The Tribunal awarded damages, and the claimant then applied for legal costs. The Tribunal held that it had the authority to order costs under the Canadian Human Rights Act, and the Federal Court agreed. However, at the Federal Court of Appeal, the court held that the Tribunal did not have the legislated authority to award costs to claimants.

Paul Groarke discussed some aspects of the Supreme Court’s decision on this website. However, there is another theme in the highest court’s decision that I would like to review.

This decision seems to retreat from the general rule that decisions on questions of law by human rights tribunals would be reviewed under the standard of “correctness” and opens the way for a review under the more deferential standard of “reasonableness” under given circumstances. Furthermore, its articulation of those circumstances seems far from clear.

These, with respect, are unfortunate developments. I respectfully suggest that all legal questions from a human rights tribunal, and all legal questions from any tribunal on matters of human rights legislation, continue to be reviewed under the standard of “correctness.” I will elaborate below.

The Court held that while courts have played a deferential role for administrative bodies that manage “complex administrative schemes,” reviewing courts have not adopted a similar approach to decisions on legal questions by human rights tribunals. According to the Court, this is because “the tribunals’ comparative level of expertise remained weak and the regimes they administered were not particularly complex…”

The root of the problem, according to the Court, is the nature of human rights tribunals. The Court noted that while Dunsmuir and Khosa affirmed a deferential standard when a tribunal is interpreting its own home statutes and legal rules, the Court has also held that general questions of law that are outside a specialized area of expertise and of central importance to the legal system must be reviewed on a correctness standard.

As a result, the nature of the “home statute” in the statutory human rights context “makes the task of resolving this tension a particularly delicate one.” The Court noted that:

A key part of any human rights legislation in Canada consists in principles and rules designed to combat discrimination. But these statutes also include a large number of provisions, addressing issues like questions of proof and procedure or the remedial authority of human rights tribunals or commissions.

The Court was careful to note that not all questions of general law before a human rights tribunal should attract a standard of correctness.  When the question falls within the purview of the Tribunal’s expertise, or when the question is not of general importance to the legal system, a standard of reasonableness should still be applied.

However, the Court then applied these observations to the legal question at issue in the case:

In summary, the issue of whether legal costs may be included in the Tribunal’s compensation order is neither a question of jurisdiction, nor a question of law of central importance to the legal system as a whole and outside the Tribunal’s area of expertise within the meaning of Dunsmuir. As such, the Tribunal’s decision to award legal costs to the successful complainant is reviewable on the standard of reasonableness.

It would seem that there are very few (if any) legal decisions involving human rights legislation that are not, actually or potentially, “of central importance to the legal system as a whole.” Indeed the “central importance” of  these decisions would apply at least as much to the substantive interpretation and application of the “principles and rules designed to combat discrimination” than to questions of “proof and procedure and the remedial authority of human rights tribunals or commissions,” as important as the latter questions may be.

As has often been pointed out, anti-discrimination provisions in human rights legislation and their interpretation reflect a central value and purpose of our constitutional system: the pursuit of equality. Furthermore, human rights statutes themselves have been ruled to be “quasi-constitutional” and often have been legislatively mandated and/or interpreted to take precedence over conflicting legislation. Human rights legislation applies to many diverse areas of Canadian life, including areas governed by other legislation, in both the governmental and private sectors. Their interpretation and application can have far-reaching effects in industry and commerce, social services, the professions, education and even the administration of justice and policing.

Even when the constitutionality of legislation or practices isn’t in issue, the matters dealt with in human rights cases can involve or overlap with other constitutionally-protected values. For example, a decision requiring an employer to accommodate the religious needs of a worker can enhance freedom of religion, and a decision condemning sexual harassment or sexual orientation discrimination can enhance the protection of potential victims’ privacy as well as their equality rights.

On the other hand, failing to grant an exemption (or interpreting an exemption provision too narrowly) to a religiously based organization can unduly interfere with freedom of religion and an unduly wide interpretation of the concept of “hostile environment” or of legislation dealing with publications, signs or advertisements can cause an excessive interference with freedom of expression (irrespective of how the courts will decide on the constitutional challenges to the various “hate speech” provisions).

Human rights legislation is indeed somewhat specialized and “complex” in light of all the vital and multidimensional issues it must deal with. However, it is certainly not narrow as are “administrative schemes in domains like labour relations, telecommunications, the regulation of financial markets and international economic relations,” and must not be treated like the law concerning those matters. Human rights law is not only central “to the legal system as a whole,” but central to our entire society. As such, it is the duty of our superior courts to ensure that it is interpreted correctly.

I am certainly not denying that many–perhaps most–human rights tribunal members, adjudicators or commissioners throughout Canada (at the federal, provincial or territorial level) are indeed experts in the field of human rights and make excellent contributions to the development of jurisprudence in that area.

However, whether they have “particular expertise vis-a-vis the courts” entitling their decisions to a more deferential level of judicial review is another matter. I would respectfully suggest that they do not, both as a matter of principle and as a practical matter.

As a matter of principle, as stated above, the quasi-constitutional and paramount nature of human rights legislation and their influence on the entire legal and social system demand that they receive a correct legal interpretation from the highest judicial authorities. In our system, the superior courts, culminating with the Supreme Court of Canada are the highest judicial authorities.

As a practical matter, it seems that Superior Court judges have at least as great experience and expertise as human rights tribunal members or commissioners in dealing with issues facing human rights bodies or related matters. Many judges have in fact served on human rights bodies before their appointment to the bench or have otherwise attained a certain level of expertise in human rights related matters. Indeed they are bound to interpret and apply the Canadian Charter of Rights and Freedoms, as well as the entire Constitution of Canada. They are called upon to review the legality of government decisions, often when those decisions   are challenged as conflicting with the rights of individuals or groups, whether based on human rights legislation, other statutory provisions, or principles based on common or civil law. In matters of criminal law and ordinary civil legislation, they often have to consider values related to human rights in the broad sense, even if human rights legislation or the Charter are not directly involved.

Their work involves the careful balancing of all conflicting rights, duties, interests and values in society. This, it seems, makes them especially qualified to deal with the complex issues and competing values and interests present in litigation under human rights legislation.

I would respectfully suggest that institutional and practical factors militate against increasing the level of deference granted to human rights bodies. Although many members are indeed experts in the field, there are no guarantees that this is always the case. Indeed, in some of the smaller provinces, human rights cases that actually reach adjudication are so rare that it would be unrealistic to expect part-time adjudicators to develop the relevant expertise by reason of their position alone. Most adjudicators are well-respected professionals (usually, but not necessarily, lawyers) and community leaders who are dedicated to promoting human rights and the welfare of society.

However, their involvement in human rights adjudication are often a very incidental aspect of their entire careers, rendering it unlikely that their knowledge in that field would necessarily be superior to that of judges. Furthermore, although occasionally human rights tribunals sit collegially, a single tribunal member decides most human rights cases.

In matters as important as interpretation of human rights law, it is essential that an individual’s decision be subjected to a complete review by a court. (It is true that the first level of judicial review is usually by a single judge of the superior court of first instance, but this is usually subject to appeal to the court of appeal, and occasionally reaches the Supreme Court of Canada.)

Furthermore, as recognized by the Federal Court of Appeal in the instant case (2009 FCA 309 at paragraphs 45-47), conflicting decisions by tribunals could be upheld by the courts in a jurisdiction if reasonableness was the standard of review, leading to confusion among persons subject to the law.

Additionally, as recognized by the Supreme Court in several cases and alluded to in this case, human tribunals do not necessarily enjoy exclusive jurisdiction in human rights cases. Sometimes other tribunals, and in limited circumstances the courts, have concurrent first instance jurisdiction in human rights matters. Would the standard of review on a human rights matter vary with the nature of the tribunal that first heard the case? Would this lead to conflicting decisions on the same issue? If so, this would also create unnecessary confusion in the law. This could lead to the perception that the standard of justice a party received varied according to the forum chosen.

I would respectfully hope that the Supreme Court would reconsider this issue and restore the general rule that questions of law from human rights tribunals be reviewed on a standard of “correctness.” Should they decide to retain the formula chosen in this decision, I would hope that they would deem all (or almost all) such questions to be “both of central importance to the legal system as a whole and outside the adjudicator’s special area of expertise.” Additionally, legislators may wish to amend their relevant legislation to restore the standard of “correctness” to judicial review of decisions on questions of law from human rights tribunals. And in cases where a reduced standard of review is mandated by the legislation itself –as in section 45.8 of the Ontario Human Rights Code, RSO 1990, c H.19 – I respectfully suggest that such amendment must be made.

Edward H. Lipsett, B.A., LL.B., is a guest contributor to TheCourt.ca. He is an independent legal researcher and writer, with a particular interest in human rights and civil liberties.

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.

In a very quick turn of events, the same sex marriage debate closed just about as quickly as it was reopened last week. The Department of Justice (DOJ) filed a legal argument stating that a lesbian couple who married in Canada in 2004 could not get the divorce they were seeking because they were never technically married. The DOJ argued that because the marriage was not legal in UK and Florida, where the couple is from, the marriage is not valid in Canada.

Same-sex marriages became legal in 2005 under Liberal Prime Minster Paul Martin with the passage of Bill C-38. Since then, thousands of gay tourists have come to Canada to legalize their union. Stirring up a great deal of controversy, this case threatened that all of these unions be rendered invalid.

The Canadian press quickly mobilized, chastizing the Harper Government for re-opening the same-sex marriage debate. Canadian politicians followed suit, using this as a platform for good old-fashioned partisan finger pointing. NDP representative Olivia Chow and Liberal leader Bob Rae were quick to fault Harper for using the common law to invalidate gay marriages. Harper played the role of a deer in headlights, denying knowledge of the case at all. (Though it seems strange that the leader of the government would not be notified of a potential case that may reopen a recently closed Charter issue.)

Within 24 hours, the federal government put a close to the controversy. Justice Minister Nicholson said that the government has  no intention of reopening the debate on the definition of marriage. He then went on to blame the Liberal government for creating the legislative gap. The Harper government is now looking to ease the process so that any marriages performed in Canada that may not be recognized in the couple’s home jurisdiction will be recognized in Canada. There was also some indication that the government plans to remove the one-year residency requirement for divorce proceedings, which would make it easier for all non-resident couples to seek a divorce in Canadian courts.

No Shirt, No Pants: No Good

An Ontario court upheld section 174 of the Criminal Code last Thursday, deciding that Canada’s public nudity laws do not infringe the right to freedom of expression.

Section 174 of the Criminal Code states:

174. (1) Every one who, without lawful excuse,

• (a) is nude in a public place, or
• (b) is nude and exposed to public view while on private property, whether or not the property is his own,

is guilty of an offence punishable on summary conviction.

Subsection 174(2) defines a “nude” person as one “who is so clad as to offend against public decency or order.”

Brian Coldin was charged in incidents of partial nudity at a park and two fast food drive-thrus. He claimed that his nudity was a form of protest against local political corruption, though wasn’t the first to use nudity as a form of political expression: the World Naked Bike Ride advocates cycling as a mode of transportation. The court found that Coldin’s behaviour could be reduced to his desire to bare all.

Douglas J reasoned that nudism can be considered a protected form of expression under certain circumstances, but not without limits. As a general rule, clothing is not optional in public, and offenders are subject to a fine and three years of probation.

While this case raises questions on nudity on private property while in the public view, the court did not revisit that issue (cf. R v Clark, 2005 SCC 2).

SOPA–Just A Shouting Match?

For even the most casual Internet user, it was difficult to avoid the message from the freedom of information crowd on Wednesday, January 18, 2012. The date served as a designated day of protest online and through rallies in New York and Seattle against two U.S bills: SOPA (Stop Online Piracy Act in the House of Representatives), and PIPA (Protect IP Act in the Senate).

The bills would grant sweeping powers to the US government requiring Internet Service Providers (ISPs) to block any website found to be hosting copyrighted content, and websites to take down anything to which they don’t hold rights — or else face enjoinment themselves. If rigorously applied, this would amount to censoring or removing a significant portion of the Internet, neutering YouTube and restricting Google searches to mostly media-free results.

Opponents point out that this could potentially extend to seizing Facebook and Twitter accounts, shutting down online communities, blogs, and comment feeds that discuss movies, music, etc. Many of the highest-volume websites, including WordPress and Craigslist, redirected users to a temporary page explaining their stance against the bills, and what could be done to lobby against them. For the first time, Wikipedia completely blocked access to English pages on its website for the 24-hour period, explaining that “blacking out” in protest was the decision of their users, and that doing so didn’t affect their commitment to neutrality.

Proponents of the bills include, obviously, the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA), who both claim hundreds of millions in losses due to pirated media shared through “cyber-lockers” like the Hong Kong-based Megaupload (shut down Thursday by the US Department of Justice).

At issue is the disconnect between the necessity of legal reforms that protect legitimate intellectual property rights, and widespread social practices that are difficult to monitor and regulate. The bills seem to be dead in the water at the moment, suggesting that the loudest voice in the room — copyrighted or not — got its way. This time.

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?

This reality, in turn, raises a range of issues relating to consistency, overlap, accountability, and efficiency. In more stark terms, it pits claimants’ entitlements to fair, full, and reviewable findings relating to human rights against defendants’ interests in final, binding decisions. The tension between these competing policy objectives was recently considered by the Supreme Court of Canada (SCC) in British Columbia v Figliola, 2011 SCC 52, and resolved in favour of finality—or, perhaps more precisely, on the basis of finality as a proxy for fairness.

Facts

The case began with a decision by the British Columbia Workers’ Compensation Board (WCB) pursuant to its Chronic Pain Policy to award fixed compensation to complainant workers suffering from chronic pain. The complainants appealed to the Board’s Review Division on the basis that a fixed award for chronic pain was patently unreasonable under s.59 of the Administrative Tribunals Act, SBC 2004, c.45 and constituted a violation of the guarantee against discrimination on the basis of disability pursuant to s.8 of the Human Rights Code, RSBC 1996, c.210.

The Review Officer relied on the SCC’s decision in Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, that human rights tribunals do not have exclusive jurisdiction over human rights and that barring explicit statutory language to the contrary, other tribunals have concurrent jurisdiction to apply human rights legislation. In assuming jurisdiction over the human rights complaint, the Review Officer found that the Board’s Chronic Pain Policy was not contrary to s.8.

The complainants further appealed to the Workers’ Compensation Appeal Tribunal (WCAT) but before the appeal was heard, the Tribunal’s authorizing statute was amended so as to explicitly remove its jurisdiction over human rights that would have been assumed by the common law. Consequently, consideration of the complaint by WCAT was statutorily barred, leaving open recourse to judicial review.

Instead of engaging the court’s supervisory role, however, the complainants relocated their s.8 claim to a new administrative milieu, the Human Rights Tribunal (HRT). In response, WCB brought a motion asking the Tribunal to dismiss the new complaint under s.27(1)(f) of the HRC which grants it authority to dismiss claims that have already been “appropriately dealt with.” The HRT opted not to exercise this authority, found that the WCB’s Policy violates s.8, and so sparked a struggle through the court system between the WCB and the complainants regarding the appropriate scope of the HRT’s discretion to determine whether the substance of a complaint has been “appropriately dealt with” when two bodies share concurrent jurisdiction over human rights.

Decision

The SCC unanimously found that the HRT’s decision to assert jurisdiction over the complaint was patently unreasonable in that it was based on predominantly irrelevant factors outside the scope of its mandate, causing it to be set aside and the complaints dismissed. The SCC was split five to four, however, on the proper test to be applied in determining whether a matter has been appropriately dealt with, diverging theoretically on the basis of who (i.e. the courts or administrative decision-makers) should be tasked with navigating the proper balance between the competing policy considerations at stake.

Writing for five Justices, Abella J. found that the underlying purpose of s.27(1)(f) is to create “territorial respect among neighbouring tribunals, including respect for their right to have their own vertical lines of review protected from lateral adjudicative poaching.” It is a codification, in other words, of the cumulative policy rationales undergirding the doctrines of issue estoppel, collateral attack, and abuse of process: “finality, the avoidance of multiplicity of proceedings, and protection for the integrity of the administration of justice, all in the name of fairness.”

The claimants’ attempt to raise the same arguments at the HRT amounted to forum shopping,  problematic both from the perspective of procedure (i.e. an inefficient use of limited administrative resources) and substantive justice (i.e. raising the possibility of inconsistent results). The correct test to be applied by a Tribunal in determining the scope of s.27(1)(f) is: (1) whether there was concurrent jurisdiction to decide the issues; (2) whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and (3) whether there was an opportunity for the complaints or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the Tribunal’s.

Approach

Interestingly, all nine Justices agreed that the interpretive approach applied by the Tribunal was problematic in that it relied too heavily on the strict requirements of existing legal doctrines aimed at preventing multiplicity of proceedings (i.e. issue estoppel, collateral attack, and abuse of process). The court rejected that s.27(1)(f) is a wholesale codification of these doctrines, finding instead that it is to be interpreted and applied in terms of their underlying policy objectives. In other words, the Court adopted an approach in which a particular legal outcome is reached in light of policy-oriented evaluative criteria.

This approach is effective in that it remains cognizant of the inherent limits of formal legal tests as proxies for particular policy considerations. It recognizes, in other words, that it is policy—and not a sterile, normatively neutral legal analysis—that does the heavy-lifting in an adjudicative body’s decision-making calculus. It also brings the discussion of underlying policy considerations to the forefront, allowing decisions to be evaluated on the basis of their ability to strike a socially desirable balance within a matrix of competing policy objectives as opposed to a “correct” or “incorrect” application of black letter law.

A Conception of Fairness and Access to Justice

Given the Court’s implicit endorsement and application of such an approach, it becomes possible to evaluate the policy considerations and balances struck in reaching its conclusion. The conception of fairness that informed Abella J.’s reasoning on behalf of the majority of the Court was one that denied that “access to justice means serial access to multiple forums, or that more adjudication necessarily means more justice.” In other words, access to justice is to be understood as access to final justice, which may or may not be the same thing as substantive justice.

This conception, one that is beneficial to employers in the workplace compensation context, is premised on the need to maximize the efficient allocation of resources; thus, Abella J. finds that “it is really a question of whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute.” In this vein, she rejects the argument that the matter should be remitted to the Tribunal to be reconsidered in light of the correct test, finding that there is “no point in wasting the parties’ time and resources by sending the matter back for an inevitable result.”

It is this focus on resource allocation, in turn, which is taken up by Cromwell J. in his concurring opinion on behalf of four members of the Court. He emphasizes that the intention of s.27(1)(f) is to “achieve the necessary balance between finality and fairness through the exercise of discretion.” This discretion, in turn, is to belong to the HRT, an administrative agency with expertise in the polycentric decision-making that defines the human rights realm. Thus, the Tribunal erred not because it failed to apply the 3-pronged approach delineated by Abella J. (an approach which glosses over the stark differences between the procedural safeguards of various administrative decision-makers with concurrent jurisdiction over human rights) and thereby assigned insufficient weight to efficiency considerations, but because it failed to conduct a flexible, global assessment as between the competing policy objectives at stake.

Overall, the divergence between the two opinions of the Court can be framed in terms of an institutional preference for vertical as opposed to horizontal review. It can also be understood as a normative judgment about the degree of freedom that should be given to human rights tribunals in striking the appropriate balance between efficiency and fairness—assuming, as Abella J. declines to do, that the two can at times mean two very different things.

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.

One has to wonder whether the judges at the Supreme Court of Canada and their clerks really understand the history of litigation in the Canadian Human Rights Tribunal (the “Tribunal”). I say this after reading the Court’s decision in this matter, where it held that the Tribunal does not have the power to award costs under section 53(2)(d) of the Canadian Human Rights Act (CHRA).

The ruling by the court is based on the wording of section 53(2)(d). It states:

53. (2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate:

….

(d) that the person compensate the victim for any or all additional costs of obtaining alternative goods, services, facilities or accommodation and for any expenses incurred by the victim as a result of the discriminatory practice;

The caselaw on the construction of statutes makes it clear that this is not enough, in ordinary circumstances, to give the Tribunal the power to award costs. The power to award legal costs is a special power, which must be explicitly conferred by the words of the legislation.

I happened to write one of the decisions that the Supreme Court ultimately overturned in the case, and was disappointed to discover that the Supreme Court thought that this was sufficient to deal with the matter. There is a reason, after all, why legal costs became a central issue at the Tribunal. The issue is not the provision of costs. The issue is the provision of counsel.

CHRC’s receding role leaves complainants without counsel

The real problem for the Tribunal was that the Canadian Human Rights Commission disengaged itself from the Tribunal process a long while ago. This was problematic. The Tribunal holds hearings. And the idea that a member of the public can navigate a hearing successfully without the assistance of a lawyer, often in the face of heavy litigation from the other side, is rather fanciful. The move by the Commission accordingly left complainants with no choice but to hire independent counsel.

I do not know whether to be amused by the fact that the Supreme Court examines the legislative history of the CHRA in some detail, only to let the fundamental point slip through its fingers. In paragraph 51 of its judgement, the Court holds that Parliament ultimately “chose an active role for the Commission, which could include litigating on behalf of complainants.” This was a conscious choice and an alternative to “cloaking the Tribunal with a broad costs jurisdiction.”

This is the sound of footsteps quietly stepping around the real issue in the case. I do not know how forthright counsel for the Commission was before the court, but the use of the word “could” in such a statement is fundamentally misleading. The idea that the Canadian Human Rights Commission could appear at hearings, if it chose to do so, is really a political invention to justify later developments.

The assumption in the CHRA is that the Commission will appear at hearings. Anyone who bothers to examine the earlier caselaw will discover that there were procedural issues at the beginning with respect to the role, and even the propriety, of a complainant retaining independent counsel. Neither the Commission nor the Tribunal was sure how to deal with the situation. Everyone had assumed that the Commission would have carriage of the case once it was referred to the Tribunal.

The story of the long and rather debilitating process by which the Commission retreated from its active involvement in hearings before the Tribunal deserves its own discussion. I am sure that the Commission has its own version of history. The practical assumption in the original Act was nevertheless that counsel for the Commission would appear at hearings. The proof of this, of course, lies in the fact there is no provision for the payment of legal costs in the CHRA. That is it was assumed that the Commission would handle the hearing. There were no costs.

This is probably enough to demonstrate that the Supreme Court somehow missed the point of the litigation in Canada v. Canada. That point is that the conduct of the Commission, along with the Court’s refusal to allow the Tribunal to award costs, is a double blow, which leaves complainants without legal representation. It seems to me that this raises a procedural issue under section 7 of the Canadian Charter of Rights and Freedoms. Be that as it may, I am willing to acknowledge that this combination of circumstances, unfortunate as it is, might be fatal in the case of ordinary legislation.

Without purposive interpretation, CHRA provisions would be stale 

It is wearisome law, however, that the CHRA is quasi-constitutional, and the idea that it should be interpreted as an ordinary piece of legislation is fundamentally misguided. Section 2 of the CHRA states that the “purpose” of the Act is to “give effect” to the principle that individuals should be able to pursue their lives, free of discrimination. The purpose of the CHRA is to provide individuals who have suffered discrimination in the federal sphere with a meaningful remedy. It is not within the purview of a subordinate provision like section 53(2) to defeat the guarantees in the Act.

There is a professional and ethical side to the issue of costs in the Tribunal. It is reality that matters at the end of the day, however, and the reality is that the power of the Tribunal to grant a monetary award in a case where there is no loss of wages is limited to 20,000 dollars. This is nowhere near enough to cover the costs of litigation in a difficult case. As a result, many awards will be meaningless and even punitive without an award of costs.

So put yourself in the position of a member of the Tribunal who can only award a complainant twenty thousand dollars, knowing that the litigation may have cost a hundred thousand dollars. How is a member of the Tribunal supposed to “give effect” to the principle that those who have been discriminated against are entitled to a meaningful remedy, when the remedy has been swallowed whole by the costs of the litigation? The legal rights guaranteed by the Act are worse than meaningless without the provision of counsel and fair remuneration for the complainant’s reasonable legal fees.

It is easy to lay the blame on the Human Rights Commission, which removed itself from the hearing process. The law makes it clear that the Tribunal has no power over the Commission, however, and the Tribunal cannot instruct the Commission to appear. The issue on costs is accordingly whether the Tribunal, placed in such a quandary by the Commission, can re-interpret section 53(2)(d) in order to save the clear intentions of the Act. This can be described in a variety of ways, but really consists of reading in a costs provision.

I can understand why the courts are reluctant to give Tribunals the power to essentially amend their empowering legislation, but that only puts the issue before the courts, and the Supreme Court itself. The Court suggests that the Tribunal member was motivated by “policy” concerns that have no place in statutory construction. But of course it is the other way around. It is the Supreme Court that has ignored the constitutional realities of the situation and the clear purpose of the Act. The decision elevates the literal construction of the CHRA over its quasi-constitutional purpose.

Timid Court avoided realistic alternatives

Nor is it true that the Court had no room in which to manoeuvre. There is plenty of room for an argument that the quasi-constitutional nature of the CHRA, which guarantees fundamental rights, brings an equitable component into the statute. This is significant because the courts of equity took it upon themselves to order costs in precisely this kind of situation. Their reasoning was that the failure to do so would destroy the very remedy that the law was there to provide.

There is also the fact that the CHRA cannot be interpreted in isolation. It is firmly rooted in section 15 of the Charter and raises issues of particular magnitude in a society based on the equality of the person. It is the timidity of the Court’s decision that is remarkable. Why, to use the words of John Sankey, did the court fall back on “a narrow and technical construction” of the Act? What happened to the purpose of the Act in the Court’s interpretation?

There are other alternatives. The Court could have said that the Commission has a general obligation, at least, to represent complainants at a hearing. That would make sense, and explain why complainants have no right to costs. And then there is the fact that our international obligations come into play in the context of human rights. The failure of the CHRA to provide a meaningful remedy in cases of discrimination clearly derogates from Canada’s international commitments.

Honestly, it is irritating to think that the law does not have the resources to do justice in the case. The aridity of the Act, after this decision, is deeply disconcerting. Of course the federal government has the power to amend the CHRA and give the Tribunal the power to award costs. There were attempts to convince preceding governments to do so. I need hardly say that the likelihood of this in the current political climate probably approaches nil.

For myself, I can only say that these kinds of decisions have pushed me, rather unhappily, into the arms of Catherine McKinnon. That is because McKinnon, like a number of feminists, sets out a “substantive” theory of equality in her work. Her point is naturally that the sterile parsing of words is not enough. It is reality that matters. And I daresay that reality in the context of Canada v. Canada is distressing. The door to a hearing, at least for many people who complain of discrimination, has now been closed. Why do I have a feeling that this was the real motive behind the litigation, and exactly what the federal government wanted?

Dr. Paul Groarke is a guest contributor to TheCourt.ca. He is an Assistant Professor in the Faculty of Criminology and Criminal Justice at St. Thomas University and a former member of the Canadian Human Rights Tribunal.

The religious teachings he chooses to preach in this new life do not have broad appeal (there’s never a mention of, “In every thing give thanks” or “Judge not, that ye be not judged”  with proselytizers these days, which is a shame.)

For the past two decades, Whatcott has been protesting vigorously against what he perceives to be the dangers of homosexual activity (and abortion). Along the way, he has been getting intimately acquainted with our justice system.

He is now appearing before the Supreme Court of Canada to answer questions about some very controversial flyers he stuffed into the mailboxes of unsuspecting Saskatchewanites in ’01/’02, and continues to stuff the mailboxes of Canadians across the nation.

The SCC will decide if the flyers exposed gay people to hatred contrary to s. 14(1)(b) of the province’s Human Rights Code (the Code) and will likely rule on whether the section itself is overbroad, inappropriately limiting freedom of expression.

PART I: THE WHY OF WHATCOTT  & HOW WE GOT HERE

Whatcott exists in the outer-limits of the town of tolerance for religious expression in Canada. His opinions are offensive to many Canadians; his name comes up often on CanLii, and yes – all the results pertain to him, I checked. Because this is such an important case, and because it deserves close scrutiny, it comes in two parts. This part is the background to the Court of Appeal’s decision. The next section will take us there and beyond.

Skip this Section if You Live in Sask. and got a Flyer (Otherwise: read on)

In 2002, Saskatchewan’s Human Rights Tribunal slapped Whatcott with a $17,500 fine for distributing  “hundred of thousands” of flyers, which it ruled exposed people to hatred on the grounds of their sexual orientation.

The flyers express ideas better suited to reproduction than description (for instance in Flyer E, “Sodomites in our Public Schools”):

“If Saskatchewan’s sodomites have their way, your school board will be celebrating buggery too!”

and,

“Our acceptance of homosexuality and our toleration of its promotion in our school system will lead to the early death and morbidity of many children”

In some legal circles, this kind of talk is euphemistically called an “unpopular opinion.” Whatcott has many unpopular opinions, and he admits he is an unpopular person, but he doesn’t care about popularity: he cares about illegalizing sodomy (and abortion) in Canada, because he considers the practices to be contrary to his religion and degrading for the nation as a whole.

Other flyers (F and G) feature a reprint of a page from the classifieds section of Saskatchewan’s largest gay magazine, Perceptions, accompanied by handwritten notes, which alleged the language used indicates the magazine encourages pederasty.

Reproductions of the four flyers can be found right before the endnotes of the Court of Appeal’s decision. Go review them and judge for yourself. They’re not as graphic as some of Whatcott’s other work, but they were physically delivered to the mailboxes of hundreds of thousands of residents of Regina and Saskatoon.

They are the focus of this case – the Court of Appeal unanimously found that they do not expose homosexuals to hatred; therefore, these flyers were not held to be prohibited publications and should not have been censored by the Saskatchewan Human Rights Tribunal.

The Charging Legislation.: s. 14(1)(b) of Saskatchewan’s Human Rights Code (the Code).

Four people took it upon themselves to lodge complaints against Whatcott under Saskatchewan’s Human Rights legislation. The Code states:

14(1) No person shall publish or display, or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through a television or radio broadcasting station or any other broadcasting device, or in any printed matter or publication or by means of any other medium that the person owns, controls, distributes or sells, any representation, including any notice, sign, symbol, emblem, article, statement or other representation: …

(a) tending or likely to tend to deprive, abridge or otherwise restrict the           enjoyment by any person or class of persons, on the basis of a prohibited           ground, of any right to which that person or class of persons is entitled under law; or

(b) that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground. {Relevant prohibited ground: “sexual orientation” s. 2(1)((m.01)(vi)}

(2) Nothing in subsection (1) restricts the right to freedom of expression under the law upon any subject.

The Human Rights Tribunal Hears the Case

In 2005, the tribunal (chaired by Anil K. Pandila) heard the story of the beleaguered people of Saskatchewan’s metropolises opening their mailboxes to find the “Born Gay? No Way!” etc. literature.

Whatcott testified on his own behalf during the initial proceedings. Of the four complainants, two gave direct testimony, and two were represented only in the Agreed Statement of Facts.

That seem a bit like the human rights equivalent of “phoning it in”, and is unfortunate because it makes the Tribunal look a slightly less impressive in a due-process sort of way. Considering the gravitas of the rights at play here (expression, religion, equality) you would think this would be mentioned— it isn’t, so let’s leave it for now.

In addition to the complainants’ testimonies, the Commission called Gens Hellquist, a gay community leader and expert witness qualified to testify about homophobia and discrimination towards homosexuals. He gave evidence that this was “just another example of hate directed at the homosexual community.” He observed that the flyers portrayed gay men as sodomites and pedophiles who should not be allowed around children. He noted that he had received numerous phone calls from concerned citizens in Regina, Swift Current and Saskatoon, and that people had come to his office in tears after reading the flyers.

Whatcott called Rev. Irwin Pudrycki, an ordained minister of the Lutheran Church of Canada. He testified that while the church did not promote a position of hatred toward the homosexual community, it disapproved of homosexual sexual activity, and urged homosexuals to seek redemption from their sins. He testified that gay people should be discriminated against in certain sectors of employment based on their orientation. He felt that Whatcott was exposing a societal injustice— acceptance of homosexuality— and commended him for drawing attention to the “issue” of gay teachers in public schools.

Whatcott sourced his statistics (“Sodomites are 430 times more likely to acquire Aids [sic] and 3 times more likely to sexually abuse children!”) to a book entitled, “Homosexuality and the Politics of Truth” by Dr. Jeffery Satinover. The author is an American psychoanalyst, who believes that homosexuality can sometimes be “cured” through treatment. Armed with his religion and his research, Whatcott testified he believed his flyers to be “legal, truthful and helpful.”

He argues that the flyers were not hateful. In the alternative, any hatred expressed in the flyers is directed at the so-called sin (homosexual sex) and not the sinner (the homosexual). If this distinction seems a tad thin to you, you’re not alone. Does the law protect the attributes or activities that qualify a person for protection from overt expressions of detestation on that ground in first place, or does the Code just protect the person?

While most physical expressions of human sexuality are natural and normal and legal, some are generally frowned upon and others are illegal. Whatcott argues that he should be free to demonstrate against sexual conduct he disapproves of, especially regarding issues of Canada’s public policy regarding children and their education.

The Tribunal’s Ruling

The Tribunal was not at all impressed with Whatcott’s defence, finding that for some flyers he had “no hesitation in concluding that the material contained therein can objectively be viewed as exposing homosexuals to hatred and ridicule.”[emphasis added].

He relied on Owens v. Saskatchewan (Human Rights Commission) (Owens 2007), which was subsequently overturned (Owens 2010), to find that Whatcott’s intentions in distributing the material were irrelevant in the analysis. Looking at specific sentences within each of the four flyers, the Chair ruled that they exposed homosexuals to hatred and ridicule based on the prohibited ground of sexual orientation.

With respect to the validity of s.14(1)(b) (and whether or not human rights tribunals generally may deem published material “hate speech” – ban the expression and fine the expressor), the Tribunal adopted the Saskatchewan Court of Appeal’s application in Saskatchewan (Human Rights Commission) v Bell (1994) (Bell) of the free-speech stalwart Canada (Human Rights) v Taylor(1999) (Taylor).

In Taylor, a white supremacist challenged the capacity of s. 13(1) of the Canadian Human Rights Act (a provisions similar to s. 14(1)(b) of the Code) to silence his speech. The SCC held that controlling hate speech was within the purview of human rights legislation— the restrictive laws did violate s. 2(b) of the Charter, but were saved by s. 1.

The impugned speech had to rise to the level of “unusually strong and deep-felt emotions of detestation, calumny and vilification” in order to evade Constitutional scrutiny. In the case of Bell, a motorcycle store was selling stickers featuring racist caricatures stamped with the “not allowed” sign of a red circle with a cross through it.  In deciding whether the stickers were prohibited publications, the SKCA held that it was bound by Taylor and that s. 14(1) of the Code was a reasonable limit on the freedom of expression.

In Owens (2007), s 14(1)(b) in particular was held to be a reasonable limit on the right of freedom of expression and on the freedom of religion. It seemed obvious to the Tribunal that this material – these four flyers – caused enough injury on the self-respect of the complainants that one was awarded $2,500 and three others were awarded $5000 each. The person who got 50% of the other awards filed his complaint before amendments to the Code doubled the damages available, and all four were all given half the maximum amount provided for in the legislation.

Whatcott did not want to pay $17,500 and, most likely especially did not want to pay $5000 each to the two people who did not attend the proceeding to testify directly about the affront to their dignity.

Saskatchewan Court of Queen’s Bench Reluctantly Upholds the Decision (2007)

Whatcott appealed the Tribunal’s decision to the SKQB on the grounds of freedom of religion and freedom of expression, and further argued that the tribunal erred in its interpretation of the Code.

One party intervened – the Attorney General for Saskatchewan, who argued vigorously that s. 14(1)(b) was constitutionally valid and socially useful.

Kovach FJ noted that the particular sub-section of s.14 hadn’t been mentioned by the trier of fact at the Tribunal, but reasoned that it must be sub-section (b). He established that the standard of review of the Tribunal’s decision was correctness and accorded the original ruling no deference.

Two issues were addressed:

1)  Did the Tribunal err in law by concluding the flyers conveyed hatred or otherwise contravened s. 14(1)(b) of the Code?

2)  Does s. 14(1)(b) of the Code contravene the appellant’s freedom of religion pursuant to s. 2(a) of The Charter of Rights and Freedoms (the “Charter”)?

He found that the decision in Owens (2002) was authority for the proposition that s. 14(1)(b) was a reasonable limit on speech in situations where the “ridicule” “belittlement” or “affront to dignity” met the standard in Taylor of “deep felt emotions of detestation, calumny and vilification.”

The four flyers were summarized and judged as prohibited publications, on the grounds that they had improperly characterized homosexuals as pedophiles and molesters of children.

Kovach FJ also relied on Owens (2002) for the authority that s. 14(1)(b) passed constitutional scrutiny and decided that while it may encroach on the rights to freedom of religion, it was a reasonable limit on that right.  Whatcott appealed the decision, attracting new interveners, including the Canadian Constitution Foundation and the Canadian Civil Liberties Association, supporters of his escalating legal battle with a direct interest in its outcome.

Now, Whatcott’s battle had come to mean something more than a dispute between private parties – poised to become the new test for hate speech law, it could be the defining judgement on the topic of the past two decades.

To learn more, you’ll have to check back soon for Part II, entitled: SKCA Says, Gay Teachers in Public Schools? Debatable…

With the remarkable work of researchers over the past decades, we have made incredible gains in the prevention and treatment of HIV. The United States and the international community stood up and took on this terrible scourge. Thanks to these efforts, millions of lives have been saved and millions more have been transformed.

As researchers in the medical community have struggled to find solutions, policymakers and legislators have also struggled to deliver a measured response to the disease.
The Supreme Court of Canada’s decision in R. v. Cuerrier, [1998] 2 S.C.R. 371, tried to find a solution to a very difficult and real problem: what is to be done when a person fails to disclose their HIV-positive status and has unprotected sex?

In Cuerrier, the Court concluded that this behavior constituted aggravated assault, since the failure to disclose and use appropriate contraceptives would create a “significant risk of serious bodily harm to the complainant” and effectively vitiate sexual consent.
Although (well-intentioned, the Cuerrier precedent has started to show its age. Last year, the Manitoba Court of Appeal courted controversy in R. v. Mabior, remarking on the uncertainties in the Cuerrier test. Noting the medical breakthroughs that had been made in the treatment of HIV/AIDS, the Manitoba appellate court concluded that it might be time for the highest court to revisit the issue.

D.C. v. R., 2010 QCCA 2289, a recent decision out of the Quebec Court of Appeal, poses similar questions about Cuerrier. On August 25, 2011, the Supreme Court granted leave to appeal in D.C., holding that it would be heard with Mabior. As the issue of HIV criminalization heads back to the Court, TheCourt.ca decided to take a look at the issues raised by the Quebec Court of Appeal in D.C.



Facts & Procedural History

The appellant and complainant met innocuously enough on the soccer fields where their sons played. During the summer of 2000, their relationship evolved to the level of intimacy.

At this point in the narrative the stories diverge, with the appellant and complainant presenting differing versions of their relationship. The complainant states that they had unprotected intercourse on several occasions prior to the appellant’s disclosure of her HIV positive status. Conversely, the appellant asserts that they had sexual intercourse only once prior to disclosure, and that a condom was used.

After the appellant disclosed her status, the relationship continued for four more years, during which time they lived together and practiced safe sex. Characterized as “tumultuous,” their relationship ended when the appellant asked the complainant to leave the home and was refused. During a heated encounter, the complainant assaulted the appellant and her son, a charge for which he was convicted. 

On February 11, 2005, the complainant filed a complaint against the appellant for the events that took place over the course of the summer of 2000. The appellant was charged with aggravated assault and sexual assault.

The trial judge concluded neither party was credible but went on to conclude that the pair had unprotected sexual intercourse during the period in question. This finding was based primarily on evidence provided by the appellant’s doctor, which included a shorthand note in the appellant’s medical file that read: “sex c new partner condom broke – connsl to disclo”. The judge accepted that the note was true to what the appellant had told the doctor, but concluded that she had lied. He then inferred from this lie that the appellant had unprotected sexual intercourse with the new partner.

In application of the law with respect to sexual assault and aggravated assault, including Cuerrier and Williams, the judge concluded that there was an absence of genuine consent by the complainant at the time of their first sexual encounter. Within the framework of Cuerrier, the trial judge considered the appellant’s HIV status to be an “important and relevant” factor, essential for the consent to be valid. Further, he espoused the view that HIV positive persons have two fundamental responsibilities: 1) to inform their partner of their condition, and 2) to ensure that sexual intercourse presents the least amount of risk possible.
Regarding the charge of aggravated assault, the judge again applied the framework laid out in Cuerrier.  Upon review of the facts on the transmission of the virus and in light of the seriousness of the disease and unprotected nature of their first sexual encounter, the trial judge concluded that the appellant had exposed the complainant to a significant risk of bodily harm. Thus, she was convicted of both charges.

He Said, She Said: Common Issues in HIV Criminalization Cases



In the jurisprudence surrounding HIV criminalization, this case reads like frustrating déja vu, exhibiting several characteristics common to many of the more than 130 people living with HIV who have been subject to criminal charges. Namely, the parties rarely agree on the facts of the case, particularly on whether or not the sexual intercourse in question was protected, how many times it occurred and under what circumstances. These critical facts obviously present significant obstacles with regards to proof and the situation devolves in a “he said, she said” scenario.

The inability to prove the key elements upon which the case turns leaves the outcome to be very unpredictable. As a result, the cases tend to hinge on the credibility of the parties, the determination is, at best, a loose science, and, at worst, an exercise in hunch-based guess work.
Another problematic factor in this realm of prosecution is that charges are frequently laid after the dissolution of a relationship. It could be argued that some of the complaints may be brought for vengeful and vexatious purposes. By leaving HIV positive people vulnerable to criminal prosecution, we are sanctifying the punishment of an already vulnerable group, and pushing this community further onto the fringes of society.

Viral Loads: Considering Mabior



While HIV remains a very serious disease, massive steps have been made in its treatment, which have significant impacts on its proliferation. The development of Highly Active Retroviral Therapy (HAART) enables the reduction of viral loads to the point that they cannot be measured in blood, a situation referred to as an undetectable viral load. With an undetectable viral load, the risk of transmission is drastically reduced. When condoms are used, the risk of transmission is further reduced. Without being zero, the risk is “very, very low”, “remote” and “no greater than the risks associated with driving a car”. Undetectable viral loads were present in both D.C. and Mabior. This striking change in the virulence of the disease highlights the need for the “significant risk of serious bodily harm” test to be revisited.

In Mabior, Steel J.A. noted that “the test set out in Cuerrier is a compromise and involves a certain degree of uncertainty, especially since the results of its application will vary over time depending on medical advances.” She notes that what constitutes “significant risk” varies with the magnitude of the harm and as such, each case must be assessed in light of its own circumstances.

Similarly, in D.C., Chamberland J.A. dismisses the argument that any risk of transmission is “significant” due to the seriousness of the disease. The court pointed out that accepting this position would distort the test. He echoes Madam Justice Steel in noting that the test in Cuerrier was conceived in the early stages of the fight against HIV, a time when the mitigating impacts of condom use and reduced viral loads may not have been well understood or even contemplated.

The inherent uncertainty in the present day application of the test lends credence to the cries for further elucidation of the standard for determining a “serious risk of serious bodily harm”. Where the line ought to be drawn, if at all, remains contentious as it necessarily draws strongly held ethical and moral beliefs into a largely scientific debate.

Looking Forward



Declaring that a failure to disclose one’s positive serostatus is a criminal act is ostensibly meant to encourage persons living with HIV to disclose their status prior to engaging in sexual acts as a means of controlling the spread of the virus. While it should be everyone’s right to give their informed pre-coital consent, the fact of the matter is that HIV/AIDS is notably different from other STIs.

The word “stigma” does not convey the enormity of the discrimination faced by the HIV positive community. In many of these cases, a malicious intent to infect others is absent. Rather, the failure to disclose may stem from the harsh and overwhelmingly negative reactions of prospective sexual partners. No other disease carries with it the court-sanctioned notion that one’s bodily fluids are tantamount to a biohazard.

By criminalizing non-disclosure, we’re not addressing the problem effectively. Instead, we’re magnifying the stigma associated with the disease. This provides further impetus to keep quiet about one’s status to avoid facing the wrath of the public fear of this disease.

The means used to compel people to disclose affirms the very biases that make people reluctant to disclose in the first place. Worse still, the criminalization of non-disclosure provides a strong incentive not to be tested, which only serves to perpetuate the spread of the virus.

While there certainly exist situations in which criminal sanctions would be justified, the issue of non-disclosure is by and large a public health problem. These individuals demand a more nuanced approach that fully reflects the realities of each specific case. 
As Mabior and D.C. head together to the Supreme Court in the coming months, the Ontario Attorney General is seeking intervener status to remove the “significant risk” element in the Cuerrier test. These appellants would obviously argue that their viral loads at the time of the sexual encounters were low enough to no longer pose a “significant risk.” The attorney general would have the court rule, however, that the proper solution to this debate over the “significant risk” threshold is to have no threshold at all.

Removing the significant risk element of the test would more or less render it meaningless, and would essentially convict HIV positive persons for simply failing to disclose their status, and not for actually posing a significant risk of harm.
Not only would the removal of a “significant risk” make it far easier to prosecute cases of non-disclosure, it would exacerbate the aforementioned problems associated with criminalization itself.  Although this may seem far-fetched, there have been charges laid for exposure to herpes. If the significant risk standard is done away with, it would be one less bar to the “policing” of what is really a public health issue.
When the Supreme Court revisits this issue, I am hopeful that they will address the uncertainty and unfairness associated with the current test, but also question whether the criminalization of non-disclosure is truly an effective step towards controlling the spread of HIV.