In 2019, the federal government has been inconsistent about a potential ban on conversion therapy even though the practice is harmful and professionally disregarded. This article will pose and attempt to answer a series of questions:

• What is the ‘therapy’ and why is the government considering a ban?
• Why has the government been inconsistent in it’s messaging about the practice? And,
• What are the potential constitutional hurdles to banning conversion therapy in Canada?

A Discredited ‘Therapy’

Conversion therapy is the discredited practice of attempting to “stop an individual from being homosexual or transgender”[1] or any other diverse gender or sexual identity. This article will use the label “GSD” [gender and sexually diverse] as an umbrella term to describe anyone with a gender or sexual identity outside of heterosexual and cisgender. Conversion therapy is used to attempt to ‘convert’ GSD people to become heterosexual or cisgender.

Conversion therapy was widely practiced in the past when GSD identities were disdained – this lead GSD people or their families to seek ‘therapy’ to turn GSD people ‘normal’ (heterosexual or cisgender). Conversion therapy was “the treatment of choice when homosexuality was thought to be an illness” but the practice has declined as GSD identities have become more accepted in wider society.[2] Nonetheless, it is still practiced.

Conversion therapy can have a psychological or religious basis.[3] Common ‘treatment’ techniques include “psychotherapy, psychoanalysis, hormones, and several types of aversion therapy.”[4] A subject can experience deep psychological trauma from these methods even if no physical pain is inflicted. Many survivors of conversion therapy express that they have deep psychological scars from the practice – for example, one survivor called his experiences “soul-crushing torture.”[5]

The Canadian Psychological Association stated that conversion therapy does not accomplish it’s goals and “can result in negative outcomes such as distress, anxiety, depression, negative self-image, a feeling of personal failure, difficulty sustaining relationships, and sexual dysfunction.”[6] Thus, conversion therapy is a painful and harmful exercise that does not work – so why has the federal government not banned the practice?

Mixed Messages

In March 2019, despite acknowledging the practice as “immoral” and “painful,” the federal government said that it would not ban the practice throughout Canada.[7] However, in a June 21, 2019 letter to the Alberta Minister of Justice, the federal government stated that they are “committed to doing everything within [our] jurisdiction to combat conversion therapy” through Criminal Code reforms.[8]

There is no doubt that pre-election politics are influencing the federal government’s evolving stance on banning conversion therapy. With a federal election scheduled for October 21, 2019, it is realistic that political parties would attempt to curry favour among GSD Canadians and their allies.

What are some reasons the government has been reluctant to ban the discredited practice throughout the country? What constitutional hurdles would the government face if it attempted to ban the practice through criminal law?

A Provincial Domain?

In March 2019, the federal government’s refusal to outlaw conversion therapy was because they believed that the provincial governments had jurisdiction for the issue through the regulation of health care.[9] While health care is not exclusively in the jurisdiction of the either the federal or provincial governments, on-the-ground delivery of health care is administered by provincial governments. The constitutional authority is found in a number of sections of the Constitution Act, 1867, including the expansive s 92(13)– the control of property and civil rights in the provinces.[10] Since provinces can decide what is and what is not considered health care, the regulation of a discredited practice like conversion therapy is thought to rest with the provinces.

Currently, Ontario, Manitoba, and Nova Scotia have enacted bans on conversion therapy.[11] Also, cities such as Vancouver and St. Albert, Alberta have banned businesses from practicing conversion therapy in their municipalities.[12] In Alberta, the previous New Democratic Party Government established a working group to recommend a plan to ban conversion therapy but the new United Conservative government has been noncommittal about whether they will implement any recommendations.[13]

Thus, the federal government may desire to leave the banning conversion therapy to the provinces through the regulation of health care. Ottawa may have been fearful that a federal law could encroach on provincial jurisdiction and be struck down for being out of the powers of the federal government.

Ottawa was also reluctant to further regulate conversion therapy because they believed that Criminal Code offences already captured many of the criminal acts in the practice. Other “offences such as kidnapping, forcible confinement and assault may apply where a person is forcibly compelled to undergo conversion therapy.”[14] However, pre-election politics and the desire to stop a harmful practice may have led the federal government to consider criminally banning the practice.

Criminal Law

The federal government has the sole authority to make criminal laws in Canada.[15] The standard test for whether legislative action is a “criminal law” is:

• The law creates a prohibition,
• there is a penalty for breaching the prohibition, and
• the law has a criminal law purpose (“public purpose which can support it as being in relation to the criminal law”).[16]

The criminal barring of conversion therapy would need to be found to have a criminal purpose for the federal government to use its criminal law power.

Esteemed constitutional scholar Peter Hogg notes that there “is a criminal-law aspect of health,” allowing the federal Parliament to “punish conduct that is dangerous to health.”[17] If the federal government created a criminal law banning conversion therapy, they could justify it as conduct dangerous to the health of GSD persons, and thus arguably with a criminal law purpose.

However, if a federal criminal law is enacted, it risks other potential constitutional challenges. At least two Charter challenges exist. The first is that a ban on conversion therapy is a potential infringement on liberty.

Loss of Liberty?

Any law that can lead to imprisonment is as a deprivation of liberty, and thus an infringement on s 7 of the Charter unless it is found to be “in accordance with the principles of fundamental justice.”[18] Carissima Mathen, vice-dean of the University of Ottawa Faculty of Law, states that “there is a potential Section 7 challenge [to a conversion therapy ban] on the basis that the law is just too blunt a tool and you're putting people at risk of imprisonment in ways that are fundamentally unfair."[19]

Of course, it is impossible to know whether an infringement on liberty would be in accordance with the principles of fundamental justice without first seeing a law. Much would depend on what exactly was prohibited, who was targeted, and what the penalty was. If a ban was comprehensive, it may be harder to justify than a narrower ban against minors undergoing the ‘treatment.’ If those seeking conversion therapy were targeted as well as providers, it may also be harder to justify.

As with any infringement on liberty, a law with jail time could be subject to a s 7 Charter challenge which would depend on the details of the law. Even if the ban was found to breach the Charter, the government would get the chance to justify the law under s 1 by arguing that the benefits to outlawing conversion therapy outweigh any Charter infringement. The question becomes, could the law as drafted be sold as a reasonable limit on rights, demonstrably justified in a free and democratic society?

Freedom of Religion

An outright ban on conversion therapy could also infringe the freedom of religion guaranteed by s 2(a) of the Charter. Conversion therapy is often practiced in religious settings by people who believe that their religion is incompatible with GSD identities.

Freedom of religion allows individuals to “be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates” if the religious practices “do not injure his or her neighbours.”[20] Arguably, a ban could not apply to recipients who actively choose to participate in conversion therapy because of their deeply held religious beliefs. Daniel Lerner, a Toronto criminal defence attorney, states that he could see a freedom of religion argument from individuals who believe that a ban would stop them from exercising their religious beliefs.[21]

Without a draft law, it is difficult to speculate whether religious rights would be infringed. However, it is a possible route for a religious person who wants to try and change their sexuality or gender identity to challenge a federal ban. It remains to be seen how the courts would handle such a challenge, or how much significance would be given to the harmful nature of the practice.

Conclusion

It is likely that a debate about banning conversion therapy in the Criminal Code will be part of the political gamesmanship of the upcoming federal election campaign.  The federal Liberals have sent mixed messages, the federal New Democrats have called for a ban on conversion therapy throughout Canada,[22] and Conservative leader Andrew Scheer says that he will “wait and see” before taking a position on a conversion therapy ban.[23]

If after the election, a law banning conversion therapy is enacted there are several potential constitutional challenges. This includes assessing if the law is in federal jurisdiction and if the ban infringes an individual’s Charter rights. However, it is important to note that even if a Charter breach is found, the government can try and justify the law under s 1 of the Charter.

What is clear is that conversion ‘therapy’ is a discredited and harmful practice. The provinces are slowly banning the practice through regulation of health, but there has been no federal ban because of constitutional concerns. As the federal election campaign politics heats up, the issue will likely be discussed, and a ban could follow the election. Thus, the potential regulation of conversion therapy in Canada has been slow, fraught with mixed messages, and has several constitutional hurdles. Time will tell if the harmful effects of the practice will outweigh the uncertain constitutional status and lead the federal government to action.

 

 

 

 

[1] Devinn Larsen, “Striving for Change: California’s Attempt to Outlaw Conversion Therapy” (2019) 50:2 McGeorge L Rev 285 at 286.

[2] Douglas C Halderman, “The Practice and Ethics of Sexual Orientation Conversion Therapy” (1994) 62:2 Journal of Consulting and Clinical Psychology 221.

[3] Ibid.

[4] MJ MacCulloch & MP Feldman, “Aversion therapy in Management of 43 Homosexuals” (1967) 2 British Medical Journal 594. Aversion therapy commonly uses the technique of showing pictures of men or women that the subject finds sexually desirable and then inflicting pain, such as electroshock therapy, in an attempt to ‘train’ the subject not to be attracted to a member of the same gender.

[5] Peter Gajdics, “I experienced ‘conversion therapy’ – and it’s time to ban it across Canada,” Maclean’s (6 June 2018), online: <macleans.ca/opinion/i-experienced-conversion-therapy-and-its-time-to-ban-it-across-canada/>.

[6] Canadian Psychological Association, “CPA Policy Statement on Conversion/Reparative Therapy for Sexual Orientation” (2015), online (pdf): Canadian Psychological Association <cpa.ca/docs/File/Position/SOGII%20Policy%20Statement%20-%20LGB%20Conversion%20Therapy%20FINALAPPROVED2015.pdf>.

[7] Hannah Thibedeau, “Ottawa looking at Criminal Code reforms to deter ‘shameful’ conversion therapy,” Canadian Broadcasting Corporation (9 July 2019), online: <cbc.ca/news/politics/conversion-therapy-criminal-code-1.5204919>.

[8] Ibid.

[9] Perlita Stroh, “Ottawa rejects plans for nationwide conversion therapy ban,” Canadian Broadcasting Corporation (23 March 2019), online: <cbc.ca/news/canada/the-national-conversion-therapy-federal-petition-1.5066899> [Stroh].

[10] Peter W Hogg, Constitutional Law of Canada (2017 Student Edition) (Toronto: Thompson Reuters, 2017) at 32-2 [Hogg].

[11] Stroh supra note 9.

[12] Ibid.; Phil Heidenreich, “St. Albert City Council unanimously passes motion to crack down on conversion therapy” Global News (8 July 2019), online: <globalnews.ca/news/5473416/st-albert-city-council-conversion-therapy-motion-passes/>.

[13] Phil Heidenreich, “Email from Alberta health minister offers mixed message on conversion therapy group’s status,” Global News (7 June 2019), online: <globalnews.ca/news/5368734/tyler-shandro-conversion-therapy-group-alberta/>.

[14] Stroh supra note 9.

[15] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91(27), reprinted in RSC 1985, Appendix II, No 5.

[16] Reference re Validity of Section 5(a) Dairy Industry Act, [1949] SCR 1 at 50.

[17] Hogg supra note 10 at 18-12.1.

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

[19] Mark Gollom, “Federal ban on conversion therapy could face constitutional hurdles,” Canadian Broadcasting Corporation (10 July 2019), online: <cbc.ca/news/politics/conversion-therapy-ban-federal-government-1.5205696> [Gollom].

[20] R v Big M Drug Mart Ltd, [1985] 1 SCR 295 at 346.

[21] Gollom supra note 19.

[22] New Democratic Party of Canada, “NDP: Let’s Put an End to Conversion Therapy” (4 August 2019), online: <ndp.ca/news/ndp-lets-put-end-conversion-therapy>.

[23] Rachel Browne, “Andrew Scheer will ‘wait and see’ before taking stance on Liberal plan for conversion therapy ban,” Global News (10 July 2019), online: <globalnews.ca/news/5479933/conversion-therapy-ban-2/>.

Introduction

The Government of Canada has stated they are ending the practice of segregating inmates and leaving them in cells alone for extended periods of time. While Canada does not use the term solitary confinement, the term is used internationally to describe the practice of confining a prisoner for more than 22 hours a day without meaningful human contact.[1] The Ontario Court of Appeal recently confirmed that Canada’s segregation regime is in fact solitary confinement.[2] Additional challenges to the Corrections and Conditional Release Act (“the Act”)[3], the legislation that governs segregation, have resulted in Canada’s segregation regime being declared unconstitutional. Parliament has responded with new laws in Bill C-83, which they claim will eliminate segregation

Until the changes in Bill C-83 are fully implemented, Canada continues to use two forms of solitary confinement:

1. Disciplinary segregation – this form of segregation was intended as punishment for an inmate who was charged with, or found guilty of, serious disciplinary offences. There was a 30-day limit on keeping an inmate segregated under this regime.[4]

2. Administrative segregation – this form of segregation was used when an inmate posed a threat to the safety of the staff or other inmates. It was also used if an inmate’s own safety was at risk. Importantly, there was no limit on how long an inmate could be placed in administrative segregation. The only guidelines were to return the inmate to the general prison population “at the earliest appropriate time”.[5]

The portions of the Act that related to administrative segregation were the focus of court challenges in Ontario and British Columbia. With judges in both provinces ruling that the practice was unconstitutional, the federal government was forced to respond. This article will address the state of solitary confinement in Canada following the court cases and outline government legislation which attempts to develop a constitutional regime.

Segregation Challenges – How We Got Here

Ontario Challenges

The Canadian Civil Liberties Association (“CCLA”) challenged the portions of the Act that regulated administrative segregation. CCLA argued that this form of segregation violated certain Charter protected rights. In the December 2017 decision, Justice Marrocco of the Ontario Superior Court agreed.[6] The Court found that the Act infringed on an inmate’s section 7 rights, the right to life, liberty, and security of the person. The main issue was that the decision to place and keep an inmate in segregation was made internally by prison administration, and was not subject to meaningful, timely review. The Court said this was unfair to the inmate. The Court suspended the ruling that portions of the Act were unconstitutional for one year. This was to allow the federal government the time necessary to amend the Act to comply with the Charter.

Despite a win at the Ontario Superior Court, the CCLA appealed the decision to the Ontario Court of Appeal. The group felt that prolonged solitary confinement amounted to cruel and unusual punishment, which was prohibited under section 12 of the Charter.[7] Prolonged solitary confinement is prohibited by the Mandela Rules, a set of rules adopted by the United Nations that govern the treatment of prisoners. Prolonged solitary confinement is confinement that lasts for 15 days or longer.[8] While the Court of Appeal acknowledged that these rules were not binding on Canada, Canada did have a role in drafting them. As the CCLA argued, this meant that the rules reflect the social view of Canadians regarding acceptable treatment of inmates.[9]

Ultimately, the Court of Appeal agreed with CCLA. The Court stated that the use of prolonged administrative segregation amounted to cruel and unusual punishment because it “causes foreseeable and expected harm which may be permanent, and which cannot be detected through monitoring until it has already occurred.”[10] While the lower court gave the government one year to amend the Act, the Court of Appeal gave the government just 15 days before the portions of the Act at issue were rendered unconstitutional and therefore unenforceable.[11] The Court later gave the government two extensions, but ultimately refused to extend the declaration past June 18, 2019.[12]

British Columbia Challenges

The British Columbia Civil Liberties Association and the John Howard Society of Canada took a similar challenge to the British Columbia Supreme Court (“BCSC”). Just one month after the ONSC decision, the BCSC found the provisions allowing for administrative segregation to violate equality rights (section 15 of the Charter) and the right to life, liberty and security of the person (section 7). The BCSC also gave the government one year to amend the law before their ruling would render administrative segregation unconstitutional.

The federal Attorney General appealed this decision. The British Columbia Court of Appeal agreed with the lower court in part. They found that administrative segregation infringed on an inmate’s right to life, liberty and security of the person as segregation puts the inmate at risk of self-harm and suicide. Further, segregation can cause serious psychological suffering. The fact that there was no limit on how long an inmate could be placed in administrative segregation made the provisions overbroad and a further infringement on the inmate’s section 7 Charter rights.

The Court of Appeal also found that the use of an internal review board to determine whether an inmate should stay in segregation was procedurally unfair and a further infringement on the individual’s section 7 rights.

Parliament’s Response

Bill C-83

The federal government, despite appealing the BCSC decision, started amending the Act in 2018. They introduced Bill C-83 in October 2018. The Bill was presented as the government’s move to eliminate solitary confinement all together. Some notable components of the Bill included:

- Abolishing administrative and disciplinary segregation in all federal institution

- The creation of “structured intervention units” for inmates who cannot be maintained safely in the general prison population. Inmates in these units will have four hours out of their cell and two hours of meaningful human contact each day.

- An external review committee to review each case of a prisoner in a structured intervention unit within one month of the inmate being placed there.

- Mental health support for inmates

- Increased support for Indigenous offenders[13]

 

The Bill passed on June 21, 2019. The federal government had to ask the Supreme Court of Canada for an extension on the Ontario Court of Appeal ruling to give them more time to implement the changes made as a result of Bill C-83. The Supreme Court has given the government until November 2019 to fully implement the changes to the segregation regime.[14]

Critiques of the Bill

Critics of the Bill argue that the government has made no real changes to segregation and instead just changed the name to “structured intervention units.”[15] Despite the increase in time inmates are allowed out of their cells, many are concerned that 4 hours is still insufficient when it comes to the well-being of inmates in segregation.[16]

The largest concern is the fact that there is still no limit on how long an inmate can be placed in one of these units. This means inmates are still at risk of being placed in prolonged solitary confinement.  The federal government has appealed the Ontario Court of Appeal decision that would impose a 15 day limit on keeping an inmate in segregation to the Supreme Court of Canada.[17]  The government argued that the limit puts the safety and security of the rest of the prison in danger if an inmate must be released prematurely.  The application stated, “there is currently no alternative recourse to address these situations placing the safety and security of all federal institutions, the inmates and the staff at high risk.”[18] The Supreme Court of Canada has yet to state whether they will hear the appeal.

The Canadian Bar Association believes that the changes made are too vague and do not really provide safeguards to address abuse of this new form of segregation.[19] Senator Kim Pate, a supporter of ending solitary confinement in any manner, was vocal throughout the Bill’s legislative process. She stated that she would rather see the Bill killed than have any further amendments made as “fixing up C-83 is more work than 'it's worth.”[20]

Conclusion

There is still a lot of work left to be done to implement the changes made in Bill C-83, but the government has until November 2019 to do so. With that being said, many are concerned that no real change will be made. Canada’s new segregation system potentially comes with just as many constitutional issues as the old one.

The Supreme Court of Canada appeal could mean that the government is required to make additional changes to the new regime.   A firm cap on how long an inmate can be placed in solitary confinement is one possibility.   It may be some time before a meaningful new system of controlling troublesome inmates is in place.

 

 

 

 

[1] “Mandela Rules” (2019), online: Solitary Confinement < http://solitaryconfinement.org/mandela-rules> [Mandela Rules].

[2] Canadian Civil Liberties Association v Canada (Attorney General), 2019 ONCA 243 at para 25 .

[3] SC 1992, c 20

[4] Profile of Offenders in Administrative Segregation: A Review of the Literature”, by Shauna Bottos, 2008 No B-39 (September 2007), online: <www.csc-scc.gc.ca/research/b39-eng.shtml>.

[5] Ibid.

[6] Corporation of the Canadian Civil Liberties Association v Her Majesty the Queen, 2017 ONSC 7491

[7] Canadian Civil Liberties Association, supra note 2 at para 3.

[8] Mandela Rules, supra note 1.

[9] Canadian Civil Liberties Association, supra note 2 at para 29.

[10] Ibid at para 5.

[11] Ibid at para 150.

[12] Patrick White, “Ottawa asks Supreme Court for solitary confinement extension as deadline looms”, The Globe & Mail (12 June 2019), online: <https://www.theglobeandmail.com/canada/article-ottawa-asks-supreme-court-for-solitary-confinement-extension-as/>.

[13] Government of Canada, “Parliamentary Passage of Bill C-83: Transforming corrections to focus on rehabilitation and mental healthcare” (21 June 2019), online: <https://www.canada.ca/en/public-safety-canada/news/2019/06/parliamentary-passage-of-bill-c-83-transforming-corrections-to-focus-on-rehabilitation-and-mental-healthcare.html>.

[14] Justin Ling, “The long slog to fix solitary confinement in Canada”, The Canadian Bar Association, online: < https://www.nationalmagazine.ca/en-ca/articles/law/in-depth/2019/the-long-slog-to-fix-solitary-confinement-in-canad>.

[15] Ibid.

[16] Ibid.

[17] Patrick White, “On solitary confinement, Ottawa seeks leave to appeal court ruling of 15-day limit”, The Globe & Mail (10 April 2019), online: < https://www.theglobeandmail.com/canada/article-federal-government-appeals-caps-on-solitary-confinement-to-supreme/>.

[18] Ibid.

[19] Ling, supra note 13.

[20] Ibid.

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

Right to Life, Liberty and Security of the Person

Section 7 of the Canadian Charter of Rights and Freedoms protects our right to “life, liberty, and security of the person.” It guarantees our legal rights, which protect our personal autonomy and bodily integrity from laws or actions by the government that violate those rights. However, government action that harms these rights is not enough to violate the Charter. Section 7 is violated only when the government infringes these rights in a way that goes against the principles of fundamental justice.

Therefore, in determining whether there has been a section 7 violation, there are two components to consider:

1) whether government action infringes life, liberty or security of the person, and

2) whether this infringement goes against the principles of fundamental justice 

Right to Life:

There is no concrete definition of the right to life.[1] This means the definition could expand when new issues emerge. Traditionally, state action that increases the risk of death involves the right to life.[2] This includes indirect action, such as barriers to health care for life-threatening conditions. [3]

Right to Liberty:

The Supreme Court is divided on what the right to liberty means, but identifies two components:

1) freedom from physical restraint, and

2) freedom to make fundamental personal choices. [4]

The first includes laws that involve possible imprisonment and physical actions that are forced by the state.[5] Two examples are mandatory fingerprinting laws and regulations that prohibit loitering.[6] The second protects the right to “enjoy individual dignity and independence.”[7] This includes decisions about how a person wants to live his or her life, such as whether to marry or have children.[8]

Right to Security of the Person:

Security of the person “has a physical aspect and a psychological aspect.”[9] The physical aspect includes state action that prevents someone from making choices that affect his or her own body. It can also involve indirect state action, such as laws that cause a risk to health.[10] The psychological aspect is affected when a person experiences “serious state-imposed stress.”[11] This occurs when the state causes stress that is beyond day-to-day stress, such as by threatening to remove children from their parents.[12]

Principles of Fundamental Justice:

If government action infringes life, liberty or security of the person, it must conform to the basic principles of fundamental justice to comply with the Charter.

Three guidelines define principles of fundamental justice:

1)        the principle must be a legal principle

2)        the public must generally consider this principle to be fundamental to a fair legal system

3)        the principle must provide a manageable standard to measure section 7 violations[13]

These guidelines are quite broad. Therefore, courts use the specific concepts of arbitrariness, overbreadth, and gross disproportionality to determine whether an infringement is in line with the principles of fundamental justice. [14] 

Arbitrariness:

The law on arbitrariness is “not entirely settled.”[15] Traditionally, two steps determine if a law is arbitrary. First, the court must identify the law’s objective. Second, the court must consider whether the law’s effects meet this objective.[16] If the law leads to an effect that is not connected to its objective, it is considered arbitrary.[17] For example, in R v Morgentaler, the court considered laws that restricted abortions to those approved by an abortion committee. [18] The government argued the law’s objective was to protect the fetus.[19] However, getting committee approval caused delays that were detrimental to women’s health. Therefore, the law was arbitrary, because these delays were not connected to the objective of protecting the fetus.[20] 

Overbreadth:

Overbreadth lets courts recognize that some laws “go beyond what is required to achieve its objective.”[21] In Bedford, the court considered the law that prohibits living off profits made from prostitution. While the law means to protect sex workers from exploitation, it prevents them from hiring drivers, receptionists, and bodyguards.[22] This law is overbroad because it prohibits some relationships that are beneficial and not exploitative.[23]

Disproportionality:

Gross disproportionality describes state action that is too extreme to justify.[24] First, the court must determine the objective of the law. Second, the court must consider whether the law’s effect is too extreme as a response to that objective.[25] If the law’s effects go beyond its objectives, it is considered disproportionate. For example, in PHS Community Services Society, the Supreme Court considered the constitutionality of refusing to allow a supervised safe injection site in Vancouver (Insite), which allowed people with addictions to use drugs without being prosecuted. Insite attempted to reduce needless deaths. The court decided that Insite caused no obvious negative impact on public health and safety.[26] Therefore, denying Insite’s services was grossly disproportionate, because of the number of lives the program saves.[27]

Introduction

There are increasing calls on the Canadian government to suspend, and then end the Safe Third Country Agreement between Canada and the United States. These calls have been prompted by recent developments in the United States regarding immigrants, asylum-seekers and refugees, and the increase in the number of asylum-seekers entering Canada irregularly.

If the government does not act to suspend or end the Safe Third Country Agreement, the Agreement could still be altered by the courts. Three families are challenging the Agreement as a violation of their rights under sections 7 and 15 of the Canadian Charter of Rights and Freedoms. This challenge will be heard by the Federal Court in January 2019.[1]

A Backgrounder – The Safe Third Country Agreement

The Safe Third Country Agreement (officially the Agreement between the Government of Canada and the Government of the United States of America for cooperation in the examination of refugee status claims from nationals of third countries)[2] is an agreement between Canada and the United States requiring that an asylum seeker make their asylum claim in the first “safe” country they land in, after leaving their own. Therefore, an individual who has left their home country intending to make an asylum claim in Canada who has traveled through the United States, may not apply for asylum in Canada. They must do so in the United States (and vice versa).[3]

An asylum seeker is a person who has fled their home country due to a fear of persecution, but who has not yet had their claim heard by the country to which they have fled.[4] To make a claim in Canada or the United States, a claimant must show they have (1) a well-founded fear of persecution that is (2) based on their race, religion, nationality, membership in a particular social group or political opinion, and (3) that the government in their country is unable or unwilling to protect them.[5]

The purpose of a safe third country agreement is to reduce abuse of the system for processing asylum claims in both participating countries - to reduce “forum shopping” and duplication of asylum claims.[6]Canada wanted to reduce the number of asylum claims that it received, and with it, the amount of time and money spent adjudicating these claims. When the Agreement came into effect, the number of claims in Canada immediately dropped by almost half.[7]

The Safe Third Country Agreement between Canada and the United States was signed in the immediate aftermath of the 9/11 terrorist attacks on the United States and came into force in 2004. The United States agreed to the Agreement in exchange for Canada implementing new border security measures aimed at improving American national security –The Smart Border Action Plan.[8]

SCTA Specifics

To designate a country as a safe third country, Canada requires that the country comply with Article 33 of the United Nations Refugee Convention[9] and Article 3 of the United Nations Convention Against Torture[10].[11] Both of these articles prohibit refoulment – sending a person back to their country of origin to face persecution.

The Agreement does not apply to unaccompanied minors, those with family in Canada, those who have valid travel documents to enter Canada, nor to public interest cases (cases where a person may face the death penalty in the United States or, should they be returned to the United States and then deported to their home country, in the country they are deported to).[12]

The Safe Third Country Agreement applies to only those at an official port of entry on a land border (between the United States and Canada) who do not meet an exception (such as for those who have family in the country, or who are unaccompanied minors).[13] It does not apply to air arrivals, nor to those making irregular crossings. For air travel, it is considered too difficult to know if a person flew through the United States or actually landed there and had any chance to make an asylum claim.[14] For irregular crossings, the government does not want to encourage human smuggling nor people hiding and living without legal status in the country.[15]

In Canada, the Agreement is interpreted as giving no discretion to border services officers – they are not allowed to decide when to apply it to an asylum applicant, even in exceptional circumstances. For example, border services officers have no discretion even where they know a claim will, in all likelihood, be accepted in Canada and will, in all likelihood, not be accepted in the United States.[16] If the asylum seeker is coming from the United States and traveling through a land border, they cannot have their claim heard. The United States interprets the Agreement as allowing their officials to exercise some discretion.[17]

Challenging the Safe Third Country Agreement

Some of those who call for abolishing the Safe Third Country Agreement argue the United States is no longer a safe country.[18] They point to the “Muslim ban,”[19] the “zero-tolerance” policy on irregular border-crossing leading to the separation of children from parents,[20] and threats to build a wall,[21] as examples of the increasing hostility towards immigrants in the United States that make it unsafe.

Others cite the futility of an Agreement that encourages asylum seekers to avoid it by entering Canada at irregular border crossings. Because the Safe Third Country Agreement does not apply to those making irregular border crossings between official ports of entry, asylum seekers are walking across the border at unmanned locations,[22] including in the middle of winter, which can be especially dangerous on the Prairies. Once in Canada, these ‘irregular’ asylum-seekers can have their asylum claims heard, despite the existence of the STCA. This seems to make one of the central rationales for the STCA, to decrease the number of claims, futile.[23]

The Canadian government could suspend the Agreement immediately or terminate it with six months’ notice without giving a reason.[24] However, this may not be a foreign policy decision the Canadian government is willing to make, given its relationship with the United States.

The Constitutional Challenge

The three families who are challenging the Agreement as a violation of their rights under the Canadian Charter of Rights and Freedoms are alleging that the agreement violates section 7 and 15 of the Charter. Section 7 of the Charter protects the right to life, liberty, and security of person.[25] Section 15 of the Charter protects equality rights and prohibits discrimination based on grounds such as race, national or ethnic origin, sex, and others.[26]

These constitutional challenges centre on the greater risk faced by these families in the United States that they will be sent back to their home countries where they will have their life, liberty, and security of person threatened; and on how the treatment of asylum seekers within the United States is an infringement on the life, liberty, and security of person of asylum seekers. The families are also challenging the disproportionate effect of certain policies on women as a violation of their section 15 rights not to be discriminated against on the basis of gender.

The fact that Canada is not the country conducting the actual violation of these Charter rights is not an issue. In the case, Suresh v Canada Minister of Citizenship and Immigration) (2002), the Supreme Court ruled that, at least for section 7 violations, “where the deprivation is an entirely foreseeable consequence of Canada's participation,” the government is still liable.[27]

Changing Standard of Proof – A Section 7 Challenge

In the United States, asylum seekers claims are adjudicated on a standard of “reasonable fear of persecution.” After one year, a person who does not have legal status in the United States and who is trying to make an asylum claim will be subject to a removal order. This removal order can be stayed (made inactive) if the claimant can establish on the standard of “more likely than not” that they will be persecuted if they are returned to their home country.[28]

This difference in standard of proof after one year - from “a reasonable fear or persecution” to  more likely than not going to be persecuted - could be a breach of section 7.[29] The risk of refoulment (being sent back to where one will be persecuted) appears to increase when the standard changes. Canada may be violating the section 7 rights of asylums seeker who present themselves at the Canadian border after spending more than a year in the United States because they stand a greater chance of being deported to their country of origin.

If the asylum seeker is facing persecution that could lead to their death, like gang violence, the right to life is engaged. If they are facing imprisonment, for example, for their political opinions, then their right to liberty is engaged. And if they are facing psychological trauma and fear, their right to security of person is engaged.

Domestic Violence Claims – A Section 7 and Section 15 Challenge

United States Attorney General Jeff Sessions announced in June 2018 that gang violence and domestic violence would no longer be grounds on which an asylum claim could be made.[30] Therefore, anyone making a claim on those grounds would be sent back to their home country.

It is possible to make a claim based on domestic abuse in Canada. Canada recognized women fleeing domestic abuse as a “particular social group” in 1995.[31] To prove the well-founded fear based on domestic abuse remains challenging - the claimant still must show that their country is unwilling or unable to protect women who face domestic abuse.[32]

In a 2014 case called Matter of A-R-C-G et al, the American courts began to recognize married women fleeing domestic abuse as a particular social group.[33] Sessions’ announcement, if integrated into policy, could undo this case precedent.

This change in United States policy could make the risk of refoulment higher for women trying to make a claim based on domestic abuse in the United States rather than Canada. If the United States does, in fact, stop considering women facing domestic abuse as a “particular social group,” and Canada does not make an exception in the application of the STCA, this could be a violation of the section 7 rights of women fleeing domestic violence. If the woman is facing physical abuse, her right to life is engaged. If she is facing emotional abuse, her right to security of person is engaged.

Further, this policy disproportionately will affect women and could therefore be a violation of section 15 as well as section 7. Section 15 prohibits discrimination based on gender – if women are disproportionately affected by a policy that makes no distinction based on gender, then a court may find that they are they being discriminated against based on their gender.[34]

Separating Families in the United States – A Section 7 Challenge

In April 2018, the President of the United States announced that more people who cross the border between ports of entry would be prosecuted for making illegal border crossings. Attorney General Jeff Session described it as a “zero-tolerance” policy for “illegal” (irregular) border crossings.[35]

The change in policy took effect in May 2018 and resulted in parents and children being separated. The children are sent to shelters while the parents are detained to await criminal prosecution before their asylum claims will be heard. There is evidence that even those that do not cross the border irregularly are being separated from their children.[36]

Since May 2018, the President has since signed an executive order to end the separations and hold the children in custody with their parents. A judge has ordered that all children must be reunited with their parents. The US border agency has also refused to send new cases for prosecution citing a lack of resources and unclear instructions.[37]

The effects on parents, and particularly the effects on children, of being separated from their family members and detained are well documented.[38] Adults, and especially children, can develop post-traumatic stress disorder (PTSD), and their risk of developing depression and anxiety disorders increases. The family separations could be found to be a breach of the section 7 rights to security of the person of asylum seekers, and in particular of their children.

Remedies in Case of a Successful Constitutional Challenge

If the constitutional challenges are successful, there are various remedies that the court can order – many of which will not result in the Safe Third Country Agreement being dismantled.

If a court finds a breach of a Charter right, then it could “read in” a number of exceptions to the existing Agreement. For example, if could add a discretionary role for the border services officers. In compelling cases, the border services officer could make an exception and not apply the Safe Third Country Agreement. In that case, the asylum seeker would not be sent back to the United States and would be allowed to make an asylum claim in Canada.

If a particular type of claim is obviously being rejected in the United States but would not be in Canada, then the court could read in an exception for these types of claims (for example, claims in which the type of persecution is domestic violence).

It is highly unlikely that the courts would strike down the entire Agreement. Courts order remedies only so far as is necessary to bring the offending legislation into line with the Constitution.[39]

Conclusions

The Safe Third Country Agreement is criticized by those who feel that the United States is no longer a safe third country. Critics believe that the United States is putting asylum seekers at risk and that is it increasing the number of irregular asylum seekers at the Canadian border.

There are political reasons why the government would not want to suspend and terminate the Safe Third Country Agreement. It has been successful in achieving its purpose - reducing the number of asylum claims adjudicated in Canada.

In the absence of political action to suspend or terminate the Safe Third Country Agreement, a constitutional challenge is an option for making changes to the application of the Agreement – and is in the works. Three families are challenging the Safe Third Country Agreement as a violation of sections 7 and 15 of the Charter.

Should the constitutional challenges to the Safe Third Country Agreement be successful, the courts would likely make changes to aspects of the existing Agreement such as providing a discretionary role for border services officers to decide on the legitimacy of claims. Those calling for the Safe Third Country Agreement to be ended should not be too hopeful that this constitutional court challenge will get rid of the Agreement in its entirety.

 

[1] Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2018 FC 396, 2018 FC 2018 (CanLII).

[2] Agreement between the Government of Canada and the Government of the United States of America for cooperation in the examination of refugee status claims from nationals of third countries, Canada and United States of America, 5 December 2002, Can TS 2004 No 2 (entered into force 29 December 2004) .

[3] STCA, supra note 2.

[4] “Asylum Seekers,” UNHCR, online: < http://www.unhcr.org/pages/49c3646c137.html>.

[5] Maciej Lipinski, “Can domestic Abuse Victims Qualify as Refugees? – A Comment on Matter of A-R-C-G et al,” theCourt.ca (29 September 2014), online: < http://www.thecourt.ca/can-domestic-abuse-victims-qualify-as-refugees-a-comment-on-matter-of-arcg-et-al/>.

[6] Richard Warnica, “Toronto faces having to close community centres, cancel programs to house migrant tide from US,” National Post (26 June 2018), online: <https://nationalpost.com/news/canada/toronto-faces-having-to-close-community-centres-cancel-programs-to-house-migrant-tide-from-u-s>.

[7] Mark Gollom, “Would scrapping Safe Third Country Agreement lead to influx of asylum seekers? Not Necessarily,” CBC News (26 June 2018), online <https://www.cbc.ca/news/canada/safe-third-country-agreement-trump-canada-asylum-refugee-1.4721151>.

In the 11-year period after the first year of the Agreement being in effect, the drop in number of asylum claims was 23%, rather than the initial 54%.

[8]Audrey Macklin, "Disappearing Refugees: Reflections on the Canada-U.S. Safe Third Country Agreement," (2005) 36:2 Colum HRLR 365 at 370.

[9]Convention Relating to the Status of Refugees, 25 July 1951, 189 UNTS 137.

[10]Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85.

[11]Immigration and Refugee Protection Act, SC 2001, c 27 s 102.

[12]STCA, supra note 2 art 6; Canada, Immigration, Refugees and Citizenship Canada, “Canada-U.S. Safe Third Country Agreement,” (last updated 23 June 2016), online: <https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement.html>.

[13]STCA, supra note 2 art 4.

[14]Macklin, supra note 8 at 373.

[15]Arron Hutchins, “Donald Trump is Canada’s nest hope for solving its border crisis,” Maclean’s (17 July 2018), online: <https://www.macleans.ca/politics/canada-border-crisis-donald-trump/>.

[16]Canadian Council for Refugees v R, 2007 FC 1262 at para 28, [2008] 3 FCR 606 .

[17]CCR 2007, supra note 16 at para 299.

[18]See, for example: Amanda Dipaolo, “Canada must end its safe third country agreement with the US,” Globe and Mail (20 June 2019), online: <https://www.theglobeandmail.com/opinion/article-canada-must-end-its-safe-third-country-agreement-with-the-us/>; Vicky Mochama, “The Safe Third Country Agreement doesn’t work. Just ask the thousands of people walking over across the Canada-US border,” The Star (30 April 2018), online <https://www.thestar.com/opinion/star-columnists/2018/04/30/the-safe-third-country-agreement-doesnt-work-just-ask-the-thousands-of-people-walking-across-the-canada-us-border.html>; Gabrielle Giroday, “Repeal Safe Third Country Agreement, says Manitoba Lawyer,” Canadian Lawyer (6 February, 2017); “Law professors call for suspension of the Safe Third Country Agreement” Osgoode Hall Law School, York University, online: <https://www.osgoode.yorku.ca/news/law-professors-call-suspension-safe-third-country-agreement/>.

[19]Meridith McGraw, “A timeline of Trump’s immigration executive order and legal challenges,” abc News(29 July 2017), online: < https://abcnews.go.com/Politics/timeline-president-trumps-immigration-executive-order-legal-challenges/story?id=45332741>.

[20]Globe and Mail, “Families separated, children detained: What we know so far about Trump’s ‘zero-tolerance’ policy,” Globe and Mail (18 June 2018, updated 27 June 2018), online: <https://www.theglobeandmail.com/world/us-politics/article-trump-family-separation-detention-camps-explainer/>.

[21]Darlene Superville, “Trump says he’s willing to shut down government over immigration,” Globe and Mail (29 July 2018), online: <https://www.theglobeandmail.com/world/us-politics/article-trump-says-hes-willing-to-shut-down-government-over-immigration/>.

[22]Hutchins, supra note 15.

[23]Michelle Zilio, “Number of asylum seekers crossing into Canada from U.S. continues to rise, feds say,” Globe and Mail (3 May 2018), online: <https://www.theglobeandmail.com/politics/article-number-of-asylum-seekers-crossing-into-canada-from-us-continues-to/>; Bryce Hope, “Asylum seeker suffers frostbite crossing borders as feds’ U.S. campaign discourages irregular migration,” CBC News (10 January 2018), online: <https://www.cbc.ca/news/canada/manitoba/manitoba-emerson-border-town-asylum-seeker-refugees-1.4480884>.

[24] STCA, supra note 2 art 10; Anna Desmarais, “Analysis: Debunking Canada’s responsibility under the Safe Third Country Agreement,” iPOLITICS (16 July 2018), online: < https://ipolitics.ca/2018/07/16/analysis-debunking-canadas-responsibility-to-the-united-states-under-the-safe-third-country-agreement/>.

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

[26]Charter, supra note 28 s 15.

[27] Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at para 54, [2002] 1 SCR 3.

[28]CCR 2007, supra note 16 at para 142.

[29] In a 2007 case, Justice Phelan of the Federal Court of Canada found it to be a breach (CCR 2007, supra note 16 at para 154). His judgment was later overturned on appeal for unrelated reasons (CCR 2007, supra note 16 at para 285).

[30] Tal Kopan, “Trump admin drops asylum protections for domestic violence victims,” CNN Politics (11 June 2018), online: <https://www.cnn.com/2018/06/11/politics/jeff-sessions-asylum-decision/index.html>.

[31]Narvaez v Canada (Minister of Citizenship and Immigration), [1995] 2 FC 55, 1995 CanLII 3575 (FC).

[32] Lipinski, supra note 5.

[33] Matter of A-R-C-G et al, 26 I&N Dec. 388 (BIA 2014).

[34] British Columbia (Public Service Employee Relations Commission) v BCGSEU, [1999] 3 SCR 3, 176 DLR (4th) 1.

[35]Globe and Mail, supra note 20.

[36]For a list of instances, see Emma Stein, “Asylum Seeking Families, Too, Are Being Separated,” human rights first (04 June 2018), online: <https://www.humanrightsfirst.org/blog/asylum-seeking-families-too-are-being-separated>.

[37]Globe and Mail, supra note 20.

[38] Kevin Loria, “Trump now claims migrant children will be reunited with their families. Here are the lifelong psychological consequences these kids face.,” Business Insider (21 June 2018), online: < https://www.businessinsider.com/how-family-separation-and-detention-affect-children-2018-6>.

[39]Schachter v Canada, [1992] 2 SCR 679 at 695, 93 DLR (4th) 1.

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

Introduction

In the landmark decision of Canada (Attorney General) v Bedford[1] on December 20, 2013, the Supreme Court of Canada ruled that some of Canada's prostitution laws are unconstitutional. The Court found that the laws violated sex workers’ rights to the security of the person under section 7 of the Canadian Charter of Rights and Freedoms.[2] The Court gave the government time to change the laws by allowing them to stay in place for up to one year. If there is no change, the unconstitutional prostitution laws will be struck down. This one-year delay gives Canadians a unique opportunity to think about, debate, and tell Members of Parliament what kind of prostitution laws they want. It is possible, however, that any new laws may be challenged in court again.

Reports showed sharply contrasting views of the decision on the day it was released. In particular, plaintiff Valerie Scott stated, "[p]eople said that when women got the right to vote, equal pay, equal rights, and same sex marriage — all of those things, every single one, people said the sky would fall in. It did not. Society is the better for it and society will be the better for sex workers having proper civil and occupational rights."[3] A contrasting view came from Kim Pate of the Association of Elizabeth Fry Societies: "It's a sad day that we've now had confirmed that it's OK to buy and sell women and girls in this country. I think generations to come — our daughters, their granddaughters and on — will look back and say, 'What were they thinking?'"[4]

Prostitution is currently legal in Canada, but many actions associated with prostitution are considered crimes. Three of these crimes were found to be unconstitutional by the Court:

1) Communicating in public for the purpose of prostitution;[5]

2) Living in, owning, leasing, occupying or being inside of a 'common bawdy house';[6] and

3) 'Living off the avails of' prostitution.[7]

A common bawdy house is a place that is used for prostitution.[8] 'Living off the avails of' prostitution means someone who makes a living from or lives off the money that prostitutes earn.

The following Featured Court Ruling explains why the Supreme Court found these three prostitution laws unconstitutional. The Supreme Court also commented in detail about how section 7 of the Charter[9] should be interpreted by the courts.

Facts

Background

Terri Jean Bedford, Amy Lebovitch, and Valerie Scott are either current or former sex workers. They applied to the Ontario Superior Court of Justice for an order declaring that the above laws were unconstitutional. They argued that these laws created unsafe working conditions for prostitutes, and thus violated their rights to the security of the person under section 7.

Procedural History

At trial, and after considering 25,000 pages of evidence, the judge found the laws against keeping a common bawdy house, living on the avails, and communicating in public for the purposes of prostitution laws to be unconstitutional. The judge decided that all three of those laws violated sex worker's rights to security of the person.

The government appealed the decision to the Ontario Court of Appeal, where it found that the 'bawdy house' and 'avails' laws were unconstitutional. However, they found the law about 'communicating' to be constitutional. One of the justices on the appeal court dissented in part and would have found the 'communicating' law unconstitutional as well.

The majority of the Court also found that the trial judge had overstepped her authority since she disagreed with an earlier Supreme Court decision in the Prostitution Reference case.[10] The Supreme Court also decided that appeal courts did not have to show deference to trial judges on facts about society and legislation. Usually, appeal courts must be deferential to the facts found at trial.

Both sides appealed the Court of Appeal decision to the Supreme Court.

Issues

The Supreme Court considered the following issues:

1.  Can a trial judge consider Charter arguments not raised in a previous case about the same law?

2.  Must appeal courts defer to facts found at trial about society and legislation?

3.  How should courts determine whether laws cause violations of section 7 rights?

4.  Is the 'common bawdy house' law constitutional?

5.  Is the 'living off the avails' law constitutional?

6.  Is the 'communicating in public for the purposes of prostitution' law constitutional?

Decision

The Supreme Court ruled that a trial judge may consider Charter arguments not raised in a previous case about the same issues. It also found that facts about society and legislation determined at trial court must be given deference by higher courts. Finally, the Court found all three of the prostitution laws – common bawdy house, living of the avails, and communicating in public for the purposes of prostitution ­- to be unconstitutional.

Court's Analysis

Issue 1: Can a trial judge consider Charter arguments not raised in a previous case about the same law?

The Supreme Court decided that, in some situations, a trial judge may consider Charter arguments not raised in a previous case about the same law.

If a higher court has already made a decision about a legal issue, then a lower court generally must decide that legal issue in the same way. This is the principle of stare decisis.[11]  The lower court is 'bound' by that decision. This is true of all cases, including reference cases. Here, the Supreme Court ruled that new arguments about a subject already decided by higher courts are new issues. Because they are new issues, the trial court can make a different decision than the higher court about the same subject. In addition, significantly new circumstances or evidence may render the same argument about the same subject a new issue. In those circumstances, a lower court is also not bound by a higher court. In other words, the constitutionality of a law is more important than the principle of stare decisis. A lower court does not need to follow the decision of a higher court, even the Supreme Court of Canada, if the result would be unconstitutional.

In this case, the Supreme Court found that the trial judge was allowed to make a different decision about Canada's prostitution laws than the Supreme Court did in the Prostitution Reference case. New arguments about the laws and section 7 of the Charter meant that there was a new legal issue for the judge to decide.

Issue 2: Must appeal courts defer to facts found at trial about society and legislation?

The Supreme Court decided that appeal courts must defer to facts found at trial about society and legislation.

Generally, appeal courts do not change facts found at trial unless the trial judge finds a fact that had no supporting evidence, and that finding affects the outcome. This is because the trial court can examine and test the evidence at length. If appeal courts did the same fact finding, there would be a lot of time wasted on repeating work already completed at trial. Likewise, if appeal courts had one standard for facts about society and legislation and another for other facts, then appeal courts would have an impossible task. Facts about society and legislation are usually linked with other facts. Appeal courts could not untangle the two types of facts, nor verify them. They must rely on the trial court’s judgment because the facts have been presented directly there.

Issue 3: How should courts determine whether laws cause violations of section 7 rights?

The Court clarified two important points about determining whether, and how, laws cause violations of section 7 rights. The first point was about causation, or how the court determines whether the law caused the violation of someone's section 7 rights. The second was about the principles of fundamental justice, or how courts must classify different ways in which laws can violate rights.

Sub Issue 3.1: Causation

The Attorney General in this case argued that the laws against living off the avails, keeping a common bawdy house and communicating for the purposes of prostitution cannot cause violations of section 7 rights because Parliament is free to make laws as they see fit. Therefore, anyone who sells sex accepts the risks of breaking those laws.

The Supreme Court rejected these arguments. The court reasoned that some people may have no real choice other than selling sex because of desperate financial circumstances, addiction, or force. Even if all prostitutes had freely chosen their work, the laws in question create the possibility of harm that violates their right to security of the person.  For example, the prohibition against communicating in public for the purposes of prostitution prohibited prostitutes from screening clients in public before getting in a car or meeting in a private area. Screening clients before going into a private area is a way for prostitutes to help check if their potential client is drunk or possibly dangerous. Prohibiting this practice violated their section 7 rights because sex workers must choose between an important safety measure and obeying the law.

Sub Issue 3.2 Principles of fundamental justice

Section 7 of the Charter states that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”[12] The Court stated that the purpose of section 7 is to ensure that laws that impact the rights to life, liberty and security of the person do not conflict with our basic values. The 'principles of fundamental justice' are a way to understand these basic values about justice.

The Court noted that one of these principles is a principle against arbitrariness, overbreadth and gross disproportionality. A law is arbitrary when there is no real connection between the effect of the law and its goal. A law is overbroad when the effect of the law goes too far and interferes with activities that are not part of its goal. A law is grossly disproportionate when the effect of the law is much harsher than the benefits of achieving its goal.

Issue 4: Is the 'common bawdy house' law unconstitutional?

The Supreme Court found the common bawdy house law unconstitutional. Unlike the Ontario Court of Appeal, the Supreme Court supported the trial court's decision about the facts involving bawdy houses. The trial court found that the goal of this law was to address some of the effects of prostitution on communities rather than to address prostitution itself. The finding was that while the law did help keep brothels out of communities, it also prevented sex workers from working safely. It noted that the safest method of prostitution is “in-call” prostitution, where sex work occurs in a place controlled by sex workers. The Court concluded that the ‘common bawdy house’ law prevents sex workers from hiring security and receptionists, resorting to safe houses, and taking other safety measures. Therefore, the law puts sex workers at risk and violates their section 7 rights. As such, it was declared unconstitutional.

Issue 5: Is the 'avails' law unconstitutional?

The law against living off the avails of prostitution was likewise found to be unconstitutional. The Supreme Court accepted the facts about this law found at trial. It was found at trial that this law’s purpose was to protect sex workers against exploitative relationships. The Supreme Court found that this law was overbroad. It noted that while the law satisfied this purpose, it also stopped sex workers from hiring people that would make their work safer, such as security guards. It did this because any person that sex workers might hire to keep them safe would be breaking the law against living off the avails of prostitution.

Issue 6: Is the 'communication' law unconstitutional?

Again, the Supreme Court accepted the facts found at trial where the objective was found to be preventing a public nuisance, namely public displays of the negotiation about sex work. While the law does prevent that nuisance, the court also found it to prevent safety measures such as screening of clients and negotiating condom use.

The Supreme Court found that the effect of the law was grossly disproportionate because the law had grave consequences to sex workers compared to the benefits of the goal of avoiding nuisance in communities.

The Supreme Court also ruled that the majority of the Court of Appeal erred in their decision on this point, misunderstanding the objective of the law as noted in the Prostitution Reference case. The Court of Appeal also wrongly substituted its own judgment on the evidence for the trial court's judgment. The Supreme Court also found that the Court of Appeal erred by ignoring some important facts found at trial and substituting these facts with speculation.

The court gave Parliament time to write new laws by allowing all three laws to stay in place for up to one year.

Significance of the Ruling

It is hard to overstate the impact of this decision. Not only were three of Canada's prostitution laws declared invalid, the Supreme Court gave new direction on how courts should deal with prior decisions and section 7 rights claims.

On June 4, 2014, Minister of Justice Peter McKay introduced a bill in response to this decision.[13] He stated that the bill would make prostitution illegal in Canada for the first time by criminalizing the purchase of sex.[14] For example, selling sex would still be legal under the proposed law, but buying it would now be illegal. Reactions were polarized. The Pivot Legal Society argued that the new prostitution laws would both be unconstitutional and make sex work more dangerous.[15] They argued that it would be unconstitutional because the proposed law would make a legal activity dangerous in the same way the old laws did. In contrast, professor Michael Plaxton of the University of Saskatchewan College of Law suggested that the law may be constitutional and more carefully written than the laws struck down in Bedford.[16]

This decision gives Canadians a unique opportunity to think about, debate, and tell Members of Parliament what kind of prostitution laws they want. Prostitution is the so-called oldest profession, and Canada has an opportunity to take a new approach. The Minister of Justice has stated that the proposed bill is a new “Canadian Model” dealing with sex work.[17] This has led to a lot of debate in society and in Parliament. Regardless of what law, if any, Parliament passes, any new laws may be challenged in court again.

[1] Canada (Attorney General) v Bedford, 2013 SCC 72, 2013 SCC 72 (Canlii).

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

[3] “Supreme Court strikes down Canada's prostitution laws”, CBC News (20 December 2013) online: CBC News < http://www.cbc.ca/news/politics/supreme-court-strikes-down-canada-s-prostitution-laws-1.2471572>.

[4] Ibid.

[5] Criminal Code, RSC 1985, c C-46, s 213(1)(c).

[6] Ibid, s 210.

[7] Ibid, s 212(1)(j).

[8] Ibid, s 197 “common bawdy-house”.

[9] Charter, s 7.

[10] Reference re ss 193 and 195.1(1)(C) of the criminal code (Man.), [1990] 1 SCR 1123, 1990 CanLII (SCC).

[11] Black's Law Dictionary, 9th ed, sub verbo “stare decisis”.

[12] Charter, s 7.

[13]  “Prostitution bill would make it illegal to buy, sell sex in public”, CBC News (4 June 2014) online: CBC News < http://www.cbc.ca/news/politics/prostitution-bill-would-make-it-illegal-to-buy-sell-sex-in-public-1.2664683>. [Prostition Bill – CBC News].

[14] Ibid.

[15] Peter Wrinch, “The new sex work legislation explained”, Pivot Legal Society (4 June 2014) online: Pivot Legal Society < http://www.pivotlegal.org/the_new_sex_work_legislation_explained>

[16] Michael Plaxton, “First Impressions of Bill C-36 in Light of Bedford”, University of Saskatchewan (6 June 2014) online: Social Science Research Network < http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2447006>

[17] Prostitution Bill - CBC News, see note 13.

Introduction

On April 4, 2013, the British Columbia Court of Appeal released its judgment on whether lawyers and law firms are obliged to keep records of clients who may be involved in money laundering and terrorist funding.[1] The Court considered whether the Proceeds of Crime (Money Laundering) and Terrorist Financing Act and related regulation were constitutional.[2] The Court ruled that the legislation and related regulation (referred to as “the Regime” by the Court) were unconstitutional for violating the lawyers’ and clients’ right to liberty under the Canadian Charter of Rights and Freedoms (Charter).[3]

The decision reaffirmed that the confidentiality of a solicitor-client relationship and the independence of the legal profession from external influence are fundamental principles of Canada’s legal system.[4] The Court ruled that these principles are essential to a lawyer’s ability to deliver impartial and efficient legal service. The following Featured Court Ruling provides a summary and analysis of this decision.

Facts

In 1989, the Canadian Government introduced the Proceeds of Crime and Terrorist Financing Act to criminalize money laundering and terrorist funding activities.[5] Along with the relevant regulation enabled by the Act in 2002, the legislation required certain individuals or groups to report suspicious transactions and large cross-border movements of currency to the Federal Government.

In 2008, Parliament amended several sections of the Regime, including section 5 of the Proceeds of Crime and Terrorist Financing Act and section 33.3 of the relevant regulation.[6] Under sections 5(i) and (j) of theAct, “persons and entities engaged in certain businesses, professions or activities described in regulations made under sections 73(1)(a) and (b) of the Act” had the following obligations: record keeping, verifying identity, reporting of suspicious transactions, and registration with the Federal Government’s financial intelligence unit.[7] This included lawyers and law firms by operation of section 33.3 of the relevant regulation.[8] The amendment thus expanded the Regime’s scope of application to require lawyers and law firms to collect information of clients potentially involved in money laundering or terrorist funding. These records were to be made available to the Federal Government’s financial intelligence unit.[9]

In response to the new duties, the Federation of Law Societies of Canada (FLSC), the coordinating body for Canada’s 14 provincial and territorial law societies, filed a petition challenging the constitutionality of the amendment.[10] The FLSC claimed that the Regime’s application to lawyers and law firms and the requirement to collect client information for state use failed to respect solicitor-client privilege, which is protected under section 7 of the Charter.[11]

Procedural History

On September 27, 2011, the British Columbia Supreme Court ruled that the portions of the Regime requiring lawyers and law firms to keep information of clients potentially involved in money laundering or terrorist funding were unconstitutional.[12] The Court ruled that the Regime undermined two key principles of fundamental justice: solicitor-client privilege and the independence of the bar.[13] The Regime also breached lawyers’ and clients’ right to liberty under section 7 of the Charter. The Court found that the unconstitutional portions of the Regime were not reasonable and permissible limits on the section 7 Charter right.[14]

As a result, the British Columbia Supreme Court ordered the following remedy which relieved lawyers and law firms from obligation under the Regime to keep client records, verify client identify, report suspicious transactions and register with financial intelligence unit:[15]

- Sections 5(i), 5(j), 62, 63, and 63.1 of the Act should not apply to lawyers and law firms.

- Section 11.1 of the regulation should have the words “legal counsel or legal firm” severed.

- Section 64 of the Act and sections 33.3, 33.4, 33.5, and 59.4 of the regulation should be struck down in their entirety.

The Attorney General of Canada, representing the Crown, appealed the British Columbia Supreme Court decision to the British Columbia Court of Appeal arguing that the Regime was constitutional.

Issues

1. Does the Regime violate section 7 of the Charter?[16]

i) What are the duties of lawyers and law firms under the Regime?

ii) Does the Regime violate lawyers’ and clients’ right to liberty under section 7?[17]

iii) Is the violation made in accordance with the principles of fundamental justice under section 7?[18]

a. Solicitor-client privilege

b. Independence of the bar

2. If the Regime violates section 7 of the Charter, can the violation be justified?[19]

3. If the violation is not justified, what should be the appropriate effect of the Regime?

Decision

The Court of Appeal dismissed the appeal and upheld the British Columbia Supreme Court decision. The Court found that several portions of the Regime imposed legal duties on lawyers and law firms that breached section 7 of the Charter.[20] The breach failed to respect two principles of fundamental justice: solicitor-client privilege and the independence of the bar. The Court found that the unconstitutional provisions were not justifiable under section 1 of the Charter.[21] The Court upheld the British Columbia Supreme Court decision to exclude lawyers and law firms from the Regime.

Court’s Analysis

1. Does the Regime violate section 7 of the Charter?

i) What are the duties of lawyers and law firms under the Regime?

The Court found that the Regime imposed a duty on all lawyers who receive or pay funds on behalf of a client to keep records that can be used by the Government. This duty applied whether or not lawyers were providing legal services. As a result, keeping records for state use became a precondition for giving legal advice. Moreover, the Court found that the use of information was not restricted solely to the purpose of ensuring compliance by the lawyers. Instead, client information made available to the Government could be used for any purpose in accordance with the Regime, such as pursuing a criminal charge against the client.[22]

ii) Does the Regime violate lawyers’ and clients’ right to liberty under section 7?

Section 7 of the Charter guarantees everyone the right to liberty. The right to liberty means that people cannot be physically held against their will without due process. As a general rule, imprisonment of a person violates the right to liberty.[23]

The Court found that the Regime violated both lawyers’ and clients’ right to liberty guaranteed in section 7 of the Charter. Lawyers’ right to liberty was violated because their failure to comply with the Regime could result in a fine or imprisonment.[24] Clients’ right to liberty was violated because the Regime allowed the Federal Government to access the client’s confidential information that is otherwise protected by solicitor-client privilege. As a result, depending on the type of information accessed, criminal charges could be brought against clients and lead to imprisonment.[25]

iii) Is the violation made in accordance with the principles of fundamental justice?

Under section 7 of the Charter, the Government’s breach of a person’s right to liberty may be justified if it is made in accordance with the principles of fundamental justice.[26] To establish that a principle meets the threshold required to be a principle of fundamental justice, the claimant must demonstrate three components:

(1) there is a legal principle;

(2) there is a consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate; and

(3) the principle is capable of being identified with sufficient precision so as to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.[27]

a. Solicitor-client privilege

Solicitor-client privilege is a principle of fundamental justice recognized by the courts.[28] It imposes a duty on lawyers to keep the client’s information confidential thus ensuring that a client make full and frank disclosure to a lawyer without the fear of that information becoming available to third persons. The only exception to this privilege is when the government can demonstrate that accessing client information through the lawyer is “absolutely necessary”.[29] For example, in Lavallee v Canada (AG), the Supreme Court of Canada stated, “even where public safety is at stake, there must be a clear and imminent risk of serious bodily harm or death to an identifiable person or group before solicitor-client privilege can be compromised”.[30]

Contrary to the British Columbia Supreme Court’s decision, the British Columbia Court of Appeal ruled that the Regime did not intrude on solicitor-client privilege. The Court of Appeal stated that there was sufficient protection for solicitor-client privilege in the Regime. Therefore, the Regime’s violation of section 7 could be justified since the violation was made in accordance with solicitor-client privilege (principle of fundamental justice).

b. Independence of the bar

The Court of Appeal directed greater focus to another principle of fundamental justice – the independence of the bar. Independence of the legal profession from external interference, including interference from a public authority, enables lawyers to provide impartial legal services to clients. It is one of the hallmarks of a free and democratic society that satisfies the three components of the principle of fundamental justice.[31]However, the Regime forced lawyers to manage conflicting interests between clients and the Government. Hence, contrary to its finding on solicitor-client privilege, the Court held that the Regime undermined the independence of the bar in a manner that was inconsistent with the principles of fundamental justice.[32]

2. If the Regime violates section 7 of the Charter, can the violation be justified?

When a government action or legislation violates a Charter right, the court considers whether the violation is justified under section 1 of the Charter.[33] Under section 1, the government provides reasons why its legislation or action is justified in violating a Charter right and the court examines these reasons. In this case, the Court ruled that the Regime’s violation of section 7 of the Charter was not justifiable under section 1 of the Charter. In other words, the legislation and the regulation were not deemed reasonable and justifiable in a free and democratic society.[34]

For the section 1 analysis, the courts apply the two-part test which was established in R v Oakes.[35]

The first part examines whether the government action violating the Charter right has an objective relating to concerns which are pressing and substantial in a free and democratic society. In this case, the Court accepted the Attorney General’s argument that some clients may employ lawyers to perform financial transactions based on the belief that solicitor-client privilege would prevent the disclosure of transaction details even if done for an illegal purpose. Therefore, the Court held that the Regime’s purpose of combating money laundering and terrorist funding activities addressed a pressing and substantial concern.[36]

The second part examines whether the purpose of the government action or legislation is proportional to the effect of limiting the Charter right. The Court found that the Regime’s purpose was not proportional to its effect of limiting the section 7 Charter right. The Court held that the Regime imposed a duty on lawyers to act as agents of the Federal Government contrary to the interest of their clients. This duty impaired the clients’ and lawyers’ section 7 right beyond the minimal level permitted under section 1 of the Charter. Moreover, the FLSC already had existing anti-money laundering regulations similar to the relevant provisions in the Regime. The Court ruled that the degree of the Regime’s violation of the Charter right was disproportionate to its objective.[37]

3. If the violation is not justified, what should be the appropriate effect of the Regime?

The Court upheld the British Columbia Supreme Court’s decision to exclude lawyers and law firms from the Regime. The Court ordered the amendment of the Regime as follows:

- Sections 5(i), 5(j), 62, 63, and 63.1 of the Act would not apply to lawyers and law firms.

- Section 11.1 of the regulation had the words “legal counsel or legal firm” severed.

- Section 64 of the Act and sections 33.3, 33.4, 33.5, and 59.4 of the regulation were struck down in their entirety.[38]

As a result, lawyers and law firms were relieved from obligation under the Regime to keep client records, verify client identity, report suspicious transactions and register with the financial intelligence unit.

Significance of the Ruling

The exclusion of lawyers and law firms from the Regime has two positive effects. First, clients can disclose confidential information to their lawyers with the confidence that it will not become available to Government agencies for investigatory purposes. Second, lawyers can provide impartial, comprehensive, and effective legal services because they no longer face conflicting interests and obligations with respect to their client and the Government.

For the FLSC, protecting solicitor-client privilege and retaining the independence of the bar are fundamental. Therefore, the Court of Appeal’s reaffirmation of those two principles of fundamental justice was a major victory for the FLSC. Nevertheless, the decision does not relieve lawyers and law firms from the ongoing obligation to comply with the FLSC’s anti-money laundering regulations.

 

[1] Federation of Law Societies of Canada v Canada (AG), 2013 BCCA 147 <http://www.canlii.org/en/bc/bcca/doc/2013/2013bcca147/2013bcca147.html>.

[2] Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC 2000, c 17 <http://canlii.ca/en/ca/laws/stat/sc-2000-c-17/latest/sc-2000-c-17.html>; Proceeds of Crime (Money Laundering) and Terrorist Financing Regulation, SOR/2002-184 <http://canlii.ca/en/ca/laws/regu/sor-2002-184/latest/sor-2002-184.html>; FLSC, supra note 1.

[3] Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 <http://laws-lois.justice.gc.ca/eng/const/page-15.html> (“[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice” s 7).

[4] Reference re Section 94(2) of the Motor Vehicle Act, [1985] 2 SCR 486 at para 31 <http://canlii.ca/en/ca/scc/doc/1985/1985canlii81/1985canlii81.html> (principles of fundamental justice are basic tenets of our legal system which are fundamental to its fair operation).

[5] Proceeds of Crime Act, supra note 2; Proceeds of Crime Regulation, supra note 2; Factsheet: The IMF and the Fight Against Money Laundering and the Financing of Terrorism, online: International Monetary Fund <https://www.imf.org/external/np/exr/facts/aml.htm>; Money laundering is a process where the income generated by criminal activity is put through numerous transactions to become integrated into the legitimate financial system and appear legal. Financing terrorism involves raising and managing funds to support terrorist activities. Both money laundering and terrorist financing are serious threats to the security and stability of a country.

[6] FLSC, supra note 1 at para 3.

[7] Proceeds of Crime Act, supra note 2, ss 5(i), 5(j); Financial intelligence unit refers to “Financial Transactions and Reports Analysis Centre of Canada” (“FINTRAC”).

[8] Proceeds of Crime Regulation, supra note 2, s 33.3.

[9] Other duties imposed on lawyers and law firms include client identification, verification, record keeping of suspicious financial transactions, establishing an internal program to promote compliance with the federal anti-money laundering regime, and providing information to law enforcement officials who are investigating proceeds from criminal activities.

[10] Federation of Law Societies of Canada is a national body coordinating fourteen provincial and territorial governing bodies of legal professions: Law Society of British Columbia, Law Society of Alberta, Law Society of Saskatchewan, Law Society of Manitoba, Law Society of Upper Canada, Barreau du Quebec, Chambre des notaires du Quebec, Law Society of New Brunswick, Nova Scotia Barristers’ Society, Law Society of Prince Edward Island, Law Society of Newfoundland and Labrador, Law Society of Yukon, Law Society of the Northwest Territories, Law Society of Nunavut.

[11] FAQ about solicitor-client privilege and confidentiality, online: Canadian Bar Association <http://www.cba.org/cba/activities/PDF/Privilege%20FAQ%20Eng%20-%20final.pdf> (solicitor-client privilege is a rule where an individual’s communication with the lawyer cannot be made available to a third party so as to be used against the individual).

[12] Federation of Law Societies of Canada v Canada (AG), 2011 BCSC 1270 <http://www.canlii.org/en/bc/bcsc/doc/2011/2011bcsc1270/2011bcsc1270.html>.

[13] Motor Vehicle Act, supra note 4.

[14] Charter, supra note 3, s 1 (“[t]he Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” s 1).

[15] FLSC, supra note 1 at para 42; Proceeds of Crime Act, supra note 2, ss 5(i), 5(j), 62, 63, 63.1; Proceeds of Crime Regulation, supra note 2, ss 11.1, 33.3, 33.4, 33.5, 59.4.

[16] Charter, supra note 3, s 7.

[17] Ibid.

[18] Ibid.

[19] Ibid, ss 1, 7.

[20] Ibid, s 7.

[21] Ibid, s 1.

[22] FLSC, supra note 1.

[23] Charter, supra note 3; Motor Vehicle Act, supra note 4.

[24] Proceeds of Crime Act, supra note 2.

[25] FLSC, supra note 1 at para 88.

[26] Motor Vehicle Act, supra note 4.

[27] R v Malmo-Levine, 2003 SCC 74 <http://canlii.ca/en/ca/scc/doc/2003/2003scc74/2003scc74.html>.

[28] Solosky v The Queen, [1980] 1 SCR 821 <http://canlii.ca/en/ca/scc/doc/1979/1979canlii9/1979canlii9.html>.

[29] Lavallee, Rackel & Heintz v Canada (AG), 2002 SCC 61 <http://canlii.ca/en/ca/scc/doc/2002/2002scc61/2002scc61.html>.

[30] Ibid at para 37.

[31] Malmo-Levine, supra note 27.

[32] FLSC, supra note 1 at para 113.

[33] Charter, supra note 3, s 1.

[34] Ibid, supra note 3, ss 1, 7.

[35] R v Oakes, [1986] 1 SCR 103 <http://www.canlii.org/en/ca/scc/doc/1986/1986canlii46/1986canlii46.html>.

[36] FLSC, supra note 1 at para 130.

[37] Ibid, supra note 1 at para 159.

[38] Ibid, supra note 1 at paras 42, 161; Proceeds of Crime Act, supra note 2, ss 5(i), 5(j), 62, 63, 63.1;Proceeds of Crime Regulation, supra note 2, ss 11.1, 33.3, 33.4, 33.5, 59.4.

INTRODUCTION

On June 15, 2012, the Supreme Court of British Columbia rendered its long-awaited decision in Carter v Canada (Attorney General),[1] a case that considers whether a full prohibition on assisted suicide is contrary to the Canadian Charter of Rights and Freedoms.

Under section 241(b) of the Criminal Code, assisting someone to commit suicide is prohibited - a criminal offence. Justice Lynn Smith ruled that this “absolute” prohibition is contrary to two rights guaranteed by theCharter: (1) the equality guarantee in section 15; and (2) the right to “life, liberty and security of the person” in section 7. The prohibition is “absolute” because it does not allow for any exceptions, even in limited circumstances.

The 395-page decision re-opens a debate about assisted suicide that has been considered closed by the Supreme Court of Canada since 1993. In Rodriguez v British Columbia (Attorney General),[2] the Supreme Court considered the constitutionality of the same assisted suicide provision of the Criminal Code and a majority of the Court decided that it did not breach the Charter.

Justice Smith’s decision is sure to be appealed, potentially all the way up to the Supreme Court.

FACTS

The plaintiffs challenged several provisions of the Criminal Code relating to assisted suicide, but the challenge is centred on section 241(b), which states:

Everyone who … (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.[3]

Three different sets of plaintiffs challenged this prohibition of assisted suicide in Carter:

1. Gloria Taylor, who suffers from a fatal, neurodegenerative disease called amyotrophic lateral sclerosis (also known as “ALS”);[4]

2. Lee Carter and her husband Hollis Johnson, who helped Ms Carter’s mother to arrange an assisted death in Switzerland, knowing that providing this assistance could expose them to criminal charges in Canada;

3. Dr William Shoichet, a B.C.-based family doctor who would be willing to participate in physician-assisted dying if it were no longer illegal and he was convinced that it was appropriate medical care in the circumstances; and

The British Columbia Civil Liberties Association was also granted public interest standing in the case as it has a “long-standing interest in matters of patients’ rights and health policy”, and has some involvement in advocacy regarding end-of-life policy.[5]

The case mainly centered on the first plaintiff, Gloria Taylor. As an ALS patient, Ms. Taylor will lose her physical capacity over time, while retaining all cognitive and mental faculties.[6] While she is currently able to live fairly independently, Ms. Taylor wants to know that she can have a physician-assisted death when she is no longer able to move physically and her life becomes unbearable to her.[7] As she stated in her affidavit before the Court:

My present quality of life is impaired by the fact that I am unable to say for certain that I will have the right to ask for physician-assisted dying when that ‘enough is enough’ moment arrives… As Sue Rodriguez asked before me – whose life it is anyway?[8]

Ms. Taylor argued that, in limited circumstances, there should be exceptions to the absolute prohibition on assisted suicide for patients. Her position was that the absolute prohibition contained in the Criminal Codeis contrary to both her right to equality, and her right to life, liberty, and security of the person. The law prevents terminally ill, competent adults, who are well-informed and voluntarily seeking out physician-assisted dying, from receiving such assistance.[9]

ISSUES

The issues for the Court’s consideration were:

1. Is the ban on assisted suicide in section 241(b) of the Criminal Code contrary to section 15 of the Charter, which guarantees the right to equality?

a. If so, is the infringement a reasonable limit that is demonstrably justified in a free and democratic society under section 1 of the Charter?

2. Is the ban on assisted suicide contrary to section 7 of the Charter, which guarantees the right to life, liberty, and security of the person except in accordance with the principles of fundamental justice?

a. If so, is the infringement a reasonable limit that is demonstrably justified in a free and democratic society under section 1 of the Charter?

3. If there is an infringement of either section 15 or section 7 of the Charter that cannot be justified, what is the appropriate remedy?

DECISION

The Court concluded that the law, which is an absolute prohibition on assisted suicide (i.e. a prohibition without exceptions), is an infringement of Ms. Taylor’s right to equality and her right to life, liberty, and security of the person. The infringement is not justified under section 1 of the Charter. Further, the law is an infringement of Ms. Carter and Mr. Hollis’ right to life, liberty, and security of the person, and this infringement is also not justified.[10]

As a result, the Court struck down the law and declared it invalid.[11] However, the Court declared that the applicable sections of the Criminal Code would not be struck down immediately. It gave Parliament one year – a period of time to allow it to respond and enact new laws.[12] In the meantime, Ms. Taylor was granted a “constitutional exemption” – a court order that allows her the option of physician-assisted death under several stipulated conditions without risk of exposing someone to criminal charges.[13]

ANALYSIS

Preliminary Issues for Consideration

Before embarking on a detailed analysis of the issues before it, the Court had to resolve a number of preliminary matters, including:

1. What is meant by the term “assisted suicide”?

2. What is the effect of the Supreme Court of Canada decision on assisted suicide in the Rodriguez case?

What is meant by the term “assisted suicide”?

In this decision, the Court defined “assisted suicide”, or “physician-assisted suicide” as “the act of intentionally killing oneself with the assistance of a medical practitioner who provides the knowledge, means, or both.”[14] “It is closely related to voluntary euthanasia, which is “the intentional termination of the life of a patient by a physician, at the patient’s request, for compassionate reasons.”[15] The term “physician-assisted dying” encompasses both physician-assisted suicide and voluntary euthanasia.

What is the effect of the Rodriguez decision?

The Supreme Court ruled that the Criminal Code ban on assisted suicide is constitutional in the 1993Rodriguez decision. Rodriguez also involved a woman with ALS who wished to obtain a physician-assisted death, and so challenged the constitutionality of the law.

According to the legal rule of “stare decisis” (which literally translates to “let the decision stand”), cases which involve similar facts and similar legal questions must be decided in the same way. In other words, the Court of British Columbia must follow the earlier decision of the Supreme Court of Canada in a similar case with similar facts and issues. The rule ensures predictability and consistency in the legal system.[16]

However, the Court in Carter decided to revisit the Rodriguez decision and the assisted suicide issue. Why? The Court concluded that it was appropriate for several reasons:

• New evidence is available – today, there is significant evidence available from other jurisdictions where assisted suicide is permitted - including evidence regarding the effectiveness of safeguards to protect vulnerable individuals - that was not available to the Supreme Court in 1993 when Rodriguez was decided.[17]
• The legal principles have evolved – new legal principles have been developed since 1993 dealing especially with the proper approach to interpreting section 7 and the right to life, liberty, and security of the person.[18] In addition, new principles have emerged regarding the proper approach to interpreting reasonable limits under section 1 of the Charter.[19]
• Several questions still linger after the Rodriguez decision – a number of the legal issues that arise in this case were not conclusively decided in Rodriguez.

The Rodriguez case divided the Supreme Court. A summary of the decision can be found here.

Of the nine judges who heard the case, a majority of five upheld the law prohibiting assisted suicide, ruling that it was constitutional. They reached this conclusion because, although Ms. Rodriguez’s right to security of the person was violated, the infringement was in accordance with the principles of fundamental justice (a concept that will be discussed in more detail in the sections below) because of the sanctity of human life and the need to protect vulnerable individuals.

Four judges of the Supreme Court disagreed. Justice McLachlin (who later became Chief Justice) and Justice L’Heureux-Dubé concluded that the law was an infringement of the section 7 right to life, liberty, and security of the person, and was not justified under section 1. Chief Justice Lamer concluded that it was an infringement of the section 15 equality guarantee (the only member of the Court to address section 15 in detail). Justice Cory agreed largely with Justices McLachlin, L’Heureux-Dube, and Chief Justice Lamer, concluding that law was an infringement of both sections 7 and 15.

Issue #1: Is the Law Prohibiting Assisted Suicide Contrary to the Section 15 Charter Right to Equality?

Section 15 of the Charter guarantees the right to equality. It reads as follows:

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.

The Arguments of the Parties

The plaintiffs in Carter argued that the law prohibiting assisted suicide infringes the right to equality because it places an extra burden on individuals who are seriously physically disabled.[20] Committing suicide, or attempting to commit suicide, is not (in itself) a crime.[21] However, individuals who suffer from a serious physical disability are not physically capable of ending their lives. Accordingly, Ms. Taylor argued that the Criminal Code prohibition on assisted suicide discriminates against her, and other individuals in a similar situation, on the basis of physical disability.[22]

The Government of Canada argued that because assisted suicide is prohibited for everyone – both able-bodied and physically disabled persons – there is no distinction or discrimination, and thus no infringement of section 15.[23] Canada argued that there are end-of-life choices available to disabled persons that are legal, such as refusing or withdrawing treatment, or declining nutrition and hydration under palliative sedation.[24] Palliative sedation is a currently legal and accepted end-of-life practice. It involves doctor-imposed sedation in order to maintain an individual in a deep state of unconsciousness until the time of death, with or without providing nutrition and hydration.[25] Ms. Taylor argued that there is no ethical or logical reason to distinguish palliative sedation from assisted suicide, while the Government argued that the key distinguishing factor is that with palliative sedation, the doctor does not commit an action that is designed to end the patient’s life.

Has section 15 been infringed in the Carter case?

The Supreme Court decision in Withler v Canada (Attorney General)[26] provides a two-step test to determine whether section 15 has been infringed:

1. Does the law create a distinction based on an enumerated or analogous ground?

2. Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

The Court considered each of these steps in turn:

Step 1: Does the law create a distinction based on an enumerated or analogous ground?

The section 15 equality guarantee protects individuals from discrimination, that is, distinctions made on the basis of “enumerated” or listed grounds (race, national or ethnic origin, colour, religion, sex, age or mental or physical disability) or on the basis of “analogous grounds.”[27]

The Court concluded that the assisted suicide prohibition does create such a distinction because it places a burden on people with physical disabilities that is not placed on able-bodied individuals.[28] Physically disabled people may not be capable of taking their own lives and are faced with the dilemma of continuing to suffer or exposing another person to criminal charges for assisting them to commit suicide.[29] The Court expressed a concern that “some resolve this dilemma by taking their lives before their illnesses progress to a point where they are no longer able to do so.”[30] Although there are some methods of suicide available to physically disabled individuals, such as palliative sedation combined with refusal of nutrition, the Court concluded that these means of suicide are far more onerous than those available to able-bodied individuals.[31]

Step 2: Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

This step of the test asks whether the distinction is discriminatory. The Court concluded that the distinction is discriminatory because it “perpetuates and worsens” a disadvantage that is suffered by physically disabled persons.[32] The law does not respect the dignity and autonomy of physically disabled persons, as they do not have the same ability to make the deeply personal choice of whether to end their own lives.

Accordingly, the Court concluded that Ms. Taylor had proven an infringement of her right to equality under section 15 of the Charter.[33]

Is the infringement demonstrably justified in a free and democratic society?

The rights and freedoms contained in the Charter are not absolute – they are subject to reasonable limits that can be justified by the Government. Therefore, once a court determines that there has been an infringement of a Charter right, it must then consider arguments by the Government about the reasonable and justifiable nature of the law in question.

According to section 1 of the Charter:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

In order to help the Court determine whether the assisted suicide prohibition is a reasonable limit on the right or freedom in question, it uses a test known as the “section 1” test. The test contains the following steps:

Step 1 - Pressing and substantial objective: Does the legislation have a pressing and substantial objective?

Step 2 - Proportionality: Are the means used to achieve the legislative objectives proportionate in that they do not breach Charter rights more than necessary? The Court uses the following steps to answer this proportionality question:
a) Rational Connection: Is there a rational connection between the legislation that is in violation of the Charter and the objectives of the legislation itself? In other words, are the means rationally connected to the objectives?
b) Minimal Impairment: Does the infringement minimally impair Charter rights?
c) Proportionate Effect: Do the benefits of the legislation outweigh the harms associated with violating the Charter right?

This section 1 test was used by the Supreme Court in the Rodriguez case. There, the Court concluded that, assuming the law prohibiting assisted suicide was a violation of section 15 equality rights, it was justified using this section 1 test.[34] The discussion of section 1 was brief. Strong emphasis was placed on the fact that Parliament should be given significant leeway to address this “contentious and morally laden issue”, and that there was no evidence available to support the effectiveness of appropriate safeguards needed to ensure that vulnerable individuals were protected and decisions were made by the individuals themselves.[35]

As noted above, a trial court would normally be required to follow a decision of the Supreme Court on the basis of the legal rule of stare decisis. However, the Court in Carter decided to give the section 1 issue a fresh look for several reasons:

• The Supreme Court in Rodriguez did not conclusively decide whether the laws prohibiting assisted suicide infringed section 15. Instead, the Supreme Court stated that even if there was a section 15 infringement, it was justified under section 1 of the Charter. However, the discussion overall was brief because the issue did not need to be resolved to reach the decision in Rodriguez – the case was decided on other grounds.
•  New evidence is available regarding the effectiveness of safeguards that was not available to the Supreme Court in Rodriguez.
• The law regarding the section 1 test has evolved, and is no longer the same as it was when Rodriguezwas decided (as will be discussed in more detail in the section below).

As a result, the Court proceeded through the section 1 test.

Step 1: Does the legislation have a pressing and substantial objective?

The first step in the section 1 analysis is to identify the objectives of the legislation and determine whether they are “pressing and substantial” - that is, they must be important enough to justify overriding Charterrights.

Here, the Court concluded that the objective of these provisions in the Criminal Code is to “protect vulnerable persons from being induced to commit suicide at a time of weakness” by ensuring there are criminal consequences for anyone who assists another person with suicide.[36] This objective protects the value of all human life in our society.

In Rodriguez, this objective was ruled to be pressing and substantial. The judge in Carter came to the same conclusion.[37]

Step 2: Are the means used to achieve the legislative objective proportionate?

The second step of the section 1 test involves considering whether the means used to achieve the legislative objectives are proportionate, in that they do not breach Charter rights more than necessary. This step contains sub-parts, which assist a court in coming to its determination.

(a) Are the means rationally connected to the objective?

In Rodriguez, the Court ruled that the law against assisted suicide was rationally connected to the purpose of section 241(b) of the Criminal Code.[38] The judge in Carter came to the same conclusion.[39]

(b) Are the means minimally impairing?

The impairment to rights must be minimal and the law must be carefully tailored so that rights are impaired no more than necessary.

In the Rodriguez case, the Supreme Court ruled that the sections in the Criminal Code prohibiting assisted suicide are indeed minimally impairing, because there is no other measure that could be relied upon to fully achieve the purpose of protecting vulnerable people from being coerced or forced into an assisted suicide[40]

However, the Court in Carter focused its analysis on whether there were alternatives to the absolute infringement which would achieve the legislation’s objective, without seriously infringing the Charter rights of people in Ms. Taylor’s situation. The Court concluded that there is an effective alternative – Parliament could prohibit assisted suicide, but allow for exceptions under “stringent conditions.”[41] These conditions would be designed to ensure that assisted suicide would only be available in a situation where the individual is:

• An adult;
• Grievously ill with no chance for recovery;
• Competent;
• Non-ambivalent (not susceptible to changing his/her mind);
• Seeking assisted suicide voluntarily;
• Fully informed as to their diagnosis and prognosis;
• Suffering symptoms that cannot be treated through means reasonably acceptable to them; and
• Not subject to coercion.[42]

The Court had the benefit of new evidence from other international jurisdictions that permit assisted suicide (including Oregon, Washington, the Netherlands, and Belgium) – evidence that was not available to the Supreme Court in Rodriguez. As a result, the Court concluded that the risk that legalizing assisted suicide will harm vulnerable people can be greatly minimized.[43] Because this evidence was new and not available to the Supreme Court when Rodriguez was decided, the Court concluded that it was appropriate to diverge from the decision in Rodriguez on this point.

Accordingly, Justice Smith concluded that since a less drastic means of preventing vulnerable persons from being induced to commit suicide was available to the Government, the legislation was not minimally impairing. In other words, the legislation failed on this point.

(c) Are the benefits of the legislation proportionate to the harms that result from the violation of theCharter right?

The last stage of the proportionality test involves weighing the benefits of the legislation against the harms imposed by the violation of a Charter protected right. Justice Smith emphasized that this step in the section 1 analysis had evolved since the Rodriguez decision. Following the Supreme Court’s decision in Alberta v Hutterian Brethren of Wilson Colony,[44] the key question at this step is a broad one (broader than it was when Rodriguez was decided): whether the “benefits of the impugned law are worth the costs of the rights limitation.”[45]

While the law has several benefits – it sends an anti-suicide message to society and upholds the sanctity of every life – it imposes an unequal burden on physically disabled individuals who are “suffering unbearably.”[46] In this way, the law denies autonomy to people such as Ms. Taylor.[47]

Accordingly, the Court concluded that any benefits that flow from the absolute prohibition are not worth the costs of the rights they infringe.[48] The Court took issue with the absolute nature of the prohibition – the fact that it did not allow for any exceptions, even in limited circumstances. As a result, the Court ruled that the prohibition infringes section 15 in a manner that is not justifiable.

Issue #2: Does the Absolute Prohibition Infringe the Right to Life, Liberty and Security of the Person Under Section 7?

Section 7 of the Charter states as follows:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Has section 7 been infringed?

Determining whether there has been a breach of section 7 involves a two-part analysis. A court considering a potential section 7 violation must ask:

1. Whether there is a deprivation of the right to life, liberty, or security of the person; and

2. If so, whether the deprivation is in accordance with the principles of fundamental justice.

Step 1: Has there been a deprivation of the right to life, liberty, or security of the person?

Life, liberty, and security of the person are distinct, yet interrelated, concepts. Generally speaking, “life” refers to freedom from fear of death; “liberty” refers to physical freedom and personal autonomy over important life decisions; and “security of the person” refers to freedom from serious state-imposed psychological stress and interference with human dignity. However, the interpretation of each of these terms will vary depending on the specific case.

In Rodriguez, the Court concluded that Ms. Rodriguez’s security of the person interest was affected by the assisted suicide prohibition, because it denied her ability to make a personal choice. The Court emphasized that the ability to make such a fundamental life choice is a component of “security of the person”: “there is no question, then, that personal autonomy, at least with respect to the right to make choices concerning one’s own body, control over one’s physical and psychological integrity, and basic human dignity are encompassed within security of the person.”[49]

Accordingly, it is clear from the Court’s decision in Rodriguez that Ms. Taylor’s right to security of the person was deprived by the law prohibiting assisted suicide.

The Court in Carter also concluded that Ms. Taylor’s liberty interest was engaged through the interference with her personal autonomy and loss of control over her own bodily integrity.[50]

In addition, the Court considered whether the right to life was engaged by the legislation. The decision inRodriguez did not decide this issue.[51] While acknowledging that the essence of the plaintiffs’ claim was centred on the liberty and security of the person interests, the Court concluded that the right to life was also at issue. This is because the effect of the law is potentially to force a disabled individual to make an earlier decision regarding suicide – a person whose physical condition is deteriorating may take their life earlier than they otherwise would because they are still physically capable of doing so and may soon lose that physical ability.[52]

Accordingly, Justice Smith concluded that the law prohibiting assisted suicide deprived Ms. Carter of the right to life, liberty, and security of the person.

Step 2: Is that deprivation in accordance with the principles of fundamental justice?

Section 7 of the Charter is unique in that it contains an internal balancing mechanism: individuals may be deprived of their right to life, liberty, or security of the person, so long as the deprivation is in accordance with the “principles of fundamental justice.”

But, what are the “principles of fundamental justice”? These are legal principles that are considered essential to our society’s notion of justice. For example, it is a principle of fundamental justice that our laws not be arbitrary or overly vague.[53] Over time, the courts in Canada have recognized different concepts as principles of fundamental justice.

At the time Rodriguez was decided, there was one principle of fundamental justice relevant to this case: the principle that a law must not be arbitrary.[54] In other words, a law must be logically related to the law’s goals, and not based on whim or fancy. In Rodriguez, a majority of the Supreme Court concluded that the law prohibiting assisted suicide was not arbitrary. As a result, the majority in Rodriguez ruled that the deprivation of Ms Rodriguez’s security of the person was in accordance with the principles of fundamental justice, and so there was no infringement of her section 7 rights.

However, since Rodriguez, the Supreme Court has identified two more principles of fundamental justice. The first is the notion of “overbreadth” – a law should not be more broadly framed than necessary to achieve the legislative purpose.[55] The second is “gross disproportionality” – the idea that a legislative response to a problem (here, the problem of vulnerable people being induced to commit suicide) is so extreme as to be disproportionate to the purpose of the legislation.[56]

In Carter, the Court concluded that the law which absolutely prohibits assisted suicide under any circumstances is too broad because the alternative, a prohibition with limited exceptions, would achieve the same legislative goal – protecting vulnerable people from being induced to commit suicide at a time of weakness.[57] The Court came to this conclusion because the evidence from other jurisdictions which permit assisted suicide under limited conditions, demonstrates that “a system with properly designed and administered safeguards could, with a very high degree of certainty, prevent vulnerable persons from being induced to commit suicide while permitting exceptions for competent, fully-informed persons acting voluntarily to receive physician-assisted death.”[58]

In addition, the Court concluded that the effect of the absolute prohibition on people in Ms. Taylor’s situation was grossly disproportionate to its effect on protecting vulnerable people.[59]

As a result, the Court concluded that because the law is overbroad and grossly disproportionate, the deprivation of life, liberty and security of the person was not in accordance with the principles of fundamental justice, and so Ms. Taylor’s section 7 rights were infringed.

Is the infringement demonstrably justified in a free and democratic society?

In previous cases, the Supreme Court has expressed some doubt about whether an infringement of section 7 can ever be justified using section 1 of the Charter.[60] However, this issue did not need to be resolved in this case. The Court concluded that any infringement of section 7 was not justified, for the same reasons that the section 15 infringement was not justified (as discussed in the section above).[61]

Issue #3: What is the Appropriate Remedy?

As the Court concluded that the law prohibiting assisted suicide was an infringement of both section 15 and section 7 of the Charter and that the infringement was not reasonable or justifiable, it then had to determine how to remedy the infringement.

Under section 52(1) of the Constitution Act, 1982, the Constitution of Canada is declared to be the “supreme law of Canada”, and “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” This means that a court has the power to strike down a law that is contrary to the provisions of the Charter.

However, the Court recognized that Parliament – not the court – is responsible for determining how to rectify the Criminal Code in order to ensure that the provisions regarding assisted suicide are consistent with theCharter.[62] This could be done, for example, by allowing for exceptions to the prohibition in limited circumstances. However, any changes must be made by Parliament.

Accordingly, the Court declared the assisted suicide provisions of the Criminal Code to be invalid, but suspended the declaration for one year in order to give Parliament time to rectify and amend the offending law.[63] In other words, the law will remain in effect for one year to allow Parliament to respond.

However, this delay would not help Ms. Taylor, because the absolute prohibition would remain in effect for one full year and this might deny her the opportunity to seek assisted suicide if she decided she needed to do this. So, in a rare move, the Court granted Ms Taylor a “constitutional exemption” in the interim.[64] This means that during the upcoming year Ms Taylor can obtain physician-assisted death, under several conditions. These conditions are detailed, and include a requirement that Ms Taylor makes a written request, that her doctor attests to the fact that she has been fully informed of her diagnosis and prognosis, any available alternative treatment options, informed of the risks of physician-assisted dying, and referred to a palliative care expert for a consultation, in addition to other conditions.[65]

WHAT’S NEXT?

It is unlikely that the decision of the trial Court in British Columbia will be the final word on this issue. The Attorney General of Canada announced on July 13, 2012 that the Government will appeal the Carter ruling to the British Columbia Court of Appeal. The case could be appealed all the way up to the Supreme Court in the coming years.

It will be interesting to see whether the British Columbia Court of Appeal (and potentially the Supreme Court) agree that the situation with respect to assisted suicide in 1993 was so markedly different than the situation today that the issue merits reconsideration.

 

[1] 2012 BCSC 886 .

[2] [1993] 3 SCR 519 .

[3] Criminal Code, RSC 1985, c C-46, s 241(b).

[4] Carter, supra note 1 at 47.

[5] Ibid at paras 45, 99. The parties were also supported by a number of interveners: the plaintiffs were supported by the Farewell Foundation for the Right to Die, the Canadian Unitarian Counsel, and the Ad Hoc Coalition of People with Disabilities who are Supportive of Physician-Assisted Dying. The defendants (the government of Canada) were supported by the Euthanasia Prevention Coalition and the Christian Legal Fellowship (see ibid at para 35).

[6] Ibid.

[7] Ibid at paras 44, 50.

[8] Ibid at paras 54, 56.

[9] Ibid at para 25.

[10] Carter, supra note 1 at para 1.

[11] Pursuant to section 52(1) of the Constitution Act, 1982.

[12] Carter, supra note 1 at para 2.

[13] Ibid.

[14] Ibid at para 38.

[15] Ibid.

[16] Ibid at para 900.

[17] Ibid at para 1001.

[18] Ibid at para 1002.

[19] Ibid at para 1003.

[20] Ibid at para 1009.

[21] Ibid at para 1011.

[22] Ibid.

[23] Ibid at para 1075.

[24] Ibid at para 1065.

[25] Ibid at para 200.

[26] 2011 SCC 12, [2011] 1 SCR 396.

[27] Carter, supra note 1 at para 1027.

[28] Ibid at para 1075.

[29] Ibid at para 1042.

[30] Ibid.

[31] Ibid at para 1076.

[32] Ibid at para 1161.

[33] Ibid at para 1162.

[34] Rodriguez, supra note 2 at 613-15, cited in Carter, supra note 1 at para 1165. The majority inRodriguez did not conclusively decide whether the laws prohibiting assisted suicide infringed section 15. Instead, the majority of the Court decided that even if they did infringe section 15, the infringement was justified under section 1.

[35] Carter, ibid at paras 1166-67.

[36] Ibid at para 1190.

[37] Ibid at para 1205.

[38] Ibid at para 1208, citing Rodriguez, supra note 2 at 613.

[39] Ibid at para 1209.

[40] Ibid at para 1212.

[41] Ibid at para 1233.

[42] Ibid.

[43] Ibid at paras 1238-41.

[44] 2009 SCC 37, [2009] 2 SCR 567.

[45] Ibid at para 77, cited in Carter, supra note 1 at para 1246.

[46] Carter, ibid at para 1264-65.

[47] Ibid at para 1281.

[48] Ibid at para 1285.

[49] Rodriguez, supra note 2 at 587-589, cited in Carter, supra note 1 at para 1293.

[50] Carter, supra note 1 at para 1303.

[51] Ibid at para 1319.

[52] Ibid at para 1322.

[53] Peter W Hogg, Constitutional Law of Canada: 2011 Student Edition (Toronto: Carswell, 2011) at 47.17-47.18.

[54] Carter, supra note 1 at para 1331.

[55] This principle of fundamental justice was first articulated in 1994 in R v Heywood, [1994] 3 SCR 761.

[56] Gross disproportionality was first identified as a principle of fundamental justice in R v Malmo-Levine, 2003 SCC 74, [2003] 3 SCR 571.

[57] Carter, supra note 1 at para 1363-64.

[58] Ibid at para 1367.

[59] Ibid at para 1378.

[60] Ibid at para 1380. The court cited the Supreme Court decisions in Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 SCR 350; and Re: BC Motor Vehicle Act, [1985] 2 SCR 486.

[61] Ibid at para 1383.

[62] Ibid at para 1385.

[63] Ibid at para 1393.

[64] Ibid at para 1411.

[65] Ibid at para 1413.

During the lead-up to the 2011 Conservative Party convention in Ottawa, media attention turned to a proposal termed by some as the “Khadr Resolution”.[1] The resolution was inspired by the case of Omar Khadr, a young Canadian citizen who fought alongside the Taliban in Afghanistan in 2002, while Canada was engaged in combat against the Taliban.[2] The case was controversial because it pitted the Canadian government's duty to protect citizens' Charter rights against its interest in punishing what might amount to treason.[3]

If the Khadr Resolution had been successful, the Conservative Party would have sought to allow the revocation of Canadian citizenship as punishment for those convicted of treason. This would have required an amendment to the Criminal Code.[4] Members voted to defeat the resolution. This proposal raises questions regarding the appropriate limits for government action in redefining citizenship. Does the government violate a constitutional right when it arbitrarily changes the rules of citizenship acquisition or revocation?   The answer to this question is unclear, since the Canadian Charter of Rights and Freedoms does not contain an explicit right to citizenship. Some might fear that the government will be allowed to sidestep its duty to protect citizens' Charter rights under sections 3, 6, & 23 simply taking a person's citizenship away through the enactment of legislation. In other words, when the government simply enacts legislation that revokes people’s citizenship, people will automatically lose the Charter rights that specifically protect them as citizens. If the Khadr Resolution had been agreed to, there are many ways in which it would likely have been challenged: i)        based on the argument that the Charter contains a right to citizenship; or, ii) based on the argument that the arbitrary removal of an individual's Canadian citizenship to constitute a violation of that individual's “security of the person”.[5]

---

[1]    See Steven Chase, “Conservatives reject proposal to strip citizenship of anyone fighting against Canada”, Globe and Mail (11 June 2011). [2]    “Indepth: Khadr”, CBC News Online (30 October, 2006). [3]  See Canada (Prime Minister) v Khadr, 2010 SCC 3, [2010] 1 SCR 44. [4]    Criminal Code, RSC 1985, c C-46, s 46. [5]    This would be based on the idea that the proposed amendment might have violated section 7 of the Charter; that is, “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.