.[10] They are: (1) to affirm and maintain the sanctity of the franchise in our democracy; (2) to preserve the integrity of the voting process; and (3) to sanction offenders.   The first objective was dismissed by Judge Strayer of the Federal Court, who said it was not reasonable for legislators to “impose tests of ‘decency’ and ‘responsibility’ on voters.” Because indecent and irresponsible citizens may be found just as easily outside prison as inside prison, maintaining the sanctity of the franchise is not a workable objective.[11]   Justice Arbour, in the Sauvé decision, added that protecting the sanctity of the franchise is not only unworkable, it is also contrary to the evolution of universal suffrage in Western democracies, which took an “irreversible step forward” in Canada with the enactment of the Charter.[12] Canada has progressed so far that “it is fair to assume that we had abandoned the notion that the electorate should be restricted to a ‘decent and responsible citizenry,’ previously defined by such attributes as ownership of land and gender, in favour of a pluralistic electorate which could well include domestic enemies of the state.”[13]   The government argued that the second objective – preserving the integrity of the voting process – requires more than merely marking a ballot. The electorate should be informed and engaged with the issues. Judge Strayer dismissed this objective because there is no reason to think that prisoners are unable to inform themselves, and neither is there anything stopping people outside of prison from maintaining their ignorance.[14] Justice Arbour added that “whether one takes advantage of the possible exposure to the democratic market place of ideas is a matter of personal choice, not a prerequisite for the right to cast a ballot.”[15]   The third objective – to punish offenders – is the only objective that both the Federal Court and the Ontario Court of Appeal found plausible. Just as it may be acceptable to deprive a criminal of his section 2 Charter freedoms of association and assembly as a means of punishment, it may also be legitimate to take away voting rights for the sake of punishment.[16]     A plausible objective, however, must not be achieved through means that are disproportionate and more impairing of a right than necessary. The law in question does not meet the standard of minimal impairment. Rather than impairing as little as possible, it completely abolishes the right to vote. Parliament could have crafted the law to take into account the seriousness of each crime, or followed the path of some European jurisdictions which allow the court discretion in taking away the right to vote.[17] Instead, the law indiscriminately took away the right to vote from any citizen who happens to be in prison – from the person serving a few days for a regulatory offence to a murderer serving a life sentence.[18] Such a law is not a reasonable limit on a Charter right.   The unanimous judgment of the Supreme Court of Canada was to uphold the reasoning of the lower courts and dismiss the appeal.[19] The law which kept prisoners from voting was unconstitutional and, consequently, of no force or effect.   Jim Young (May 26, 2010)

[1] Sauvé v. Attorney-General of Canada (1988), 53 D.L.R. (4th) 595. [2] Belczowski v. The Queen [1991] 5 C.R. (4th) 218 at para. 37. [3] Sauvé v. Attorney-General of Canada (1992), 7 O.R. (3d) 481. [4]Sauvé v. Canada (Attorney General), [1993] 2 S.C.R. 438. [5] Supra note 1 at 597. [6] Supra note 2 at para. 8. [7] Supra note 1 at 600. [8] Supra note 1 at 601. [9] Supra note 3, Grondlin v. Ontario (Attorney-General) (1986), 65 O.R. (2d) 427, Badger v. Manitoba (Attorney-General) (1986), 30 D.L.R. (4th) 108, Levesque v. Canada (Attorney-General) (1985), 25 D.L.R. (4th) 184. [10] Supra note 2 at para. 20. [11] Ibid. at para. 24. [12] Supra note 3 at p. 5. [13] Ibid. [14] Supra note 2 at para. 25. [15] Supra note 3 at p. 6.. [16] Supra note 2 at para. 27. [17] Ibid. at para. 36. [18] Ibid. at para. 34. [19] Supra note 4.

This article was written by a law student for the general public.   In 1993, the Supreme Court of Canada affirmed the rulings of several lower courts and declared the provision in the Canada Elections Act which excluded prisoners from voting to be unconstitutional.[1]Section 51(e) of the Act, which denied voting rights to all prisoners, was declared unconstitutional in 1993. Parliament responded by enacting a new provision which disqualified only prisoners who were serving sentences of two years or more. This was Parliament’s attempt to tailor the limitation on the right to vote under section 3 of the Canadian Charter of Rights and Freedoms so as to bring it within the realm of a “reasonable limit prescribed by law” as set out in section 1 of the Charter.   The new restriction on prisoners’ voting rights was challenged. And once again, the challenge made its way to the Supreme Court.[2] This time the Court was sharply divided over whether the legislation was a limitation on a Charter right that could be justified as reasonable. In a 5-4 decision, Chief Justice McLachlin for the majority declared that the right to vote is fundamental to our democracy and that the government failed to demonstrate the reasonableness of the new limit on that right.

Charter Dialogue  

It has been suggested that there ought to be a dialogue of sorts between the judiciary and the legislatures. That is, if a law is struck down by the courts, legislators ought to respond with new legislation that addresses the problems described by the court. The Supreme Court was sharply divided as to whether Parliament had responded appropriately to the 1993 Sauvé decision.   Justice Gonthier, writing in dissent, stressed the importance of giving “deference to Parliament’s reasonable view.”[3] The matter at issue – whether limiting prisoner voting rights promotes or impedes democracy – essentially involves a question of “social or political philosophy” which may not be conclusively proven.[4]  Parliament has one point of view and Chief Justice McLachlin has a different view. In cases like this, Parliament ought to have “the last word” and the Court should not “substitute Parliament’s reasonable choices with its own.”[5]   Chief Justice McLachlin agreed that there are instances when deference to Parliament may be appropriate, but it is never appropriate to defer to a decision to limit a fundamental right.[6] The right to vote is not a matter that may be subject to public debate. Rather, it is a matter that the courts must protect from “the shifting winds of public opinion and electoral interests.”[7]   The Chief Justice sent a clear message that there can be no compromise on the right to vote. Responding to the suggestion that a second version of legislation should be accorded more deference, the Chief Justice said, “The healthy and important promotion of a dialogue between the legislature and the courts should not be debased to a rule of ‘if at first you don’t succeed, try, try again’.”[8]    

The Government’s Objectives  

The first step in determining whether legislation is a reasonable limit prescribed by law is to identify its objective. The objective must be “pressing and substantial” to warrant overriding Charter rights.   The two objectives that the government suggested for limiting prisoner voting rights were: (1) to enhance civic responsibility and respect for the rule of law; and (2) to provide additional punishment.   Chief Justice McLachlin noted that these objectives are not aimed at any specific problem. Rather, they are “vague and symbolic”[9] objectives of a “rhetorical nature.”[10] Because “the government has failed to identify particular problems that require denying the right to vote, [it is] hard to say that the denial is directed at a pressing and substantial purpose.”[11]   Justice Gonthier, in dissent, maintained that “it is important not to downplay the importance of symbolic or abstract arguments.”[12] In fact, he said, the Chief Justice had herself relied on equally vague concepts, such as “rule of law” and “democratic values.”[13] Even where it is difficult to provide evidence of clear and concrete effects of a policy, when it is based on a reasonable social or political philosophy, it is legitimate.[14]   Justice Gonthier looked to the examples of other liberal democracies and found that there are different, but equally reasonable, approaches taken to the objective of maintaining the integrity of the electoral process.[15] Thus, he determined, the government’s objectives are no less pressing and substantial because they are not amenable to proof, nor consistent with the reasoning of the Chief Justice. “Reasonable and rational persons and legislatures disagree on the issue of prisoner disenfranchisement.”[16]    

Proportionality  

The second step in the reasonable limits test is to determine whether the legislative measures are proportional and not more intrusive of Charter rights than necessary to achieve the identified objective. The proportionality analysis is further divided into three sub-steps: a rational connection test, a minimal impairment test, and a proportionate effect test.[17]    

Rational Connection  

The government suggested three theories that show a rational connection between the limitation on prisoner voting rights and the objective of enhancing respect for the law.[18]

1. Its sends an educative message about the importance of respect for the law.
2. Allowing prisoners to vote demeans the political system.
3. Disenfranchisement is a legitimate form of punishment.

Chief Justice McLachlin called the first theory “bad pedagogy.”[19] If the government’s aim is to educate prisoners about respect for the law, then the message it is sending by taking away voting rights is more likely to have the opposite effect.[20] Because the law’s legitimacy flows from the democratic right of every citizen to vote, the government undermines the principles of democracy when it takes away the right to vote. The Chief Justice asserted that “the history of democracy is the history of progressive enfranchisement.”[21] Taking away the right to vote “sends the unacceptable message that democratic values are less important than punitive measures ostensibly designed to promote order.”[22]   The second theory – that the political system is demeaned by allowing morally blameworthy citizens to take part – was rejected by the Chief Justice as a relic of a less enlightened past.[23] Canadian democracy has progressed to the recognition that universal enfranchisement means that “moral unworthiness” is not a legitimate rationale for taking away the right to vote.[24]   The final theory – that disenfranchisement is a legitimate form of punishment – failed for being arbitrary and “not tailored to the particular offender’s act.”[25] The Chief Justice acknowledged that Parliament may limit Charter rights for the purpose of punishment.[26] However, a “blanket punishment” that indiscriminately takes away a Charter right from all offenders regardless of the seriousness of their crimes, fails for arbitrariness.[27]    Justice Gonthier, in his dissent, was of the opinion that a rational connection between the legislation and its objective is a matter of reason, logic and common sense.[28] The connection need only be shown upon a balance of probabilities: it should be “reasonable to presume” that there is a connection.[29] There are differing philosophies about the effect on democracy and prisoners of limiting their right to vote. The Chief Justice has one theory, based on her reading of philosopher John Stuart Mill. The trial judge had a different, but equally rational and plausible theory, based upon expert evidence presented by scholars.[30] There is no reason to replace one reasonable position with another.   Justice Gothier also disagreed with the suggestion that the legislation was not sufficiently tailored. Given that prisoners incarcerated for two years or more have committed an average of 29.5 offences, it is hard to suggest that the legislation catches prisoners who are not serious offenders.[31]

Minimal Impairment  

Because the Chief Justice determined that the denial of the right to vote was not rationally connected to the government’s objective, she did not find it necessary to provide much analysis on the second step of the proportionality test.[32] However, she noted that even if a rational connection could be established, the legislation would still fail for not being minimally impairing. The suggestion that the class of people affected is restricted – those serving two years or more – is not a sufficient answer to any individual whose rights are unjustifiably limited.[33]   Justice Gonthier accepted the Crown’s reasoning as to why the legislation was minimally impairing of the right to vote. First of all, it only affects prisoners serving at least two years. Secondly, it only affects perpetrators of “serious” offences. Justice Gonthier was satisfied that Parliament had made a reasonable decision in defining “serious crime” as those penalized by two years or more.[34] And, finally, the disenfranchisement is temporary and is fully restored upon release from prison.[35]

Proportionate Effect  

The final step in the proportionality analysis requires finding that the effects of the challenged legislation do not trench upon Charter rights in a manner that is severe and disproportionate to the legislative objective.[36]   The Chief Justice ended her analysis by noting the disproportionate effect that taking voting rights from prisoners would have on the Aboriginal population. She noted the disproportionate representation of Aboriginals and said that the social cost of silencing such a large proportion of the Aboriginal people is not justifiable.[37]   Justice Gonthier, on the other hand, was satisfied that the positive effects of the legislation outweighed the infringement of a Charter right. The effect of taking voting rights from prisoners is largely symbolic and not amenable to empirical evidence.[38] When it comes to competing social philosophies and symbolic measures meant to uphold the values of democracy, it is not the courts’ role to replace Parliament’s rational perspective.[39]   Essentially, Justice Gonthier could not agree with the majority’s ruling that forbidding any limitations on voting is the only reasonable policy directed towards promoting the symbolic promotion of democracy. Nonetheless, the majority’s ruling stands as the law in Canada: the right to vote may not be taken away from any prisoner irrespective of the length of his sentence or the seriousness of his offence.     Jim Young (May 26, 2010)    

[1]Sauvé v. Canada (Attorney General), [1993] 2 S.C.R. 438. [2] Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519. [3] Ibid. at para. 68. [4] Ibid. at para. 93. [5] Ibid. at para. 104. [6] Ibid. at para. 13. [7] Ibid. at para. 13. [8] Ibid. at para. 17. [9] Ibid. at para. 22. [10] Ibid. at para. 24. [11] Ibid. at para. 26. [12] Ibid. at para. 99. [13] Ibid. at para. 100. [14] Ibid. at paras. 102-103. [15] Ibid. at paras. 122-134. [16] Ibid. at para. 142. [17] Ibid. at para. 27. [18] Ibid. at para. 29. [19] Ibid. at para. 30. [20] Ibid. at para. 30. [21] Ibid. at para. 33. [22] Ibid. at para. 40. [23] Ibid. at para. 43. [24] Ibid. at para. 44. [25] Ibid. at para. 51. [26] Ibid. at para. 46. [27] Ibid. at para. 48. [28] Ibid. at para. 157. [29] Ibid. at para. 150. [30] Ibid. at para. 153. [31] Ibid. at para. 155. [32] Ibid. at para. 54. [33] Ibid. at para. 55. [34] Ibid. at para. 174. [35] Ibid. at para. 166. [36] Ibid. at para. 175. [37] Ibid. at para. 60. [38] Ibid. at para. 180. [39] Ibid. at para. 186.

On May 31, 1990, the Supreme Court of Canada decided whether police are constitutionally permitted to randomly stop drivers to check their licenses and insurance documents, inspect vehicles, and observe drivers for signs of intoxication.[1]

In Toronto one evening in 1982, two officers randomly stopped Mr. Ladouceur.[2]The police did not suspect that Ladouceur was acting unlawfully in any way. They based their authority for this stop on Ontario highway traffic legislation that grants them broad discretion to stop any vehicle.[3] After the police stopped his vehicle and requested Ladouceur’s driver’s license and his ownership and insurance documents, he admitted that his driver’s licence was under suspension.[4] He was then charged with driving while his license was suspended.[5]   In court, Ladouceur argued that randomly stopping his vehicle without suspicion of unlawful activity violated his Charter rights.[6]He based this claim upon three Charter sections:

• the section 7 right to not be deprived of liberty “except in accordance with the principles of fundamental justice,”
• the section 8 right “to be secure against unreasonable search and seizure,” and
• the section 9 right “not to be arbitrarily detained.”

Ladouceur argued that his rights had been violated and so the evidence obtained as a result of the random stop should not be admitted into court.[7]   While the Supreme Court unanimously concluded that the evidence should be admitted, the nine judges divided sharply on whether Ladouceur’s Charter rights had been violated. In a narrow 5-4 decision, a majority of the Court concluded that while his rights had been infringed, the infringement did not amount to a violation of the Charter. To come to this conclusion, the majority first considered whether his rights had been limited and then, after concluding that they had been limited, asked whether this limit was justifiable.   In a previous decision, the Supreme Court had unanimously agreed that setting up check points and randomly stopping vehicles at these points did not violate the Charter.[8] In this case, however, the Court was asked to rule on whether it violated the Charter to allow for random roving stops – that is, stops that could occur anywhere, at any time, at the complete discretion of a single police officer.

Was There a Limitation on His Rights?

Justice Cory, writing for the majority, first considered section 9 of the Charter and determined that there had been an arbitrary detention. The reasoning here followed the earlier decision about random stops at check points.[9] Justice Cory reiterated that the stop qualifies as a detention since the police officers assumed control over Ladouceur’s movement by a demand.[10] As well, he stated that the random nature of the stop makes this detention arbitrary.[11]   Justice Cory then considered the section 8 right to be secure from unreasonable search and seizure. He found no section 8 violation. He concluded that there was no “search” because there was no intrusion into Ladouceur’s “reasonable expectation of privacy.”[12]As well, there was no “seizure” since Ladouceur admitted to the police that he could not produce his licence.[13]Justice Cory did, however, point out that in other cases – for example, where the stop leads to seizure of drugs or stolen property – section 8 may be brought into play.[14]   Having determined that Ladouceur’s right to be free from arbitrary detention had been limited, Justice Cory decided it was unnecessary to consider whether or not his section 7 liberty rights had also been limited.[15]Instead, he moved on to consider whether the limit on the right was justifiable.    

Is the Limit Justifiable?

Section 1 of the Charter provides that all Charter rights are subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” An Ontario statute authorized police to stop vehicles at random, so Justice Cory quickly concluded that the limit is “prescribed by law.”[16]Therefore, the real issue in the case was whether the limit was “demonstrably justified in a free and democratic society.”   To determine whether a limit on a Charter right is justified, the courts apply the “Oakes Test.”[17] In order to satisfy this test, a limit must meet four requirements. First, it must have a pressing and substantial objective. Second, it must by rationally connected to that objective. Third, it must only minimally impair the Charter-protected right. And finally, there must be proportionality between the impact on the right and the legislative objective. If any one of these requirements is not met, there is an unjustifiable violation of the Charter.   Justice Cory concluded that all of the requirements were met. First he determined that ensuring that vehicles are in safe driving condition and that drivers are licenced, insured, and not intoxicated, is a pressing and substantial objective.[18] The conclusion was based on the large number of traffic accidents and the importance of mechanical fitness in preventing and minimizing the impact of accidents.[19]As well, he pointed to statistics linking uninsured, unlicenced, or intoxicated drivers to higher accident rates.[20] This evidence supported the conclusion that the objective was pressing and substantial.   Next, Justice Cory concluded that authorizing police to stop vehicles randomly is rationally connected to these objectives.[21]He stated that stopping vehicles is the only way for police to check a driver’s licence and insurance, the mechanical fitness of the vehicle, and whether the driver is impaired.[22]He also pointed out that if police were only able to stop drivers when they had reason to suspect unlawful activity, the factors leading to being caught would be more or less within the control of the driver. As a result, people may be less willing to drive unlawfully if they know they are subject to random stops.[23]As well, he pointed out that traffic check points are often well-known or visible in advance, so they are insufficient for dealing with unlawful drivers.[24]   Justice Cory then considered whether the right is minimally impaired and concluded that it is.[25] Here he pointed out that other licenced activities, such as hunting and fishing, are also monitored through random checks. There is no point in requiring licences for an activity if there is no way to ensure that people who engage in the activity actually have licences.[26] He also pointed out that the stops are usually brief and that drivers are only required to produce a few documents, so the inconvenience to the driver is minimal.[27]   Finally, Justice Cory concluded that the limitation is proportional to the legislative objective.[28]He dismissed concerns about the potential for police to abuse this power as unfounded.[29] He based this conclusion on the fact that officers are only able to stop persons for reasons related to the driving of a vehicle, and that police are only justified in asking questions related to driving offences.[30]As well, Justice Cory pointed out that other democratic societies – such as the United Kingdom, New Zealand, and Australia – allowed police to perform similar random stops.[31]   Having gone through this analysis, Justice Cory concluded that random vehicle stops are a justified infringement on the right to be free from arbitrary detention, and so the evidence obtained from the police stopping Mr. Ladouceur was admissible.[32]Four other judges agreed with Justice Cory’s reasons, so a majority of the Supreme Court upheld random vehicle stops under the Ontario legislation.

The Dissent

Justice Sopinka, writing for the other four members of the Supreme Court, disagreed with the majority’s reasoning.[33]   Justice Sopinka agreed that random stops are arbitrary detentions that must be justified using the “OakesTest.”[34]However, he concluded that such broad, unfettered discretion could not be justified.[35] He agreed that random stops at check points were permissible, but felt that allowing roving random stops would go too far:   This case may be viewed as the last straw.  If sanctioned, a police officer could stop any vehicle at any time, in any place, without having any reason to do so.  For the motorist, this would mean a total negation of the freedom from arbitrary detention guaranteed by s. 9 of the Charter.[36]   Justice Sopinka found no evidence to suggest that roving random stops are necessary to address the problems identified by the majority. Nor was there was any evidence that they are effective in doing so. The available statistics did not show how successful random check points had been in reducing these problems, nor did they provide comparative data that would show whether there had been a reduction in unlawful driving since police had been authorized to randomly stop drivers.[37] He therefore felt that in terms of random vehicle stops, the “outer limits” of what could be justified had been reached when the Court allowed the use of check points.[38]   As well, Justice Sopinka expressed concern about the potential for police to abuse this power. He emphasized that it allows vehicles to be stopped at the whim of a single police officer.[39] Unlike check points – where a police officer’s behaviour may be kept in check by the presence of other officers – the type of stops considered in this case involved officers stopping drivers in unsupervised situations.[40] He observed that some officers may tend to stop younger drivers, or older cars, or may even employ racial profiling.[41]While the majority felt that this concern was unfounded because the police are limited to lawful uses of this discretion, Justice Sopinka pointed out that the courts and public will never know why an officer actually stopped a given driver. Officers will be able to justify the decision to stop a driver by saying that it was completely random – even if it was not.[42]Charter violations could therefore go undetected. For Justice Sopinka, this broad discretion and lack of transparency makes roving random stops unreasonable.   As a result, Justice Sopinka concluded that random roving traffic stops would violate the Charter, so the legislation must be interpreted in such a way that it only permits random stops and check points.[43]However, when the police stopped Mr. Ladouceur they believed that they were entitled to do so. For this reason, Justice Sopinka agreed with the majority that the evidence should be admitted in this case.[44]     Adam Badari (May 26, 2010)

[1] R. v. Ladouceur, [1990] 1 S.C.R. 1257. [2] Ibid. at 1269. [3] Ibid., citing Highway Traffic Act, R.S.O. 1980, c. 198, s. 189a(1). [4] Supra note 1 at 1269. [5] Ibid. [6] Ibid. at 1270-71. [7] Ibid. [8] R. v. Hufsky, [1988] 1 S.C.R. 621. [9] Supra note 1 at 1276-77, citing R. v. Hufsky, [1988] 1 S.C.R. 621. [10] Supra note 1 at 1277. [11] Ibid. [12] Ibid. [13] Ibid. at 1278. [14] Ibid. at 1277. [15] Ibid. at 1278. [16] Ibid. [17] Ibid. [18] Ibid. at 1279. [19] Ibid. at 1279-80. [20] Ibid. at 1280-83. [21] Ibid. at 1283. [22] Ibid. at 1284. [23] Ibid. [24] Ibid. at 1285. [25] Ibid. at 1285-87. [26] Ibid. at 1286. [27] Ibid. [28] Ibid. at 1287. [29] Ibid. [30] Ibid. [31] Ibid. [32] Ibid. at 1288-89. [33] Ibid. at 1262. [34] Ibid. at 1263. [35] Ibid. at 1264 [36] Ibid. [37] Ibid. at 1265. [38] Ibid. at 1266. [39] Ibid. at 1267. [40] Ibid. at 1266-67. [41] Ibid. at 1267. [42] Ibid . [43] Ibid. at 1268. [44] Ibid.

The Supreme Court of Canada has denied two public-sector unions leave to appeal a decision which upheld British Columbia legislation prohibiting mid-contract strikes.[1] Following its usual practice, the Supreme Court did not give reasons for dismissing the application; its refusal to hear the appeal, however, does not necessarily mean the Court thinks the lower court rightly decided the case.[2]

The British Columbia Teachers’ Federation (BCTF) and Hospital Employees’ Union (HEU) challenged the definition of “strike” in B.C.’s Labour Relations Code[3] on the ground that it “restricts their ability to engage in political protests” and thus infringes their fundamental freedoms protected by section 2 of the Charter.[4]   In January 2002, the B.C. legislature passed new legislation to designate education as an essential service, prohibit school boards and teachers from bargaining over class sizes, and override other contractual rights.[5] In protest, a large majority of B.C. teachers voluntarily participated in a voluntary one-day work stoppage, keeping hundreds of thousands of students out of class.[6] One year later, the HEU engaged in a similar action to mark the anniversary of legislation which modified their collective bargaining rights.[7] The B.C. Labour Relations Board had declared both work stoppages illegal by issuing interim orders under theLabour Relations Code.[8]   Section 1 of the B.C. Code defines “strike” as a cessation of work or a refusal to work “designed to … restrict or limit production or services.”[9] The BCTF and HEU contended that this definition prohibits them from engaging in “protest strikes,” thereby infringing their rights to freedom expression, association and peaceful assembly.[10]   The decision of the B.C. Supreme Court found that freedom of expression protected by the Charter does not cover “protest strikes” and even if it did, the prohibition on such work stoppages was justified as a reasonable limit prescribed by law under section 1 of the Charter (the Oakes test).[11]   Unlike the trial decision, the unanimous decision of the B.C. Court of Appeal ruled that the “strike” definition in the B.C. Code violated the unions’ section 2(b) freedom of expression, but the court went on to find that the violation could be justified as a reasonable limit under section 1 of the Charter.[12]   The appeal court applied the Irwin Toy test for freedom of expression, and determined that public-sector mid-contract “protest strikes” are protected by section 2(b). The court stated that “[a] public sector strike has a different impact than a strike in the private sector,” and “a public sector strike is more a political than an economic weapon.”[13] Therefore, the prohibition on the mid-contract work stoppages restricts “a form of effective expression,” infringing section 2(b).[14]   However, the appeal court concluded the prohibition satisfied the Oakes test because:

• the objective of preventing disruption of public-sector services is “pressing and substantial”;
• the prohibition is “rationally connected to that objective”;
• the prohibition is minimally impairing because it does not impair forms of free expression other than work stoppages; and
• it struck a proportional balance between its harmful impact and free expression.[15]

The B.C. Court of Appeal found that the prohibition on mid-contract work stoppages did not violate union members’ section 2(c) right to freedom of peaceful assembly, nor did it violate their section 2(d) right to freedom of association.   By declining to hear this appeal, the Supreme Court has passed on the opportunity to address the debate over whether the Court found a “right to strike” in section 2(d) in its 2007 decision to strike down sections of B.C. legislation which infringed the HEU members’ right to collective bargaining.[16]

[1] “Judgments in Leave Applications” Supreme Court of Canada (20 August 2009).

[2] Hogg, Peter W., Constitutional Law of Canada, 2008 Student ed., (Toronto: Thomson Carswell) at 256.

[3] R.S.B.C. 1996, c. 244.

[4] British Columbia Teachers’ Federation v. British Columbia Public School Employers’ Assn., 2009 BCCA 39 at para. 1.

[5] Ibid. at para. 5; Education Services Collective Agreement Act, 2nd Sess., 37th Parl., British Columbia 2002; Public Education Flexibility and Choice Act, 2nd Sess., 37th Parl., British Columbia 2002.

[6] Ibid. at paras. 6-7.

[7] Ibid. at para. 8; Health and Social Services Delivery Improvement Act, 2nd. Sess., 37th Parl., British Columbia, 2002.

[8] Ibid. at para. 6.

[9] Supra note 3 at section 1.

[10] Supra note 4 at para. 20.

[11] HEU & BCTF et al. v. HEABC & BCPSEA, 2007 BCSC 372 at para. 209.

[12] Supra note 4 at para. 4.

[13] Ibid. at para. 21.

[14] Ibid. at para. 37.

[15] Ibid. at para. 73.

[16] Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 391.

On August 20, 2009, the Supreme Court of Canada decided not to hear an appeal from a convicted terrorist living in Canada who had applied for a Canadian passport. Earlier this year, in Canada (Attorney General) v. Kamel,[1] the Federal Court of Appeal determined that the discretion of the Minister of Foreign Affairs to deny a passport is constitutional. Following its normal practice, the Supreme Court did not give reasons for dismissing the application for leave to appeal; its refusal to hear the case, however, does not necessarily mean the Court thinks the lower court rightly decided the case.[2]

Background

Fateh Kamel, a Canadian citizen since 1993, was convicted by a French court of membership in a terrorist organization and complicity in the forgery of three Canadian passports. He was imprisoned in France, where he served half of his eight-year sentence. Upon his release in 2005, the Canadian government provided him with a temporary passport so he could return home to Montréal.[3]   In 2005, Kamel applied for a new passport to fly to Thailand on business. His application was denied.[4] The denial was at the discretion of the Minister of Foreign Affairs, as provided by sections 4 and 10.1 of the Canadian Passport Order:

4. (3) Nothing in this Order in any manner limits or affects Her Majesty in right of Canada’s royal prerogative over passports. (4) The royal prerogative over passports can be exercised by the Governor in Council or the Minister on behalf of Her Majesty in right of Canada.

10.1 Without limiting the generality of subsections 4(3) and (4) and for greater certainty, the Minister may refuse or revoke a passport if the Minister is of the opinion that such action is necessary for the national security of Canada or another country.[5]

Mr. Kamel challenged the constitutional validity of section 10.1 of the Passport Order, arguing that it breached his mobility rights. Section 6(1) of the Charter provides that “every citizen of Canada has the right to enter, remain in and leave Canada.”

Charter Mobility Rights

Both levels of the Federal Court found that section 10.1 of the Passport Order breaches section 6(1) of the Charter. The trial decision noted that it may be theoretically possible to enter and exit Canada without a passport, but it is not the practical reality.[6] Unanimously, the Federal Court of Appeal agreed:

To determine that the refusal to issue a passport to a Canadian citizen does not infringe that citizen’s right to enter or leave Canada would be to interpret the Charter in an unreal world…. [T]here are very few countries that a Canadian citizen wishing to leave Canada may enter without a passport and very few countries that allow a Canadian citizen to return to Canada without a passport…. Subsection 6(1) [of the Charter] establishes a concrete right that must be assessed in light of present day political reality. What is the meaning of a right that, in practice, cannot be exercised?[7]

According to both the trial and appeal courts, then, the ability of the Minister of Foreign Affairs to deny a passport to a Canadian citizen is contrary to Charter mobility rights.[8] Consequently, the constitutional question turned on section 1 of the Charter, which authorizes limitations on Charter rights as long as they are both “prescribed by law” and “demonstrably justified in a free and democratic society.”

Reasonable Limits: “prescribed by law”

The trial and appeal levels of the Federal Court parted company on the question of whether the Minister’s discretion to deny a passport is genuinely “prescribed by law.”   At the trial level, the Federal Court found that section 10.1 of the Passport Order did not pass this hurdle under section 1. The limitations on mobility rights are not “prescribed by law” because this part of the Passport Order is not a law.[9] The judge found that it lacks the necessary precision: “The applicant contends that the Order is not law. I agree. Its source lies in the royal prerogative; it is … vague and it is ultimately overbroad.”[10] The court noted in particular the lack of any explanation of the term “national security” in thePassport Order:

How can anyone know what the rules of the game are when the basic concept on which the decision rests exists only in the mind of the decision maker? It seems to me that we have entered the realm of the arbitrary. National security would at least have to be placed in some context….[11]

Having found that the power to deny a passport is not “prescribed by law,” the trial court saw no need to proceed to an analysis of whether it is justified in a free and democratic society.[12]   The Federal Court of Appeal rejected the trial judge’s conclusion that section 10.1 is too vague to be a law.[13] Applying the Supreme Court of Canada’s standard of “vagueness,” the Court of Appeal found that “the Order satisfies the test of precision that is required to constitute a ‘law’ … within the meaning of section 1 of the Charter.”[14] The appeal court noted that under Supreme Court precedent, “the threshold for finding a law vague is relatively high” and “a law is unconstitutionally vague [only] if it does not provide an adequate basis for legal debate and analysis.” Further, “some fields, such as international relations and security, do not lend themselves to precise codification.”[15]   In particular, the appeal court cited a Supreme Court decision in finding the term “national security” precise enough to amount to “law” under the Charter.[16] Therefore, the Passport Order is constitutional under the “prescribed by law” standard. Nonetheless, an individual decision of the Minister under the Order may be unconstitutional:

If the court believes that, in a given case, the link between the refusal to issue a passport and the national security of Canada or another country was not established or that the Minister’s decision does not meet the other requirements of Canadian administrative law, the remedy is not to strike down the enabling provision but to set aside the decision.[17]

Reasonable Limits: “demonstrably justified”

Having found that the Minister’s decision-making power “prescribed by law,” the Federal Court of Appeal proceeded to consider justifications for the power, as section 1 of the Charter requires. The appeal court applied the section 1 test (the Oakes test). The court found that “a passport is an essential work tool for terrorist groups.”[18] Thus there is a “causal connection between the violation – refusing to issue a passport – and the benefit sought – maintaining the good reputation of the Canadian passport and Canada’s participation in the international fight against terrorism.”[19]   The Court of Appeal went on to find that the denial of a passport is a “minimal impairment” of mobility rights, and the effects of the impairment are proportional to the objective of the Passport Order.[20] The infringement of section 6 mobility rights is therefore justified under section 1.[21]   With the Supreme Court’s decision not to hear Kamel’s appeal, the decision of the Federal Court of Appeal is the final word on section 6 of the Charter and ministerial discretion to withhold a passport on grounds of national security.

[1] 2009 FCA 21. [2] “Judgments in Leave Applications” Supreme Court of Canada (20 August 2009); Hogg, Peter W.,Constitutional Law of Canada, 2008 Student ed. (Toronto: Thomson Carswell) at 256. [3] Supra note 1 at paras. 5-6. [4] Ibid. at paras. 7-8. [5] Canadian Passport Order, SI/81-86. [6] Kamel v. Canada (Attorney General), 2008 FC 338 at paras. 112-113. [7] Supra note 1 at para. 15. [8] Ibid. at para. 68. [9] Supra note 6 at paras. 115-132. [10] Ibid. at para. 120. [11] Ibid. at para. 128. [12] Ibid. at para. 132. [13] Supra note 1 at para. 19. [14] Ibid. at para. 31. [15] Ibid. at para. 20. [16] Ibid. at para. 30. [17] Ibid. at para. 31. [18] Ibid. at para. 53. [19] Ibid. at para. 56. [20] Ibid. at paras. 65-67. [21] Ibid. at para. 68.

John Corbiere was a status Indian belonging to the Batchewana First Nation, an Ojibway band near Sault Ste. Marie, Ontario. He was among the two thirds of Batchewana Band members who did not live on the band’s reserve land and were not permitted to vote in band elections. This restriction was imposed by section 77(1) of the Indian Act,[1] which limited the right to vote to band members who are “ordinarily resident on the reserve.”

(A) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?

(B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?

(C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?[13]

• The first is whether there is pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue.
• Secondly, the court must consider the correspondence, or lack thereof, between the ground or grounds on which the claim is based and the actual need, capacity, or circumstances of the claimant or others.
• The third contextual factor is the ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group in society.
• The fourth and final factor for consideration is the nature and scope of the interest affected by the impugned law.[14]

The Federal Court of Canada reserved judgment on October 17, 2007 regarding the Sex Party’s lawsuit against Canada Post. The Sex Party, registered as a political party in British Columbia, claims that Canada Post’s refusal to deliver their pamphlet during the 2006 federal election campaign violated their section 2(b) right to freedom of expression under the Charter of Rights and Freedoms. Canada Post argued that their refusal was justified under s. 1 of the Charter because of the sexually explicit nature of the material and the potential for it to psychologically harm children.

Section 2(b) of the Charter recognizes the role of freedom of expression as an instrument of parliamentary democracy, the attainment of truth, and personal fulfillment. The jurisprudence under s. 2(b) is derived from Irwin Toy Ltd. v. Quebec (Attorney General), a 1989 decision of the Supreme Court of Canada. In that case, the Court established the legal test for determining whether there is an infringement of s. 2(b):

• Does the activity fall within the sphere of conduct protected by freedom of expression?
  • Activity which (i) does not convey or attempt to convey meaning or (ii) conveys meaning but through a violent form of expression is not protected.
• Whether the purpose or effect of the government action in issue was to restrict freedom of expression?
  • If the legislation is aimed to control attempts to convey meaning by directly restricting the content of expression or by restricting a form of expression tied to content, its purpose trenches upon the guarantee.
  • If the purpose was not to restrict expression, the claimant can still claim that the effect of the government’s action was to restrict expression.

In the present case, the Federal Court could find an infringement of the Sex Party’s s. 2(b) right. At this stage of the analysis, the content of the expression (that is, whether the content is “good” or “bad”) is not considered. Because the Supreme Court has rarely failed to find a section 2(b) infringement, these sorts of cases are usually decided on the basis of section 1.

For the section 1 balancing analysis, the onus shifts to Canada Post to show that the infringement of the Sex Party’s Charter right was reasonably justified. When balancing the competing interests under section 1, the Court may consider such factors as:

• The sexually explicit content of the pamphlet;
• The fact that political discourse lies at the core of freedom of expression under the Charter;
• The lack of positive duty on the state to provide a platform for freedom of expression;
• The fact that Canada Post agreed to mail out a “homophobic religious tract” in 2006 [1]; and
• The fact that the Charter does not confer the right to use private property (such as homes and mailboxes) as a forum for freedom of expression [2].

Freedom of expression jurisprudence typically focuses on whether the expression in question (in this case, the Sex Party’s pamphlet) undermines the values that section 2(b) seeks to protect.

The Court could hand down their judgment in the next few weeks.

[1] Neal Hall, “Sex Party challenges Canada Post over erotic political flyer,” Canada.com (12 October 2007).
[2] Tamara Letkeman, “Canada Post censored us: Sex Party” Xtra West (24 October 2007).