Charter Protection
Charter Challenges: Recent Cases in Canada
Charter Challenges: Recent Cases in Canada
Director of Secret Trial 5 Interview (CBC Q 30 October 2014)
The Right to Express Means the Right to Possess
The SCC stated in the Law case that the purpose of section 15 was to:
"prevent the violation of human dignity and freedom through the imposition of disadvantage, stereotyping or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving respect and consideration."
Unit 2 Criminal Law & the Charter of Rights and Freedoms
Thinking Critically About the Charter
The primary focus of a Charter challenge is to ask: What is a reasonable or fair limit to the rights or freedoms that arise in the case?
The specific questions which structure and guide the analysis are:
- Why? What is the purpose for the limit to the Charter right or freedom at issue?
- Will or does it work? Does the limit actually have the capability to achieve its goal or primary purpose?
- What else does it do? Does the limit to the Charter right or freedom go too far? What are some of the side effects that you could anticipate being caused by the limit?
Life, Liberty, & Security of the Person Cases → Section 7 of the Charter
Counter-Terrorism & Security Certificates
Counter-Terrorism & Security Certificates
Certificates of inadmissibility to Canada, known as ‘Security Certificates,’ were issued against three people. All three were living in Canada when they were arrested. It was alleged that each posed a threat to national security for involvement in terrorist activities. Canada’s immigration legislation allows the government to issue a certificate stating that a foreign national or permanent resident (a non-Canadian citizen) cannot be admitted to Canada because they pose a security risk. The person is detained (held in jail). A judge can review the certificate and the detention. However, during the review, the government can refuse to show the detained person any of the information on which the security certificate is based. If the judge finds the certificate reasonable, it becomes a removal order (the person is deported to their home country). A removal order cannot be appealed and may be immediately enforced. In this case, all three men challenged the provisions in Canadian immigration law that allow for their detention and the provisions which prevented them from having access to information in the review process. The Supreme Court of Canada unanimously held that the procedures for reviewing the detention and the security certificate violate an individual’s right under s. 7 of the Charter. Since a person might be deported to country where his or her life of freedom is in danger, the court found that to make this kind of order without a fair hearing where the person has the chance to see the evidence is a violation of s. 7. This decision is important because it demonstrates that Charter rights are to be protected and respected even when a government makes claims of increased national vulnerability and heightened security.
*excerpted from OJEN (http://ojen.ca/sites/ojen.ca/files/resources/Cases%20That%20Have%20Changed%20Society.pdf)
Freedom of Expression Cases → s. 2(b) of the Charter
Freedom of Expression Cases → s. 2(b) of the Charter
Case # 1 → Irwin Toy
Case # 1 → Irwin Toy
The case considered the scope of expression. They defined it broadly as any activity that "attempts to convey meaning". However, it excluded nonsensical activities that are "purely physical and [do] not convey or attempt to convey meaning" as well as activities that are of a violent form.
The majority re-affirmed the decisioninFord (SCC) (1988) by finding that freedom of expression included advertising.
Case # 2 → R. v. Sharpe
Case # 2 → R. v. Sharpe
Tom Flanagan Comments on Child Pornography
From Sally Mann Collection Titled Family Pictures THE PROBLEM OF BY-CATCH
R. v. Sharpe Child Pornography Case
Copy of C.C.C. section 163.1 (current version)
Copy of C.C.C. section 163.1 (post Sharpe)
Sharpe Questions
K/U → # 1 & 2 # 4 # 5
T/I → # 2
COM → # 1
APP → # 2 # 3
Criticisms Launched Against The Court in Not Going Far Enough to Protect Expression
Criticisms Launched Against The Court in Not Going Far Enough to Protect Expression
Case # 3 → R. v. Keegstra
Case # 3 → R. v. Keegstra
Section 319(2) of the C.C.C. → PURPOSE
The Crown must prove 3 elements → wilful → promotion of hatred → targeted toward an identifiable group.
→ 319(2) intends to avoid tangible harm (incl. humiliation and degradation) toward a targeted group.
→ 319(2) was designed to enhance a social climate of mutual respect and tolerance.
→ 319(2) is consistent with international obligations.
→ 319(2) is consistent with important and competing Charter values of equality and multiculturalism.
Section 319(2) of the C.C.C. → EFFECTS
1. Democracy depends on free / open debate & hate speech denies equal dignity & respect (a precondition for genuine debate).
2. Hate speech attacks autonomy rights of those targeted.
3. Criminalization of hate speech avoids posing a treat to worthy or honest expression.
4. It does not prohibit private communications.
5. The Crown must prove that the speech represents "wilful promotion of hatred"
Case # 4 → Whatcott
Case # 4 → Whatcott
Equality Cases → s. 15(1) of the Charter
Equality Cases → s. 15(1) of the Charter
Section 15 Equality Analysis (the Law Case In-Depth)
In general terms, the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration: Law v. Canada 1999 CanLII 675 (S.C.C.).
The analysis under s. 15(1) proceeds in two stages:
1. At the first stage the claimant must show that the law, program or activity imposes differential treatment between the claimant and others with whom the claimant may fairly claim equality (called the "comparator group"). A person asking for equal treatment necessarily does so by reference to other people with whom he or she can legitimately invite comparison. Claims of discrimination under s. 15(1) can only be evaluated by comparison with the condition of others in the social and political setting in which the question arises. A s. 15(1) claim will likely fail unless it can be demonstrated that the comparison is to a "comparator group" with whom the claimant shares the characteristics relevant to qualification for the benefit or burden in question apart from the personal characteristic that is said to be the ground of the wrongful discrimination: Hodge v. Canada.
2. The first stage also requires the claimant to demonstrate that this differentiation is based on one or more of the enumerated or analogous grounds. The enumerated grounds are only indicators of suspect grounds of distinction. It follows that decisions on these grounds are not always discriminatory. The same applies to the grounds recognized by the courts as "analogous" to the grounds enumerated in s. 15: Corbiere v. Canada, 1999 CanLII 687 (S.C.C.); Gosselin v. Quebec, 2002 SCC 84 (CanLII).
Case # 5 → Little Sisters
Case # 5 → Little Sisters
Case Summary
→ The Customs Act prohibits anyone from importing 'obscene' material, as set out in the Criminal Code (s.163(8)).
→ Customs officers frequently seized Little Sister's shipments of erotica.
→ Little Sisters challenged the definition of obscenity and the customs process that singled out gay and lesbian material.
→ The Community Standards test is used by the court any time it is asked to determine if material is obscene.
→ A judge applying the Community Standards test decides whether the larger public would consider the material harmful to society.
→ Little Sisters argued it is a discriminatory test against gays and lesbians because only a single community / perspective was considered.
→ The Supreme Court of Canada held that the existing definition of obscenity and the Community Standards test used to interpret the definition was not discriminatory, however, the customs process itself was found to be discriminatory.
→ Many criticized the decision for failing to recognize that Canada is comprised of numerous communities that may not all share the same opinion on what is harmful and therefore may have different community standards.
→ R. v. Labaye developed the harm principle to determine when a private citizen should be criminalized for obscenity / indecency. This replaced the Community Standards test. The Supreme Court of Canada held that obscenity / indecency is not a moral determination, but an issue of harm (contrary to society's norms, interferes with the public's autonomy and liberty, predisposes others to anti-social behaviour, or physically or psychologically harms person's involved in the questionable conduct).
CENTRAL QUESTION OF THE CASE
→ Does gay and lesbian pornography PROMOTE or THREATEN sex equality?
→ Little Sisters argued that pornography should be completely unregulated, as pornography plays a special and positive role for gay men and lesbians (minority sex practices).
→ The SCC recognized pornography as the practice of sex inequality and same sex pornography threatens, rather than promotes equality rights.
Case # 6 → Vriend
Case # 6 → Vriend
For this case, use the 4 Step Charter Analysis to structure your argument.
This case concerns the 1991 dismissal of Delwin Vriend from his position as a laboratory coordinator at King’s College, a private Christian college, in Edmonton. During his time at the college, he was given positive evaluations, salary increases, and promotions based on his work performance. In 1990, the college found out that Vriend was homosexual; shortly afterwards, he was asked to resign. He refused and his employment was terminated.
It was clear that Mr. Vriend was fired because he was gay as the college stated that Vriend’s termination was based on his, “non-compliance with the college’s policy on homosexual practices.” Mr. Vriend attempted to file a complaint under Alberta’s Individual’s Rights Protection Act, but his complaint was denied a hearing as, “section 7(1) of the legislation did not explicitly prohibit discrimination based on sexual orientation.”
Section 7(1) of the IRPA stated:
7(1) No employer shall (b) discriminate against any person with regard to employment, because of the race, religious beliefs, colour, gender, physical disability, mental disability, martial status, age, ancestry or place of origin of that person.
Mr. Vriend challenged the absence of protection based on sexual orientation in the Act. He argued that he was terminated simply because he was a homosexual and, thus, that his rights were violated under the Charter.
To judge Vriend’s Charter claim, prepare a 4 Step Analysis (Be sure to incorporate the Law, Andrews, Malmo-Levine, Egan, Little Sisters cases).
Racial Equality Case Series → Cases 7, 8, 9, 10, 11, & 12
Racial Equality Case Series → Cases 7, 8, 9, 10, 11, & 12
Central Question = why are there so few s. 15 cases addressing issues of racial inequality?
Note that “race” is an enumerated ground of discrimination under s.15(1).
Reasons for the near absence of s. 15 cases alleging race discrimination begin with understanding the forms racism takes within Canadian society AND the dominant social attitude towards it.
“Much of the adversity experienced by radicalized groups in this country arises from a racism that is pervasive (spreading widely), but subtle; embedded deeply within legal institutions and practices, rather than evident on the face of the law.”
This reality makes, “much of Canadian racism very hard to ‘see,’ particularly since law and the legal system are organised from the perspective of the dominant group (white) in Canadian society,” who have, “little to no experience” of racism. This means it is, “ill-equipped to know what to look for in trying to redress it.” The dominant group (white) is implicated as the wrongdoer and a powerful stigma is attached to the words “racism” and “racist”. This creates, “a significant reluctance within the legal system to use these labels.”
One important consequence of this is the, “widespread and persistent perception that racism / race discrimination is “abnormal:” rather than part of the way things are. This means that cases that allege race discrimination are particularly difficult to challenge. Cases like, “Smith (1993) (NSCA), a claim about policing and arrest/detention practices, MKS (1988) (NSCA), a claim about child apprehension practices, and Crowe (1993) (FC), a claim about treatment of inmates, all allege racism in the ‘ordinary’ operation of legal regimes and the discretion they authorised.” All three cases were rejected by the courts.
Limits to using the Charter to achieve racial equality:
1. The Charter has no direct impact on other social institutions that construct and re-construct race, such as media and the education system.
2. Issues of minority representation and knowledge of racial inequality within the legal system and the courts themselves.
3. Racialized groups’ lack of awareness of rights and/or distrust of the legal system.
4. Access to justice issues around excessive time and money needed to pursue claims.
5. The Charter is driven by an individual rights model, whereas racial equality is by necessity a collective rights issue.
6. A debate in the courts about whether s.15 should adopt a “colour-blind” (formal equality) or “colour-sensitive” (substantive equality) approach.
The difference between the “colour-blind” and “colour-sensitive” is quickly evident in a case like Smith (1993) (NSCA), which involved two black accused who appealed from their convictions for ‘causing a disturbance by fighting’ on the basis that the investigation and prosecution leading to their convictions were fatally tainted by racial discrimination.
The charges arose out of a three day “race riot” at a high school. More blacks than whites were charged with offences arising from the incidents (10 black and 8 white); 7 blacks and 4 whites were tried; only 2 were convicted, both black. It is not clear from the judgement dismissing the appeal whether the complaint was that the police and prosecutors discriminated because they were not colour-blind or because they were not colour sensitive.
The “colour-blind” complaint would be that the authorities targeted black when they should have treated them the same as whites — had they been “blind” to colour, an equal number of blacks and whites would have been charged, prosecuted and convicted. The “colour-sensitive” argument would be that the authorities should have been particularly conscious of the racial dimensions of the case, especially given that the incident being investigated was a racially motivated fight; had they been appropriately sensitive to colour in the investigation and prosecution, more whites than blacks would have been charged, prosecuted and convicted, in part because racism is experienced differently by the two groups.
*excerpted from the article Charter Litigating for Racial Equality by Nitya Iyer.
The Ontario Systemic Racism Commission studied the impact of race on bail decisions in a report titled Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (1995).
The Commission had found the following racial disparities in pre-trial detention decisions:
- White accused were more likely to be released by the police or not detained following a bail hearing than Black accused.
- White accused were treated more favourably even though they were more likely than Black accused to have a criminal record and to have a more serious record.
- In drug cases, White accused were twice as likely to be released by the police than Black accused.
- Black accused were three times more likely to be denied bail than White accused.
- The reverse onus for drug offences in s. 515(6)(d) of the Criminal Code as a major contributing factor to the white / black disparity.
- The report concluded that ‘some black accused who were imprisoned before trial would not have been jailed if they had been white, and some white accused who were freed before trial would have been detained had they been black.’
These conclusions were presented as evidence in R. v. Hall (2002) (SCC) and were not considered in either the majority or dissenting opinions. In R. v. Gayle (2001) (ONCA), the accused argued they should have a right to ask questions of potential jurors that challenges their unconscious racial bias in judging a black accused. The standard question lawyers can ask potential jurors was set out in R. v. Parks (1993) (ONCA). The question asks whether the juror would be able to judge the evidence without bias, prejudice or partiality knowing that the accused is Black and, if applicable, the victim is White.
In R. v. Gayle (2001) (ONCA), the defence wanted to ask other questions such as the following:
Would you agree or disagree that some races are, by their nature, more violent than others?
Would you agree or disagree that it is appropriate for Black people and White people to marry each other?
Would you agree or disagree that there are too many Black people living in Toronto?
In R. v. Gayle (2001) (ONCA), the courts have refused to expand the R. v. Parks question to include questions meant to expose racist jurors.
In Peart v. Peel Regional Police (2006) (ONCA), the African Canadian Legal Clinic argued for a reverse onus in racial profiling cases (i.e., placing the burden of proof on the police). The court rejected the argument by writing:… [the accused proposal] is based on the argument that racial profiling is so common that where it is alleged, placing the burden on the police to disprove racial profiling is more likely to achieve an accurate result than is leaving the onus on the party alleging racial profiling. …The reality of racial profiling cannot be denied. There is no way of knowing how common the practice is in any giving community. I am not prepared to accept that racial profiling is the rule rather than the exception where the police detain black men. I do not mean to suggest that I am satisfied that it is indeed the exception, but only that I do not know
.In Charkaoui v. Canada (Citizenship and Immigration) (2007) (SCC), the Canadian Council on American—Islamic Relations and the Canadian Muslim Civil Liberties Association argued that the Court should factor in the racial profiling problem when deciding whether national security and counter-terrorism laws violate the Charter. Charkaoui further argued that the security certificate regime under the Immigration and Refugee Protection Act violates s. 15(1) of the Charter because it is being applied in a discriminatory manner by targeting Arab and Muslim men and thus is creating racializing members of a disadvantaged group.Although the Supreme Court of Canada did strike down the security certificate regime, it did not address the racial profiling or equality arguments.
*excerpted from the article The Charter of Whiteness: Twenty—Five Years of Maintaining Racial Injustice in the Canadian Criminal Justice System by David Tanovich.
Fact Patterns of Key Cases about Racism in the Criminal Justice System
Fact Patterns of Key Cases about Racism in the Criminal Justice System
1. Did the trial judge error in limiting the questioning of perspective jurors as to possible racial bias; and
2. Did the Crown improperly challenge potential jurors in a discriminatory manner.
The first issue above dealt with the standard Parks question. At trial, the defence sought to challenge prospective jurors for cause in several main areas including bias based upon the accused race and immigration status. The defence sought to ask eight questions related to possible bias but the trial judge only permitted one question, namely the standard Parks question:
Would your ability to judge the evidence in this case without bias, prejudice or partiality be affected by the fact that the person charged, is a black Jamaican immigrant and the victims are white police officers?
The accused argued that this single question was inadequate as it provided no basis for the defence to determine from a negative answer whether the prospective juror was claiming to be free of racial prejudice or, instead, was admitting to such prejudices but was claiming to be able to set them aside.
UNDER CONSTRUCTION
The security certificates regime (“Regime”), set out in ss. 33 and 77 to 85 of the Immigration 1
and Refugee Protection Act (“IRPA”), is a de facto criminal law regime for two reasons: first, the very nature of the conduct it regulates is criminal; and second, its severe penalties are normally reserved for criminal matters. Accordingly, the Regime must comply with the fair trial
2
guaranteesofs.7oftheCharter, (includingthosefoundins.11)whichitdoesnot.Inaddition,
the government has failed to meet its burden of justification under s. 1 of the Charter.
The Regime is a de facto criminal law to which s. 7 applies, and the Regime violates s. 7
4. This Court has held that ss. 8 to 14 of the Charter address specific types of deprivations of s. 7.
Insight into the protections granted by s. 7 can be found in this Court’s interpretations of those other rights; a violation of s.11 therefore also constitutes a violation of s.7. Section 11 of the Charter provides certain procedural protections to “any person charged with an offence,” including the protection against self-incrimination, the presumption of innocence, and the availability of bail. The section clearly applies to criminal proceedings. In accordance with a purposive approach to Charter interpretation, this Court has held that s. 11 rights are accorded “to those who face the prosecutorial power of the State and who may well suffer a deprivation of liberty as a result of the exercise of that power,” and that, within that sphere of application, the content of the rights “ought to be made crystal clear to the authorities who prosecute offences
4
falling within the section.”
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the possibility of indefinite detention arises because of the impact of Suresh, which confirmed that immigration removal decisions must comply with the Charter. Suresh arose in connection with s. 53(1)(b) of the Immigration Act, which on its face permitted removal to risk of torture if the Minister was of the opinion that a person inadmissible on security grounds constituted a danger to Canada.
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Administering IRPA in compliance with Suresh creates the possibility of indefinite detention.
Putting the Charter to one side, the discretion granted to the Minister under the former s.
53(1)(b) and the current s. 115(2)(b) is very broad, and would appear to provide considerable
latitude to the Minister to weigh the competing concerns of national security and the right to not
be subjected to torture. Suresh reads down this Ministerial discretion to generally prohibit
removal to risk of torture in all but “extraordinary” or “exceptional” circumstances.
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