CLN4U Canadian & International Law
Tools for Legal Thinking
Everything in this course will be investigated through the use of 6 tools for legal thinking adapted from The Critical Thinking Consortium. As a student of law it is critical that you keep these tools at the forefront of your mind while in class and in crafting the work produced for this course. A clear ability in using these tools in thinking, discussing and producing work for this course is central to your course evaluation. Etch these 6 tools into your consciousness so they become habits of mind.
1. Legal Significance
3. Continuity and Change (precedent, distinguishing or extending cases studied from leading cases)
4. Cause and Consequence
5. Legal Perspective
6. Moral & Ethical Judgement
R. v. Zundel,  2 S.C.R. 731
Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.
The accused was charged with spreading false news contrary to s. 181 of the Criminal Code, which provides that "[e]very one who wilfully publishes a statement, tale or news that he knows is false and causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and liable to imprisonment . . .". The charge arose out of the accused's publication of a pamphlet entitled Did Six Million Really Die? The accused had added a preface and afterword to an original document, which had previously been published by others in the United States and England. The pamphlet, part of a genre of literature known as "revisionist history", suggests, inter alia, that it has not been established that six million Jews were killed before and during World War II and that the Holocaust was a myth perpetrated by a worldwide Jewish conspiracy. The accused was convicted after a lengthy trial. On appeal, his conviction was upheld on constitutional grounds but struck down for errors in admitting evidence and in the charge to the jury. The matter was sent back for a new trial. The accused was again convicted and his conviction was affirmed by the Court of Appeal. This appeal is to determine whether s. 181 of the Code infringes the guarantee of freedom of expression in s. 2(b) of the Canadian Charter of Rights and Freedoms and, if so, whether s. 181 is justifiable under s. 1 of the Charter.
Per La Forest, L'Heureux‑Dubé, Sopinka and McLachlin JJ.: Section 181 of the Code infringes the guarantee of freedom of expression. Section 2(b) of the Charter protects the right of a minority to express its view, however unpopular it may be. All communications which convey or attempt to convey meaning are protected by s. 2(b), unless the physical form by which the communication is made (for example, a violent act) excludes protection. The content of the communication is irrelevant. The purpose of the guarantee is to permit free expression to the end of promoting truth, political or social participation, and self‑fulfilment. That purpose extends to the protection of minority beliefs which the majority regards as wrong or false. Section 181, which may subject a person to criminal conviction and potential imprisonment because of words he published, has undeniably the effect of restricting freedom of expression and, therefore, imposes a limit on s. 2(b).
Given the broad, purposive interpretation of the freedom of expression guaranteed by s. 2(b), those who deliberately publish falsehoods are not, for that reason alone, precluded from claiming the benefit of the constitutional guarantees of free speech. Before a person is denied the protection of s. 2(b), it must be certain that there can be no justification for offering protection. The criterion of falsity falls short of this certainty, given that false statements can sometimes have value and given the difficulty of conclusively determining total falsity.
Section 181 of the Code, unlike s. 319 at issue in Keegstra, is not justifiable under s. 1 of the Charter. In determining the objective of a legislative measure for the purposes of s. 1, the Court must look at the intention of Parliament when the section was enacted or amended. It cannot assign objectives, nor invent new ones according to the perceived current utility of the impugned provision. Although the application and interpretation of objectives may vary over time, new and altogether different purposes should not be devised. Here, while s. 181 may be capable of serving legitimate purposes, Parliament has identified no social problem, much less one of pressing concern, justifying it. The provision originally focused on the prevention of deliberate slanderous statements against the nobles of the realm to preserve political harmony in the state. To suggest now that its objective is to combat hate propaganda or racism is to go beyond its history and its wording and to adopt the "shifting purpose" analysis this Court has rejected. Such an objective, moreover, hardly seems capable of being described as a "nuisance", the rubric under which Parliament has placed s. 181, nor as the offence's target of mere "mischief" to a public interest. Furthermore, if the simple identification of the (content‑free) goal of protecting the public from harm could constitute a "pressing and substantial" objective, virtually any law would meet the first part of the onus imposed upon the Crown under s. 1. Justification under s. 1 requires more than the general goal of protection from harm common to all criminal legislation; it requires a specific purpose so pressing and substantial as to be capable of overriding the Charter's guarantees. The lack of any ostensible purpose justifying s. 181 led the Law Reform Commission of Canada to recommend repeal of the section, labelling it as "anachronistic". It is also significant that the Crown could point to no other free and democratic country with criminal legislation of this type. The fact that s. 181 has been rarely used despite its long history supports the view that it is hardly essential to the maintenance of a free and democratic society. The retention of s. 181 is not necessary to fulfil any international obligation undertaken by Parliament. In the absence of an objective of sufficient importance to justify overriding the right of free expression, s. 181 cannot be upheld under s. 1 of the Charter. Other provisions, such as s. 319(2) of the Code, deal with hate propaganda more fairly and more effectively. Still other provisions seem to deal adequately with matters of sedition and state security.
Even if the Court were to attribute to s. 181 the objective of promoting racial and social tolerance and to conclude that such objective was so pressing and substantial as to be capable of overriding a fundamental freedom, s. 181 would still fail to meet the proportionality test which prevailed in Keegstra. First, assuming a rational link between s. 181 and the objective of social harmony, the section is too broad and more invasive than necessary to achieve that aim. The phrase "statement, tale or news", while it may not extend to the realm of true opinion, obviously encompasses a broad range of historical and social speech, going well beyond what is patent or provable to the senses as a matter of "pure fact". What is an assertion of fact, as opposed to an expression of opinion, is a question of great difficulty and the question of falsity of a statement is often a matter of debate. But the greatest danger of s. 181 lies in the undefined phrase "injury or mischief to a public interest", which is capable of almost infinite extension. To equate the words "public interest" with the protection and preservation of certain Charter rights or values, such as those in ss. 15 and 27, is to engage in an impermissible reading in of content foreign to the enactment. The range of expression potentially caught by the vague and broad wording of s. 181 extends to virtually all controversial statements of apparent fact which might be argued to be false and likely to do some mischief to some public interest, regardless of whether they promote the values underlying s. 2(b). Not only is s. 181 broad in contextual reach; it is particularly invasive because it chooses the most draconian of sanctions to effect its ends ‑‑ prosecution for an indictable offence under the criminal law. There is thus a danger that s. 181 may have a chilling effect on minority groups or individuals, restraining them from saying what they would like for fear that they might be prosecuted. Second, when the objective of s. 181 is balanced against its potential invasive reach, the limitation of freedom of expression is disproportionate to the objective envisaged. The value of liberty of speech, one of the most fundamental freedoms protected by the Charter, needs no elaboration. By contrast, the objective of s. 181, in so far as an objective can be ascribed, falls short of constituting a countervailing interest of the most compelling nature. Further, s. 181 could support criminalization of expression only on the basis that the sanction was closely confined to situations of serious concern.
Section 181 of the Code is sufficiently precise to constitute a limit prescribed by law under s. 1 of the Charter. The citizen knows that to be at risk under this section, he must wilfully publish a false statement knowing it to be false. Further, the publication of those statements must injure or be likely to injure the public interest. The fact that the term "public interest" is not defined by the legislation is of little significance. The courts play a significant role in the definition of words and phrases used in the Code and other enactments. The term "public interest", which is widely used in federal as well as provincial statutes, must be interpreted in light of the legislative history of the particular provision in which it appears and the legislative and social context in which it is used. In the context of s. 181, the term "public interest" should be confined to those rights recognized in the Charter as being fundamental to Canadian democracy. It need not be extended beyond that. As an example, the rights enacted in ss. 7, 15 and 27 of the Charter should be considered in defining a public interest. A "public interest" likely to be harmed as a result of contravention of s. 181 is the public interest in a free and democratic society that is subject to the rule of law. A free society is one built upon reasoned debate in which all its members are entitled to participate. As a fundamental document setting out essential features of our vision of democracy, the Charter provides us with indications as to which values go to the very core of our political structure. A democratic society capable of giving effect to the Charter's guarantees is one which strives toward creating a community committed to equality, liberty and human dignity. It is thus only if the deliberate false statements are likely to seriously injure the rights and freedoms set out in the Charter that s. 181 is infringed. This section, therefore, provides sufficient guidance as to the legal consequence of a given course of conduct and cannot be said to be too vague.
Section 181 of the Code is justifiable under s. 1 of the Charter. Parliament's objective of preventing the harm caused by the wilful publication of injurious lies is sufficiently pressing and substantial to justify a limited restriction on freedom of expression. The objective of s. 181 is evident from the clear wording of the provision which prohibits the publication of a statement that the accused knows is false and "that causes or is likely to cause injury". This specific objective in turn promotes the public interest in furthering racial, religious and social tolerance. There is a pressing and substantial need to protect groups identifiable under s. 15 of the Charter, and therefore society as a whole, from the serious harm that can result from such "expression". The work of numerous study groups has shown that racism is a current and present evil in our country. It is a cancerous growth that is still alive. Section 181, which provides protection, by criminal sanction, to all vulnerable minority groups and individuals against the harms caused by deliberate and injurious lies, still plays a useful and important role in encouraging racial and social tolerance, which is so essential to the successful functioning of a democratic and multicultural society. The focus of s. 181 is on manipulative and injurious false statements of fact disguised as authentic research. The international instruments against national, racial or religious hatred signed by Canada, the various provisions similar to s. 181 found in other free and democratic countries, the tragedy of the Holocaust and Canada's commitment to the values of equality and multiculturalism in ss. 15 and 27 of the Charter emphasize the importance of s. 181's aim.
The purpose attributed to s. 181 is not new. The predecessors of s. 181 were always aimed at preventing the harm caused by false speech and thereby protecting the safety and security of the community. While initially the protection of the public interest from harm focused on the prevention of deliberate slanderous statements against the great nobles of the realm to preserve the security of the state, the purpose has evolved over the years to extend the protections from harm caused by false speech to vulnerable social groups and therefore to safeguard the public interest against social intolerance and public alarm. Thus, rather than creating a new and different purpose, the aim of the section has been maintained. The wording of s. 181, however, includes a permissible shift in emphasis with its test which is based on injury to the public interest. Looking back to the inclusion of the offence in the Code, and the last amendment to the section, one can reasonably conclude that there has been a shift in the values that inform the public interest. Since this shift has been incorporated into the language of the section itself, it is therefore permissible. The test of defining "injury . . . to a public interest" takes into account the changing values of Canadian society. Those values encompass multiculturalism and equality, precepts specifically included in the Charter.
Section 181 of the Code is an acceptably proportional response to Parliament's objective. First, there is a rational connection between the suppression of the publication of deliberate and injurious lies and Parliament's objective of protecting society from the harms caused by calculated falsehoods and thereby promoting the security and safety of the community. Where racial and social intolerance is fomented through the deliberate manipulation of people of good faith by unscrupulous fabrications, a limitation on the expression of such speech is rationally connected to its eradication.
Second, s. 181 does not unduly infringe the right of freedom of expression. Under s. 181, the accused is not judged on the unpopularity of his beliefs. It is only where the deliberate publication of false facts is likely to seriously injure a public interest that the impugned section is invoked. Any uncertainty as to the nature of the speech inures to the benefit of the accused. The infrequent use of s. 181 can be attributed to the extremely onerous burden on the Crown to prove each element of the offence. The fact that the section is seldom used, however, should not militate against its usefulness. Further, s. 181 is not overly broad. An application of the appropriate criteria makes it possible to draw a coherent distinction between statements of opinion and assertions of fact. When applied to the pamphlet at issue in this case, these criteria indicate that statements couched as "revisionist history" may be taken to be allegations of fact rather than submissions of opinion. The jury, as instructed by the trial judge, was clearly capable of drawing that distinction. While it is true that no theory of history can be proved or disproved, the accused has not been convicted for misinterpreting factual material but for entirely and deliberately misrepresenting its contents, manipulating and fabricating basic facts in order to support his theories. Courts deal with the question of truth and falsity of statements on a daily basis. With reference to reliable historical documents, "historical facts" can also be shown to be true or false in the context of s. 181 ‑‑ a section well suited to respond to the harm caused by vilification campaigns disguised as pseudo‑science. Finally, the fact that Parliament has enacted hate propaganda legislation does not invalidate s. 181. The government may legitimately employ a variety of measures in order to achieve its objective. Human rights legislation may, in certain circumstances, be sufficient to deal with a particular problem in this area, but the strength of the criminal law is needed and reserved for the extreme cases, such as the case at hand, to send a clear message and to discourage and punish those who knowingly publish falsehoods that are likely to injure a public interest.
Third, the prohibition of the wilful publication of what are known to be deliberate lies is proportional to the importance of protecting the public interest in preventing the harms caused by false speech and thereby promoting racial and socialtolerance in a multicultural democracy. Section 181, at best, limits only that expression which is peripheral to the core values protected by s. 2(b) of the Charter. The falsehoods of the type caught by s. 181 serve only to hinder and detract from democratic debate. The section is narrowly defined in order to minimally impair s. 2(b). It also provides maximum protection for the accused.
Auton v. British Columbia,  3 S.C.R. 657
Present: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps and Fish JJ.
The infant petitioners suffer from autism, a neuro-behavioural syndrome that impairs social interaction, hinders communication and results in repetitive behaviour. They brought an action against the province of British Columbia, alleging that its failure to fund applied behavioral therapy for autism violated s. 15(1) of the Canadian Charter of Rights and Freedoms. In the years leading up to the trial, the government acknowledged the importance of early intervention, diagnosis and assessment for autistic children but stated that services for their needs had to be balanced with services to children with other special needs. The government funded a number of programs for autistic children but did not establish funding for ABA/IBI therapy for all autistic children between the ages of three and six because of, inter alia, financial constraints and the emergent and controversial nature of this therapy. At the time of the trial, ABA/IBI funding for autistic children was not universal and was only beginning to be recognized as desirable. The trial judge found that the failure to fund ABA/IBI therapy violated the petitioners’ equality rights, directed the province to fund early ABA/IBI therapy for children with autism and awarded $20,000 in damages to each of the adult petitioners. The Court of Appeal upheld the judgment and added funding for ABA/IBI treatment pursuant to medical opinion.
Held: The appeal should be allowed; the cross-appeal should be dismissed.
A person claiming a violation of s. 15(1) of the Charter must establish: (1) differential treatment under the law, (2) on the basis of an enumerated or analogous ground, (3) which constitutes discrimination. The specific role of s. 15(1) in achieving its equality objective is to ensure that when governments choose to enact benefits or burdens, they do so on a non-discriminatory basis. This confines s. 15(1) claims to benefits and burdens imposed by law.
In this case, the government’s conduct did not infringe the petitioners’ equality rights. The benefit claimed — funding for all medically required treatment — is not provided by law. The Canada Health Act and the relevant British Columbia legislation do not promise that any Canadian will receive funding for all medically required treatment. All that is conferred is core funding for services delivered by medical practitioners and, at a province’s discretion, funding or partial funding for non-core services, which in the case of British Columbia are delivered by classes of “health care practitioners” named by the province. More specifically, the law did not provide for funding for ABA/IBI therapy for autistic children. At the time of the trial, the province had not designated providers of ABA/IBI therapy as “health care practitioners” whose services could be funded under the plan. Since the government had not designated ABA/IBI therapists as “health care practitioners”, the administrative body charged with administration of the provincial legislation had no power to order funding for ABA/IBI therapy.
The legislative scheme is not itself discriminatory in providing funding for non-core services to some groups while denying funding for ABA/IBI therapy to autistic children. The scheme is, by its very terms, a partial health plan and its purpose is not to meet all medical needs. It follows that exclusion of particular non-core services cannot, without more, be viewed as an adverse distinction based on an enumerated ground. Rather, it is an anticipated feature of the legislative scheme. One cannot therefore infer from the fact of exclusion of ABA/IBI therapy for autistic children from non-core benefits that this amounts to discrimination. There is no discrimination by effect.
Nor has it been established on the facts of this case that the government excluded autistic children on the basis of disability. When the relevant criteria are applied, the appropriate comparator for the petitioners is a non-disabled person, or a person suffering a disability other than a mental disability, who seeks or receives funding for a non-core therapy that is important for his or her present and future health, is emergent and has only recently began to be recognized as medically required. The claimant or claimant group was not denied a benefit made available to the comparator group. In the absence of evidence suggesting that the government’s approach to ABA/IBI therapy was different than its approach to other comparable, novel therapies for non-disabled persons or persons with a different type of disability, a finding of discrimination cannot be sustained.
Carter v. Canada (Attorney General), 2015 SCC 5
Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon JJ.
Section 241 (b) of the Criminal Code says that everyone who aids or abets a person in committing suicide commits an indictable offence, and s. 14 says that no person may consent to death being inflicted on them. Together, these provisions prohibit the provision of assistance in dying in Canada. After T was diagnosed with a fatal neurodegenerative disease in 2009, she challenged the constitutionality of the Criminal Code provisions prohibiting assistance in dying. She was joined in her claim by C and J, who had assisted C’s mother in achieving her goal of dying with dignity by taking her to Switzerland to use the services of an assisted suicide clinic; a physician who would be willing to participate in physician-assisted dying if it were no longer prohibited; and the British Columbia Civil Liberties Association. The Attorney General of British Columbia participated in the constitutional litigation as of right.
The trial judge found that the prohibition against physician-assisted dying violates the s. 7 rights of competent adults who are suffering intolerably as a result of a grievous and irremediable medical condition and concluded that this infringement is not justified under s. 1 of the Charter . She declared the prohibition unconstitutional, granted a one-year suspension of invalidity and provided T with a constitutional exemption. She awarded special costs in favour of the plaintiffs on the ground that this was justified by the public interest in resolving the legal issues raised by the case, and awarded 10 percent of the costs against the Attorney General of British Columbia in light of the full and active role it assumed in the proceedings.
The majority of the Court of Appeal allowed the appeal on the ground that the trial judge was bound to follow this Court’s decision in Rodriguez v. British Columbia (Attorney General),  3 S.C.R. 519, where a majority of the Court upheld the blanket prohibition on assisted suicide. The dissenting judge found no errors in the trial judge’s assessment of stare decisis, her application of s. 7 or the corresponding analysis under s. 1 . However, he concluded that the trial judge was bound by the conclusion in Rodriguez that any s. 15 infringement was saved by s. 1 .
Held: The appeal should be allowed. Section 241 (b) and s. 14 of the Criminal Code unjustifiably infringe s. 7 of the Charter and are of no force or effect to the extent that they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. The declaration of invalidity is suspended for 12 months. Special costs on a full indemnity basis are awarded against Canada throughout. The Attorney General of British Columbia will bear responsibility for 10 percent of the costs at trial on a full indemnity basis and will pay the costs associated with its presence at the appellate levels on a party-and-party basis.
The trial judge was entitled to revisit this Court’s decision in Rodriguez. Trial courts may reconsider settled rulings of higher courts in two situations: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. Here, both conditions were met. The argument before the trial judge involved a different legal conception of s. 7 than that prevailing when Rodriguez was decided. In particular, the law relating to the principles of overbreadth and gross disproportionality had materially advanced since Rodriguez. The matrix of legislative and social facts in this case also differed from the evidence before the Court in Rodriguez.
The prohibition on assisted suicide is, in general, a valid exercise of the federal criminal law power under s. 91(27) of the Constitution Act, 1867 , and it does not impair the protected core of the provincial jurisdiction over health. Health is an area of concurrent jurisdiction, which suggests that aspects of physician-assisted dying may be the subject of valid legislation by both levels of government, depending on the circumstances and the focus of the legislation. On the basis of the record, the interjurisdictional immunity claim cannot succeed.
Insofar as they prohibit physician-assisted dying for competent adults who seek such assistance as a result of a grievous and irremediable medical condition that causes enduring and intolerable suffering, ss. 241 (b) and 14 of the Criminal Code deprive these adults of their right to life, liberty and security of the person under s. 7 of the Charter . The right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly. Here, the prohibition deprives some individuals of life, as it has the effect of forcing some individuals to take their own lives prematurely, for fear that they would be incapable of doing so when they reached the point where suffering was intolerable. The rights to liberty and security of the person, which deal with concerns about autonomy and quality of life, are also engaged. An individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The prohibition denies people in this situation the right to make decisions concerning their bodily integrity and medical care and thus trenches on their liberty. And by leaving them to endure intolerable suffering, it impinges on their security of the person.
The prohibition on physician-assisted dying infringes the right to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice. The object of the prohibition is not, broadly, to preserve life whatever the circumstances, but more specifically to protect vulnerable persons from being induced to commit suicide at a time of weakness. Since a total ban on assisted suicide clearly helps achieve this object, individuals’ rights are not deprived arbitrarily. However, the prohibition catches people outside the class of protected persons. It follows that the limitation on their rights is in at least some cases not connected to the objective and that the prohibition is thus overbroad. It is unnecessary to decide whether the prohibition also violates the principle against gross disproportionality.
Having concluded that the prohibition on physician-assisted dying violates s. 7 , it is unnecessary to consider whether it deprives adults who are physically disabled of their right to equal treatment under s. 15 of the Charter .
Sections 241 (b) and 14 of the Criminal Code are not saved by s. 1 of the Charter . While the limit is prescribed by law and the law has a pressing and substantial objective, the prohibition is not proportionate to the objective. An absolute prohibition on physician-assisted dying is rationally connected to the goal of protecting the vulnerable from taking their life in times of weakness, because prohibiting an activity that poses certain risks is a rational method of curtailing the risks. However, as the trial judge found, the evidence does not support the contention that a blanket prohibition is necessary in order to substantially meet the government’s objective. The trial judge made no palpable and overriding error in concluding, on the basis of evidence from scientists, medical practitioners, and others who are familiar with end-of-life decision-making in Canada and abroad, that a permissive regime with properly designed and administered safeguards was capable of protecting vulnerable people from abuse and error. It was also open to her to conclude that vulnerability can be assessed on an individual basis, using the procedures that physicians apply in their assessment of informed consent and decisional capacity in the context of medical decision-making more generally. The absolute prohibition is therefore not minimally impairing. Given this conclusion, it is not necessary to weigh the impacts of the law on protected rights against the beneficial effect of the law in terms of the greater public good.
The appropriate remedy is not to grant a free-standing constitutional exemption, but rather to issue a declaration of invalidity and to suspend it for 12 months. Nothing in this declaration would compel physicians to provide assistance in dying. The Charter rights of patients and physicians will need to be reconciled in any legislative and regulatory response to this judgment.
The appellants are entitled to an award of special costs on a full indemnity basis to cover the entire expense of bringing this case before the courts. A court may depart from the usual rule on costs and award special costs where two criteria are met. First, the case must involve matters of public interest that are truly exceptional. It is not enough that the issues raised have not been previously resolved or that they transcend individual interests of the successful litigant: they must also have a significant and widespread societal impact. Second, in addition to showing that they have no personal, proprietary or pecuniary interest in the litigation that would justify the proceedings on economic grounds, the plaintiffs must show that it would not have been possible to effectively pursue the litigation in question with private funding. Finally, only those costs that are shown to be reasonable and prudent will be covered by the award of special costs. Here, the trial judge did not err in awarding special costs in the truly exceptional circumstances of this case. It was also open to her to award 10 percent of the costs against the Attorney General of British Columbia in light of the full and active role it played in the proceedings. The trial judge was in the best position to determine the role taken by that Attorney General and the extent to which it shared carriage of the case.