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Review Essay
This article was first published on the Lex-Atlas: Covid-19 website. Republished with permission.
Download a copy of the principles here or view them in HTML here.
According to the best scientific evidence available, vaccination for the entire population is currently the most efficient measure available for a country to counter and overcome the Covid-19 pandemic. Vaccinations dramatically reduce infections, the need for hospitalisation and severe medical complications and deaths. As well as saving lives from the scourge of Covid-19, vaccination reduces pressure on public health care systems that impacts the care available for a broad range of other essential treatments. It also assists the revival of national economies and international trade, and permits the easing of social distancing restrictions which themselves impose restrictions on movement and gatherings. Although voluntary uptake is ideal, there is an important and complex question of when and under what conditions mandatory vaccination requirements are legitimate and consistent with international human rights law principles. Lex-Atlas: Covid-19 has therefore published principles addressing this subject.
In these principles, a mandatory Covid-19 vaccination requirement is defined as (a) any public law that makes vaccination legally compulsory (with or without imposing a penalty), or (b) any state or non-state policy which requires proof of vaccination in order to access a venue or enjoy a benefit. A vaccination requirement which can be avoided by a person without undue burden is not regarded in this set of principles as a mandatory vaccination requirement.
The principles relate to the legal, constitutional, and ethical dimensions of mandatory vaccination requirements for Covid-19, and address requirements imposed by both public and private bodies. Mandatory vaccination requirements are imposed for diseases other than Covid-19 in over 100 countries worldwide. Such requirements are not in general forbidden by international human rights law principles. Such policies may plausibly be seen in some cases as fulfilling positive state duties to protect the internationally recognised rights to life, health, education, and to work. It remains the case that mandatory vaccination requirements will often interfere with a range of human rights and require justification as prescribed by law and necessary in a democratic society.
The principles are a statement of standards intended to set out ideal compliance not only with international human rights norms but also with best democratic constitutional and ethical practice that extends beyond such norms. They will assist state and non-state actors seeking to adopt a regulatory scheme that accords with best legal and ethical practice and as such would count favourably in the proportionality testing of any mandatory vaccination requirement coming before a court of law in a democracy.
We commend these principles to policy-makers and jurists contemplating the legal and/or constitutional status of proposals for mandatory vaccination. They have been endorsed by a significant portion of the large number of jurists participating in the LAC19 network.
* Jeff King is a Professor of Law at University College London and Co-Principal Investigator, General Editor for the Legal Framework, Institutions and Social Policy and Rapporteur for the United Kingdom with Lex-Atlas: Covid-19. Dr. Octávio Luiz Motta Ferraz is a Reader in Transnational Law at King’s College London and Co-Principal Investigator, General Editor, Area Editor for Public Health and Human Rights, and Rapporteur for Brazil with Lex-Atlas: Covid-19.
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This article was first published in the Vancouver Sun on August 2, 2021. Republished with permission.
As COVID-19 infections continue to surge among unvaccinated populations, a large and growing number of U.S. universities are requiring proof of double vaccination for students, staff and faculty returning to campus in September. With the notable exceptions of Seneca College, and some university residences, Canadian post-secondary institutions have not mandated vaccinations.
The decision not to mandate vaccination appears to be based on an assumption that the Canadian Charter of Rights and Freedoms protects the rights of unvaccinated individuals to participate without restriction in the public realm. This assumption is based on a serious misunderstanding of the Charter. In fact, there is a sound constitutional basis on which universities can require proof of vaccination status, during a pandemic, as a condition of enrolment.
The culture fostered by the Charter has rightly heightened our appreciation of, and sensitivity to, individual choice and autonomy. It is understandable that people would assert the right to make such a personal decision as whether to be vaccinated. In a pandemic, however, one cannot expect that choice to be without consequence.
As a preliminary matter, it is unclear whether the Charter would even be engaged by a university policy requiring proof of vaccination. An early Supreme Court of Canada decision held that universities are not governmental actors and therefore the Charter does not apply to them. Subsequent cases muddy these legal waters. In any event, even if universities are bound by the Charter, that hardly settles the question.
There are several rights that could be on the table. Rights to liberty and security of the person could be implicated by a policy that seems to coerce people into getting vaccinated. Freedom of religion might be invoked, but only where the opposition to vaccination is rooted in genuine religious beliefs about vaccination per se.
The Charter also guarantees freedom of conscience. This is an underdeveloped area of Charter law, but it might be relevant where a person has a sincerely held belief that the vaccination is harmful to their health or, in some other way, deeply wrong. The Charter’s privacy protections may be implicated, although this would require determining whether one has a reasonable expectation of privacy in one’s vaccination status in all contexts.
Finally, the Charter guarantees equality linked to protection against discrimination on certain grounds such as race, gender, and sexual orientation. This right does not appear to be violated by a policy of proof of vaccination.
While there may be some residual issues with ensuring access to vaccination, there is little evidence that would suggest discrimination on the basis of protected grounds. If anything, most governments have tried to prioritize access. To comply with the Charter, such access issues could be remedied by having on-campus vaccination clinics — which a number of universities are already doing.
Except for equality, the implicated rights all involve an element of choice. There is little question that a policy of forced vaccination, per se, would conflict with at least some rights. It is far less obvious that the right to access campus without proof of vaccination is equally protected. That is particularly so where being unvaccinated poses a risk to universities’ ability to curb the virus’ spread. A bare right to choose not to be vaccinated — which the Charter likely does protect — does not also provide constitutional immunity against all consequences flowing from that decision.
The Charter does not protect absolute rights. All of its rights and freedoms are subject, through section 1, to reasonable limits that can be demonstrably justified in a free and democratic society. Protecting the life and health of community members in a pandemic, including those who are particularly vulnerable, is precisely the kind of “reasonable limit” that this section contemplates. Few things threaten any community more than contagion and disease or, in the case of COVID-19, the harsh public health measures they have necessitated. Situations posing a grave risk to public health and well-being represent a risk to the very community which the Constitution seeks to preserve.
Much remains unknown about the next phase of the COVID-19 pandemic, including the depth of impact new variants will have on already beleaguered peoples, economies, and communities. But here is what we do know. Vaccination is the most effective tool we have to save lives and get back to a semblance of “normal.” The pandemic now rages most fiercely amongst those who are not fully vaccinated, particularly those aged 18-39.
Furthermore, the burden of serious illness and death from the spread of COVID-19 falls most heavily on those who are immunocompromised or otherwise vulnerable. Studies from the last two years increasingly show shadow pandemics, with tentacles of harm that have had disproportionate impacts on marginalized and racialized communities.
Simply put, we have yet to encounter a persuasive argument that universities do not have the authority to mandate vaccinations as a requirement of access, allowing for exceptions for those who cannot be vaccinated for medical reasons. Prioritizing the unfettered rights of unvaccinated individuals to, potentially, infect others is neither the right solution, nor one compelled by the Charter. Canadian universities must act now to protect their communities.
*Debra Parkes and Carissima Mathen are Professors of Law at, respectively, the University of British Columbia’s Peter A. Allard School of Law and University of Ottawa’s Faculty of Common Law.
Articles:
The Court has described Aboriginal title as a right to occupy and possess land.[1] However, the Crown retains underlying title to the land[2] and Aboriginal title land can only be sold to the Crown.[3] According to the Royal Proclamation of 1763, these restrictions on title were created so that the Crown could act as a as an interlocutor between Indigenous groups and settlers and so that the Indigenous groups could not be exploited by settlers.[4]
The definition of Aboriginal title has evolved since its recognition. In the case of Calder v British Columbia (1973), the Supreme Court described the nature of Aboriginal title as being based on the historic occupation and possession of the land by Indigenous people.[5] After Aboriginal and treaty rights were enshrined in the Constitution, the Supreme Court further elaborated on the features of Aboriginal title in the case Delgamuukw v British Columbia (1997). Chief Justice Lamer, writing for the majority of the Justices, described Aboriginal title as having the following features:
In the Delgamuukw case (1997), the Supreme Court also articulated the test for establishing Aboriginal title. To prove that an Aboriginal group has a title claim to land, the group must show that occupation of that land was exclusive at the time of sovereignty (1867, when Canada became a country).[9] Exclusive occupation does not mean that land cannot have been shared. Indigenous groups can make joint claims if they occupied the land together and excluded all others. Or, if a group historically permitted another to share their resources, this could be evidence that the group considered itself to have the right to decide who could come on to the land.[10]
The first and only successful Aboriginal title claim was made by the Tsilhqot’in First Nation, a group of six semi-nomadic bands that claimed title over 4400 square kilometers of land to the south-west of Williams Lake in British Columbia (the area over which Aboriginal title was successfully made out is about 1,700 square kilometres). The Supreme Court clarified in this case in 2014 what factors need to be in place to establish title.
The Supreme Court decided that traveling and living in multiple locations at different points in the year could satisfy the “exclusive occupation” requirement for making an Aboriginal title claim. To found a claim, the Court ruled there must be an historical intention to occupy the land, communicated to other groups through action or law/custom,[11] combined with actual regular use.[12] The Court said that In determining whether occupation is sufficiently intense, courts should take into account the uses to which the relevant land can be put, as well as the technological capacity and mode of life of the group historically.[13] In this case, the land was quite barren and could not have easily supported a larger population.
Aboriginal title is the most well-developed right recognized in section 35 as an Aboriginal right.
[1] Calder et al v Attorney-General of British Columbia, [1973] SCR 313, 34 DLR (3d) 145 ; Guerin v The Queen, [1984] 2 SCR 335 at 378, 382, 13 DLR (4th) 321 . See also St Catharine’s Milling and Lumber Co v R (1887), [1887] 13 SCR 577, [1888] 14 AC 46 (PC) .
[2] Guerin, supra note 1 at 379; see also St Catharine’s, supra note 1.
[3] Guerin, supra note 1 at 365.
[4] George R, Proclamation, 7 October 1763 (3 Geo III), reprinted in RSC 1985, App II, No I; Patrick J Monahan, Byron Shaw & Padraic Ryan, Constitutional Law, 5th ed (Toronto: Irwin Law Inc, 2017) at 475.
The Royal Proclamation is a document issued by King George III after the Seven Years War to proclaim ownership over the territory in North America. The Royal Proclamation also includes statements governing the relationship between settlers and Indigenous peoples.
[5] Calder, supra note 1 at 376; Guerin, supra note 1 at 399; R v Van der Peet, [1996] 2 SCR 507 at 538, 137 DLR (4th) 289 at 540, 577.
[6] Delgamuukw v British Columbia, [1997] 3 SCR 1010 at para 180, 153 DLR (4th) 193 . at para 115.
[7] Delgamuukw, supra note 6 at 124.
[8] Ibid at para 117.
[9] Ibid at para 142.
[10] Tsilhqot’in Nation v British Columbia, 2014 SCC 44 at para 48, [2014] 2 SCR 257 .
[11] Ibid at para 38.
[12] Ibid at para 42.
[13] Ibid at para 33-44.
Section 35 of the Constitution Act, 1982 steers the relationship between the Crown and the “Aboriginal peoples of Canada”[1] in Canadian constitutional law. It is about “[A]boriginal people and their rights in relation to Canadian society as a whole,”[2] and about the “bridging of [A]boriginal and non-[A]boriginal cultures.”[3]
Section 35(1) reads:
The existing [A]boriginal and treaty rights of the [A]boriginal peoples of Canada are hereby recognized and affirmed.[4]
The Aboriginal and treaty rights protected by this provision fall into four distinct categories:
What is the Purpose of Section 35?
Section 35(1) has two purposes: “[T]o recognize the prior occupation of Canada by organized, autonomous societies and to reconcile their modern-day existence with the Crown’s assertion of sovereignty over them.”[9] These purposes reflect an underlying tension in Indigenous-Crown relations, a tension that stems from the recognition of two seemingly incompatible truths: (1) the Crown imposed its sovereignty and continues to assert its sovereignty over what is now Canada; and (2) the lands over which sovereignty was asserted were already occupied and remain occupied by Indigenous societies with their own laws, cultures, and traditions.[10]
In this context, the term “reconcile” has two meanings: (1) to make consistent these two seemingly incompatible legal realities; and (2) to acknowledge and address the historic impact of the imposition of Crown sovereignty while also looking “forward to reconciliation between the Crown and Aboriginal peoples in an ongoing, mutually respectful long-term relationship.”[11]
According to the Supreme Court of Canada, section 35 must be interpreted “purposively,” which means that the courts must take “a generous, liberal interpretation” [12] of the words in section 35 and “other statutory and constitutional provisions protecting the interests of [A]boriginal peoples.”[13] Further, any “doubt or ambiguity [in these provisions] must be resolved in favour of [A]boriginal peoples,”[14] and Indigenous legal traditions must inform our understanding of the provisions and the rights they protect. As the Supreme Court put it in Van der Peet, “a morally and politically defensible conception of [A]boriginal rights will incorporate both [European and Indigenous] legal perspectives.”[15]
Who Are the “Aboriginal Peoples of Canada?”
In the 2021 case of R v Desautel, the Supreme Court stated that the Aboriginal peoples of Canada “are the modern successors of those Aboriginal societies that occupied Canadian territory at the time of European contact.”[16] This includes the Indian, Inuit and Métis peoples,[17] (as per section 35(2) of the Constitution Act, 1982), and may include Indigenous groups that are neither citizens nor residents of Canada.[18]
What Does “Existing” Mean?
The word “existing” means that section 35 only applies to Aboriginal and treaty rights that were not extinguished when the Constitution Act, 1982 came into effect.[19] Before section 35 recognized and affirmed Aboriginal and treaty rights, those rights could have been “extinguished” by either: (1) “surrender to the Crown”[20]; or (2) “a clear and plain intention” by the Crown to extinguish that right[21] through legislation or treaty. However, mere regulation of an Aboriginal right is not sufficient to extinguish that right.[22] Now that section 35 provides constitutional protection to Aboriginal and treaty rights, the Crown may no longer unilaterally extinguish them.[23] But if a right was previously extinguished, neither section 35 nor any other provision of the Constitution Act, 1982 can revive it.[24]
Crucially, the word “existing” does not freeze Aboriginal rights as they existed at the time the Constitution Act, 1982 entered into force. Rather, it recognizes that these rights may evolve over time and so should be interpreted flexibly and “in a contemporary form.”[25]
What Does “Recognized and Affirmed” Mean?
Section 35 does not absolutely “guarantee” Aboriginal and treaty rights, but rather recognizes and affirms them. While section 35 affords constitutional protection to Aboriginal and treaty rights, the Crown may be justified in interfering with these rights.[26] However, justifying an infringement of an Aboriginal or treaty right is a high threshold to meet, since protecting section 35 rights “reflects an important underlying constitutional value.”[27] To determine if an infringement of a section 35 right is legally justifiable, the courts apply a test that was developed by the Supreme Court in R v Sparrow.
[1] Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 35(1).
[2] R v Van der Peet, 1996 CanLII 216 (SCC) at para 21 .
[3] Ibid at para 42.
[4] Constitution Act, 1982, supra note 1.
[5] Van der Peet, supra note 2 at paras 112-14.
[6] Ibid at paras 115 and 119-20. See also R v Adams, 1996 CanLII 169 (SCC) at paras 26 and 64-65. The Supreme Court of Canada made its first declaration of Aboriginal title in Tsilhqot-in Nation v British Columbia, 2014 SCC 44 (CanLII).
[7] Van der Peet, supra note 2 at para 67; and R v Powley, 2003 SCC 43 (CanLII) at para 17.
[8] Van der Peet, supra note 2 at para 120; and R v Badger, 1996 CanLII 236 (SCC) at para 41.
[9] R v Desautel, 2021 SCC 17 (CanLII) at para 22 .
[10] Ibid at paras 22 and 26. See also Ryan Beaton, “De Facto and De Jure Crown Sovereignty: Reconciliation and Legitimation at the Supreme Court of Canada” (2018) 27:1 Constitutional Forum 25, online: CanLIIDocs <https://canlii.ca/t/t017>.
[11] See Desautel, supra note 9 at para 30 (citing Beckman v Little Salmon/Carmacks First Nation, 2010 SCC 53 (CanLII) at para 10, internal quotations removed). See also Elizabeth England, “R v Desautel: Who are the ‘Aboriginal Peoples of Canada’?” (23 June 2021), online: Centre for Constitutional Studies <https://www.constitutionalstudies.ca/2021/06/r-v-desautel-who-are-the-aboriginal-peoples-of-canada/>.
[12] R v Sparrow, 1990 CanLII 104 (SCC) at 1106 . See also Van der Peet, supra note 2 at paras 23-24.
[13] Van der Peet, supra note 2 at para 24.
[14] Ibid at para 25. But cf R v Marshall, 1999 CanLII 665 (SCC) at para 14 (in the context of treaty interpretation, “[g]enerous rules of interpretation should not be confused with a vague sense of after-the-fact largesse”) .
[15] Van der Peet, supra note 2 at para 42. But see also para 49 (the Aboriginal perspective “must be framed in terms cognizable to the Canadain legal and constitutional structure”).
[16] Desautel, supra note 9 at para 31.
[17] Constitution Act, 1982, supra note 1 at s 35(2).
[18] See Desautel, supra note 9 at para 23.
[19] See Sparrow, supra note 12 at 1091. See also Peter W Hogg, “The Constitutional Basis of Aboriginal Rights” (2010) 15:1 Lex Electronica 179, online: CanLIIDocs <https://canlii.ca/t/t1d5> at 185-86.
[20] Ibid.
[21] See Sparrow, supra note 12 at 1099. Regulation of an Aboriginal or treaty right is not sufficient to extinguish that right. For example, the passage of laws regulating hunting and fishing is not sufficient to extinguish the Aboriginal right to hunt and fish.
[22] Ibid at 1097.
[23] Mitchell v MNR, 2001 SCC 33 (CanLII) at para 11.
[24] See Sparrow, supra note 12 at 1091.
[25] Ibid at 1093. See also Van der Peet, supra note 2 at para 42.
[26] See Sparrow, supra note 12 at 1109.
[27] Reference re Secession of Quebec, 1998 CanLII 793 (SCC) at para 82.
Section 35(2) of the Constitution Act, 1982 includes Métis people in its definition of the “[A]boriginal peoples of Canada.”[1] In 2003, the Supreme Court of Canada defined the “Métis” as “distinctive peoples who, in addition to their mixed [Aboriginal and European] ancestry, developed their own customs, way of life, and recognizable group identity.”[2]
However, the test for identifying Aboriginal rights under section 35 — the Van der Peet test — looks to practices, customs, or traditions that existed before European contact. The Métis would therefore fail to meet the Van der Peet test for an Aboriginal right because they only came into existence after European contact. For this reason, the Supreme Court of Canada in R v Powley modified the Van der Peet test to account for the unique nature of the Métis peoples.
The Powley Test for Métis Rights
Like the Van der Peet test for identifying Aboriginal rights, the test for Métis rights focuses “on identifying those practices, customs and traditions that are integral to the Métis community’s distinctive existence and relationship to the land.”[3] The test has eight steps:
Once a Métis right is established, the court must determine whether that right was infringed, and, if so, the Crown may attempt to justify the infringement according to the test set out in the Supreme Court’s Sparrow judgment.[15]
[1] Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 35(2).
[2] R v Powley, 2003 SCC 42 (CanLII) at para 10 .
[3] Ibid at para 37.
[4] Ibid at para 19 (citing R v Van der Peet, 1996 CanLII 216 (SCC) at para 53).
[5] Ibid at para 23.
[6] Ibid at paras 24 and 27.
[7] Ibid at para 29.
[8] Ibid at paras 31-33.
[9] Ibid at para 37.
[10] Ibid.
[11] Ibid at paras 41 and 44.
[12] Ibid at para 45.
[13] Ibid.
[14] Ibid at para 46.
[15] Ibid at para 10.
Section 35 Aboriginal and treaty rights[1] are not part of the Charter of Rights and Freedoms, so they are “not subject to [section] 1 of the nor to legislative override under [section] 33.”[2] Section 1 of the Charter allows governments to justifiably limit a Charter right, and section 33 establishes the notwithstanding clause, which allows governments to pass laws “notwithstanding” their impact on certain Charter rights.
Although neither section 1 nor section 33 may be invoked to override or diminish Aboriginal or treaty rights, Aboriginal and treaty rights are not absolute. Under certain circumstances, the Crown may limit or infringe Aboriginal or treaty rights. In R v Sparrow, the Supreme Court of Canada established a two-step test — the Sparrow test — for justifying an infringement of an Aboriginal right.[3] The test is highly contextual,[4] which means that the standard of justification varies with the facts of each case.[5]
The Sparrow test comprises two steps:
If a court finds that the infringement is justified, the law remains valid and applicable to that Aboriginal group. If not, the impugned law would be found to be contrary to section 35(1) of the Constitution Act, 1982 and of no force and effect as it relates to the Aboriginal group whose rights were infringed.
The courts have applied the Sparrow test to justify infringing Métis rights[16] and treaty rights,[17] and as the basis of the test for infringing Aboriginal title.[18] In R v Côté, the Supreme Court of Canada confirmed that the Sparrow test applies equally to federal and provincial laws.[19]
[1] Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 35(1).
[2] See R v Sparrow, 1990 CanLII 104 (SCC) at 1106 .
[3] Ibid.
[4] See eg R v Gladstone, 1996 CanLII 160 (SCC) at paras 57-68 .
[5] Sparrow, supra note 2 at 1110-11.
[6] Ibid at 1111 (emphasis added).
[7] Ibid at 1111-12.
[8] Ibid at 1112.
[9] Ibid at 1112-13. See also Gladstone, supra note 4 at para 43.
[10] Sparrow, supra note 2 at 1113.
[11] Ibid. See also Gladstone, supra note 4 at para 72. The Court clarifies that objectives which are “compelling and substantial” are “those directed at either the recognition of the prior occupation of North America by [A]boriginal peoples or … at the reconciliation of [A]boriginal prior occupation with the assertion of the sovereignty of the Crown” (para 72). The pursuit of economic and regional fairness may satisfy this standard under the right circumstances (para 75).
[12] Ibid.
[13] Ibid at 1114. See also Delgamuukw v British Columbia, 1997 CanLII 302 (SCC) at paras 161-164 . Courts must consider what form the Crown’s fiduciary duty takes, and what the Crown must do in its fiduciary capacity to justify infringing the protected right. The degree of scrutiny required must vary according to the nature of the Aboriginal right at issue and the form that the Crown’s fiduciary duty takes.
[14] Ibid at 1121.
[15] Ibid at 1119.
[16] R v Powley, 2003 SCC 43 at para 48.
[17] See R v Badger, 1996 CanLII 236 (SCC) at para 79.
[18] See Delgamuukw, supra note 13 at para 165.
[19] See R v Côté, 1996 CanLII 170 (SCC) at para 74.
The Concept of Treaty
Different legal orders — from the Canadian one to the many distinct Indigenous legal orders in Canada — give rise to different understandings of the concept of “treaty.”[1] This key term focuses on the way in which “treaty” is understood in Canadian constitutional law. The Supreme Court of Canada says that a treaty between the Crown and one or several Aboriginal peoples of Canada “represents an exchange of solemn promises.” [2] Treaty rights arise from these promises and are “recognized and affirmed” by section 35 of the Constitution Act, 1982.[3]
Rights that Arise from Treaty
Identifying treaty rights requires the courts to engage in treaty interpretation, with the goal of “choos[ing] from among the various possible interpretations of common intention the one which best reconciles the interests of both parties at the time the treaty was signed.”[4] This is not an easy task, because the treaty text is often not determinative. Sometimes promises were made orally,[5] or the historical context requires the recognition of an implied treaty right.[6] Further, due to “significant differences in the signatories’ languages, concepts, cultures and world views,” Crown and Aboriginal actors will often have had “fundamentally different understandings of the exact nature of their agreements.”[7] For these reasons, it is important for courts to look beyond treaty texts, to extra-textual information and context that can shed light on how different parties would have understood their rights and obligations under the treaty.[8]
To assist courts with navigating the difficult task of treaty interpretation, the Supreme Court of Canada in Marshall set out the following principles of treaty interpretation (quoted in full, with in text citations removed):
Based on these principles, the Supreme Court of Canada in Marshall set out a two-step approach to establishing a treaty right. First, the courts must examine the treaty text, which may reveal “ambiguities and misunderstandings [that] may have arisen from [the parties’] linguistic and cultural differences.”[10] The court must then consider the possible meanings of the text in light of the historical and cultural context.[11] Based on these two steps, the court determines which interpretation best reflects the parties’ common intention.
[1] See eg Harold Johnson, Two Families: Treaties and Government (Saskatoon: Purich Publishing, 2007) at 13, 90-92; and Heidi Kiiwetinepinesiik Stark, “Respect, Responsibility, and Renewal: The Foundations of Anishinaabe Treaty Making with the United States and Canada” (2010) 34:2 American Indian Culture and Research J 145 at 147-49.
[2] R v Badger, 1996 CanLII 236 (SCC) at para 41 .
[3] Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 35(1).
[4] R v Marshall, 1999 CanLII 665 (SCC) at para 78 (citing R v Sioui, 1990 CanLII 103 (SCC) at pp. 1068-69) .
[5] See Badger, supra note 2 at para 52.
[6] See Marshall, supra note 4 at para 44.
[7] Quebec (Attorney General) v Moses, 2010 SCC 17 (CanLII) at para 108.
[8] See Badger, supra note 2 at para 52.
[9] See Marshall, supra note 4 at para 78 (internal citations removed). See also James (Sákéj) Youngblood Henderson, “Interpreting Sui Generis Treaties” (1997) 36:1 Alta L Rev 46, online: <https://www.albertalawreview.com/index.php/ALR/article/view/1019/1009>; and Aaron James Mills (Waabishki Ma’iingan), Miinigowiziwin: All That Has Been Given for Living Well Together: One Vision of Anishinaabe Constitutionalism (PhD Dissertation, University of Victoria, 2019) [unpublished] at 23-24, 38-39, and 267, online: <http://mars.library.uvic.ca/bitstream/handle/1828/10985/Mills_Aaron_PhD_2019.pdf?sequence=1&isAllowed=y>. Indigenous worldviews are often so different from Canadian legal traditions that to define them with certainty imposes an unreasonable risk of drawing improper inferences from misunderstood concepts or oversimplified generalizations.
[10] Marshall, supra note 4 at para 82.
[11] Ibid at para 83.
The Crown has a fiduciary relationship with Indigenous Peoples. What remedy do Indigenous Peoples have when the Crown breaches its fiduciary duty? The Supreme Court of Canada recently addressed this question in Southwind v Canada, which involved a breach that occurred nearly 100 years ago.
In February 1928, the Governments of Canada, Ontario, and Manitoba entered into an agreement to dam Lac Seul in order to generate electricity for the growing city of Winnipeg.[1] The governments planned to raise the water level of Lac Seul by ten feet, which they knew would cause “very considerable” damage to the Lac Seul First Nation (LSFN), whose Reserve was — and still is — located on the southeastern shore of the lake.[2] When the dam was built, “[a]lmost one-fifth of [LSFN’s] best land was flooded and … [LSFN’s] members were deprived of their livelihood, robbed of their natural resources, and driven out of their homes.”[3] LSFN was not consulted on either the project itself,[4] or on the adequacy of the $50,000 compensation package that Canada and Ontario paid into the LSFN’s trust account in 1943.[5]
As a general rule, the Crown owes a fiduciary duty towards an Indigenous group when it “assumes discretionary control over a specific Aboriginal interest.”[6] The Crown breached its duty in the Lac Seul dam project.[7] In this case, the remedy for the breach was “equitable compensation,” which the trial judge calculated according to what the Crown would have owed the LSFN under the laws of expropriation in 1929, when the breach occurred.[8] Mr Southwind, who was acting on behalf of the members of the LSFN, disagreed with this calculation and argued that the trial judge failed to consider the doctrine of equitable compensation in light of the constitutional principles of the honour of the Crown and reconciliation.[9]
On July 16th, 2021, the Supreme Court ruled on Mr Southwind’s appeal. This article will examine the Supreme Court’s decision on the appropriate legal remedy for a breach of the Crown’s fiduciary duty towards Indigenous Peoples.
The Nature of the Crown’s Fiduciary Duty Towards Indigenous Peoples
There was no question in this case that the Crown had breached its fiduciary duty to the LSFN; the Crown conceded this.[10] However, “the specific nature of the Crown’s fiduciary duty … especially over reserve land, informs how equitable compensation must be assessed,”[11] and so the Court began with an overview of the duty itself.
The fiduciary relationship between the Crown and Indigenous Peoples is sui generis in nature,[12] which means that it is unique and distinct from other legal relationships normally found in the common law tradition. As the Court stated in Southwind, this sui generis relationship is rooted in two principles of Aboriginal Law: (1) the honour of the Crown; and (2) the goal of reconciliation.[13]
The honour of the Crown is a constitutional principle that underpins Aboriginal Law,[14] the branch of Canadian constitutional law that deals with the rights of the Indigenous Peoples of Canada[15] and their relationship with the Crown.[16] It imposes a duty upon the Crown to act honourably towards Indigenous Peoples and to take their interests into account when it makes decisions that may impact them.[17]
For the Court, the principle or goal of reconciliation has two aspects. On the one hand, it seeks to reconcile “Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship.”[18] On the other hand, it seeks to make consistent two seemingly inconsistent realities: prior occupation of the land we now call Canada by Indigenous Peoples and the Crown’s assertion of sovereignty over that land.[19]
The second aspect of this principle is especially pertinent to the Crown’s control over reserve lands because “the Indigenous interest in land did not flow from the Crown; it pre-existed the Crown’s assertion of sovereignty.”[20] Further, Indigenous Peoples’ unique relationships with their land, and especially reserve land, heightens the importance of their interest in reserve land and by extension, the fiduciary duty.[21] In Southwind, the Court concluded that the Crown’s fiduciary duty “imposes the following obligations on the Crown:”[22]
The Principles of Equitable Compensation for Breach of the Crown’s Fiduciary Duty
To quote the Court in Southwind:
When the Crown breaches its fiduciary duty, the remedy will seek to restore the plaintiff to the position the plaintiff would have been in had the Crown not breached its duty … [and w]hen it is possible to restore the plaintiff’s assets in specie, accounting for the profits and constructive trust are often appropriate.[26]
“In specie” means that the actual assets would be returned — for example, in this case, the assets in specie would be the flooded land.
In cases where returning the actual assets is not possible, such as this one, equitable compensation is the appropriate remedy.[27] While both parties agreed on “[t]he basic principles of equitable compensation … [they] disagree[d] about their application to the Crown’s fiduciary duty in relation to land held for the benefit of Indigenous Peoples.” [28]
The doctrine of equitable compensation has two objectives: (1) to remedy the loss suffered by “restor[ing] the actual value of the thing lost through the fiduciary’s breach” (the “lost opportunity”),[29] and (2) to enforce the trust which forms the heart of the fiduciary relationship by deterring future wrongdoing.[30]
To be eligible for equitable compensation, the plaintiff must show that the fiduciary’s breach —in this case the Crown’s breach — caused their lost opportunity.[31] Here, the Court clarified that the test for causation is the low-threshold “but for” test: but for the fiduciary’s breach, would the plaintiff have suffered the loss?[32]
The Court further explained that a fiduciary cannot limit their liability by arguing that the loss suffered by the plaintiff was unforeseeable.[33] The doctrine of equitable compensation aims to “compensate … the plaintiff for the lost opportunity caused by the breach, regardless of whether that opportunity could have been foreseen at the time of the breach.”[34] Equitable compensation, the Court continued, will “[look] at what actually happened to values in later years,” even if it causes an “unexpected windfall” to the plaintiff.[35] This is because equitable compensation “look[s] to the policy behind compensation for breach of fiduciary duty and determine[s] what remedies will best further that policy.”[36] The dual purpose of remedying the loss suffered and deterring future wrongdoing therefore drive the calculation of equitable compensation, and foreseeability is not relevant. In the context of a fiduciary breach, equitable compensation “should not be limited by foreseeability, unless it is necessary to reach a just and fair result.”[37]
To inform its assessment in Southwind, the Court set out several presumptions and requirements that apply to equitable compensation:
How to Calculate Equitable Compensation for the Crown’s Breach of its Fiduciary Duty Towards Indigenous Peoples
The Court disagreed with the trial judge’s decision to calculate equitable compensation based on the amount required under the expropriation laws that existed at the time of the breach.[43] It was incorrect, the Court said, to presume that Canada would have failed to reach an agreement with the LSFN and would have proceeded directly to expropriation. In this regard, the trial judge erred by “focus[ing] on what Canada would likely have done instead of what Canada ought to have done as a fiduciary.”[44]
Following the first step in assessing equitable compensation the Court “determine[d] what the fiduciary would have been expected to do had it not breached its obligations.”[45] In this case, although Canada had the legal discretion to expropriate lands[46] or take up lands for public works,[47] this did not preclude it or excuse it from carrying out its fiduciary duties.[48] Rather, Canada was expected to represent the interests of the Indigenous Peoples to whom it was a fiduciary while at the same time considering the broader public interest.[49] Before resorting to expropriation laws, “Canada ought to have first attempted to negotiate a surrender” of the land in accordance with its fiduciary obligations.[50]
The Court then provided guidance on how to calculate the value of LSFN’s lost opportunity caused by this breach. In the Court’s view, this calculation must be based on what Canada ought to have done: namely, “to negotiate in order to obtain the best compensation based upon the value of the land to the Project.”[51] In Southwind, this meant considering the value of the land in light of its anticipated use for hydroelectricity generation.[52]
Finally, the Court confirmed that the calculation must consider whether the “award is sufficient to fulfill the deterrent function of equity.”[53] Deterring the Crown from breaching its fiduciary duty to Indigenous Peoples is “especially important,” the Court said, because it encourages the Crown to act honourably and with a view towards reconciliation.[54] The award should therefore be such that it acts as a meaningful deterrent and thereby reflects “the honour of the Crown and the goal of reconciliation.”[55]
Conclusion
The outcome of the Supreme Court’s judgment in Southwind is that the case goes back to the trial court, which must now reassess the equitable compensation award to the LSFN based on the Supreme Court’s guidance.[56] Above all, the Supreme Court’s decision reaffirms that the Crown’s fiduciary duty towards Indigenous Peoples is alive and well, especially as it relates to reserve lands. It confirms the Crown’s obligations that arise from its fiduciary duties in relation to reserve lands, and frames equitable compensation in a way that upholds the honour of the Crown and the objective of reconciliation. As the Court recently held in Desautel, “the honour of the Crown looks back” to the Crown’s assertion of sovereignty over Indigenous Peoples and “also looks forward to reconciliation between the Crown and Aboriginal peoples in an ongoing, mutually respectful long-term relationship.”[57]
[1] See Southwind v Canada, 2021 SCC 28 at para 1 . See also paras 17-20.
[2] Ibid at paras 2-3. See also paras 14-16.
[3] Ibid at para 2 (internal quotations removed). See also paras 27-28.
[4] Ibid at para 4. See also paras 20-26.
[5] Ibid at paras 29-30.
[6] Manitoba Metis Federation Inc v Canada (Attorney General), 2013 SCC 14 (CanLII) at para 73(1).
[7] See Southwind, supra note 1 at paras 37-42, 87-89 and 94.
[8] Ibid.
[9] Ibid at para 49.
[10] Ibid at para 54.
[11] Ibid.
[12] Ibid at para 60.
[13] Ibid at para 55.
[14] Ibid.
[15] See Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 35.
[16] See Thomas McMorrow, “Upholding the Honour of the Crown” (2018) 35 Windsor YB Access to Justice 311 at 313.
[17] See Southwind, supra note 1 at para 55.
[18] Ibid.
[19] Ibid.
[20] Ibid at para 56 (emphasis in original).
[21] Ibid at para 62.
[22] Ibid at para 64.
[23] Ibid.
[24] Ibid.
[25] Ibid.
[26] Ibid at para 68.
[27] Ibid.
[28] Ibid at para 65.
[29] Ibid at para 69. See also paras 67 (“Equitable compensation … is a loss-based remedy; the purpose is to make up the plaintiff’s loss”) and 68 (when it is not possible to restore the plaintiff’s assets in specie, “equitable compensation is the preferred remedy”).
[30] Ibid at paras 66, 71-72.
[31] Ibid at para 70.
[32] Ibid at para 75.
[33] Ibid at paras 66, 74 and 77.
[34] Ibid at 74.
[35] Ibid at 76.
[36] Ibid at para 73.
[37] Ibid at para 76 (citing Hodgkinson v Simms, 1994 2 SCR 377 at 443).
[38] Ibid at para 79.
[39] Ibid at para 80.
[40] Ibid.
[41] Ibid at para 81.
[42] Ibid at para 82.
[43] Ibid at para 89.
[44] Ibid. See also para 111.
[45] Ibid at para 93.
[46] Ibid at para 94.
[47] Ibid at para 96.
[48] Ibid at paras 94 and 96-97.
[49] Ibid at paras 101-03.
[50] Ibid at paras 112-14.
[51] Ibid at para 118. See also paras 121-22, 127 and 129.
[52] Ibid at para 127. While Justice Côté agreed with the majority that Canada ought to have negotiated a surrender, she did not agree that the lost opportunity includes an “opportunity to negotiate a surrender of those lands for hydroelectricity generation” (para 172, emphasis in original) because there was insufficient evidence to make that finding of fact. Justice Côté disagreed with the majority’s decision to reconsider evidence to reach its own conclusions because doing so overreaches the appellate standard of review for mixed fact and law, which is reasonableness, not correctness (see paras 170, 174-75, 181, 184 and 188).
[53] Ibid at para 144.
[54] Ibid.
[55] Ibid.
[56] Ibid at para 147.
[57] R v Desautel, 2021 SCC 17 at para 30.
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Articles
Review Essay
How can the law balance the need to tackle hate speech with the need to protect free expression? Bill C-36 raises this question. Tabled by the federal government on June 23, 2021, Bill C-36 proposes amendments to the Criminal Code, the Youth Criminal Justice Act, and the Canadian Human Rights Act to protect Canadians from hate speech in an online environment.[1] With social media integrated into many aspects of our daily lives, this proposed legislation is important to create and protect safe online spaces.[2] While hate speech is likely not considered a valuable form of expression by most of us, it is protected by section 2(b) of the Charter of Rights and Freedoms, which guarantees individuals’ freedom of expression. This means that the proposed amendments in Bill C-36 will likely infringe section 2(b). But this does not, by itself, mean that the law cannot stand. On the contrary, under section 1 of the Charter, if the violation can be demonstrably justified as a reasonable limit on free expression, it will be constitutional.
While Bill C-36 is not law yet, it does raise important questions about hate speech as a protected form of expression, and about how this form of expression can justifiably be infringed upon. To address these questions, this article first examines the federal government’s proposed amendments in Bill C-36. Second, it discusses whether hate speech is a protected form of expression under section 2(b) of the Charter. And finally, it assesses whether Bill C-36’s proposed amendments may potentially be justified under section 1 of the Charter.
Second Time’s the Charm? Bill C-36 Proposes to Revive Previously Repealed Human Rights Legislation
Bill C-36 is not yet law, but is currently in the early stages of the legislative process. This means that Bill C-36 can still be amended during its second reading or can die on the order paper if Parliament is dissolved. Among other things, the Bill seeks to define “hatred” in section 319 of the Criminal Code, which sets out the offence for public incitement of hatred.[3] This definition relies on and echoes the Supreme Court of Canada’s decision in Saskatchewan (Human Rights Commission) v Whatcott.[4] The Bill also defines the dissemination of online hate speech as a discriminatory practice in the Canadian Human Rights Act and gives victims of hate speech access to new remedies.[5] This amendment also uses the language of the Supreme Court in Whatcott.
In addition to this Bill, the Government of Canada plans to create a regulatory framework that will work towards combating harmful online content.[6] This framework would establish rules for social media platforms to guide them in addressing harmful content such as hate speech.[7]
The Criminal Code Amendment Clears Up the Meaning of “Hatred”
As previously mentioned, Bill C-36 proposes to add a definition for “hatred” in section 319 of the Criminal Code. “Hatred” would be defined as “the emotion that involves detestation or vilification and that is stronger than dislike or disdain.”[8] This language echoes the Supreme Court’s interpretation of “hatred” in Whatcott, where the Court noted that “‘hatred’… is to be interpreted as being restricted to those extreme manifestations of emotion described by the words ‘detestation’ and ‘vilification’.”[9] This wording is important as it limits the application of section 319 of the Criminal Code to a very small category of expression. In other words, it prevents section 319 from applying to expression that is “repugnant and offensive” but does not rise to the “level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects.”[10] By limiting the application of this law to only the most extreme and harmful speech, Bill C-36 attempts to ensure that section 319 of the Criminal Code infringes individuals’ freedom of expression as little as possible.[11]
The Canadian Human Rights Act Amendment Revives a Previously Repealed Law
Bill C-36 also revives section 13 of the Canadian Human Rights Act, which was repealed by Parliament in 2013 in response to claims that it was overly restrictive of free speech.[12] The “old” section 13 established that it was a “discriminatory practice … to communicate telephonically ... any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person … [is] identifiable on the basis of a prohibited ground of discrimination.”[13] There was fear at the time that this provision would place a “chill on speech that is controversial but not necessarily hateful.”[14] While these claims were not adjudicated by the courts before the law’s repeal, it is likely that section 13 infringed section 2(b) of the Charter. However, whether the “old” section 13 would have been saved by section 1 of the Charter — which allows governments to place reasonable limits on Charter rights — is uncertain.
Bill C-36 proposes to add a new and revised version of section 13 to the Canadian Human Rights Act. This new provision makes it a discriminatory practice to communicate “hate speech by means of the Internet or other means of telecommunication in a context in which the hate speech is likely to foment detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination.”[15] Like the Criminal Code amendments, this provision echoes the wording of the Supreme Court in Whatcott. As such, section 13 would likely be limited to a very narrow segment of expression that goes beyond being merely offensive or repugnant, as it distinguishes expression that directs “dislike or disdain, or that discredits, humiliates, hurts or offends” from “the extreme nature of hate speech captured by the proposed amendments.”[16]
The amendments to the Canadian Human Rights Act would apply to public communications on the Internet by individuals in places such as social media platforms, personal websites, and in mass emails.[17] If an individual is targeted by a post that elicits hate speech, they would be able to file a hate speech complaint with the Canadian Human Rights Commission.[18] While the Department of Justice asserts that the provision is “carefully defined to target only an extreme and marginal type of expression,”[19] if it becomes law, it will likely be scrutinized by free-speech advocates as a potentially unjustified and hence unconstitutional violation of the freedom of expression.
Hate Speech: Is It Protected Under the Charter?
In its attempts to limit hate speech, does Bill C-36 engage the Charter’s guarantee of free expression? To answer this question, a useful starting point is the Supreme Court of Canada’s judgment in R v Keegstra. In that case, the Court was tasked with determining whether “the coverage of s. 2(b) extend[s] to the public and wilful promotion of hatred against an identifiable group.”[20] To determine if a form of expression is protected, the Court found it necessary to consider the values that underlie the freedom of expression as they “define the ambit of s. 2(b)” and provide context on how “competing interests might co-exist with the freedom under s. 1 of the Charter.”[21] In particular, the Court identified three values that fuel free expression: (1) truth seeking, (2) participating in “social and political decision-making,” and (3) “individual self-fulfillment.”[22] It is not enough to consider these values in isolation, the Court said. Rather, these values must be considered “within the textual framework of the Charter.”[23]
Although hate speech does not promote the values that underlie the freedom of expression, the Supreme Court of Canada in Keegstra decided that hate speech is “expression” within the framework of the Charter. In arriving at this decision, the Court noted that the word “expression” includes any activity that “conveys or attempts to convey a meaning,”[24] provided it is not “communicated in a physically violent form.”[25] Since “[c]ommunications which wilfully promote hatred against an identifiable group without doubt convey a meaning,”[26] the Court held that hate speech is protected expression under section 2(b) of the Charter. This means that it is highly likely that government action that seeks to restrict hate speech will result in a section 2(b) infringement.
How does the precedent set in Keegstra apply to the amendments proposed by Bill C-36? While it is not certain until a court rules on the matter, it is likely that section 2(b) will be infringed if the new section 13(1) is added into the Canadian Human Rights Act. This provision aims to prevent the dissemination of hate speech, which is protected expression under section 2(b) of the Charter. However, the analysis does not end here. This potential infringement may yet be justified under section 1 of the Charter.
Preventing Hate Is Likely a Justified Infringement on Free Expression
Some commentators were concerned that the “old” section 13 of the Canadian Human Rights Act would allow “too many frivolous cases to proceed against citizens, when the Criminal Code already covers hate speech that could generate harm against an individual or group.”[27] This ultimately led to its repeal through a private member’s bill tabled in the House of Commons in June 2013. As Bill C-36 is still in early stages of the legislative process, it is hard to know if it will eventually become law or, if it does, whether it will eventually be reviewed by the courts. If it does end up before the courts, several potential arguments for and against the justification of section 13 may be addressed.
Arguments Supporting Justification
Arguments in favour of section 13 would likely turn on its ability to pass the minimal impairment and final balancing stages of the Oakes test, which is the test that is used by the courts to determine if a violation of a Charter right is justified. At this stage of the analysis, courts will consider the links between the infringed expression and section 2(b) values. Justification is more likely if the impugned expression deviates from the values underlying free expression. In this regard, three arguments in support of justifying a potential infringement of section 2 (b) are especially relevant.
First, Bill C-36’s proposed “new” section 13 has some important differences compared to the “old” version. The new version uses the language of the Supreme Court in Whatcott (detestation and vilification), which has been interpreted to only capture a small segment of expression.[28] As such, section 13 may well be found to be minimally impairing as it does not capture more expression than necessary.
Second, since the repeal of the “old” section 13, internet usage and the dissemination of online hate has increased significantly.[29] For example, a 2020 study showed that over 6,600 online platforms were used to spread “white supremacist, misogynistic or other extremist views.”[30] In this sense, the problem of online hate has clearly increased dramatically, which may make it more likely for the new section 13 to pass the final balancing stage of the Oakes test, when the importance of the government’s objective is weighed against the extent of the rights violation.
Finally, establishing the promotion of hate speech as a form of discrimination in the Canadian Human Rights Act gives victims a way to hold others accountable for their online hate speech.[31] The importance of providing a remedy to victims may also be a factor that is considered in the final balancing stage of the Oakes test.
Arguments Against Justification
In response to the federal government’s introduction of Bill C-36, the Canadian Constitution Foundation (“CCF”) issued a statement that provides some arguments against section 13 being a justifiable infringement on free expression.[32] First, the CCF suggests that the proposed definition for hate speech is “a vague and subjective standard.”[33] A vague law can implicate the section 1 analysis at two stages.[34] In brief: a law may be so vague as to not “constitute a ‘limit prescribed by law’ under s. 1”[35] or may result in an argument of overbreadth at the minimal impairment stage of the Oakes test.[36] Second, the CCF is concerned that the proposed section 13 will deter and prevent Canadians’ from debating unsettled subjects.[37] This argument may also arise at the minimal impairment stage, as it suggests that too much expression may be captured by the law. Finally, the CCF takes issue with the idea that a tribunal, which is formed by members that are not democratically elected, would have control over free expression.[38]
Conclusion: Wait and See
Since the repeal of the “old” section 13 in June 2013, the use of the internet in many aspects of our daily lives has increased. At the same time, the spread of online hate has also increased. Bill C-36 seeks to address these issues by providing a new legal definition of “hatred” and establishing the spread of online hate as a form of discrimination. If Bill C-36 is passed into law, the constitutionality of its amendments is uncertain and will remain uncertain until the courts have an opportunity to weigh in on the matter. It is likely that an infringement on section 2(b) of the Charter will be found, because hate speech receives Charter protection as a form of expression that conveys meaning. However, while section 2(b) grants constitutional protection to a broad range of expression, restrictions on expression may nonetheless be justified under section 1 of the Charter. Given how closely Bill C-36’s proposed amendments follow section 2(b) jurisprudence, the “new” section 13 would likely be justified under section 1 of the Charter. This, however, will remain uncertain unless the courts weigh in on the matter.
For the time being, we will have to wait and see if Bill C-36 is passed into law.
[1] Criminal Code, RSC 1985, c C-46; Youth Criminal Justice Act, SC 2002, c1; Canadian Human Rights Act, RSC 1985, c H-6 .
[2] “Government of Canada takes action to protect Canadians against hate speech and hate crimes” (23 June 2021), online: Government of Canada <www.canada.ca/en/department-justice/news/2021/06/government-of-canada-takes-action-to-protect-canadians-against-hate-speech-and-hate-crimes.html> [Department of Justice Canada News Release].
[3] Ibid.
[4] Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 .
[5] Department of Justice Canada News Release, supra note 2.
[6] Ibid.
[7] Ibid.
[8] Bill C-36, An Act to amend the Criminal Code and the Canadian Human Rights Act and to make related amendments to another Act (hate propaganda, hate crimes and hate speech, 2nd Sess, 43 Parl, 2021 (first reading 23 June 2021), online: <http://www.parl.ca/DocumentViewer/en/43-2/bill/C-36/first-reading> [Bill C-36].
[9] Whatcott, supra note 4 at para 57.
[10] Ibid.
[11] See eg Whatcott, supra note 4; See also R v Keegstra, [1990] 3 SCR 697, 1990 CanLII 24 .
[12] Joel Webe, “Hate speech no longer part of Canada’s Human Rights Act” (27 June 2013), online: National Post <https://nationalpost.com/news/politics/hate-speech-no-longer-part-of-canadas-human-rights-act>.
[13] CHRA, supra note 1 at s 13(1), as repealed by An Act to amend the Canadian Human Rights Act (protecting freedom), SC 2013, c 37.
[14] Webe, supra note 12.
[15] Bill C-36, supra note 8 [emphasis added].
[16] “Combatting hate speech and hate crimes: Proposed legislative changes to the Canadian Human Rights Act and the Criminal Code” (last modified 23 June 2021), online: Government of Canada <www.justice.gc.ca/eng/csj-sjc/pl/chshc-lcdch/index.html> [Proposed Legislative Changes].
[17] Ibid.
[18] Ibid.
[19] Ibid.
[20] Keegstra, supra note 11 at 725.
[21] Ibid at 726.
[22] Ibid at 728.
[23] Ibid.
[24] Ibid at 729.
[25] Ibid.
[26] Ibid at 730.
[27] Yosie Saint-Cyr, “Section 13 of the Canadian Human Rights Act Repealed!?” (14 June 2012), online: Slaw <www.slaw.ca/2012/06/14/section-13-of-the-canadian-human-rights-act-repealed/>.
[28] Whatcott, supra note 4 at para 57.
[29] Department of Justice Canada News Release, supra note 2.
[30] Ibid.
[31] Ibid.
[32] The CCF, “Canadian Constitution Foundation statement on ‘Online Harms’ bill” (23 June 2021), online: Canadian Constitution Foundation <https://www.theccf.ca/canadian-constitution-foundation-statement-on-online-harms-bill>.
[33] Ibid.
[34] See R v Nova Scotia Pharmaceutical Society, [1992] 2 SCR 606, 1992 CanLII 72 .
[35] Ibid at 630.
[36] Ibid at 627.
[37] The CCF, supra note 32.
[38] Ibid.
Creating a balance between protecting both democracy and free expression is a difficult task. In 2017, the Ontario legislature amended the Election Finances Act[1] to insert a provision that places spending limits on third party political advertising six months prior to an election. In 2018, this spending limit was extended such that the limit applied over a 12-month period prior to an election instead of a 6-month period. Arguably, these spending limits were imposed to promote a fair and democratic election process by limiting the extent to which more affluent individuals and groups can influence the electoral process.[2] However, a constitutional challenge was launched against the Government of Ontario on the ground that the law infringed section 2(b) of the Charter of Rights and Freedoms, which guarantees the freedom of expression. The Ontario Superior Court of Justice found in Working Families Ontario v Ontario[3] (“Working Families”) that the impugned provisions of the Election Finances Act did in fact unjustifiably infringe section 2(b) of the Charter. As a result, the Court declared these provisions of no force or effect.
The Government of Ontario then had a choice: appeal the Court’s decision, amend the law to align with Charter values, or disregard the finding of unconstitutionality and invoke the notwithstanding clause to reenact the invalidated law. Of these options, the last was chosen. On July 14, 2021, the lifeless law was revived, despite its Charter infringements, using the notwithstanding clause.
This article first reviews the amendments to the Election Finances Act. It then explains the Court’s decision in Working Families. Finally, it explores the Government of Ontario’s decision to invoke the notwithstanding clause in response to the Court’s ruling.
Legislative History: Third Party Spending is Limited by the Election Finances Act
Bill 254 amended the laws governing Ontario’s provincial elections to “protect Ontarians’ essential voice in elections” and “promote fairness in the electoral process for everyone.”[4] One of these amendments, section 37.10.1(2) of the Election Finances Act, found itself at the centre of a constitutional challenge for infringing free expression. Section 37.10.1(2) provides that no third party can spend “more than $600,000 in total for the purposes of third-party political advertising during the 12-month period immediately before the issue of a writ of election.”[5] This limit was criticized as “severely and aggressively target[ing] third parties,”[6] such as trade unions. Political advertising is broadly defined in section 1.1(1) of the Election Finances Act as “advertising in any broadcast, print, electronic or other medium with the purpose of promoting or opposing any registered party or its leader or the election of a registered candidate.”[7] As such, the law limits many forms of political expression.
Before Bill 254’s amendments, Ontario had a spending limit that was capped at 6 months prior to the writ of election. Like the 12-month limit, the 6-month limit was also scrutinized. Charter challenges were launched against the Government of Ontario, which responded that “pre-election spending limit[s] on third-party political advertising … [are] necessary and reasonable to ensure a fair and proper election process.”[8] Before the courts could adjudicate the claims regarding the 6-month limit, the Government of Ontario amended the Election Finances Act in 2021 with Bill 254.
Charter Challenge Launched: Bill 254 Unjustifiably Limits Free Expression
To determine whether the 12-month spending limit violates the freedom of expression, a Charter analysis must be conducted. First, the Court must determine whether political advertising is protected speech under section 2(b) of the Charter. If it is not protected speech, it will not receive Charter protection and the analysis ends. However, if it is protected speech and an infringement is found, the Court will proceed to the next step of the analysis, when it will ask whether the law constitutes a reasonable limit on the infringed right under section 1 of the Charter.
Is Third Party Political Advertising Protected Speech Under the Charter?
Not all expression receives the same degree of protection under section 2(b) of the Charter.[9] Instead, courts assess each form of expression in context to determine the extent to which it must be protected.[10] In R v Keegstra, Justice McLachlin (as she then was) explained the importance of the freedom of expression for political speech: “[Free expression] is instrumental in promoting the free flow of ideas essential to political democracy and the functioning of democratic institutions. This is sometimes referred to as the political process rationale.”[11] For these reasons, among others, political expression has been granted a high level of protection under section 2(b).[12] However, as the analysis is contextual, this is not always the case. Sometimes political expression merits a lower level of protection “depending on the nature of the controversy at hand.”[13]
In Working Families, free expression was not the only constitutional value at stake. Other constitutional values, like equal speaking opportunities, must also be protected during elections.[14] The concern with not limiting third-party advertising is that heavily-funded third party political advertisers can disproportionately dominate the airwaves and drown out voices that have less funding.[15] The Court concluded that the “financing of political expression” is “certainly an aspect of expression deserving protection under section 2(b) … but its level of protection is a matter of context, to be weighed with and against other values underlying democracy itself.”[16] The right of third-party political advertisers to engage in free expression is therefore “counterbalanced by a need to ensure that all citizens have an equal opportunity to participate in the electoral process.”[17]
The question, then, was whether Bill 254 violates freedom of expression by infringing on political speech. The Court quickly concluded that limiting third party political advertising does restrict freedom of expression.[18] In the Court’s words, free expression is a broad right that is infringed whenever a government “limits an activity that conveys or attempts to convey meaning,” and political advertising is one of those activities.[19] The Attorney General of Ontario also conceded this point.[20]
Charter Rights Are Not Absolute: Can the Section 2(b) Infringement Be Justified?
Charter rights are not absolute. Governments can justifiably limit a protected right under section 1 of the Charter if that limit “can be demonstrably justified in a free and democratic society.”[21] To determine whether the law is justified, courts apply the Oakes test, which assesses the importance of the law’s objective and whether there is proportionality “between the objective and the means used to achieve it.”[22] If the Oakes test is satisfied, the violation of the Charter right is regarded as legally justified and the law is constitutional.
The Working Families decision hinged on the question of proportionality. Among other things, an infringement is proportional only if it minimally impairs the violated Charter right. The Court found that at the Oakes test’s minimal impairment stage “the rubber of Bill 254 hits the slippery road of justification, causing the … vehicle to skid off course.”[23] The Court found that Bill 254 was not minimally impairing because the Government failed to consider other measures that would achieve its objective but have less of an impact on Charter rights. The Court cited two key facts in support of this conclusion. Firstly, the Chief Electoral Officer recommended against imposing restrictions on “issue-based advertising” prior to the election, concluding that such restrictions do “not augment the fairness and equality that such regulations are meant to address.”[24] Secondly, and more significantly, the Government of Ontario’s own expert witness testified that a 6-month spending limit was an “appropriate and effective” length of time for restricting political advertisements.[25] As such, it was difficult for the Government of Ontario to argue that a 12-month period minimally impairs free expression when a 6-month period would, according to its own expert witness, ensure a fair and democratic election period. On this point, the Attorney General failed to provide evidence that justified or explained why the restricted spending period was doubled.[26] The 12-month spending restrictions in section 37.10.1(2) were accordingly not found to be minimally impairing, and the law was not saved under section 1 of the Charter.
Having ruled the 12-month spending restrictions unconstitutional, the remedy declared by the Court was the invalidation of the impugned sections of the Election Finances Act, rendering them of no force or effect. Often, when this type of declaration is made, courts will suspend the declaration of invalidity for a period of time, so that governments may amend the law and bring it into compliance with the Charter. In this case, no suspension was granted as an Ontario provincial election was scheduled to occur within 12 months of the Court ruling. This meant that third party advertisers, under the impugned law, were already within the 12-month restricted spending period. As such, the law was invalidated immediately, so that these parties would not be subject to unconstitutional laws during this pre-election period.
The Notwithstanding Clause Stifles Judicial Dialogue
Section 37.10.1(2) was lifeless for just a few days before it was revived by the Government of Ontario on June 14, 2021. What made this revised legislation different than the original law was the inclusion of the notwithstanding clause. The notwithstanding clause is a constitutional provision set out in section 33 of the Charter that gives the provinces and Parliament power to declare that a law may operate “notwithstanding” the fact that it infringes upon certain Charter rights. It functions to “prevent a person from bringing an action in court claiming that a law violates fundamental freedoms, legal rights, or equality rights and is therefore invalid.”[27] Therefore, as Ontario enters the next election cycle, no party will be able bring a claim to court arguing that the spending restrictions in the Election Finances Act violate their freedom of expression.
Since its inception in 1982, the notwithstanding clause has had limited use. Of the 14 governments that can use the clause, only Saskatchewan, the Yukon, Ontario, Alberta, and Quebec have made declarations under section 33.[28] However, this is the first time that a court has declared a law unconstitutional and the government has immediately responded by invoking the notwithstanding clause and reenacting exactly the same law. Normally, where the courts find a law unconstitutional, the offending government will attempt to bring it into compliance with the Constitution through amendment — a process that is often referred to as a dialogue between courts and legislatures. Ontario’s use of the notwithstanding clause effectively ends this dialogue; the Government of Ontario has simply re-enacted the same law, ignoring the Court’s judgment that it is unconstitutional.
For some observers, though, the notwithstanding clause offers a way for elected officials to challenge unelected judges’ interpretations of constitutional rights and principles. Hansard from the debates on June 14, 2021, when the new notwithstanding legislation was passed, states that reviving the spending limit law “will restore … critical guardrails to protect the essential role of individuals at the heart of Ontario’s democracy.”[29] This suggests that the Government of Ontario is re-enacting this law to ensure a fair and democratic election process by limiting the role of private money in the electoral process. Conversely, critics of the Government of Ontario argue that this law “limits comment on essentially any public policy issue when these comments matter the most.”[30] Whatever position one takes, critics of the Election Finances Act are no longer able to challenge it under section 2 of the Charter (or under other sections of the Charter to which the notwithstanding clause applies).
Conclusion: Back Where We Started
Despite the unjustifiable infringement on free expression, the 12-month restriction on spending for third-party political advertisements is law in Ontario. Those who fall under the impugned restrictions set out by the Election Finances Act are left with few to no remedies. Because the notwithstanding clause was used to revive the law, Charter challenges cannot be brought on the basis that the law violates fundamental freedoms, legal rights, or equality rights. However, this issue is not free of constitutional challenges just yet. A new challenge was launched against the law under section 3 of the Charter.[31] Section 3 guarantees democratic rights and is exempt from the purview of the notwithstanding clause. Whether or not this claim will succeed is uncertain, but in the meantime third-party political advertising must abide by the spending limits under the revived Election Finances Act.
[1] Election Finances Act, RSO 1900, c E7.
[2] Working Families Ontario v Ontario, 2021 ONSC 4076 at para 6 .
[3] Ibid.
[4] Bill 254, An Act to amend various Acts with respect to elections and members of the Assembly, 1st reading, Legislative Assembly of Ontario, 42-1, No 227 (25 February 2021) at 11578 (Hon Doug Downey).
[5] Election Finances Act, supra note 1, s 37.10.1(2).
[6] “Conservatives double-down with amendments to Bill 254, the ‘Squashing Ontario Democracy Act’” (13 April 2021), online: Cision <www.newswire.ca/news-releases/conservatives-double-down-with-amendments-to-bill-254-the-squashing-ontario-democracy-act--823313298.html>.
[7] Election Finances Act, supra note 1, s 1.1(1).
[8] Working Families, supra note 2 at para 6.
[9] Ibid at para 24.
[10] Ibid.
[11] Ibid at para 24, citing R v Keegstra, [1990] 3 SCR 697 at 802, 1990 CanLII 24.
[12] Working Families, supra note 2 at para 25.
[13] Ibid at para 26. See Ford v Quebec (Attorney General), [1988] 2 SCR 712, 1988 CanLII 19.
[14] Working Families, supra note 2 at para 27.
[15] Ibid at para 32.
[16] Ibid at para 28.
[17] Ibid at para 31.
[18] Ibid at para 34.
[19] Ibid.
[20] Ibid.
[21] Canadian Charter of Rights and Freedoms, s 1, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[22] “Section 1 — Reasonable Limits” (last modified 2 July 2021), online: Government of Canada Department of Justice <https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art1.html>.
[23] Working Families, supra note 2 at para 63.
[24] Ibid at para 64.
[25] Ibid at para 65.
[26] Ibid at para 73.
[27] “Notwithstanding Clause” (last visited 21 July 2021), online: Centre for Constitutional Studies <https://www.constitutionalstudies.ca/2019/07/notwithstanding-clause/> .
[28] “Section 33 – Notwithstanding clause” (last modified 2 July 2021), online: Government of Canada Department of Justice <www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art33.html>.
[29] Bill 307, An Act to amend the Election Finances Act, 3rd reading, Legislative Assembly of Ontario, 42-1, No 275 (14 June 2021) at 14208 (Hon Doug Downey).
[30] Christine Van Geyn, “Doug Ford’s gag law will limit comment on essentially any public policy issue” (17 June 2021), online: Canadian Constitution Foundation <https://theccf.ca/doug-fords-gag-law-will-limit-comment-on-essentially-any-public-policy-issue/>.
[31] Robert Benzie, “Unions again challenging Premier Doug Ford’s campaign finance law as unconstitutional” (12 July 2021), online: Toronto Star <www.thestar.com/politics/provincial/2021/07/12/unions-again-challenging-premier-doug-fords-campaign-finance-law-as-unconstitutional.html>.
Corporations in Canada have legal personhood.[1] A corporation is a distinct legal entity that exists perpetually, irrespective of the humans who create it.[2] This shields the human actors behind the corporation from personal liability and allows the corporation to independently enter into agreements and own property.[3]
This raises the question: does the Charter of Rights and Freedoms extend protections to entities like corporations — entities which are regarded as “legal” persons but not “natural” or “human” persons? In November 2020, the Supreme Court of Canada (SCC) addressed a specific version of this question in Quebec (Attorney General) v 9147-0732 Québec Inc (“Quebec Inc”),[4] a case concerning whether section 12 of the Charter, which guarantees individuals’ protection from cruel and unusual punishment, applies to corporations. This article examines the background to the Quebec Inc judgment and explains why the SCC ultimately concluded that section 12 of the Charter does not apply to corporations.
Section 12 of the Charter of Rights and Freedoms
Section 12 of the Charter states:
Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.[5]
Background: A Corporation is Prosecuted, Convicted, and Fined
In 2016, the construction company 9147-0732 Québec Inc (“Quebec Corporation”) was prosecuted and convicted in the Court of Quebec for “performing residential renovations without the appropriate licenses,”[6] in contravention of section 46 of the Building Act.[7] Since section 197.1 of the Building Act establishes a mandatory minimum fine of $30,842 for offenders,[8] Quebec Corporation was assigned that fine as the penalty for its offence.
However, Quebec Corporation had mistakenly sent the invoices for their work from their own corporation, as opposed to “a co-owned entity that had the appropriate licenses to perform … [the] construction services.”[9] The Court of Quebec acknowledged that the commission of the offence was an accident in “administrative error”[10] but nevertheless applied the mandatory minimum fine. Quebec Corporation argued the steep fine in response to a mere error was a violation of the company’s section 12 Charter rights.[11] In support of its claim, Quebec Corporation cited the SCC case, R v Boudreault,[12] in which the Court held that the mandatory “imposition and enforcement of [a victim fine] surcharge on the poorest individuals”[13] constitutes cruel and unusual punishment[14] under section 12 of the Charter. However, the Quebec Corporation’s arguments failed both at the Court of Quebec and the Quebec Superior Court. The Court of Quebec concluded that “expanding the protection of rights intrinsically linked to individuals to include corporate rights would trivialize the protection granted by s[ection] 12,”[15] while the Quebec Superior Court remarked that the purpose of section 12 was “the protection of human dignity, a notion clearly meant exclusively for … ‘natural persons’.”[16]
Quebec Corporation then successfully appealed the Superior Court’s decision to the Quebec Court of Appeal (QCCA). The QCCA ruled that harsh fines can indeed constitute cruel and unusual punishment for a corporation, although the QCCA did not address whether the particular fine in question constituted cruel and unusual punishment or treatment (this question was sent back to the Court of Quebec).[17] The QCCA found that corporations “could face cruel treatment or punishment through harsh or severe fines” which cause harm to the human beings behind them.[18] This harm could include employees losing jobs, retired employees losing benefits, and governments losing tax revenue.[19]
Following this, the QCCA’s ruling was appealed to the SCC. Accordingly, the SCC had to determine once and for all whether section 12 applied only to natural persons (humans) or if it could encompass purely legal persons (eg corporations) as well. If it encompasses purely legal persons, the mandatory minimum fines might constitute cruel and unusual punishment and might be unconstitutional. If not, then section 12 simply would not apply and the penalty imposed on Quebec Corporation would stand.
The Supreme Court’s Analysis
Justices Brown and Rowe, writing for the majority of the Supreme Court, engaged in a purposive interpretation of section 12 of the Charter as well as considering the jurisprudence on section 12 and other Charter sections, and, finally, offering some commentary on the concept of separate legal personality in Canadian corporate law.
Purposive Interpretation
The Court began with a purposive interpretation of section 12.[20] In summary, purposive interpretation requires the words of a provision to be interpreted in light of the law’s broader context and purposes. However, when taking this approach, the majority emphasized that “the analysis must begin by considering the text of the provision.”[21]
The Court accordingly proceeded to examine the text of section 12, focusing in particular on the words “cruel and unusual punishment.” Citing Black’s Law Dictionary,[22] the Oxford English Dictionary,[23] and Justice Chamberland’s dissent in the Quebec Court of Appeal’s decision,[24] the Court concluded that “cruel and unusual” punishment refers to physical and mental pain and suffering by humans.[25] The Court found that section 12’s purpose is therefore to “protect human dignity” by “prevent[ing] the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment”[26] and, in so doing, “respect[ing] the inherent worth of individuals.”[27] The Court noted that the “intended beneficiaries” of section 12 are accordingly humans and not purely legal entities such as corporations.[28]
The Court also examined the meaning of the word “everyone”[29] in section 12. The Court stated that the literal meaning of “everyone” cannot be expanded to include corporations without factoring in the “purpose of the right as protecting human dignity.”[30] The Court then cited the case of Irwin Toy Ltd, where “everyone” was meant to include “only human beings”[31] — not corporations and other non-human entities that are “incapable of enjoying life, liberty or security of the person.”[32] In sum, the Court regarded the text of section 12 as inseparable from human elements and feelings, of which corporations are devoid.[33]
Section 12 Jurisprudence
After considering section 12’s text, the Court turned to the section’s “historical origins”[34] and jurisprudence, finding that they also turn on “the concept of human dignity.”[35] The Court noted that most section 12 jurisprudence involves “minimum and indeterminate sentences and the harmful effects of incarceration.”[36] Combined, these cases establish a “threshold test” where punishment is cruel and unusual if it is “grossly disproportionate … outrages the standards of decency … and [is] abhorrent or intolerable.”[37] The Court held that this threshold is “inextricably anchored in human dignity [and, as such,] … is a constitutional standard that cannot apply to treatment or punishments imposed on corporations.”[38] Reinforcing this conclusion, it also noted that the types of punishments section 12 has dealt with in the past involve mental or physical suffering and pain, which corporations cannot experience.[39]
Section 12 Compared to Other Charter Sections
The Court also looked at when the “legal rights” sections of the Charter — which run from section 7 to section 14 — have been applied to corporations and when they have not. Most of the Charter protections in sections 7 to 14 protect a “detained individual” and guarantee integrity and fairness in the administration of justice.[40] For the Court, each of these protections is rooted in the notion of human dignity.[41] Only section 8, the right against unreasonable search and seizure, and 11(b), the right to a timely trial, have been applied to corporations.[42] In Hunter v Southam, for example, the Supreme Court reasoned that an unlawful search and seizure (section 8) “could have a significant [and direct] impact on the privacy rights of individuals within a corporation”[43] and on that basis accepted that section 8 applied to corporations.[44] However, the Court distinguished Hunter from the case at hand; a direct impact on individuals, it said, “is not logically available under section 12,”[45] given that the individuals behind a corporation are not personally subject to penalties assigned to corporations.
The Corporate Veil
As the Court put it, a corporation is a “separate legal personality,”[46] with the human actors behind a corporation benefitting from a “corporate veil”[47] that shields them from personal liability; for example, if the corporation is sued, the personal assets of the shareholders will not be affected.[48] Citing R v Wholesale Travel Group, the Court reasoned that the corporate veil confers benefits such as limited liability, and that the veil cannot be selectively lifted where it becomes detrimental to actors who would otherwise benefit from it.[49] Thus, in this case, the human actors behind Quebec Corporation could not selectively use “separate legal personality” to benefit them via limited liability but disregard it when it prevents them from relying on section 12 of the Charter.
The Court therefore held that the “existence of human beings behind the corporate veil is insufficient to ground a s[ection] 12 claim of right on behalf of a corporate entity, in light of the corporation’s separate legal personality.”[50] For this reason, the Court rejected the notion that the suffering of human actors behind the corporation “should be considered when determining the scope of [s]ection 12.”[51]
Conclusion: Corporations Are Not Protected by Section 12
The Supreme Court’s ruling has confirmed that section 12 of the Charter applies only to human beings, and not purely “legal” persons such as corporations. Section 12 is rooted in human dignity and is a reminder that not all Charter rights are equally applicable to humans and corporations. While some other sections of the Charter may protect purely legal persons like corporations, section 12 cannot.
[1] Shannon O’Byrne, Anna Lund & Tamar Meshel, Corporations Law: Law 451 Cases and Materials 2020-2021 Edition (Edmonton, AB: University of Alberta Faculty of Law, 2021) at 3 [O’Byrne].
[2] Ibid.
[3] Ibid.
[4] Quebec (Attorney General) v 9147-0732 Québec Inc, 2020 SCC 32 .
[5] Canadian Charter of Rights and Freedoms, s 12, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11 .
[6] Ranjan Agarwal et al, “Corporations are not Entitled to the Constitutional Right Against Cruel and Unusual Punishment” (10 November 2020), online (blog): Bennett Jones <https://www.bennettjones.com/Blogs-Section/Corporations-are-not-Entitled-to-the-Constitutional-Right-Against-Cruel-and-Unusual-Punishment> [Agarwal].
[7] Building Act, CQLR c B-1.1, s 46.
[8] Ibid.
[9] Agarwal, supra note 6.
[10] Ibid.
[11] QC Numbered Co, supra note 4 at para 55.
[12] Ibid at para 66.
[13] R v Boudreault, 2018 SCC 58 at para 36 .
[14] Ibid at para 94.
[15] QC Numbered Co, supra note 4 at para 56.
[16] Ibid at para 57; Elizabeth Raymer, “Corporations Cannot be Subjected to Cruel and Unusual Punishment” (5 November 2020), online: CanadianLawyerMag
[17] QC Numbered Co, supra note 4 at para 58.
[18] Centre for Constitutional Studies: “Online Charter Series — Corporations and Section 12 Protection From Cruel and Unusual Punishment” (24 June 2021) at 00h: 16m: 23s — 00h: 16m: 30s, online (video): YouTube <https://youtu.be/-Fv1ikkImIk> [CCS].
[19] Ibid at 00h: 16m: 30s — 00h: 16m: 40s.
[20] QC Numbered Co, supra note 4 at para 8.
[21] Ibid at para 8 (emphasis in original).
[22] Ibid at para 82.
[23] Ibid at paras 83-84
[24] Ibid at paras 85-86
[25] Ibid at para 123.
[26] Ibid at para 51.
[27] Ibid.
[28] Ibid.
[29] Ibid at paras 15, 87.
[30] Ibid at para 87.
[31] Ibid at para 15.
[32] Ibid at paras 87, 15.
[33] Ibid at para 131.
[34] Sebastien Cusson, “Supreme Court of Canada Holds that the Constitutional Protection Against Cruel and Unusual Treatment or Punishment does not Extend to Corporations” (16 November 2020), online: McCarthy Tetrault <https://www.mccarthy.ca/en/insights/blogs/canadian-appeals-monitor/supreme-court-canada-holds-constitutional-protection-against-cruel-and-unusual-treatment-or-punishment-does-not-extend-corporations>.
[35] QC Numbered Co, supra note 4 at para 2.
[36] Ibid at para 63.
[37] Ibid.
[38] Ibid at para 17.
[39] Ibid at para 131.
[40] Ibid at para 127.
[41] Ibid at para 126.
[42] Ibid at para 128.
[43] Ibid at para 128.
[44] Ibid.
[45] Ibid at para 129.
[46] Ibid at paras 2, 129.
[47] Ibid at para 2.
[48] O’Byrne, supra note 1 at 8.
[49] QC Numbered Co, supra note 4 at para 129.
[50] Ibid at para 2.
[51] Jennifer Quaid, “Supreme Court Dismisses Company’s Cruel and Unusual Punishment Claim” (24 November 2020), online: The Conversation <https://theconversation.com/supreme-court-dismisses-companys-cruel-and-unusual-punishment-claim-149346>.
Recently – both within and outside Canada – candidates and their supporters have been making grievously false statements about their opponents during elections. In 2019, for example, Conservative communications director Brock Harrison claimed on Twitter that Justin Trudeau was under RCMP investigation, despite this being completely untrue.[1] There is little doubt, of course, that such falsehoods have the potential to unjustly influence electoral outcomes. But in a society that values free speech, should spreading false information during an election be illegal?
That was the central theme in Canadian Constitution Foundation v Canada (“CCF”), a case heard by the Ontario Superior Court in September 2020.[2] The case dealt with section 91(1) of the Canada Elections Act (CEA), which restricts the dissemination of certain types of false information during elections.[3] The Canadian Constitution Foundation — a registered charity and advocacy group — challenged the constitutionality of section 91(1), arguing it unjustifiably breached individuals’ freedom of expression as guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms.[4] This article will examine the Ontario Court’s response to this claim.
Section 91(1) of the Canada Elections Act
Section 91(1) of the CEA prohibits the dissemination of “certain false statements”[5] about particular public figures “associated with a political party during federal elections with the intention of affecting the outcome of an election.”[6] This includes, for example, falsehoods about a candidate or public figure’s commission of a criminal offence.[7] When combined with other CEA sections, section 91(1) creates a criminal offence.[8] The offence carries a maximum punishment of $50,000 in fines or a 5-year prison sentence.[9]
Section 91(1) has existed in some form since 1908, having been amended in 1970, 2000, and 2018.[10] However, 2018’s amendments significantly overhauled the law, crucially deleting the word “knowingly” from the provision. Before 2018, section 91(1) stated:
No person shall, with the intention of affecting the results of an election, knowingly make or publish any false statement of fact in relation to the personal character or conduct of a candidate or prospective candidate.[11]
To be convicted of the pre-2018 offence, then, the offender had to know that they were disseminating falsities.[12] The removal of the word “knowingly” in 2018 made it unclear whether the offence now required false election “information to be knowingly disseminated or just merely disseminated.”[13] This was the key issue in CCF.
Section 91(1) Infringes Section 2(b) of the Charter
When a court addresses a Charter challenge, the first step is to determine if there is a Charter infringement. In this case, all parties agreed that section 91(1) of the CEA “restricts expressive activity that is protected by s[ection] 2(b) of the Charter,”[14] so the Court did not need to determine if the provision was an infringement. However, the Court took the opportunity to comment on the importance of political speech under section 2(b). The Court reaffirmed that political speech is “the most valuable and protected type of expression”[15] since it enables “the free exchange of political ideas … [to ensure] a properly functioning democracy.”[16] At the same time though, the Court acknowledged that the spread of false information during elections can “threaten our democracy ... and undermine public confidence in our democratic institutions and the security of our elections.”[17] Thus, the Court asserted that deliberate propagation of false information during elections “does not enjoy the same level of protection under s[ection] 2(b) of the Charter as [other forms of] political speech.”[18]
Is This Infringement Justified Under Section 1 of the Charter?
Finding that a law infringes the Charter is not the end of the case, because Charter protections are not absolute; they are subject to reasonable limits under the Charter’s section 1. To determine if a limit on a Charter right is reasonable, courts apply a special test known as the “Oakes test.” Under this test, any law that violates the Charter may be “saved under [s]ection 1”[19] (and will remain in force) if it meets two criteria:
The parties in CCF agreed that the “objective of s[ection] 91(1) — to protect the integrity of the electoral process against the threat of false information — [was] pressing and substantial.”[21] However, the parties disagreed as to whether section 91(1) minimally impaired[22] freedom of expression (and passed the Oakes test) in light of the removal of the word “knowingly.” The CCF argued that section 91(1) could capture accidental misstatements and was therefore too broad to be minimally impairing.[23] By contrast, the Attorney General argued that the law, when interpreted properly, only captured deliberate false statements.[24] In this regard, the Attorney General suggested that the removal of “knowingly” was simply to eliminate legislative redundancy in drafting, and that the provision still implied that the offender would have to know that their statement was false.[25]
Why is the Word “Knowingly” So Important?
For conviction of most criminal acts, the Crown must prove two separate elements of the offence, the actus reus (AR) and the mens rea (MR).[26] The AR is the illegal act itself while the MR is the individual’s intent to commit said act.[27] The MR requirement means that an accused must possess a certain degree of knowledge in order to be found guilty of an offence.[28]
The Court confirmed that the AR of the section 91(1) offence was the actual spread of falsehoods during an election.[29] However, it was not clear how removing the word “knowingly” affected the MR.[30]
How Does the Rest of the Canada Elections Act Address the “Knowledge” Element?
The Court began by examining the text of section 91(1) in the context of the CEA. It noted that because the word “knowledge” was removed from section 91(1), “the offence as currently drafted does not contain any knowledge component.”[31] The Court noted that the portion of the law requiring an intention to affect election results is not relevant because it does not address knowledge of whether the statements made were false.[32]
After reviewing other CEA election offences, the Court noted that “Parliament ha[d] clearly articulated”[33] an MR requirement in all of the other offences, and that “[w]hen proof of knowledge is required, that is explicit in the prohibition or offence provision.”[34] For example, the Court referred to section 408(1) of the CEA, which states that “no leader of a political party shall provide the Chief Electoral Officer with information under section 385 that the leader knows is false or misleading”[35] when registering political parties.[36]
The Court further observed that the offence created by section 91(1) was starkly different from the rest of the offences under the CEA, and that it would therefore “be inconsistent with the structure of the CEA as a whole to interpret [section] 91(1) … as requiring knowledge when … [it was] not explicit in either the prohibition or offence.”[37]
The text of the CEA, then, suggested that removing “knowingly” from section 91(1) removed the requirement for an offender to know that their statement was false. But was this Parliament’s intent?
Did Parliament Intend to Change the MR Requirement?
To determine Parliament’s intention, the Court examined parliamentary debates and standing committee sessions on the law, acknowledging that such evidence is by itself “of limited weight.”[38] However, this evidence can provide context about the matters that Parliament considered when discussing the legislation. For this reason, such evidence is admissible to assist courts in determining Parliament’s intention, although it should not be determinative.[39]
First, the Court noted that there was little mention of deleting “knowingly” in the parliamentary debates.[40] Then, it examined the standing committee sessions, which briefly considered whether “knowledge” of a statement’s accuracy remained a component of the MR for the section 91(1) offence.[41] The Conservative Party proposed an amendment to keep the word “knowingly” in the law at a committee session, but the General Counsel to the Commissioner of Elections Canada stated that the inclusion of the phrase “with the intention of affecting the results of an election”[42] in the law implied that the “person making the publication would need to know that the information that is published was false.”[43] The amendment was ultimately rejected on this basis.[44]
For the most part, discussions during the standing committee hearings focused on how keeping the word “knowingly” in the provision could be misinterpreted and create confusion.[45] For example, Jean-Francois Morin, a senior policy advisor from the Privy Council Office, speculated that a judge could misinterpret the word “knowingly” to mean that the Crown must prove that the offender knew that they violated that specific portion of the Elections Act.[46] The Court, though, rejected Morin’s statements as “incorrect and potentially misleading.”[47]
The Court concluded that the legislative proceedings were “not helpful” and could not be interpreted “as [reflective] of Parliament's true intention.”[48] There was therefore insufficient evidence to show whether Parliament intended to retain the MR knowledge requirement.
The Court also considered an affidavit from Mylene Gigou, the Director of Investigations with the Office of the Elections Commissioner, which argued that section 91(1) contained an implied knowledge component[49] because Parliament intended it “to be an intentional offence, not a strict liability offence.”[50] A strict liability offence does not have an MR requirement — committing the illegal act alone is sufficient to be found guilty, whereas an intent offence always requires some form of MR.[51] However, the Court rejected this statement as legally wrong, since “[c]ategorizing an offence as an intent offence does not [automatically] imply or require any particular form of mens rea.”[52]
Additionally, the Court found that Gigou contradicted herself; she stated that section 91(1) “only targets knowingly false statements,” but later that the provision could also capture statements made by a “person or entity [who is] willfully blind or reckless about the [statement’s] truthfulness.”[53] The Court accordingly found Gigou’s evidence of little use in outlining Parliament’s intentions and suggested instead that it “demonstrate[d] the confusion that arises when Parliament does not clearly articula[te] the mens rea” for an offence.[54]
To sum up, the original version of section 91(1) included the word “knowledge,” which means that full knowledge of the statement’s falsity was required to secure a criminal conviction. By removing that word, Parliament potentially expanded the MR to include recklessness, which would be a significant change to the law.[55] An accused is reckless when they are aware of the relevant risks — in this case the risk that their statement may be false — but engage in the conduct regardless.[56] In contrast, full knowledge is a heightened standard, requiring awareness of falsity.[57] In the absence of indications to the contrary, the Court concluded that Parliament’s removal of the word “knowingly” was intended to expand the MR of the offence beyond full “knowledge.”
The New Law is Not Minimally Impairing
As noted above, for a law to justifiably infringe a Charter right it must minimally impair the right. This means that the law interferes with the Charter right “as little as possible.”[58] In this case, both parties agreed that the MR would need to be “knowledge” for the law to be minimally impairing. The Court found that removing the word “knowledge” from section 91(1) broadened the law unnecessarily to include people who unintentionally or recklessly distributed false information without knowing that it was false.[59] As a result, the law failed the minimal impairment test, was held unconstitutional, and was declared immediately to be of no force and effect.[60]
Law Struck Down: But This Doesn’t Mean You Can Spread All the Malarkey You Want
The Court acknowledged that false election information is a threat to democracy, but concluded that this particular law unjustifiably infringed free expression. While the law was struck down, this does not give Canadians a free license to spread false information during an election. It is just that this particular law, as it was written at the time of litigation, was found to limit Charter freedoms in an unjustifiable manner. Subsequently, the government placed the word “knowingly” back into the law in May 2021 to render it constitutional.[61] Section 91(1) is therefore valid law once again.[62]
[1] Susan Delacourt, “Are There More People Telling Lies in this Federal Election?” Toronto Star (18 September 2019), online: <https://www.thestar.com/politics/political-opinion/2019/09/18/are-there-more-people-telling-lies-in-this-federal-election.html>.
[2] Canadian Constitution Foundation v Canada (Attorney General), 2021 ONSC 1224 .
[3] Canada Elections Act, SC 2000, c 9, s 91(1) as it appeared on 20 January 2021 .
[4] Canadian Charter of Rights and Freedoms, s 2(b), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), c 11.
[5] CCF Canada, supra note 2 at para 3.
[6] Ibid at para 3.
[7] Elections Act, supra note 3, s 91(1)(a).
[8] Ibid, ss 463(3)(c) and 500.
[9] Brian Platt, “Liberals Aim to Use Budget Bill to Fix Charter Violation in their Own Election Misinformation Law” National Post (12 May 2021), online: <https://nationalpost.com/news/politics/liberals-aim-to-use-budget-bill-to-fix-charter-violation-in-their-own-election-misinformation-law>.
[10] CCF Canada, supra note 2 at para 12.
[11] Elections Act, supra note 3 as it appeared on 12 December 2018 (emphasis added).
[12] CCF Canada, supra note 2 at para 67.
[13] Gregory Tardi, “Including Emerging Litigation Comprenant les Litiges en Voie de Développement” (2021) 15 J Parliamentary & Pol L 441 at 442 (WL) [Tardi].
[14] CCF Canada, supra note 2 at para 5.
[15] Ibid at para 1.
[16] Ibid at para 1
[17] Ibid at para 2.
[18] Ibid at para 2
[19] Patrick Malcolmson & Richard Myers, The Canadian Regime: An Introduction to Parliamentary Government in Canada, 5th ed (North York: University of Toronto Press, 2012) at 90 [Malcolmson].
[20] Ibid.
[21] CCF Canada, supra note 2 at para 6.
[22] “Minimal impairment” means that the “law in question [infringes] the right as little as possible … and [that] there [are no] other ways of achieving the same objective without limiting Charter rights” (Malcolmson, supra note 19 at 91).
[23] CCF Canada, supra note 2 at para 6.
[24] Ibid at para 5.
[25] Ibid at para 8.
[26] Kent Roach, Criminal Law, 7th ed (Toronto: Irwin Law, 2018) at 10 [Roach].
[27] Manning, Mewett and Sankoff, Criminal Law, 4th ed (Markham: LexisNexis, 2009) at 103 [Manning et al].
[28] Roach, supra note 26 at 279-282.
[29] CCF Canada, supra note 2 at para 24.
[30] Ibid at paras 19-22.
[31] Ibid at para 33.
[32] Ibid at paras 24-26, 31.
[33] Ibid at para 42.
[34] Ibid.
[35] Elections Act, supra note 3 at s 408(1) [emphasis added].
[36] CCF Canada, supra note 2 at para 38.
[37] Ibid at para 43.
[38] Ibid at para 45.
[39] R v Morgentaler, [1993] 3 SCR 463 at 484 .
[40] CCF Canada, supra note 2 at para 46.
[41] Ibid at para 58.
[42] Elections Act, supra note 3 at 91(1).
[43] CCF Canada, supra note 2 at para 48.
[44] Ibid at para 49.
[45] Ibid at para 48.
[46] Ibid at para 48.
[47] Ibid at para 53.
[48] Ibid at para 58.
[49] Ibid at paras 59-60.
[50] Ibid at para 61.
[51] Manning et al, supra note 27 at 203.
[52] CCF Canada, supra note 2 at para 61 [emphasis added].
[53] Ibid at para 62.
[54] Ibid at paras 67-68.
[55] Ibid at para 67.
[56] Roach, supra note 26 at 216.
[57] CCF Canada, supra note 2 at paras 26, 66.
[58] R v Oakes, [1986] 1 SCR 103 at para 70, citing R v Big M Drug Mart Ltd, [1985] 1 SCR 295 at 352.
[59] CCF Canada, supra note 2 at para 71.
[60] Ibid at paras 74-75
[61] Platt, supra note 9.
[62] Elizabeth Thompson, “Trudeau Government Won’t Appeal Ruling that Struck Down Part of Elections Law” (23 March 2021), online: CBC News <https://www.cbc.ca/news/politics/elections-law-misinformation-disinformation-1.5959693>.
Responsible government means a government that is accountable to the people.
A key characteristic of Canada’s Constitution is the separation of powers into three different branches: the executive, legislative, and judicial branches.[1] However, this separation is not watertight, and one important practice that Canada inherited from the United Kingdom is the overlap of executive and legislative power.[2] This is known as responsible government, where the executive is drawn from and requires the support of the people’s representatives in the House of Commons — the elected chamber of Canada’s federal legislature.
The prime minister is “the leader of the party that commands a majority in the House of Commons.”[3] In order to retain office and govern, the prime minister and his/her cabinet must maintain the support, or the confidence, of least half of the elected members of the Commons (themselves included) plus one more.[4] Thus, the executive is accountable to the legislative branch and, by derivation, to the Canadian people.[5] Similarly, “[i]n each province, the equivalent of the [p]rime [m]inister is the [p]remier, who is the leader of the party that commands a majority of the elected Legislative Assembly.”[6]
A selection of unwritten rules — known as “constitutional conventions” — dictate the operation of responsible government. As Hogg notes:
Responsible government is probably the most important non-federal characteristic of the Canadian Constitution. Yet the rules which govern it are almost entirely “conventional”, that is to say, they are not to be found in the ordinary legal sources of statute or decided cases.[7]
In particular, four constitutional conventions are especially important to the operation of responsible government in Canada:[8]
[1] Patrick Malcolmson & Richard Myers, The Canadian Regime: An Introduction to Parliamentary Government in Canada, 5th ed (North York: University of Toronto Press, 2012) at 38 [Malcomson].
[2] Peter W Hogg, Constitutional Law of Canada, 5th ed (Toronto: Thomson Reuters, 2007) (loose-leaf updated 2021, release 1), ch 9.1-9.2 [Hogg].
[3] Hogg, supra note 2, ch 9.1.
[4] Malcomson, supra note 1 at 40.
[5] Ibid.
[6] Hogg, supra note 2, ch 9.1.
[7] Ibid, ch 9.3.
[8] Malcomson, supra note 1.
[9] Hogg, supra note 2, ch 9.3.
[10] Ibid, ch 9.1.
[11] Malcomson, supra note 1 at 99.
[12] Hogg, supra note 2, ch 9.1.
[13] Malcomson, supra note 1 at 100-103.
[14] Hogg, supra note 2, ch 9.4.
[15] Malcomson, supra note 1 at 40.
[16] Hogg, supra note 2, ch 9.7.
[17] Ibid, ch 9.7.
[18] Malcomson, supra note 1 at 41.
[19] Hogg, supra note 2, ch 9.1.
[20] Ibid, ch 9.1.
Honour of the Crown
The honour of the Crown is a constitutional principle that is fundamental to Aboriginal Law, the branch of Canadian constitutional law that deals with the constitutional rights of Indigenous peoples and their relationship with the Crown.[1] The concept of the honour of the Crown has its roots in British traditions, but has taken on new significance since the passage of the Constitution Act, 1982, which recognizes and affirms the “existing [A]boriginal and treaty rights of the [A]boriginal peoples of Canada.”[2]
Where Does the Honour of the Crown Come From?
The honour of the Crown is not a written rule, but rather a concept developed by the judiciary based on British notions of noblesse.[3] According to the Supreme Court of Canada, the concept’s role in Aboriginal law dates back to the Royal Proclamation of 1763,[4] which states that Indigenous peoples “live under … [the Crown’s] protection.”[5] The concept then took on new life via the Canadian courts’ interpretations of section 35 of the Constitution Act, 1982, which recognizes and affirms the constitutional status of “existing [A]boriginal and treaty rights of the [A]boriginal peoples of Canada.”[6] Over time, it has evolved into a foundational principle of Aboriginal law.[7]
The Supreme Court of Canada stated that “[t]he duty of honour derives from the Crown’s assertion of sovereignty in the face of prior Aboriginal occupation.”[8] This refers to an underlying tension in Crown/Indigenous relations, a tension that stems from the fact that Indigenous peoples occupied the land we now call Canada long before European settlers arrived, and lived in organized, autonomous societies according to their own systems of law.[9] When the Crown asserted its sovereignty over these lands, it unilaterally imposed its own laws and customs upon those preexisting Indigenous societies.[10] “The honour of the Crown characterizes the ‘special relationship’ that arises out of this colonial practice.”[11]
The honour of the Crown also seeks to further reconciliation. The Supreme Court of Canada has used the term “reconciliation” in a number of ways. For example, in R v Desautel, it specified that the “honour of the Crown looks back to the historic impact … [of European settlement and] also looks forward to reconciliation between the Crown and Aboriginal peoples in an ongoing, mutually respectful long-term relationship.”[12]
What Obligations Arise From the Honour of the Crown?
The relationship between the Crown and Aboriginal peoples is unique: it is of a sui generis nature.[13] In law, this sui generis relationship is sometimes characterized as “fiduciary,” a type of legal relationship where one party (Aboriginal peoples) is effectively at the mercy of the other (the Crown).[14] The imbalanced nature of this relationship gives rise to an obligation on the part of the Crown “to treat [A]boriginal peoples fairly and honourably, and to protect them from exploitation.”[15] This obligation applies equally to the federal, provincial and territorial governments.[16] As the Supreme Court of Canada stated in its Haida judgment:
In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably.[17]
This principle, the honour of the Crown, gives rise to different obligations under different circumstances.[18] The Supreme Court of Canada has listed the following circumstances in which the honour of the Crown is engaged:[19]
The particular obligations that stem from the honour of the Crown can vary depending on the circumstances.[30] For example, the depth of the Crown’s duty to consult is proportionate to the strength of the Aboriginal or treaty right claimed and the seriousness of the potential adverse effects on that right.[31]
How Has the Honour of the Crown Principle Been Critiqued?
Thomas McMorrow criticizes the honour of the Crown in two ways: (1) for failing to reject the imposition of Crown sovereignty over Aboriginal peoples; and (2) for failing to explain or justify how the Crown has any right to extinguish Aboriginal rights.[32] That said, James (Sa’ke’j) Youngblood Henderson notes that it should not be up to the judiciary to resolve the structural and institutional problems that give rise to these historic injustices.[33] Rather, the courts’ role is to uphold the Constitution and the rule of law, which includes the Crown’s treaty obligations and, similarly, the honour of the Crown.[34] As such, the courts may invoke the honour of the Crown to redescribe and reorient existing laws concerning how governments interact with Aboriginal peoples, but cannot reject these laws outright.[35]
On the other hand, Justice Slatter of the Alberta Court of Appeal has criticized the term “honour of the Crown” for being imprecise and so vague as to have no real legal meaning.[36] Professor Mariana Valverde echoes this criticism, arguing that the honour of the Crown is a “mystical legal tradition” that defies clear definition.[37] Justice Slatter frames it as having “an absolute, moralistic and inflexible connotation … [which] can lead to conclusory reasoning and results oriented jurisprudence if applied directly to legal issues.”[38] In other words, if a party argues that the Crown failed to act honourably, the courts have no meaningful yardstick for measuring what “honourably” means. For these critics, judges have too much discretion on how to use and apply the “honour of the Crown” in their decision-making.
[1] See Thomas McMorrow, “Upholding the Honour of the Crown” (2018) 35 Windsor YB Access to Justice 311 at 313 [“McMorrow”]. See also James Youngblood Henderson, “Dialogical Governance: A Mechanism of Constitutional Governance” (2009) 72:1 Sask L Rev 29 at 53 [“Youngblood Henderson”].
[2] Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 at s 35 .
[3] See Manitoba Metis Federation Inc v Canada (Attorney General), 2013 SCC 14 (CanLII) at para 65 (“The phrase ‘honour of the Crown’ refers to the principle that servants of the Crown must conduct themselves with honour when acting on behalf of the sovereign”) . See also McMorrow, supra note 1 at 319-21 and 326-27; and Youngblood Henderson, supra note 1 at footnote 115. The concept of “honour” is grounded in the idea that each person has a place in British social hierarchy, which entitles them to privileges but also burdens them with duties and obligations. These duties and obligations are tied to virtue and to distinct notions of “the good, the beautiful, and the sacred.”
[4] See Manitoba Metis, supra note 3 at para 66 (citing George R, Proclamation, 7 October 1763, reprinted in RSC 1985, App II, No 1). See also Brian Slattery, “The Aboriginal Constitution” (2014) 67 Supreme Court L Rev 319 at 322 [“Slattery”].
[5] Royal Proclamation of 1763, RSC 1970, Appendix II, No 1.
[6] Slattery, supra note 4 at footnote 1 (citing Constitution Act, 1982, supra note 2 at s 35(1)). See also McMorrow, supra note 1 at 316-17 (citing the Right Honourable Beverley McLachlin, “The Honour of the Crown” (delivered at the CBA National Aboriginal Law Section Annual Conference, Ottawa, 5 May 2016) [unpublished]).
[7] See Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 (CanLII) at para 16 ; Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74 (CanLII) ; and Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69 (CanLII) at paras 51 and 57 (these three cases are often referred to as the “Haida trilogy” and are best known for establishing the duty to consult doctrine and exploring the principle of the honour of the Crown in some depth). See also Manitoba Metis, supra note 3 at paras 68-72 (“not all interactions between the Crown and Aboriginal people engage” the honour of the Crown, but it is certainly engaged where section 35 of the Constitution Act, 1982 is at issue); and R v Van der Peet, 1996 CanLII 216 (SCC), at para 31 (“[section 35(1) is] the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies … is acknowledged and reconciled with the sovereignty of the Crown”) .
[8] Taku River, supra note 7 at para 24. See also Manitoba Metis, supra note 3 at para 66.
[9] See R v Desautel, 2021 SCC 17 (CanLII) at paras 24 (citing R v Sparrow, 1990 CanLII 104 (SCC) at 1094) and 26 (citing Van der Peet, supra note 7 at para 43) . See also Slattery, supra note 4 at 326-28 (Slattery describes King George’s vision that the Crown would assert its sovereignty over Indigenous peoples, neither conquering them nor subjecting them to British rule, but rather through agreement in treaty or de facto control on the ground).
[10] See Manitoba Metis, supra note 3 at para 67.
[11] Ibid at para 67 (internal quotations and notations omitted).
[12] Desautel, supra note 9 at para 30 (citing Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53 at para 10 (internal quotations removed) ).
[13] See R v Badger, 1996 CanLII 236 (SCC) at para 78 .
[14] See Guerin v The Queen, 1984 CanLII 25 (SCC) at 377, 383-89.
[15] Mitchell v MNR, 2001 SCC 33 (CanLII) at para 9.
[16] See Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48 (CanLII) at paras 50-51 (the Government of Ontario may take up lands under Treaty 3, but must do so honourably) ; and First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58 (CanLII) at para 52 (the Yukon Territory’s modern treaty negotiations with its First Nations must be conducted “in good faith and in accordance with the honour of the Crown”) .
[17] Haida, supra note 7 at para 50.
[18] Ibid at para 18.
[19] Manitoba Metis, supra note 3 at para 73. See also Slattery, supra note 4 at 332.
[20] Manitoba Metis, supra note 3 at para 73(1).
[21] See Wewaykum Indian Band v Canada, 2002 SCC 79 (CanLII) at paras 86 and 98-100.
[22] See Manitoba Metis, supra note 3 at paras 75-82.
[23] See Nacho Nyak Dun, supra note 16 at paras 36-38.
[24] See Manitoba Metis, supra note 3 at paras 91-94.
[25] See Haida, supra note 7 at paras 35 and 49-50.
[26] See e.g. Nacho Nyak Dun, supra note 16 at para 52. The Yukon government made a significant and unilateral modification to a term in an agreement with its First Nations partners, which was such a departure from its previous position that the Court found that it was not made in good faith, and that the Yukon government therefore failed to uphold the honour of the Crown.
[27] See e.g. Grassy Narrows, supra note 16 at paras 50-51 (the Crown’s treaty right to take up lands must be carried out honourably and is subject to the duty to consult doctrine).
[28] See Badger, supra note 13 at para 41; Manitoba Metis, supra note 3 at paras 73 and 79; and Haida, supra note 7 at para 19.
[29] See Nacho Nyak Dun, supra note 16 at paras 52 and 57. See also Little Salmon/Carmacks, supra note 12.
[30] See Haida, supra note 7 at para 38; Taku River, supra note 7 at para 25; and Mikisew Cree, supra note 7 at paras 34 and 63.
[31] See Haida, supra note 7 at paras 39 and 43-45.
[32] See McMorrow, supra note 1 at 315-16. See also Youngblood Henderson, supra note 1 at 51 (Youngblood Henderson calls the honour of the Crown “constitutional therapy” which accounts for, amongst other things, the harm colonization caused to Indigenous peoples).
[33] Youngblood Henderson, supra note 1 at 55-56.
[34] Ibid.
[35] Ibid at 56-57.
[36] See R v Lefthand, 2007 ABCA 206 (CanLII) at para 75 .
[37] See Mariana Valverde, “‘The Honour of the Crown is at Stake’: Aboriginal Land Claims Litigation and the Epistemology of Sovereignty” (2011) 1:3 UC Irvine L Rev 555 at 969. See also 957 and 973-74.
[38] Lefthand, supra note 36 at para 75.