A Saskatchewan Court of Queen’s Bench justice recently struck down a controversial piece of legislation that denied public sector workers the right to strike. The legislation was deemed unconstitutional for infringing on public sector workers’ rights to freedom of association, guaranteed by section 2(d) of the Charter of Rights and Freedoms.

Enacted in 2008, the Public Service Essential Services Act listed various government services and programs that could be declared essential and subjected to a “designated” or “controlled strike,” which utilizes an independent adjudication process to maintain essential services through a period of work strikes. While the Saskatchewan Federation of Labour submitted that the legislation infringed on workers’ rights under sections 2, 7 and 15 of the Charter, Justice Ball adopted the approach of the Supreme Court of Canada in Dunmore v Ontario (Attorney General), 2001 SCC 94, which treated the rights of workers to organize, bargain collectively, and strike as part of freedom of association under section 2(d).

While Ball J found that the act “substantially interferes” with the workers’ section 2(d) rights, he also suggested that the right is not absolute as it can be limited for employees who are “engaged in the delivery of truly essential services to the community.” In light of this limitation, the main question on appeal considered “the extent to which the protected freedom to strike can be restricted.”

Under the test set out in R v Oakes, [1986] 1 SCR 103, for justifying an infringement of a right, Ball J found that by ensuring “the continued delivery of essential services to the community during a labour dispute,” the impugned legislation met the first requirement that the legislation must have a “pressing and substantial objective.” However, the act failed to meet the Oakes proportionality requirement because its deleterious effects on the employees clearly outweighed its benefits.

Amongst the many reasons provided in his decision, Ball J emphasized the fact that the Act “does not contain a dispute resolution process nor does it provide compensatory access to an impartial and effective dispute resolution process for those employees who are prevented from engaging in meaningful strike action.” He also found the Act’s provisions to be inconsistent with its purported objective to employ a “controlled strike model.” Interestingly, while Ball J concluded that the government did not have a duty to consult the unions before enacting the Act, he suggested this factor should be considered when determining whether the right had been impaired.

The decision, which is considered to be the first challenge to essential services legislation in Canada, is significant because it sends a clear message to governments that there are limits when it comes to legislating around workers’ rights to organize and protest. While the government has twelve months to revise a more constitutionally sound piece of legislation or appeal the decision, it is likely to do both. Further appeals would be helpful for confirming the SCC approach adopted by Ball J and for shedding further light on the definition of essential services, which recently came under scrutiny following the lock out of Canada post employees and the subsequent Air Canada dispute.

ISPs Off the Hook for Canadian Content Funding

The Supreme Court released its decision on the Broadcasting Act Reference, 2012 SCC 4. Thursday, ruling that Internet Service Providers (ISPs) are not subject to broadcast regulations.  The reference, on appeal from the Federal Court of Appeal, addresses whether ISPs (such as Rogers, Bell, and Telus) conduct “broadcast undertakings” and as such are bound by the Broadcasting Act.

More to the point, at issue was whether the Act’s provisions that require those who conduct “broadcast undertakings” to financially support the production of Canadian media content should apply to ISPs.  The appellants in the case included the Alliance of Canadian Cinema, Television and Radio Artists, the Canadian Media Production Association, the Directors Guild of Canada and Writers Guild of Canada – groups who stood to gain millions of dollars in funding if the Court ruled that ISPs were in fact subject to the Act’s provisions.

Upholding the judgment of the Federal Court of Appeal, the SCC held that ISPs do not conduct “broadcast undertakings” since they “take no part in the selection, origination, or packaging of content” and instead “merely provide the mode for transmission.”

The goal of the Act’s impugned provisions is to ensure both the production and distribution of Canadian content that is often overshadowed, both domestically and on the world stage, by the media juggernauts south of the border.  The Court, however, was willing to draw a distinction that saved the ISPs from contributing to the production of Canadian content, at the potential expense of the proliferation of Canadian content online.

Jury Deliberates in Vander Zalm Defamation Suit

The values of freedom of expression and protection of reputation are at war again in British Columbia, where the jury is currently deliberating in the libel suit against former premier Bill Vander Zalm.

The plaintiff in the suit, Ted Hughes, alleges that statements published in Vander Zalm’s 2008 autobiography are defamatory because they portray Hughes as having personal motivations for his findings in a 1991 conflict of interests inquiry that forced Vander Zalm to resign as premier. Vander Zalm has defended his comments as a fair comment on a matter of public interest rather than a statement of facts

Defamation law in Canadian is notoriously plaintiff-friendly compared to other jurisdictions, particularly the United States.  However, the law has evolved significantly in the past decade led by the Supreme Court ruling in Grant v Torstar Corp., 2009 SCC 61, which created the defense of responsible communication.  This defense, however, only protects journalists, and many commentators and practitioners believe Canadian defamation law is outdated and in need of further reform.  The propagation of SLAPP suits and political libel in Canada demonstrate that defamation law in Canada has not evolved far from its roots as a tool to protect the rich and powerful from criticism.  This, however, does not accurately reflect the values most citizens hold in the modern Canadian democracy.

A by-product of the common law tort system is that the law can only evolve if it is presented with the right cases at the right time.  The high-profile of the Vander Zalm case gives it the appearance of a case that may represent the next stage in the evolution of Canadian defamation law to be more in line with the value that Canadians place in freedom of expression.  Alternatively, the jury could do as Hughes’ lawyer urged them and make a substantial award that stalls the evolution of Canadian defamation law in its tracks.

Jeffrey Allan Ashmore’s final attempt to have his first degree murder conviction overturned on Charter grounds failed on Thursday when he was denied leave to the Supreme Court of Canada. Ashmore was convicted at trial and appealed to the British Columbia Court of Appeal on the basis that his section 9 and section 10(b) rights were violated in the course of the police investigation.  The Court of Appeal upheld the conviction.

Ashmore was arrested by police in May 2006 in connection with the murder of Jeffrey Sabine.  At the time, he was informed of and exercised his right to counsel.  Following this consultation, he was shown a video of a confession he made in the course of a Mr. Big operation (an investigative technique in which an undercover police officer poses as the head of a ficticious criminal organization in order to obtain confessions).  This revelation led Ashmore to again confess and participate in a series of reenactments that essentially sealed his conviction.

At the Court of Appeal, Ashmore argued that his initial consultation with counsel was deficient, particularly in light of the subsequent evidence he was presented with, and that his detention in police lockup and during the reenactments was an arbitrary detention in violation of section 9 of the Charter.  These claims were of dubious merit, and the Court ruled that his initial consultation was sufficient (see R v Sinclair, 2010 SCC 35) and his detention was lawful because his choice to participate in reenactments was voluntary.

Interestingly, Ashmore raised little objection to the Mr. Big tactic, beyond arguing the fact that the evidence was prejudicial in that it gave the jury a biased view of his character.  This may be due to the fact that Canadian courts routinely uphold confessions obtained through the tactic, the only basis of exclusion being where the judge deems the “prejudicial effect outweighs its probative value.”

The Mr. Big technique is exclusive to Canada and Australia and particularly popular in British Columbia, where it originated in the early 1990s. However, it is not without controversy.  Critics cite the possibility of eliciting false confessions as reason for questioning it, while supporters argue that much of the criticism is misinformed.

Despite the controversy it generates (the technique is illegal in the US and UK) it has been subjected to little judicial scrutiny in Canada.  With critics and supporters so divided on the issue, a legislative response may be imminent if the judiciary chooses not to react one way or the other.

Clarifying the Common Law Test for Nuisance

The test for establishing a common law claim in nuisance is relatively straightforward, requiring an interference with an individual’s property that is both substantial and unreasonable. However, difficulty can arise in the application of this test when it comes to balancing the competing interests of property owners. This balancing act is more complicated when the interests of one property owner are of benefit to the public. In these circumstances, the question arises as to how much weight should be given to the social utility of a public project that interferes with the private property of another.

The Supreme Court of Canada will address this question in an appeal that was recently granted for Antrim Truck Centre Ltd. v Ontario Transportation, 2011 ONCA 419. This case arose from a dispute between the applicants, the owners of the truck stop, and the Ministry of Transportation (MOT) after it completed the construction of a new highway, which Antrim claimed “severely impeded” access to the truck stop. After experiencing a significant decline in business and re-locating the truck stop, Antrim filed an application with the Ontario Municipal Board (OMB) for business damages and the costs of relocation.

Under section 21 of Ontario’s Expropriations Act, landowners are entitled to compensation from an expropriating authority for “loss or damage caused by injurious affection.” To proceed with a claim for injurious affection, Atrim was required to prove that but for the statutory powers of the Province, it would have an actionable claim under common law. The OMB found that Atrim satisfied this requirement by establishing “a serious impairment in nuisance” and granted personal and business damages, though the costs for relocation were dismissed.

The MOT appealed the decision to the Ontario Divisional Court, which agreed with the board’s decision that the highway’s interference with Atrim’s property was “substantial” (2010 ONSC 304). To determine whether the interference was “unreasonable,” the court relied on the four factors set out in Tock v St. John’s Metropolitan Area Board, [1989] 2 SCR 1181, and 340909 Ontario Ltd. v Huron Steel Products (Windsor) Ltd., (1990), 73 O.R. (2d) 641 (S.C)., aff’d (1992), 10 O.R. (3d) 95 (C.A.):

1. the severity of the interference;
2. the character of the neighbourhood;
3. the utility of the defendant’s conduct; and
4. the plaintiff’s sensitivity.

Claiming that the Divisional Court erred in upholding the OMB’s decision, the MOT appealed again to the Ontario Court of Appeal. In that decision, Epstein JA considered whether a successful claim in nuisance requires a balancing of the competing interests of the landowners. After reviewing the relevant jurisprudence, Epstein JA concluded that “the important principles of tolerance and accommodation necessary to sustain harmony among neighbours in an increasingly dense and complex society require a balancing of the interests of both parties to determine whether it is appropriate for the court to intervene to preserve the right of either to use their property as they wish.”

Applying this reasoning to the facts, Epstein JA concluded that by relying almost exclusively on the issue of substantial interference, without giving much consideration to reasonableness, the divisional court had failed to balance the parties’ competing interests. While the board had considered the reasonableness of both parties’ uses, Epstein JA also concluded that it failed to give sufficient weight to the utility of the new highway, which was built to save lives. By weighing the interference with Atrim’s property against the reasonableness of the new highway, Epstein JA concluded that Atrim had failed to establish a claim in nuisance, and thus allowed the MOT’s appeal to proceed.

Epstein JA’s decision is significant because it suggests that an interference with private property should not give rise to an actionable claim in nuisance when there is a public interest at stake, even when the interference is found to be substantial. While a balancing of interests should play a role in determining the validity of a nuisance claim, the weight that courts give to interferences with social utility warrants a further clarification that the eventual SCC decision will ultimately provide.

In this case, Moore appeals a decision quashing the findings of the Human Rights Tribunal that the Ministry discriminated against him by failing to accommodate his learning disabilities in the provision of educational services, contrary to s. 8 of the B.C. Human Rights Code. The appellant suffered from severe dyslexia, requiring a specialized one-on-one remediation program that had been closed by the Ministry for financial reasons. As a result, Moore’s only remaining alternative was to enrol in a private school specializing in learning disabilities.

Under the Code, the onus is on the complainant to establish a prima facie case of discrimination by showing that, on a balance of probabilities, (1) the service at issue is one that is customarily available to the public, (2) the complainant is a member of a group possessing characteristic(s) protected by the Code, (3) the complainant was denied the service or was discriminated against in the provision of the service, and (4) the protected characteristic was a factor in the denial or discrimination. Once this is established, the onus shifts to the respondent to demonstrate that it had a bona fide and reasonable justification for its discriminatory conduct.

The reasons of the majority of the Court of Appeal were short and to the point. Low J. concluded that Moore did not establish the denial of a service or discrimination in the provision of education services since accommodation programs cannot be measured against a standard of perfection. Moore’s circumstances should have been compared to those of other special needs students without severe learning disabilities rather than to the general student body. By framing the relevant comparator group as students with special needs, the majority also, in effect, narrowed its analysis to focus only on the specialized remedial services provided by the respondent. In examining the facts through this narrowed lens, it was clear that the school board had provided both types of students with specialized educational programs, albeit ones that fell short of the program discontinued by the Ministry for financial reasons. Once framed in this way, therefore, the question of discrimination lent itself to the answer that “the appellant and other severely learning disabled students were given the same opportunity to receive a general education.”

Rowles J.’s dissent—comprising most of the judgment—picked up on the analytical moves the majority had made in framing the question and the relevant comparator group as it did, questioning the policy implications of such a framing. First, she accused the majority of moving away from the prima facie approach under human rights legislation that was set out by the SCC in cases like O’Malley and Meiorin. Second, she questioned two key analytical approaches the majority had used to reach its conclusion: the characterization of “services” and the identification of the relevant comparator group.

The nature of the service provided was key to the case since it framed the rest of the analysis as establishing whether or not Moore was adequately accommodated. A respondent is not required to accommodate up to the standard of perfection (i.e. such as those services and facilities equivalent to those offered at the specialized private school) but to the point of undue hardship. Rowles J. found that the service at issue was the provision of general education. In other words, Moore was seeking accommodation, albeit in the form of specialized education services, to enable him equal access to “mainstream” education that is available to all students. Thus, the facts were analogous to those in Eldridge: the failure to provide funding for sign language interpreters during medical services violated s.15 of the Charter on the basis that deaf persons, without such interpreters, received a lower quality of medical services than the general public.

The majority, on the other hand, characterized the services as specialized education services, thereby conflating the service provided by the province with the means of accommodation. The problem with the majority’s approach is that it effectively conducted a ‘like circumstances’ test (i.e. all students with disabilities were treated alike therefore discrimination was not made out), despite McIntyre J.’s warning in Andrews that such a test must, in essence, be supplemented by an objective element that would help determine the actual adequacy of services provided.

Another key analytical move made by the majority—one inextricably tied to the characterization of “services”—was the identification of the relevant comparator group. Although the s. 15 jurisprudence has moved away from a strict requirement that claimants identify the correct comparator group from the outset or risk having their entire claim fail late in the process, equality inevitably remains a comparative concept. Thus, Rowles J. warns that “danger lies in allowing the comparator group analysis to become overly formulistic and restrictive, thereby undermining substantive, at the expense of formal, equality.”

Rowles J., having defined “services” as general education, reached the conclusion that the corresponding comparator group was the general public. In comparing Moore’s educational services with those of the public, she concluded that he had experienced discriminatory treatment. The majority, having defined “services” as specialized education, reached the conclusion that the corresponding comparator group was special needs students who did not suffer from severe learning disabilities. Vis-à-vis this group and the specialized services provided to them, Moore had not been discriminated against.

Finally, this case is noteworthy in that it provides an opportunity for the SCC to weigh in on the convergence between s. 15 jurisprudence and anti-discrimination statutes. The degree to which the s. 15 framework should inform (or supplement) the statutory O’Malley test was discussed by Rowles J. and has been debated in the academic literature (see, for example, Leslie A. Reaume, “Postcards from O’Malley: Reinvigorating Statutory Human Rights Jurisprudence in the Age of the Charter”, in Fay Faraday, Margaret Denike and M. Kate Stephenson eds., Making Equality Rights Real: Securing Substantive Equality Under the Charter 373-408 (Toronto: Irwin Law, 2006)). The question that the SCC may address is whether or not the similarities and differences between s. 15 and anti-discrimination statutes justify a common approach to equality and, if so, how to craft an test that does not impose a heavier burden on claimants in the private context.

Overall, the strength of the dissent in Moore is not simply in the result reached but in the approach used in reaching it. Rowles J. explicitly justified her analytic choices (how to frame “services” and how to define the relevant comparator group) by focusing on substantive equality, the ultimate goal of anti-discrimination legislation. Her approach also implicitly acknowledged the fact that there is rarely one, predictable way of applying legal tests that is dictated exclusively by the terms of the tests themselves and the facts on the ground. Rather, to frame a problem one way over another is, in reality, to condition an answer to it.

SCC Refuses to Revisit Murder Mens Rea Standard

In the years following the adoption of the Canadian Charter of Rights and Freedoms, the courts in Canada used their new-found power under section 7–the right to life, liberty and security–to scrutinize objective standards of mens rea. This resulted in a push for more subjective standards, under the premise that objective standards threatened to punish the morally innocent, as they did not require the accused to possess a positive state of mind such as intention or foresight.  This scrutiny was particularly intense in the context of high-stigma crimes such as murder.

This perspective on objective standards led the Supreme Court of Canada (SCC) to rule that the felony-murder provisions of section 213 (now section 230) of the Criminal Code were unconstitutional in R v Vaillancourt, [1987] 2 SCR 636, and R v Martineau, [1990] 2 SCR 633, and that a mens rea of subjective foresight of death is constitutionally required for a  murder conviction.

In R v Shand, 2011 ONCA 5, the debate regarding the constitutionality of the Code’s murder provisions resurfaced.  In Shand, the accused was charged with second-degree murder under section 229(c) when, in the course of a robbery, their handgun accidentally discharged and killed the victim.  The accused was convicted at trial and granted appeal.  At the Ontario Court of Appeal, the  appellant argued that section 229(c) of the Criminal Code–the only surviving provision that does not require a specific intention to seriously harm or kill–is unconstitutional because it labels an unintentional killing as murder.  The appelant’s argument rested on the premise that the label of “murderer” should be applied based only on a mens rea of intention, not mere foresight in order to conform with the principles of fundamental justice.

The Court of Appeal rejected the appellant’s constitutional arguments and upheld the trial court’s conviction.  They agreed with the Crown that Martineau and concurrent decisions (R v Arkell, R v Luxton) went far enough in protecting the morally innocent from being labeled murderers by ensuring subjective foresight of death as a constitutional requirement of a murder conviction.  In fact, in Martineau, the court specifically addressed section 229(c) by striking down the objective “ought to know” portion of the mens rea requirement, while leaving the subjective mens rea requirement intact. The Court of Appeal concludes that “when the subjective foresight of death is combined with an ulterior intent that is itself sufficiently culpable, together they constitute a proper normative substitute for an intent to kill.”

This week, the SCC denied leave to appeal in the Shand case.  While it would be valuable to criminal lawyers across the country to get a definitive ruling from Canada’s highest court on the future of section 229(c), this signals that the Court is not interested in re-engaging in constitutional scrutiny of the mens rea requirement for murder for the time being.  Perhaps the Court will see the need to offer judgment when the provision is challenged in another  jurisdiction.  Until then, as per R v Arkell, [1990] 2 SCR 695, subjective foresight of death remains “the highest level of moral culpability” in Canadian criminal law.

Torture Cases Denied Leave to Appeal

A leave for appeal was also denied in the case of Abdullah Almalki et al v Attorney General of Canada. In what are commonly referred to as the “torture cases” by the media, Almalki and his co-appellants Abou-Elmaati and Nuayyed Nureddin filed civil claims against the Canadian government alleging complicity in their detainment and torture in Syria and Egypt between 2001 and 2004.

These claims were put on hold while a Commission was convened to inquire into the actions of government officials in relation to the appellants’ detainment. Following the publication of the Commission’s report, the appellants put forward a motion in the Ontario Superior Court of Justice to allow for the discovery of documents that were noted in the reports.

In response, the Attorney General of Canada applied for an order in the Federal Court (FC) to have the documents withheld pursuant to section 38.04 of the Canadian Evidence Act (CEA), which allows sensitive information to be withheld for reasons of national security. This request was denied in Canada v Almalki, 2010 FC 1106, where the FC concluded that the AG failed to demonstrate a sufficient injury would result in releasing the information.

However, in Canada v Almalki, 2011 FCA 199, the Federal Court of Appeal quashed the denial, arguing that the FC judge erred in applying the three-part test set out in Ribic v Canada, 2003 FCA 246, as the appropriate standard for determining the disclosure of documents under section 38 of the CEA.  The Ribic test requires the courts to complete a balancing act which considers (1) the relevance of the information to the underlying procedure, (2) the impact of disclosure on “national security, international relations or national defence” and (3) “whether the public interest in disclosure is outweighed by the public interest in non-disclosure.”

While the Ribic decision provided that applications for disclosure “are reviewable on a standard of correctness,” the FCA also concluded that cases such as this, involving “a mixed question of fact and law,” should be “subject to the more deferential standard of ‘palpable and overriding error’” set out in Housen v Nikolaisen, 2002 SCC 33.

The FCA also concluded that when applying the Ribic test, the FC judge failed to give proper consideration to the evidence for potential injury and instead gave “undue weight to the public interest in disclosure of the information.” In response to this error, the FCA allowed the appeal and ordered the documents be withheld “to prevent and minimize injury to international relations, national security and national defence.”

The power to order disclosure under section 38 of the CEA requires the courts to engage in a delicate balancing act, which pits the public interests of disclosure against the potential for injury caused to national security. However, the FCA’s decision, and the subsequent denial for an appeal, signals that Canadian courts should be cautious about weighing evidence for a sympathetic disclosure of information more heavily than the public interest of national security.

The trial began in November of 2011 and came to a close one month later, on December 16, 2012. In his closing remarks, Joe Arvay—lead counsel for the plaintiffs—took a moment to remind the Court that suicide was decriminalized in 1972. As a result, Canadians were afforded the legal and oh-so-personal right to put an end to their suffering. However, it also left many disabled individuals physically unable to exercise this right. These individuals, Arvay pointed out, are being discriminated against; they are being denied a legal right due to their disability. The obvious counterargument, as was invoked by the Crown at trial, is that lifting the ban on medically assisted suicide would put Canada’s weak and vulnerable at risk. Implicit in this argument, though, is the infantilizing notion that being disabled in one sense necessarily means that you lack capacity in another—that being physically disabled somehow renders you unable to reach a reasoned and rational decision with respect to exercising your right to die.

In addition to their discrimination claim—brought pursuant to s. 15 of Charter—the plaintiffs also contend that Canada’s criminal prohibition on assisted suicide violates their right to life, liberty and security, as guaranteed by s. 7 of the Charter. Fundamental to that argument, of course, is the contention that the s. 7 guarantee has evolved to the point where it now encompasses the right to avoid an excruciating and entirely inescapable death.

In all likelihood, we will have to wait a few months for the BCSC to release its decision—and whatever the decision, it is hard to imagine this case going unappealed. In the meantime, as we prepare ourselves to critique this impending judgment, and to follow this case up the judicial chain, a refresher on the über-divisive case of Rodriguez v British Columbia, [1993] 3 SCR 519, seems appropriate.

Like Gloria Taylor, Sue Rodriquez suffered from the viscously deteriorative effects of ALS. By the time her case reached the SCC, her life expectancy was 2-14 months. Seeking the right to opt for physician-assisted suicide at the point at which she lost her capacity to enjoy life, Rodriguez hoped to establish the unconstitutionality of s. 241(b) of the Criminal Code on two primary grounds: ss. 7 and 15(1) of the Charter. (s. 12—the right not to be subjected to cruel and unusual punishment—was also pursued, but hastily dismissed.) In a split decision (5-4), the SCC rejected Rodriguez’s appeal, and declared constitutional Canada’s criminal prohibition on assisted suicide. For an interesting look back at the Rodriguez decision, check out this recent Globe & Mail interview with former SCC Justice Jack Major, the man who cast the fifth and deciding vote in favour of rejecting Sue Rodriguez’s request. For now, here is a bare-bones review of how the court dealt with the two key Charter claims:

Section 7: Sopinka J, for the majority (including La Forest, Gonthier, Iacobucci and Major JJ) rejected Rodriguez’s s. 7 claim. He acknowledged, however, that the “security” component of s. 7 includes fundamental notions of human dignity and personal autonomy when it comes to maintaining control over one’s own body; as such, Sopinka determined that s. 241(b) did infringe on the security of Sue Rodriguez’s person. The catch, though, was that the resulting deprivation did not, in Sopinka J’s eyes, contradict the second component of s. 7: the “principles of fundamental justice.” This determination was grounded, at least in part, on the belief that the term “fundamental” requires a certain level of societal consensus—i.e., would a reasonable Canadian support the availability of physician-assisted euthanasia in certain situations? In the absence of evidence to the affirmative, Sopinka J concluded that no such consensus existed. Two decades later, credible survey evidence appears to be poking holes in Sopinka J’s now-dated conclusion; indeed, recent polls suggest that the large majority of Canadians are open to legalizing physician-assisted suicide. It will be interesting, in the current case of Gloria Taylor, to see if this new data plays a significant role in the Court’s analysis.

McLachlin J (dissenting, with L’Heureux-Dubé) agreed with Sopinka J in terms of s. 241(b) infringing Rodriguez’s right to security under s. 7. Unlike Sopinka J, however, McLachlin J (as she was then) contended that drawing a distinction between suicide and assisted suicide has the entirely arbitrary effect of preventing people like Sue Rodriguez from exercising autonomy over their bodies, and thus does constitute a violation of the ill-defined principles of fundamental justice. Moreover, McLachlin J decided that s. 241(b) cannot be saved under s. 1 of the Charter. The primary purpose of the prohibition, she explained, is “the protection of the vulnerable who might be induced in moments of weakness to commit suicide.” An admirable objective, of course, but counselling someone towards suicide is already a criminal offence under s. 241(a), so the exercise of any sort of undue influence on a vulnerable person would be illegal regardless of s. 241(b). Interestingly, McLachlin CJ is the only judge from the Sue Rodriguez case that remains on the SCC bench today. If Gloria Taylor’s s. 7 claim makes it that far, therefore, one would have reason to assume that the Chief Justice would be on her side—having said that, McLachlin CJ has been known to change her mind from time to time.

Section 15: Assuming that s. 241(b) did violate s. 15, Sopinka J’s majority found the violation to be justified under s. 1. The provision, Sopinka J pointed out, has a sufficiently pressing and substantial legislative objective (broadly, to preserve respect for human life) and its means (a strict ban on assisted suicide) are proportional to its objective. Sopinka J draws strength from the “substantial consensus among western countries” that a blanket ban on assisted suicide serves to protect the “human life” of the weak and vulnerable. Times may very well have changed over the past two decades, though, as a number of “western” jurisdictions have since eliminated this strict prohibition.

McLachlin J, in her written reasons, never really gives Rodriguez’s s. 15 claim the time of day. “I am of the view,” she wrote, “that this is not at base a case about discrimination under s. 15…and that to treat it as such may deflect the equality jurisprudence from the true focus of s. 15.” While her treatment of the s. 7 claim might provide a point of optimism for Gloria Taylor, it would seem that her complete dismissal of the s. 15 claim would provide quite the opposite.

On October 15th, protesters taking part in the Occupy Toronto movement began encamping overnight in St. James Park. On November 15th, exactly one month later, City of Toronto officials served the protesters with notices of eviction under the Trespass to Property Act, imposing two limitations on the continued use of the park. The first was a prohibition against installing, erecting, or maintaining tents or structures in the area; the second was a requirement that the park be vacated between the hours of 12:01 a.m. and 5:30 a.m. In response, four protesters commenced an application in the Superior Court challenging the validity of the trespass notice on the basis that it violated their Charter-protected freedoms of conscience, expression, peaceful assembly, and association.

“How do we live together in a community? How do we share common space?” begins a 54-page decision rife with rhetorical flourish that concludes by upholding the validity of the trespass order as a reasonable limit on the applicants’ s.2(b) freedom of expression. The case is significant for highlighting how the law seeks to facilitate the public expression of private ideas in a way that strikes a balance between protecting the use and enjoyment of public property while ensuring that rights to expression are not rendered meaningless. The balance struck in Batty v. City of Toronto suggests that when private expression implicates public property, conditions may be imposed which splice the content of messages from the duration of them and which hold that exclusivity of expression cannot be a fundamental attribute of the expression itself.

Section 2(b) Analytic Framework—A mile wide but an inch deep?

The analytic approach adopted by the Supreme Court of Canada (SCC) to assessing violations of s.2(b) involves a consideration of whether the applicants’ conduct or messages have expressive content, whether the method or location of expression removes the prima facie protection afforded to it, and whether government action and legislation infringes the protection either in purpose of effect. At the threshold level, Brown J. easily came to the conclusion that the encampment of St. James Park by the protesters constitutes a political message and thus has expressive content. The threshold inquiry rarely poses a credible hurdle for applicants since the SCC has held that the forms of expression protected by s.2(b) are infinitely varied—“even the physical act of parking a vehicle might constitute protected expression if the vehicle was parked in an attempt to convey meaning.”

The final two stages of the s.2(b) test were also easily met. The protesters were not expressing their message through violent means and the conditions imposed by the trespass notices clearly infringed freedom of expression by their very purpose. Thus, the case turned on whether or not the infringement could be justified under s.1 of the Charter. Such an outcome is typical in freedom of expression cases and is the natural result of how the s.2(b) test has been framed. The low threshold that must be met by claimants challenging infringements of s.2(b) reflects an affirmation by the courts of the importance of this basic freedom and a preference for a particular allocation of the burden of proof between claimants and the government. In other words, the qualified marketplace of ideas model which informs the s.2(b) jurisprudence operates in a way that relieves claimants of the responsibility of showing that their messages (or forms of expression) are worthwhile and instead requires the government to show that infringements of the freedom are reasonable and justified. Thus, much of the analytic work shifts to s.1.

Section 1—Reasonable Limits and ‘Battlegrounds of Competing Uses’

Applying the Oakes test, Brown J. found that the regulation of structures in public parks and the use of parks during midnight hours is a pressing and substantial objective since “without some balancing of what people can and cannot do in parks, chaos would reign; parks would become battlegrounds of competing uses, rather than oases of tranquility in the concrete jungle.” Further, the measures chosen were rationally connected to the objective since they simply asked “one group of the public to let go of their monopoly over the use of the Park and share [it] with other people in Toronto.”

Next, the measures were found to impair the guaranteed freedom as little as possible. The court accepted that the encampment of the park was an integral element of the message being conveyed as a manifestation of a political commitment to a horizontally democratic, grassroots process. Brown J. quoted the affidavit of the applicants which described the encampment as a “symbol of the evolution of humans from the nationalist rhetoric of our forefathers, to a true unification of all humankind.” Nonetheless, the court held that compliance with the trespass notice is entailed minimal impairment because it does not amount to a total eviction of the protesters from the park.

Finally, the court found there to be adequate proportionality between the deleterious and salutary effects of the measure. This conclusion was supported by a description of the negative effects of the encampment on the serene park grounds (“the occupied areas are largely covered with grass and are gently undulating. They are also well treed, with mature trees”) and affidavits of residents and nearby business owners. Thus, the conditions imposed on the protest struck the appropriate balance relating to private expression in public places and were thus “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Implications—Duration, Exclusivity, and the Dismantling of Tents

On its face, the current s.2(b) approach seems to suggest that so long as a particular message or mode of expression is not violent, courts will not inquire into the merits of it. It is up to claimants to decide what their message is and to convey it in a way that they deem appropriate. Thus, the Federal Court of Appeal held in Weisfeld v. Canada, [1995] 1 FC 68, that “expression goes beyond words. People may choose to amplify or dramatize their messages in many ways: a sandwich board, a soapbox, a megaphone, a flag, a banner, a placard, a picture, a petition…” Nonetheless, what Batty v. City of Toronto highlights is that there are limits on the leeway that a group will be granted to define the precise scope and content of their message.

Despite the deferential approach of courts to protecting wide range of expression, courts can and will impose limits on how the message is defined. On the facts at hand, the court denied the applicants’ position that it is an essential part of their freedom of expression to be able to determine for themselves when leaving the encampment would be consistent with their message. In other words, the content of the message could be spliced from the duration of that message since how a group frames their particular message (i.e. as a “prolonged” message) is not determinative in the final analysis.

Further, groups are prevented from defining their message in such a way as to require exclusivity in their use of public property. Brown J. held that finding otherwise would allow “any protest group to come along, assert that monopolizing a particular piece of public space [is] an important part of their political message, and the City would be powerless to object.”

Finally, to the degree that compliance with the trespass notices was held to minimally impair the applicants’ freedom of expression, courts have latitude to splice the mode of expression from the content of the expression. Although the court accepted that the encampment was itself part and parcel of the message conveyed by the protesters, a prohibition on erecting any structures in the park did not undermine the content of the message being conveyed in a way that was disproportional. Overall, the case suggests that despite the low threshold at the s.2(b) stage, it is inevitable, given the implication of public property and interests, that the courts will inquire into the precise nature of the message at the s.1 stage, even though that is not explicitly what the test sets out to do.

A final point of reflection may be worth mentioning. On December 21st, the final three tents were dismantled at the Occupy Winnipeg site, the location of the last protest site in a major Canadian city. The dissipation of the movement immediately following enforcement of the trespass notices begs the question: were the measures ‘minimally impairing’? It is interesting to note how a movement so virtual could be dismantled so quickly with the physical dismantling of tents.

The claimants in (case) having failed to establish that the criminal prohibitions on possession and trafficking in the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA) are constitutionally invalid, as discussed in a previous post, made three Charter claims, discussed herein.

First, the claimants argued that ss. 4(1) and 5(1) of the CDSA (the prohibitions on possession and trafficking) are invalid because they limit the claimants’ s. 7 rights to life, liberty and security of the person and are not in accordance with the principles of fundamental justice.  Alternatively, the claimants’ argue that their s. 7 rights have been infringed by the Minister’s refusal to extend the exemption for Insite from the application of the CDSA. The Vancouver Area Network of Drug Users (VANDU) also submitted that the CDSA’s prohibition on possession and trafficking drugs limits the s. 7 Charter rights of all addicted drug users everywhere, not simply at Insite.  In addressing these claims the Supreme Court of Canada (SCC) first rejected the Government’s argument that that if the CDSA is valid and applies to Insite under the division of powers, then the Charter arguments must fail as well. The Court found that the need for a federal exemption to the provisions of the CDSA was necessary not because Insite cannot operate without it for lack of constitutional powers of the Province, but rather, given that neither staff nor clients would come to the facility without an exemption, the possibility of offering the proposed health services is effectively eliminated.

Chief Justice McLachlin states: “The issue before the Court at this point is not whether harm reduction or abstinence-based programmes are the best approach to resolving illegal drug use. It is simply whether Canada has limited the rights of the claimants in a manner that does not comply with the Charter.”

Crucial to the Charter analysis in this case is a particular finding of fact by the trial judge who found that many of the health risks associated with intravenous drug use are not caused by the drugs themselves, but, rather, by the unsanitary practices and equipment used. He further notes that “[t]he risk of morbidity and mortality associated with addiction and injection is ameliorated by injection in the presence of qualified health professionals.”  It is this finding of fact that supports the conclusion that the denial of access to the health care services by virtue of the denial of an exemption to section 4(1) of the CDSA violates section 7 rights to life, liberty and security of the person of the staff and clients of Insite. The trial judge also found that addiction is a disease, the primary characteristic of which is the lack of control over the use of the addictive substance. This finding served in large part to undercut the Government’s argument on choice, which held that, from a factual perspective, personal choice, and not the law was the cause of the death and disease that Insite prevents.

The Court found that the section 7 Charter rights of clients and staff of Insite were  engaged only by the prohibition on possession, and not trafficking. Indeed, no act that could be construed as “trafficking” is permitted at Insite. The liberty interests of the staff of Insite are engaged because the prohibition on the proscribed drugs exposes them to the threat of imprisonment for doing their job. The threat to the liberty interests of the staff, in turn, impacts the s. 7 rights of clients who seek the services provided at Insite. Without an exemption, the health professionals at Insite would be unable to offer services to their clients. As such, the rights to life and security of the person of clients are engaged. The Court found that this applied only to s. 4(1) of the CDSA, and not s. 5(1), the prohibition on trafficking. However, the “safety valve” provisions of ss. 55 and 56 render the legislation valid as it prevents the CDSA from applying where its application would be arbitrary, overbroad or grossly disproportionate in its effects. Thus, the Charter deprivations stem not from the legislation itself, but, rather, from the Minister’s decision not to grant the exemption.

Applying Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 S.C.R. 3, the Court noted that the discretion of the Minister is not absolute. All exercises of discretion must also be in line with the Charter. Here, the Minister’s discretion is exercised unconstitutionally when it results in an application of the CDSA that limits the s. 7 rights of individuals in a way that is not in accordance with the Charter. The rights of the staff and clients of Insite are engaged with regards to the Minister’s decision in the same manner as they are engaged by the application of s. 4(1) of the CDSA because, but for the temporary remedial order made by the trial judge pending the conclusion of these proceedings, Insite would not practically be able to operate.

The Court concluded that the Minister’s refusal to grant Insite a s. 56 exemption was arbitrary and grossly disproportionate in its effects, and thus, was not in accordance with the principles of fundamental justice.

Arbitrariness:

Decisions of the Minister under s. 56 of the CDSA must target the purpose of the Act. The state’s objectives with regards to the CDSA (then the Narcotics Control Act) were identified by the SCC in R. v. Malmo-Levine, [2003] 3 S.C.R. 571 (Malmo-Levine) as the protection of health and public safety. The relationship between the general prohibition on possession in the CDSA and the state objective (with regards to marijuana) was recognized in Malmo-Levine:

“The Criminalization of possession is a statement of society’s collection disapproval of the use of psychoactive drugs… and through Parliament, the continuing view that its use should be deterred. The prohibition is not arbitrary but is rationally connected to a reasonable apprehension of harm. In particular, criminalization seeks to take marijuana out of the hands of users and potential users, so as to prevent the associated harm and to eliminate the market for traffickers.” [para 136]

The fundamental question to be posed is whether the decision that the CDSA applies to the activities at Insite bears the same relationship to the state objective. The burden is on the claimants to establish that the limit imposed by the law fails to conform to the principles of fundamental justice. The information available to the Minister when he rejected the application for exemption was consistent with both the key findings of the trial judge and the information which successive Ministers relied on in granting exemption orders for nearly five years. The findings suggest that far from hindering the objectives of public health and safety, providing Insite with an exemption would, in fact, further those goals. In Chaoulli v. Québec (Attorney General) [2005] 1 S.C.R. 791(Chaoulli) various approaches to defining arbitrariness were articulated. In its application here, Chief Justice McLachlin found that whether defined in terms of necessity of the limit to further state objectives or inconsistency with state objectives behind the legislation, the government action in this case was arbitrary.

The gross disproportionality of the decision was established by noting that Insite offers services that save lives, and that no negative impact on the public health and safety objectives of Canada has been discernable. The benefit to the state of presenting a uniform stance on the possession of narcotics is far outweighed by the effects of denying Insite’s services to their clients.

Having established that the Minister’s decision was both arbitrary and grossly disproportionate in its effects the Court declined to consider the issue of overbreadth as the claimants had already met the burden of demonstrating that the Minister’s decision to refuse to grant the s. 56 exemption was not in accordance with the principles of fundamental justice. Given that the refusal to grant a s. 56 exemption bears no relationship to the objectives of maintenance and promotion of public health and safety, the decision cannot be upheld under s.1 of the Charter.

The Court also rejected the Minister’s fear-mongering argument that the rule of law would be undermined by granting the s. 56 exemption to Insite and as such the refusal to grant this exemption is justified. The government’s argument that granting the exemption to Insite “would effectively turn the rule of law on its head by dictating that where a particular individual breaks the law with such frequency and persistence that he or she becomes unable to comply with it, it is unconstitutional to apply the law to that person” does not hold water. The decision in this case does not leave the laws of Canada open to being flouted with impunity. It requires only that the state not deprive individuals of their s. 7 rights to life, liberty and security of the person in a way that violates the principles of fundamental justice as it administers the criminal law.

Having made out the constitutional violation, the Court is empowered under s. 24(1) of the Charter to fashion a remedy (R.v. 974649 Ontario Inc. [2001] 3 S.C.R. 575) Given the circumstances of the case, the Court granted an order of mandamus, and ordered the Minister to grant Insite the s. 56 exemption. The court found that this was the only legitimate remedy available, given the findings of fact at trial. This leaves the Minister’s discretion intact with regards to forthcoming applications for exemption from Insite or other organizations. This decision serves as a reminder that the discretion of a Minister as legitimately laid out in legislation cannot be substituted with the Court’s discretion, but that the exercise of the Minister’s discretion must always conform to the constraints imposed by the Charter.

For those who haven’t been following this case, you won’t yet know that there’s a final thundercloud in this perfect storm of fundamental freedoms: Whatcott demonstrates on behalf of his religion, the Christian Truth Activists.

Oral submissions have been made; some had observing counselors hiding their reddening faces and shaking with silent laughter. A media lockup has been requested. Sadly, I do not anticipate an invitation to this event. However, soon, (if we’re lucky) we’ll learn not only how to balance all the competing rights at stake here but also how Canada’s human rights tribunals are supposed to work.

SHRC v Whatcott Part I outlined the grounds on which the tribunal’s decision was upheld at the trial level. Whatcott appealed again, and found a sympathetic ear at Saskatchewan’s Court of Appeal. Here is how the rest of Whatcott’s journey to the SCC unfolds.

The Court of Appeal says: gay teachers in public schools? Debatable.

Hunter JA noted that this particular provision, s. 14(1)(b) of Saskatchewan’s Human Rights Code, has only been tested a few times since its enactment in 1979. She sets out the Taylor test for limiting freedom of expression, emphasizing “the bar is set very high” (para 44). She also reiterates Taylor’s emphasis on the necessity of evaluating speech using a contextual analysis – in other words, reading the Code with an understanding of the purposes informing it and the factual findings pertaining to the particular case. In conducting a s 14 analysis, the protection of freedom of speech and freedom of religion must be carefully considered.

Obviously, there is an abundance of jurisprudence on the limits of freedom of expression; please bear with me while I summarize it briefly. All emphasis is added.

Hunter JA found that the appeal in Owens (2010), taken together with the tests for protection of free speech in Keegstra and Taylor, indicate that “neither the perspective of the person who sends the message nor the sensibilities of the person who may be the target of the message, has a part to play in determining the effect of the message” (para 55).

To allow subjective factors to feature in the analysis would either create an unacceptable chill on the freedom of speech or make the provision inapplicable in cases where the message was clearly dangerous, rendering the legislation useless.

Taking an objective view of the context of the expression is particularly important, she writes, when considering complaints based on sexual orientation–the offending speech is more often than not of a ‘moral’ character, and “[i]t is acceptable, in a democracy, for individuals to comment on the morality of another’s behaviour” (para 62). To be deemed hate speech, “the expression must meet the Taylor test for hatred as proscribed in Bell [detestation, calumny and vilification], and must be clear on the face of the publication, without resort to conjecture and speculation” (para 65).

Having set out the applicable law, Hunter JA found that the Tribunal had not considered the flyers in their entirety, but had inappropriately quoted content out of its context.  As a result, it had distorted the impact of the flyers without considering the impact a s. 14(1)(b) sanction would have on Whatcott’s rights. When taken in their entirety, the flyers did not rise to the level of hatred required. Moreover, she writes, Whatcott’s flyers were a response to a policy decision made by the Saskatoon School Board which recommended that information on homosexuality be included in the school curriculum and libraries(71). Whatcott’s key message in this debate was:

“Now the homosexuals want to share their filth and propaganda with Saskatchewan’s children.” (Flyer D, “Keep Homosexuality out of Saskatoon’s Public Schools!”)

As for the flyer with the handwritten notes (“Sodomites are 430 times more likely to acquire Aids & 3 times more likely to sexually abuse children!”), Hunter JA found that it did not contribute to any debate about what was being taught in schools , nor could it be attributed to a larger debate about morality. However, while it might be a “smear” against homosexuals, it did not “tip the balance in favour of limiting free expression so that it has the effect of censoring the entire publication” (79).

Regarding the comments on the classifieds section of Perceptions, (“Saskatchewan’s largest gay magazine allows ads for men seeking boys!” and “If you cause one of these little ones to stumble it would be better that a millstone was tied around your neck and you were cast into the sea”), Hunter JA wrote:

“a reasonable person on reading of the plain wording of the flyer in its entirety would not conclude that the effect of the flyers exposes or tends to expose homosexuals to hatred as that term is prescribed in Bell” (Para 85).

Why? The test for whether the publication breaches the Code must be carried out from an objective standpoint based on the face of the publication. When the words are as “ambiguous” as they are held to be here, they ought to be interpreted in the manner which best protects freedom of expression.

Hunter JA found that because, in aggregate, the flyers did not expose homosexuals to the level of hatred required, and because some contributed to an ongoing debate about homosexuality in public schools, the appeal could be denied based on the provisions of the Code alone.  She stopped short of addressing the other issues at appeal advanced by the litigation parties.

Smith JA agrees this aint hate, and elaborates:

Smith JA, concurring in the result, further commented on the state of the law. To find that an expression deserves prohibition based on s. 14(1), “the causal connection between the (impugned) expression and the discriminatory practices otherwise prohibited in the Code (is that) the causal effect of the expression is, for example, to promote stereotypes that themselves jeopardize equal opportunities for employment, housing, education and so on” (para 97).

He discusses at length the role of freedom of expression in a democratic society, and finds that a decision maker must balance the goals of s 14(1) against other rights protected in the Code. In applying the provision, care must be taken to ensure that, while its use will limit expression, the harm caused does not exceed the s. 1 justification for this infringement enunciated in Taylor and accepted in Bell (para 110).

The objective enlivening the discourse is relevant, argues Smith JA, entertaining Whatcott’s “hate the sin but not the sinner” argument. Determining whether the expression rises to the level of hate required to justify banning it necessitates an inquiry into the declarant’s intentions. Whatcott insists it is the activity of homosexual sex, and not the homosexual himself that his religion takes issue with. Smith JA endorses this argument to some extent, noting that questions of sexual morality “lie near the heart of speech worthy of protection from the chilling effects legislative prohibition” (para 134).

Finally, he asks the critical question that demonstrates the difference between the judgments of Hunter JA and Kovach JA at the trial level: do the restrictive words in the phrase, “promotes hatred or contempt,” in s. 14(1) pass the strict common law standard we have developed in evaluating hate speech?

He concludes at para 138, holding: “Where, on an objective interpretation, the impugned expression is essentially directed to disapprobation of same-sex sexual conduct in a context of comment on issues of public policy or sexual morality, its limitation is not justifiable in a free and democratic society.”

Conclusion:

In the US, Whatcott would not have been fined in the first place. In the UK, Whatcott wouldn’t have been pamphleting this material in the first place. Where, in Canada, do we stand in that spectrum?

In 1995, Cory J wrote in Egan v. Canada, gays and lesbians, “whether as individuals or couples, form an identifiable minority who have suffered and continue to suffer serious social, political and economic disadvantage.” Reactions to Whatcott’s flyers should not be cavalierly dismissed as ‘hurt feelings.’

It is important to consider that allowing Whatcott to continue distributing these flyers could potentially brush against another constitutional right – the right to equality. It is all but uncontroverted that homosexuals remain a vulnerable and often highly stigmatized group. In fact, this is the very reason that Canada has extended the right to equality to people who suffer from discrimination on the basis of their sexual orientation. That doesn’t mean just based on how gays define their sexuality, but also how they act on it. Thankfully, Whatcott doesn’t seem to be in a position of power – but common misconceptions and fears have led to centuries of discrimination against individuals based on sexual orientation.  The messages he sends could very likely generate sexual discrimination against the homosexual community.

A columnist at The Calgary Herald reports that the Albertan legislation governing discriminatory publications and notices (s. 3 of their Code) will soon be “eliminated.” That certainly doesn’t sound like a step towards progress. While the provisions do limit the freedom of expression, and in some cases freedom of religion, the Code should be rewritten so that they reflect a reasonable limit on those rights that are demonstrably justified in a free and democratic society.

In coming to their conclusion, I hope the SCC will at least recognize that these publications violate s. 14(1)(b), both on their face and within their context. The Court should either narrow the scope of the provision or at least re-examine the constitutionality of these provisions without simply declaring that the flyers do or do not contravene the Code.

PS – for anyone still reading: don’t forget – Taylor was heard around the same time as R. v. Keegstra [1990] and R. v. Andrews, [1990] both of which concerned s. 319(2) of the Criminal Code, which prohibits “willfully promoting hatred.” All three decisions were split 4/3 – Dickson, CJC (as he was then) wrote for the three majorities that upheld the legislation. McLachlin J (as she was then) wrote the dissents in all three. Will McLachlin CJC (as she is now) tip the balance in favour of protecting free speech?

Vancouver’s Downtown East Side (DTES) has long been known for its rather unique neighbourhood makeup. 4,600 intravenous drug users, nearly half of all of those in the city are crammed into just a few city blocks that are littered with evidence of the bleak existence of its inhabitants. 

By the early 1990s, injection drug use had reached crisis levels and epidemics of HIV/AIDS and Hepatitis C soon developed.  In September 1997 a public health emergency was declared in the DTES. With an already marginalized population dealing with complex mental, physical and emotional health issues, health authorities recognized that a conventional abstinence-based solution, simply would not be effective. Instead, after years of research and planning, the Vancouver Coastal Health Authority in conjunction with the Province proposed a plan that addressed the health concerns of residents at all points in the treatment of their addiction, and not simply when they had been able to quit drugs for good. The plan included supervised drug consumption facilities, which, although controversial in North America, have been established with success to address health issues surrounding injection drug use in seventy other cities in Europe and Australia.

Legally operating a supervised injection site in Canada requires an exemption from the prohibitions on possession and trafficking of controlled substances under s. 56 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (CDSA), which provides for exemption from application of the CDSA at the discretion of the Minister of Health “if, in the opinion of the Minister, the exemption is necessary for medical or scientific purpose or is otherwise in the public interest.” The clinic, Insite, opened its doors in September 2003, shortly after receiving this conditional exemption, and has been in operation daily from 10am to 4am since.

To be clear, the site does not provide drugs to its clients; it is a strictly regulated health facility. Upon arrival the client must check in and sign a waiver. They are closely monitored during and after injection. Clients are provided with health care information, counseling and referrals to various service providers or an on-site, on demand detox centre. The services available at Insite help to mitigate many of the significant risks of intravenous drug use, such as sharing needles, using dirty puddle water for injection, and accidental overdose.  The endeavor is supported at the local and provincial level of government as well as the by the police and wider community in the area. Insite has proven to save lives and improve health.

In 2008 a formal application for a new exemption was made, prior to the expiry of the initial exemption. This action was commenced in the Supreme Court of British Columbia when the Minister denied the application. The trial judge found that the application of ss. 4(1) and 5(1) of the CDSA, which prohibit possession and trafficking of controlled substances, violated the claimants’ rights under s. 7 of the Charter of Rights and Freedoms. Insite was granted a constitutional exemption, allowing it to operate free from the federal drug laws. The Court of Appeal dismissed the appeal and held that the doctrine of inter-jurisdictional immunity applied. The Supreme Court of Canada (SCC) in a unanimous decision dismissed the appeal and cross-appeal and ordered the Minister to grant an exemption to Insite under s. 56 of the CDSA.

Analysis:

The SCC’s decision in Canada (Attorney General) v. PHS Community Services Society,  speaks to the legal realist in me. It is not difficult to get on board with the result of the case; of course, a program that manages to address the health of a marginalized population with distinct health challenges should be supported. Nonetheless, the manner in which the court arrived at its decision raises some questions regarding the degree to which the court is encroaching on the legitimate role of Parliament. Below, I will discuss the Court’s arguments regarding the doctrine of inter-jurisdictional immunity. The SCC’s analysis of the section 7 challenge and concluding thoughts will appear in a forthcoming post.

Inter-Jurisdictional Immunity:

The Court was not keen to extend the inter-jurisdictional immunity doctrine in this case. The doctrine of inter-jurisdictional immunity comes into play in conflicts of division of powers between the federal Parliament and provincial Legislatures. It is a doctrine by which a province is prohibited from legislating in a manner that would have an adverse effect on the core of a federal head of power (and vice versa). The doctrine is narrow and its premise of fixed water tight cores of jurisdiction is at odds with the modern federalism tendency to allow overlap, as evidenced by the double aspect doctrine and cooperative federalism. To apply it here would disturb settled competencies and introduce uncertainties for new ones. Though the doctrine is not dead, it is out of step with the modern trend of striking a balance between the federal and provincial government and performing a pith and substance analysis and restrained application of federal paramountcy. Before extending the doctrine of inter-jurisdictional immunity to a new area, the court should ask whether the constitutional issue can be resolved on another basis.

Here, the Court found that the proposed core of provincial power of health had never been recognized in jurisprudence. Furthermore, the Court found that the claimants had not delineated a “core” of exclusive provincial power, noting that this area is broad and extensive, encompassing thousands of activities in many places; a poor fit for this limited application of this doctrine. Furthermore, the court applied Canadian Western Bank v. Alberta, and noted that applying the doctrine of inter-jurisdictional immunity would be at odds with the emergent practice of cooperative federalism and the general preference, where possible, for the ordinary operation of statutes enacted by both levels of government. The court also expressed concern that applying the doctrine of inter-jurisdictional immunity would create legal vacuums as the government benefiting from the immunity is not actually compelled to legislate in the area. In light of the doctrine’s narrow scope and the potential for complications that would stem from its application, the Court found that the doctrine of inter-jurisdictional immunity was neither necessary nor helpful, and accordingly dismissed the claimants’ argument.

To succeed in a defamation action, a plaintiff must first prove that defamatory words were published. The decision in Crookes stands for the proposition that a hyperlink, by itself, is not publication of the content to which it refers. Publication will only occur if the hyperlink is presented in a way that repeats the defamatory content. This article discusses the decision’s background, reasoning, and implications.

Background

The appellant brought numerous defamation actions against various individuals and organizations alleging that he had been defamed in several articles on the internet. After those actions were commenced, the respondent posted an article on his website which commented on the implications of the plaintiff’s defamation suits for operators of internet forums. The respondent’s article included hyperlinks to websites containing some of the allegedly defamatory articles that were the subject of the plaintiff’s actions. However, the respondent’s article did not reproduce or comment on the content in those articles.

The appellant discovered the respondent’s article and advised him to remove the hyperlinks. When the respondent refused, the appellant brought an action seeking damages for defamation on the basis that the hyperlinks constituted publication of the allegedly defamatory articles. There was evidence that the respondent’s article had been viewed 1,788 times, but no evidence as to how many times, if any, the hyperlinks in the article had been followed.

Decision of the Supreme Court of Canada

The issue on appeal was whether creating a hyperlink to allegedly defamatory material constitutes publication of that material. The reasons of the six-justice majority, penned by Abella J., began by describing the evolution of the “publication rule.” Under this rule, any act which had the effect of communicating defamatory words to a third person constituted publication. The breadth of activity caught by the publication rule over the years has been vast. For example, a person whose role was to manually operate a printing press was, in one older case, found liable for defamatory words contained in the publication, despite being unaware of its contents.

The majority observed that the harshness of the publication rule was later alleviated by the development of the “innocent dissemination” defence, which protects defendants that play a role in the distribution of potentially defamatory material.  Defendants, such as booksellers and libraries, may avoid liability if they had no actual knowledge of alleged libel, were not aware of circumstances that would give cause to suspect a libel, and were not negligent in failing to discover the libel.

The majority also recognized that, in recent years, the application of the publication rule has been tempered by cases which suggest that some acts of communication are so passive that they should not be considered publication. For example, the majority referred to English cases in which internet service providers and search engines were not held liable as publishers because they only played a passive instrumental role, and acted without knowledge, in the process of publishing the defamatory words. In other cases referred to by the majority, courts had held that merely making a reference to defamatory material was not publication.

In light of these developments, the majority concluded that creating a hyperlink to defamatory material is not the type of act that constitutes publication. In the majority’s view, modern realities made it necessary to interpret the publication rule to exclude references, such as hyperlinks, in order to accord with Charter values, recent jurisprudence, and the evolution of communications technology.

In declining to expose hyperlinks to the wide breadth of the traditional publication rule, the majority reasoned that hyperlinks are essentially content neutral references to material that hyperlinkers have not created and do not control. Although a hyperlink communicates that information exists and may facilitate the transfer of information, it does not, by itself, communicate information.

It is also significant that the majority’s reasons focused on the important role of the internet in promoting freedom of expression, and the importance of hyperlinks in facilitating access to information on the internet.  As Abella J. writes,

[36]      The Internet cannot, in short, provide access to information without hyperlinks.  Limiting their usefulness by subjecting them to the traditional publication rule would have the effect of seriously restricting the flow of information and, as a result, freedom of expression.  The potential “chill” in how the Internet functions could be devastating, since primary article authors would unlikely want to risk liability for linking to another article over whose changeable content they have no control.  Given the core significance of the role of hyperlinking to the Internet, we risk impairing its whole functioning.  Strict application of the publication rule in these circumstances would be like trying to fit a square archaic peg into the hexagonal hole of modernity.

However, the majority also recognized that a hyperlink will constitute publication if it “presents content from the hyperlinked material in a way that actually repeats the defamatory content.” This might occur, for example, where a person inserts a hyperlink in text that repeats the defamatory content in the hyperlinked material. In these cases, the hyperlink would be more than a reference; it would be an expression of defamatory meaning. This had not occurred in the case at bar, so the majority dismissed the appeal.

McLachlin C.J.C. and Fish J. substantially agreed with the majority, but held that “a hyperlink should constitute publication if, read contextually, the text that includes the hyperlink constitutes adoption or endorsement of the specific content it links to.” In their view, a hyperlinker should be liable for linked defamatory content if the surrounding context communicates agreement with the linked content. In these cases, the hyperlink “ceases to be a mere reference and the content to which it refers becomes part of the published text itself.”

Deschamps J. agreed with the result, but disagreed with the approaches taken by the other justices. In her view, the blanket exclusion of all references from the scope of the publication rule erroneously treats all references alike. According to Deschamps J.’s reasons, the majority’s approach “disregards the fact that references vary greatly in how they make defamatory information available to readers and, consequently, in the harm they cause to reputations.” To address this concern, Deschamps J. proposed a nuanced and highly fact-driven framework under which a hyperlink would constitute publication if the plaintiff established two elements: that the defendant “performed a deliberate act that made defamatory material readily available to a third party in a comprehensible form,” and that “a third party received and understood the defamatory [material].”

To establish the first element under Deschamps J.’s approach, plaintiffs would need to demonstrate that the defendant played more than a passive instrumental role in making the information available, and make reference to numerous factors bearing on the ease with which the referenced information could be accessed. To establish the second element, plaintiffs would need to adduce direct evidence that a third party had received and understood the defamatory material, or convince the court to draw an inference to that effect based on the totality of the circumstances.

Implications

Crookes presented the Court with a welcome opportunity to consider the proper balance between the competing interests of freedom of expression and the protection of reputation in the context of internet communications. Five years ago, defamation law leaned significantly towards protecting reputation. Today, as a result of Crookes and other landmark cases – such as WIC Radio Ltd. v. Simpson, 2008 SCC 40, and Grant v. Torstar, 2009 SCC 61 – defamation law better protects and promotes the fundamental right to freedom of expression.

However, the decision in Crookes could have undesirable consequences in certain circumstances. As the Court recognized, the internet’s borderless and far-reaching mode of publication has tremendous power to harm reputation. As a result of Crookes, a victim of internet defamation who wishes to vindicate their reputation and prevent the spread of defamatory material only has a remedy against the person who created and controls the material – not persons who have referred their readers to it.

It is surprising that in the majority’s view this approach creates “little or no limitation to a plaintiff’s ability to vindicate his or her reputation.” Yet, in some cases, the majority’s approach may create opportunity for abuse that significantly limit a plaintiff’s ability to vindicate their reputation. The creation of a hyperlink is a means by which defamatory material can be rapidly disseminated. Defamatory material contained on an obscure website may, for example, receive the attention of a vast number of readers if a popular blogger hyperlinks to it. In these circumstances, the plaintiff would have no action against the hyperlinker, even if they created the hyperlink with the malicious intent of spreading the defamatory words.

Such a situation would be especially troubling if the victim were also unable to pursue a remedy against the creator of the defamatory material because they published the material anonymously – a common occurrence on the internet. In addition, if the defamatory material were posted on a third party’s website operated in the United States, and that website passively hosted the material, legislation would apply to immunize the operator of the website from liability: see Communications Decency Act, 47 U.S.C. § 230 (1996); see also Crookes at para. 28. If the operator of the website refused to remove the defamatory material, it would remain visible for the world to see. The victim would be left without any remedy and, meanwhile, the use of hyperlinks could cause the defamatory material to rise from obscurity to notoriety.

Although this concern might be alleviated by adopting the more contextual and nuanced approaches suggested by McLachlin C.J. and Fish J., and Deschamps J., those approaches lack the welcome certainty of the majority’s bright-line rule. McLachlin C.J. and Fish J.’s test for publication is dependent on the presence of indicia of “adoption or endorsement,” the scope of which is inherently uncertain. Deschamps J.’s approach is similarly fact-driven. If either test applied, it would be difficult to predict in advance whether a hyperlink constituted publication. Uncertain exposure to liability might then deter the public from using hyperlinks, which could inhibit the internet as a medium for free expression. This very concern likely drove the majority to establish its bright-line rule.

The non-majority approaches would also have the undesirable effect of shifting the weight of litigation to defendants. Once a plaintiff establishes a prima facie case of defamation, the onus shifts to the defendant to raise any available defences. Both of the non-majority approaches would lower the threshold to be met by plaintiffs in order to establish a prima facie case. As a result, more internet users would be thrown into the costly position of having to justify their conduct by reaching for the protection of a defence. Although the wide availability of defences for hyperlinkers may, as Deschamps J. suggests, “dissuade overeager litigants from having a chilling effect on hyperlinking,” it would not deter plaintiffs who wish to stifle criticism by intimidating defendants through costly litigation.

Lastly, it is important to recognize that the decision in Crookes may not be the final word on defamation liability for hyperlinks. The Court expressly left open the question of whether the same principles apply to embedded or automatic hyperlinks, which automatically display referenced material with little or no prompting from the reader. These hyperlinks are distinguishable from the user-activated hyperlinks in Crookes, which require users to click on the hyperlink in order to access content. Although the Court declined to comment on the legal implications of automatic or embedded hyperlinks, it appears that they would constitute publication, according to the majority’s reasoning, to the extent that they make third party content appear as part of the website that the hyperlinker controls.

Matthew Nied is a guest contributor to TheCourt.ca. He is currently an articling student in Vancouver.