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.

United States v. Jones is hailed as one of the most important Fourth Amendment decisions of the decade. Yet, it is certainly not the final word on the nexus formed among among privacy, technology and search and seizure. Without a warrant, police in Maryland had attached a GPS tracking device on the accused’s car for 28 days, which emitted information about the accused’s location every few seconds. This tracking device led police to a warehouse filled with cocaine and cash. The accused, Antoine Jones, was arrested.

As I had observed in late November, it was not clear by the end of the oral hearings which way the judges were going to side. At the end, a unanimous court decided that the use of the GPS tracking device to be unconstitutional. Namely, they agreed that the accused’s constitutional right – his Fourth Amendment right to be guarded from “unreasonable searches and seizures”  – was infringed upon. That was the end of their agreement. In usual fashion, the Court splintered, with Justice Scalia leading one contingency and Justice Alito leading another. Justice Sotomayer cast the deciding vote, opting for the ‘minimalist approach’ advocated by Justice Scalia. Even though she preferred the narrow interpretation, she also had sympathy for the “incisive” conclusion drawn by Justice Alito. Rather humorously, one critic counts 4.5 votes for Justice Scalia and 4 votes for Justice Alito.

Three Positions:

Given the far-reaching implications of this case for police officers and government officials, it was disappointing that the Court failed to display any decisiveness. While Justice Scalia seems to be most investigated in the question of whether this tracking device constitutes a “search” under the Fourth Amendment, one could argue that his attention is misdirected, or at least unnecessarily narrow. That is, the fulcrum of the case is the increasing tension between new technology and our expectation of privacy: what is a “reasonable” expectation of privacy in a world in which cell phones have a GPS locator and public spaces are often camera-equipped? Courageously, Justice Alito tried to tackle this thornier issue.

Justice Scalia, and the three judges that sided with him, asserts at the end that: “It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information.” He concludes that the accused’s Fourth Amendment right was infringed by the installation of the GPS tracking device by the police.

While agreeing with the ultimate decision, Justice Alito faults Justice Scalia for applying eighteenth century legal concepts to the twenty-first century. In particular, the minority takes issue with Justice Scalia’s “trespass” analogy. One cannot help but find the Scalia-Alito sparring match comedic. Justice Scalia considers the use of GPS tracking devices by the police analogous to a constable who might conceal himself “in the target’s coach in order to track its movements.” Justice Alito retorts: “this would have required either a gigantic coach, a very tiny constable, or both — not to mention a constable with incredible fortitude and patience.” (The last part is a reference to the fact that this case involved 24-hour surveillance for 28 days.)

Justice Alito is less interested in whether the GPS device constitutes a search. One of the strengths, and simultaneously one of the weaknesses, of his decision is that it puts much weight on time. There is little doubt that Justice Alito would take issue with any kind of permanent surveillance scheme, even if it is not physically intrusive. “In some locales,” he wrote, “closed-circuit television video monitoring is becoming ubiquitous… Many motorists purchase cars that are equipped with devices that permit a central station to ascertain the car’s location at any time so that roadside assistance may be provided if needed and the car may be found if it is stolen.” Turning to the case at hand, Jusice Alito concludes that, “We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the four-week mark.”

Justice Sotomayer would have cast her vote in favour of Justice Alito if he had meaningfully addressed the issue of voluntary disclosure. “It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” she states in a somewhat ominous way. She puts her finger on a key issue, our digital footprint. Today, our Internet browsers document every purchase we make, every URL we visit and every message we send. Despite the fact that we put ourselves out there on the Internet everyday, she wonders out loud whether it would ever be acceptable for the government to track our presence online for a day, a week or a month.

The Final Score

From these decisions, it becomes increasingly clear that the government may not really be the losers in this case. None of the justices sided with the government. Yet, they leave open critical questions. Justice Scalia’s “trespass” theory seems to hinge on physical intrusion. Here, the police affixed a GPS tracking device to the accused’s car. What if the police, through a remote location, taps into the car’s pre-existing GPS device? Would Justice Scalia and the majority deem to not constitute a search, and thereby permissible?

Justice Alito’s opinion may sound more appealing because it is more grounded in the realities of life in the twenty-first century. Despite the fact that our cell phones can track our location, we still have a reasonable expectation of privacy when it comes to round-the-clock police surveillance, according to the minority. What is not clear with Justice Alito’s position is whether he would accept shorter-term police surveillance. The minority does not consider the mere installation of a GPS tracking device on a suspect’s vehicle to be a search. Only after a certain point in time does it tip into Fourth Amendment territory. What if the police did not monitor Antonin Jones for four weeks, but rather one week? What if they monitored him for only four hours each day? In either of those scenarios, Justice Alito and the minority might deem it not to be a search that requires a warrant.

United States v. Jones puts some important questions on the table, especially as they relate to our increasingly digital world. And there is a sense that larger changes are needed (i.e. voluntary information disclosure to third-parties). What may be underestimated, however, is that more complicated, more litigious questions remain.

It appears a ‘return to unanimity’ may be occurring in the Court under Chief Justice McLachlin’s oversight of division of powers jurisprudence in 2011, especially since four of the six federalism rulings divided upon in 2010 split regarding the role of the IJI doctrine. While these rulings split on how to apply IJI after Canadian Western Bank v. Alberta, 2007 SCC 22 [Canadian Western Bank] the SCC ruling in Insite unanimously reaffirmed the previous decision to apply IJI with restraint by restricting it to existing precedent that has only protected federal powers. Also, in stating that “before applying the doctrine of interjurisdictional immunity in a new area, courts should ask whether the constitutional issue can be resolved on some other basis,” [at para. 65] the Insite ruling confirmed the doctrinal ordering conclusion of Canadian Western Bank that an analysis of paramountcy should precede application of IJI.

However, this development in 2011 comes after much controversy over the unreciprocal test for IJI articulated by McLachlin C.J.C. in Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39 [COPA] in 2010, and may be a significant factor as to why the court has achieved unanimity in its two most recent, major cases relating to federalism issues.

Chief Justice McLachlin’s Different Type of ‘Oversight’ in COPA

In COPA, Chief Justice McLachlin displayed a different type of ‘oversight’, one that implied an omission or error rather than watchful supervision; in her stated reasoning, she used one-sided language when she claimed “the test [for IJI] is whether the provincial law impairs the federal exercise of the core competence” [at para. 43]. Thus, the implication expressed was the doctrine has no theoretical ability to apply reciprocally to protect provincial powers; in a direct response to this quote, Deschamps J. wrote in Quebec (Attorney General) v Lacombe, 2010 SCC 38 [Lacombe]:

“[W]ith all due respect for the Chief Justice, I believe that she is getting away from both the letter and spirit of Canadian Western Bank when she suggests that the doctrine of interjurisdictional immunity is limited to the protection of federal powers (para. 43 of her reasons in COPA)” [at para. 109].

Regardless of whether this ‘oversight’ was purposeful or unintentional, Deschamps and Lebel JJ. in Lacombe still criticized the Chief Justice’s approach in COPA as promoting “a more centralized form of federalism” that “opens the door for predation upon provincial jurisdiction” [at para. 184].  In order to remain true to “the letter and spirit of Canadian Western Bank,” a future decision would have to avoid completely ousting the theoretical potential of the doctrine to apply reciprocally, find a way to restrict practical application of IJI to existing precedents protecting federal powers, and not disturb the logic underlying the SCC’s doctrinal ordering conclusion.

The SCC’s Rejection of IJI in Insite – The Short Decision and Bright Line Argument

In Insite, under Chief Justice McLachlin’s watchful ‘oversight’, the Court was able to achieve all of those objectives; this was difficult because Huddart J.A. stated at the British Columbia Court of Appeal (BCCA) that:

“[i]f interjurisdictional immunity is not available to a provincial undertaking on the facts of this case, then it may well be said the doctrine is not reciprocal and can never be applied to protect exclusive provincial powers” [at para. 176].

However, Chief Justice McLachlin was still able to achieve unanimity in rejecting IJI by avoiding both detailed discussion of the facts of Insite and specific rejection of the arguments presented at the BCCA.

Strikingly, Chief Justice McLachlin’s reasoning on IJI is much shorter in Insite than in cases like COPA where she found IJI applicable to the federal aeronautics power; whereas she spent 36 paragraphs justifying her application of IJI in COPA and discussed the facts in detail, her decision on IJI in Insite spans 13 paragraphs of which only five specifically discuss the facts of the case instead of recent developments to the doctrine. Within those 13 paragraphs, the SCC gave three reasons for rejecting the notion that the delivery of health care services constitutes a ‘core’ of the provincial health power that should be protected by IJI:

1. The Court’s reluctance to identify new ‘cores’ of power where IJI applies;
2. The parties in the case failed to identify a delineated ‘core’ of a “broad and extensive” provincial power over healthcare;
3. The desire to avoid potentially creating legal vacuums where Parliament could not legislate on controversial medical procedures.

The Chief Justice’s decision refers to the second reason as more important, in part because the “broad and extensive” provincial health power “extends to thousands of activities and to a host of different venues” [at para. 68]. In this line of thinking, the SCC seems to once again follow the logic of Canadian Western Bank that “a broad application of the [IJI] doctrine to ‘activities’ creates practical problems of application much greater than in the case of works or undertakings…whose limits are more readily defined” [at para. 42]. Here, it is particularly important to note the SCC decision speaks repeatedly only of a ‘core’ power related to health, and the test involving essential and vital elements of ‘undertakings’ seems to have been avoided in the Court’s stated reasoning. Whereas Huddart J.A. repeatedly classified Insite as a provincial healthcare ‘undertaking’, McLachlin C.J.C. does not refer to it as an ‘undertaking’ at all.

Even though Canadian Western Bank stated “in theory, the doctrine is reciprocal: it applies [also] to protect provincial heads of power and provincially regulated undertakings from federal encroachment,” [at para. 35] it is much easier to say a “bright line” cannot be drawn around an abstract, “broad and extensive” provincial health power than to say a “bright line” cannot be drawn around a provincial undertaking defined as a “strictly regulated health facility” [Insite at para. 18]. In focusing her discussion on ‘core’ powers rather than ‘undertakings’ when making her “bright line” argument, Chief Justice McLachlin was able to achieve unanimity following the reasoning in Canadian Western Bank, and thus reaffirm a restricted role for IJI while not completely ousting the potential for expansion of the doctrine in a reciprocal direction.

Paradoxical Practical Problems Created by the Use of Provincial IJI and Federal Paramountcy

It was conceded in Insite that “if interjurisdictional immunity does not apply, the federal prohibitions on drugs in the CDSA apply to Insite…by operation of paramountcy” [at para. 72]. If the SCC had been willing to accept the argument of Huddart J.A. in favour of reciprocal IJI as well, then Insite would have emerged as a case where provincial IJI was at odds with federal paramountcy. Dwight Newman recently wrote an article discussing practical problems that would arise if this scenario occurred, and stated that:

“[i]n such an event, a paradoxical set of conclusions would emerge whereby the federal legislation is inapplicable to the provincially regulated matters but where the provincial regulation is itself inoperative to the extent of its inconsistency with the federal legislation” [at page 3].

In such a paradoxical situation, the Court would have to revisit their doctrinal ordering conclusion, from Canadian Western Bank, that an analysis of paramountcy should occur before IJI because the SCC’s “logic of [this approach], in part, is to see if courts can avoid the creation of new IJI precedents” [Newman at page. 3]; however, any application of provincial IJI would necessarily involve new precedent since it has only been applied in favour of federal powers thus far. Nevertheless, in this hypothetical paradox, the Court would have an equally difficult time justifying a prioritization of provincial IJI over federal paramountcy because “the supposed logic of reversing the order would similarly falter in that it does not respect all requirements of federalism” [Newman at page 3].

Conclusion

It is certainly possible that all of the Court, including both McLachlin CJC and Deschamps J, considered such paradoxical problems when making their final decision; this also may have influenced them towards uniting around a unanimous decision reaffirming the limited scope of IJI instead of continuing to divide themselves along their apparently ‘centralist’ and ‘decentralist’ positions. Now that the Reference re Securities Act has also produced a unanimous decision, it will be interesting to see whether this ‘return to unanimity’ regarding federalism jurisprudence will continue on into 2012 as well.

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.

Cooperative Federalism – Generally

At the outset, the SCC explicitly endorsed “flexible” federalism – interpretive acceptance of overlapping jurisdiction – as the “dominant tide” of modern federalism (para 58). This approach, of course, is contrasted from the rigid, “water tight compartments” approach to federalism adopted by the Judicial Committee of the Privy Council (JCPC) in its historic jurisprudence on the division of powers. Nonetheless, the SCC held that the preference for flexible federalism was not so strong as to “sweep designated powers out to sea, nor erode the constitutional balance inherent in the Canadian federal state” (para 62). In other words, the proposed Securities Act so overwhelmed provincial jurisdiction over property and civil rights as to be beyond the acceptable range of overlap inherent to flexible federalism.

Distinct and separate from flexible federalism, the Court referred to the availability of a “cooperative” approach, noting approvingly “the growing practice of resolving complex governance problems that arise in federations, not by the bare logic of either/or, but by seeking cooperative solutions that meet the needs of the country as a whole as well as its constituent parts” (para 132). In contrast to flexible federalism, which refers to the interpretive process, cooperative federalism refers to a political practice whereby the respective branches of government legislate collaboratively, but within their individual spheres of power, to achieve a legislative scheme that, on the whole, has the broad effects neither level could legally achieve on its own. In support of this approach, the SCC referred to previous federal and provincial cooperation in the field of agricultural products marketing, specifically referencing the Egg Reference. It also noted that British Columbia and Saskatchewan’s positions in the Securities Reference suggested their support for such an approach (para 35).

While the SCC made reference to the “constitutional creativity and cooperative flexibility” inherent in Canadian federalism (para 58), it characterized, and, indeed, justified, a cooperative approach in terms of utility (para 9), “properly discharging responsibilities to the public” (para 9), and “meeting the needs of the country as a whole as well as its constituent parts” (para 131).

Cooperative Federalism – Securities

As regards the securities context, the SCC was clear that for a cooperative scheme to be constitutionally valid, it would have to leave the “day-to-day” regulation of the securities industry in the hands of the provinces (paras 112, 116), relegating only matters “genuinely national in scope and qualitatively distinct from those falling under property and civil rights” to the federal government (para 70).

Specifically, the federal government’s role would have to focus primarily on managing systemic risk – “risks that occasion a ‘domino effect’ whereby the risk of default by one market participant will impact the ability of others to fulfill their legal obligations, setting off a chain of negative economic consequences that pervade an entire financial system.” Without explicitly endorsing their constitutionality, the SCC suggested that provisions in the federal bill regarding derivatives regulations (ss.89-90), short-selling (s.126[1]), credit rating (s.73), urgent regulations (s.228(4)(c)), and, especially, data collection and sharing (ss.109, 224) engaged systemic risk (paras 102-103).

Conversely, the provincial role would have to maintain the “day-to-day regulation of all aspects of contracts for securities within provinces, including all aspects of public protection and professional competences.” The regulation of brokers or investment advisors, for example, would seem to fall into this category (para 112).

The SCC was careful to avoid defining too clearly and expansively the securities regulation activities which would constitute “day-to-day regulation” and those which engage “systemic risk,” asserting that “it is not for the Court to suggest to the governments of Canada and the provinces the way forward by, in effect, conferring in advance an opinion on the constitutionality of this or that alternative scheme” (para 132). In part, this represents a commitment by the Court to playing its proper role as legislative arbiter rather than proactive policy maker. No doubt, however, it likely also reflects the extraordinary challenges associated with determining the contours of a cooperative scheme. Prospectus requirements, continuous disclosure obligations, and takeover rules are examples of crucial subsets of securities law over which the Court did not opine, and which may engage both day-to-day regulation as well as systemic risks simultaneously.

Analysis

Maintaining Options

Whether by explicitly noting that the Act “as presently drafted” is ultra vires Parliament’s power (which is the case for all invalid legislation), or in avoiding significant illumination on what might pass constitutional muster as regards “day-to-day” regulation and “systemic risk,” respectively, the SCC went out of its way to avoid tying its hands in the future. Together with the proposed cooperative approach, this will allow the Court to consider political, as opposed to purely legal, considerations in any legislative sequel. Put another way, by not deciding in advance whether subsets of securities regulation such as those listed above fit properly under federal or provincial jurisdiction, vague requirements regarding “respecting the division of powers” allows the Court to decide a sequel based on political considerations such as whether the provinces are generally in support of the scheme. This is likely attractive to the Court given the main tension running through the case – a divergence between what seems to be the “optimal” solution, and our jurisprudence on the division of powers, addressed below. This is likely also attractive to the Court given its historic disposition in regards to high-profile legislative sequels.

A Tacit Commentary on Securities Regulation

Read contextually, the decision suggests the Court accepts that some degree of centralization or national regulating scheme would be desirable in the securities context. First, the seemingly irrelevant reference to securities regulation frameworks in other federal jurisdictions supports this assertion when one considers that the Court referenced Australia (para 50), where powers were shifted to the Commonwealth after a failed attempt by the states at cross-vesting jurisdiction, and the US (para 51), which allows for overlap, but with Federal supremacy. Second, the Court’s explicit qualification that the “opinion does not address the question of what constitutes the optimal model for regulating the securities market,” when read in light of it’s overall holding, suggests support for some form of centralization. The Court’s contention here reflects a commonly held belief that a national regulator would be preferable from an economic standpoint.

A Tacit Commentary on Our Constitutional Jurisprudence

The fact remains, in light of the decision, that the federal government does not have the authority to unilaterally create a national securities regulator. That, in essence, is all that the Court needed to pass judgment on. And yet, it went further, directing us to a cooperative approach. The question that arises is: why?

My answer is simple – the Court does not want to be placed in the unenviable position of having to say that Parliament can’t do what it is generally agreed would be “best” (from an economic standpoint) for the country.

The reference to a cooperative approach, however, is somewhat of a cop-out. A cooperative approach represents a political solution. While it is recognized that divorcing the political from the legal is an antiquated and largely arbitrary distinction, in its purest form, the SCC’s authority relates solely to legal matters. The Court justified and endorsed a cooperative approach in terms of utility (para 9), needs (para 132), and responsibilities to the public (para 9), but where in the Constitution does it say that the division of powers corresponds to these considerations? Likewise, the Court refers to cooperation as the “animating force” of federalism, holding that “the federalism principle on which Canada’s constitutional framework rests demands nothing less” (para 133). Again, where does this obligation come from? Isn’t the point of division of powers precisely that a level of government is free to do as it pleases within its realm of authority? If such considerations are relevant, and such obligations exist, why aren’t they relevant, if not determinative, in our general constitutional interpretation? Surely this would have been pertinent to the Court’s discussion and endorsement of a “flexible” approach federalism, were this the case.

The SCC eloquently disparages the “bare logic of either/or” that has historically characterized division of powers jurisprudence, but the dominance of this mode of thinking stems from the reality that that’s what law is about. Can you, or can’t you? Questions of “should” and “how best” belong to the political sphere, not the courts.

This is not to condemn the practice of cooperative federalism. Indeed, such an approach is plainly laudable. Nor is it to blame the Supreme Court, which is merely playing the cards it has been dealt. The problem lies much deeper, at the heart of our division of powers jurisprudence. The SCC was clear in the Securities Reference that it rejected the “rigid formalism” which characterized the Judicial Committee of the Privy Council’s approach to division of powers interpretation. The SCC was right to so reject this approach, as it was neither realistic, nor right given Canada’s circumstances. Why not recognize that the substantive demarcations laid down by the JCPC, in this case with regard to the scope of s.91, hugely circumscribed in Parsons, were equally incorrect? Instead, rather than abandon it, the Court is trying to navigate its remnants in the form of cooperative federalism.

At its base, the Securities Reference encounters a fundamental tension of Canadian constitutionalism – the reality that our jurisprudence doesn’t correspond to considerations of what represents the “optimal” legislative path in a given situation (in this case, a federal scheme that intrudes, to some extent, on day-to-day regulation). A look at the struggles of the great Canadian constitutionalist F.R. Scott shows that this reality is hardly new. Nonetheless, it remains one of the great ironies of our jurisprudence, which has historically shunned a static approach, that the considerations that determined division of powers in 1867 remain so determinative today. The Securities Reference’s solution – a cooperative approach – attempts to make up for this shortcoming, but in so doing it betrays the proper role of the Supreme Court and masks the real problem that needs repairing.

In its 2007 ruling, the Supreme Court of Canada addressed the controversies regarding interjurisdictional immunity in Canadian Western Bank v The Queen in Right of Alberta (“CWB“), [2007] 2 SCR 3, by narrowing the doctrine to a twofold test. After identifying a “core” established by precedent, the Court then decided whether an impugned provision impaired either the core competency or an undertaking of that core competency (at para 48). Given the judicial discrepancies that arose over this second condition (see Quebec (Attorney General) v Lacombe (“Lacombe“), [2010] 2 SCR 453, Quebec (Attorney General) v Canadian Owners and Pilots Association, [2010] 2 SCR 536), the recent case of Canada (Attorney General) v PHS Community Services Society (“Insite“), 2011 SCC 44, presented an opportunity for clarification. The Court unanimously ruled that interjurisdictional immunity was inapplicable to provincial healthcare because, among other considerations, these undertakings were too broad for “the restrained application of the doctrine called for by the jurisprudence” (para 68). This essay will explore the aspects of the twofold test left unanswered by the Court and argue that these have implications for the doctrine and federalism broadly.

As the case of Lacombe demonstrates, it is no trivial concern that the second part of the test leaves questions unanswered. Writing for the majority, Chief Justice McLachlin appeared to favour the application of impairment to the core competency approach. According to the majority, a possible prohibition on aerodromes would clearly impair the core of the federal power over aeronautics (at para 66). Dissenting, Justice Deschamps preferred to apply impairment to the core competency’s undertaking. She states, the “test is that of the impairment of activities, not that of merely affecting the core of the protected power,” (para 114) since the latter created confusion between the issue of validity and applicability (para 115). Despite the divergence of opinion, both views are in keeping with the doctrine outlined in CWB. Additional jurisprudence is therefore required to provide the courts with the necessary tools to determine under which circumstances either approach should be applied.

In the Supreme Court’s application of interjurisdictional immunity in Insite, the twofold approach was neither addressed nor clarified by the Court. In her ruling, Chief Justice McLachlin dismissed interjurisdictional immunity as an established core of provincial healthcare as it lacks precedent, is too “broad and extensive,” and is not exclusive (paras 67-68). Introducing the doctrine here would be “neither necessary nor helpful” (para 70). Regrettably, her analysis and discussion of interjurisdictional immunity’s background and drawbacks make no reference to the twofold method outlined in CWB despite the discussion in Lacombe. Failure to articulate the twofold method raises the question of whether the Court recognizes the significance of this debate or whether the majority in Lacombe is the approach to follow. Although the Court did not wish to “disturb settled competencies and introduce uncertainties” (para 70) it would have been helpful if it had provided clarification.

Following the Insite decision, there are important implications for both interjurisdictional immunity and federalism. The broad interpretation of the doctrine is “antithetical to co-operation between the levels of government” and the ideals of cooperative federalism as outlined by Justices Binnie and Lebel in CWB (at para 116). Likewise, this approach overemphasizes the notion of “watertight compartments” while ignoring the reality that most social problems are interconnected and require creative solutions (see Bruce Ryder, “The Demise and Rise of the Classical Paradigm in Canadian Federalism: Promoting Autonomy for the Provinces and First Nations”). On the other hand, the narrower approach of focusing on the activities of the core competency risks the creation of numerous smaller exceptions that frustrate uniformity. This is consistent with allowing overlap in modern cooperative federalism. Applying one or the other in isolation has, as Ryder says, broad centralizing or narrow decentralizing impacts on federalism. A balance of both approaches applied correctly and with reciprocity has the potential to maximize the legislative powers for federal and provincial governments alike. Unfortunately, for our purposes, the Court does not address which method should be adopted. More importantly, no attention is given to find a balance between the two or identify circumstances where one approach is favoured over the other. This issue has yet to be resolved.

Chief Justice McLachlin’s application of interjurisdictional immunity with respect to Insite did not address the doctrine’s remaining uncertainties. A balance must be achieved between the broad core competency approach that creates a more dualistic version of federalism and the narrow undertaking approach which fosters a more cooperative form (CWB at para 116). While some clarity to the doctrine has been achieved in recent years, the courts still need to address key remaining questions: do we apply impairment to the core competency or to the narrow undertaking; or are there circumstances when we should favour one approach over the other?

The doctrine of interjurisdictional immunity, which can be used to challenge statutes on the ground of division of powers, seeks to limit the applicability of valid statutes. This contentious doctrine is

premised on the idea that there is a “basic, minimum and unassailable content” to the heads of powers in ss. 91 and 92 of the Constitution Act, 1867 that must be protected from impairment by the other level of government. (Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, at para 58 (“Insite“))

In the Insite case, the claimants argued that interjurisdictional immunity should be applied to provide exemption for the Insite safe injection facility from federal criminal laws that prohibit the possession and trafficking of controlled substances on the grounds that Insite is a health facility within the exclusive jurisdiction of the Province. While the Supreme Court found a Charter-based exemption for Insite, it determined that interjurisdictional immunity was “neither necessary nor helpful in the resolution of the contest here between the federal government and the provincial government” (Insite at para 70). This brief post will attempt to demonstrate that this ruling has problematic implications for the division of powers in Canada by arguing that it perpetuates the centralization of powers without providing any clarification or instruction as to how interjurisdictional immunity could be applied in a way to protect provincial heads of power.

Central to the Supreme Court’s decision as to the inapplicability of interjurisdictional immunity in Insite is the idea that the doctrine has recently been narrowed (see Canadian Western Bank v The Queen in Right of Alberta, 2007 SCC 22, at para 47, where the Court stated that it “does not favour an intensive reliance on the doctrine of interjurisdictional immunity”). In citing reasons for this narrowing, however, the Court overlooks a crucial concern: interjurisdictional immunity’s “unintentional centralizing tendency” that has resulted from its “asymmetrical” application in protecting federal heads of power from provincial intrusion (Western Bank at para 45). This asymmetrical application has also served to undermine the principle of subsidiarity, as decisions “are often best [made] at a level of government that is not only effective, but closest to the citizens affected” (see 114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town), 2001 SCC 40, at para 3, cited in Western Bank at para 45). By overlooking this concern, the Court has missed an opportunity to apply the doctrine in a way that, contrary to its historical use, would help to rectify this centralizing tendency and would allow a local issue to be dealt with by those most proximate to the problem. In addition, it would give credibility to the critical assertion in Western Bank that, in principle, interjurisdictional immunity is applicable to both federal and provincial heads of authority (Western Bank, para 67). What may be more problematic, however, is that the Insite ruling further promotes the centralization of powers by refusing to apply the doctrine in a case that essentially begs for its application; as Huddart J.A. of the British Columbia Court of Appeal stated (and the Supreme Court subsequently quoted):

If interjurisdictional immunity is not available to a provincial undertaking on the facts of this case, then it may well be said the doctrine is not reciprocal and can never be applied to protect exclusive provincial powers. (Insite at para 33)

After all, the provincial undertaking, Insite, would not simply be impaired or sterilized, but entirely shut down.

The rationale behind the Supreme Court’s decision to exclude the application of interjurisdictional immunity presents further issues. The Court asserts that “courts are reluctant to identify new areas where interjurisdictional immunity applies” (Insite at para 67). Given the relatively recent affirmation that the doctrine also protects provincial heads of power, these established areas are primarily federal. This arbitrarily privileges areas of federal power such as aviation, distinguishing them from areas of provincial power solely because they were previously established as areas of exclusive jurisdiction to which interjurisdictional immunity applies (see Insite at para 60). While this reluctance could impact both federal and provincial heads of power, it would certainly have an uneven effect on provincial jurisdictions because federal heads of power have already been protected by interjurisdictional immunity. In addition, the Court argues that the claimants have failed to establish a “delineated ‘core’ of an exclusively provincial power” (Insite at para 68) and that interjurisdictional immunity has never been applied to a “broad and amorphous area of jurisdiction” (Insite  at para 60). The Court, however, does not explain why the area of provincial healthcare is more amorphous than the areas of federal jurisdiction, such as Aboriginal peoples, to which the doctrine has already been applied.

Moreover, it is unclear why the delineated core could not be narrowed specifically to safe injection sites necessary for public health and safety. In fact, at the British Columbia Court of Appeal, Huddart J.A. established a possible core of the provincial healthcare powers, stating that the immunity created by using interjurisdictional immunity in this case “would apply only to exempt a health care service considered essential by a provincial agency with the authority to make that decision under provincial legislation” (Insite at para 33). This ambiguity provides no assistance for future courts in determining when a provincial head of power should be protected through interjurisdictional immunity, which could serve to further the asymmetrical application of the doctrine.

In the end, the Supreme Court’s ruling in the Insite case has served to further the centralization of powers by overlooking the asymmetrical application of interjurisdictional immunity as a justification for the doctrine’s narrowing scope, declining to apply the doctrine in a case where a federal law would shut down a critical provincial undertaking and by providing little to no framework for future application of the doctrine as it relates to the protection of provincial heads of power.

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?

My goal here is to provide a useful background for anyone trying to understand the reference when it is handed down. In crafting this post, I have reviewed the most important factums, as well as the webcast of the hearings to get a general sense of the main points of conflict in the case. I will not doggedly rehash the will test from General Motors v City National Leasing, [1989] 1 SCR 641, as wiser persons than I have already done so.

The crux of the matter

The securities reference is the latest in a long line of cases that attempt to resolve the tension between the provincial power to regulate property and civil rights under s. 92(13), on the one hand, and the federal power to regulate trade and commerce, on the other. The concern has been that the federal power to regulate trade and commerce, normally understood, will always involve the regulation of contracts. If so construed, the federal power would swallow the provincial power whole, rendering it meaningless. This is the base concern which animates the position of Quebec and Alberta, and poses a hurdle for the justices in delineating a balance in our federation.

While the General Motors test purports to balance these concerns, the application of the test is far from clear. The next few points will address reasons why the test does not lend itself to a clear jurisdictional answer.

Law and policy

All parties have been adamant in asserting that the Court should not ask whether the federal government should create a national securities regulator, or whether it would be more efficient to have a national regulator. Rather, they assert that the Court should restrict itself to answering whether the federal government is constitutionally capable of establishing a national securities legislator. Despite this agreement, both sides proffered volumes of evidence which seemed to go toward whether a national or regional regulator would be better, leaving the judges wondering what the relevance of this evidence was for the constitutional arguments.

After some prodding by Abella J, Canada said evidence of legitimate policy aims is relevant to the third criterion in the General Motors test. Specifically, such evidence is relevant to establishing a rational basis for Parliament to conclude that the proposed regulation concerns trade as a whole. Much was said about how the national securities regulator is a proposal that matches “the scope of the problem with the authority of the regulator”—I expect this phrase to be trod out again in the judgment.

That regulation should be rationally connected to its object is a test which Canada imported from the court’s POGG jurisprudence (see Re Anti-Inflation Act, [1976] 2 SCR  373 at 421) and was in endorsed by Dalphond JA in dissent at the Quebec Court of Appeal  (See Reference Re Power of Parliament to Regulate Securities, 2011 QCCA 691 at ¶ 487). Those parties opposing the regulator, however, suggest a higher threshold, like substantially connected. On either standard, the Court must delve into the realm of assessing Parliament’s policy objectives. I suspect that the Court will not want to be perceived as usurping the role of Parliament, and will limit any inquiry into policy. This criteria should highlight one of the ways the General Motors test itself has the potential to overextend the institutional role of the judiciary.

Defining constitutional incapacity

The fourth hallmark of legislation which qualifies the general trade and commerce power is that it should be a regime which the provinces would be constitutionally incapable of enacting. The meaning of constitutionally incapacity will certainly receive some attention in the decisions, as it was a contested point in the hearing.

Axiomatically, a province acting by itself can never act to create a national securities regulator, so the mere assertion of federal jurisdiction through the creation of a national securities regulator cannot satisfy this criterion.

Opponents of the regime say that the provinces are currently regulating the markets, so it cannot be said that they are constitutionally incapable of enacting securities regulation. While Canada concedes that provinces are able to regulate securities markets, it says that that fact is immaterial. Rather, the Court should focus on whether the provinces are capable of enacting comprehensive securities regulation. The use of the word “comprehensive” in the federal government’s characterization is important because it is meant to capture aspects of the proposed securities regime which the provinces are not capable of enacting. For example, there are constitutional limitations to the power of the provinces acting in combination—a province cannot make a cease trade order against a company and expect that order to apply extra-provincially. Comprehensiveness may also incorporate a concern for systemic risk that the provinces cannot constitutionally regulate.

In response, Quebec and Alberta say that nothing in the Act is qualitatively different from what the provinces are currently doing—in fact most of the sections are lifted directly from provincial securities statutes. Thus, they say it is not of the “genre of legislation” that cannot practically be enacted by the provinces, and there would be no legislative lacuna in denying the federal government this power (see General Motors at ¶ 66). Furthermore, the opponents deny that provinces are incapable of acting in combination, as shown by the success of the passport system. Finally, they say that the Act does not deal with the kind of systemic risk securities regulators are concerned with in a manner different from provincial regulators.

To this, the federal government responds that the constitutional validity of federal legislation must be determined without heed to provincial legislation. To add to the confusion, both sides find support for their arguments in General Motors, showing potential contradictions in the decision.

To be clear, I’m not going to attempt to conclusively resolve these debates here; I only mean to point out what the Court will have to address in its decision.

The opt-in feature

The Act would extend a national regulator over those provinces who opt-in to the scheme, thus raising the possibility that certain provinces would holdout and potentially never opt-in. Given this possibility, Abella J raised concerns about whether the failure of provinces to opt-in would jeopardize the operation of the scheme elsewhere. If failure to opt-in does not jeopardize the regime’s operation, then we are left wondering whether the Act deals with a truly national concern and thus whether it is should be considered an exercise of the general trade and commerce power. The very existence of the opt-in would seem to undermine the fifth criterion in General Motors.

While Canada concedes that the effectiveness of the national regulator would be compromised if a province chose not to opt-in, it submitted that the Court should defer to Parliament’s judgment on the means chosen to implement its policy. The question of whether provinces can opt-in, and what kind of arrangements can be made to facilitate opting-in, is not a matter which a Court can make a decision. Furthermore, the choice to implement policy via an opt-in mechanism should not undermine the Act’s constitutionality because the Act could be unconstitutional even if every province chooses to opt-in.

While there are good reasons to defer to Parliament on the opt-in feature, we must also remember that the General Motors criteria are not meant to be a test, but rather indicia—i.e. it may be possible not to meet all the criteria and still pass the test. The attempt at collaborative federalism through this opt-in feature might be a good reason not to rely too strongly on this particular criterion.

The elephant in the room

During oral argument, both Deschamps J and McLachlin CJ seemed to be wary of what would follow if they accept that the proposed national securities regulator in pith and substance relates to the trade and commerce power. The Court seemed to have in mind that once you accept this conclusion, it would be open to Parliament to get rid of the opt-in feature, and potentially use the doctrine of Paramountcy to establish a mandatory federal securities regulation. The result is that the provincial power to regulate securities would be completely eviscerated, which concerns people who think that this process should facilitate a balance in our federalist state. The Chief Justice, during the submissions of the Canadian Banker’s Association, mused that this question might require a “Securities Reference No. 2”. While the Act does not contemplate the use of Paramountcy, I am sure the Court will have this point in mind in formulating its reasons.

Concluding remarks

While this post has pointed out some concerns about the constitutional arguments in favour of a national securities regulator, I would still be surprised if the Court did not find it to be a valid exercise of the federal government’s powers. It will be interesting to see how the court tailors the General Motors test to address the concern, most strongly raised by LeBel J. at the hearing, that a generous reading of the trade and commerce power will ultimately create a unitary state in respect of economic matters. Whatever the outcome, this reference gives the Court the opportunity to study the balance of federalism in detail, and I look forward to reading the Court’s ruling with interest.