CCLA Rights Watch
La veille sur les
droits et libertés

Now that it is election time once again, perhaps it is important to review some of the laws that govern the process in this country. Article 329 of the Canada Elections Act has come under scrutiny and criticism of late, quite rightly in my opinion, even among American journalists who tend to pay scant attention to Canadian affairs. It reads as follows:

No person shall transmit the result or purported result of the vote in an electoral district to the public in another electoral district before the close of all of the polling stations in that other electoral district.

According to article 500(4) of the same, a person who violates this rule is liable on summary conviction to a fine of at most $25,000.

One could argue that this rule is a clear violation of article 2b) of the Canadian Charter of Rights and Freedoms as a violation of freedom of expression. In fact, a constitutional challenge to this bizarre relic of the 1930s went all the way to the Supreme Court. In 2007, a 5-4 majority in R. v. Bryan found that while article 329 violates article 2b) of the Charter, it is saved under article 1. Bryan was charged with an offense under this law for having published the results of the 2000 election in Atlantic Canada while others in the rest of the country were still voting. The majority argued that the law is necessary to ensure “public confidence in the electoral system” and the fact that voters in the West could find out results in the East while they are still voting could in fact prejudice the westerners and cast doubt on the system. The dissenters, quite rightly in my view, questioned whether the fallout of allowing access would indeed be so harmful as to necessitate such a law. Moreover, the rights to freedom of expression had to be balanced against harmful effects, if indeed there were to be any.

It is quite clear from decades of Supreme Court Charter jurisprudence that violations of fundamental freedoms should not be taken lightly and if rights must indeed be limited, it should only be done in the most pressing of circumstances. To borrow from the words of Cory J. in  Edmonton Journal v. Alberta:

It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression.  Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions.  The concept of free and uninhibited speech permeates all truly democratic societies and institutions.  The vital importance of the concept cannot be over-emphasized.  No doubt that was the reason why the framers of the Charter set forth s. 2(b) in absolute terms which distinguishes it, for example, from s. 8 of the Charter which guarantees the qualified right to be secure from unreasonable search.  It seems that the rights enshrined in s. 2(b) should therefore only be restricted in the clearest of circumstances.

There are of course cases where it may in fact be appropriate to limit freedom of expression for example in Keestra, where the Court found it reasonable to limit the right to freedom of expression in the case of wilful promotion of hatred against an identifiable group. However, it seems quite unjustifiable to limit freedom of expression in elections based on largely speculative grounds.

Even if one is to accept that restrictions on access to voting information at the time the first Bryan court came down with their decision in 2003 could be justified, it is quite fair to say that the world is not at is was back then, particularly relating to technology. There was no Twitter, there was no Facebook. Blackberries were rare and the I-Phone didn’t exist. Methods of transmitting information these days are far more sophisticated than they were back then. Even the political candidates must make with the times and ensure that their messages are being followed on Twitter! Taking this into account, it would seem far from reasonable to impose a fine of $25,000, or any amount for that matter, because some guy in Halifax posts a Tweet saying “Hey, the NDP just took 3 new seats in Nova Scotia!” where his buddies from Vancouver can see. Because of these new methods for transmitting information, we must also ask whether it is even practical to enforce such a law. Certainly we would hope and expect that there aren’t any Elections Canada internet police watching to see if anyone violates article 329. The point is, this law is out of date, stupid and unenforceable, it is time to repeal it.

The Supreme Court of Canada has agreed to hear the government of Quebec’s appeal to the landmark “Lola” Court of Appeal decision Droit de la famille – 102866 2010 QCCA 1978.

This 2010 decision found that article 585 of the Civil code of Quebec was in violation of section 15 of the Canadian Charter of Rights and Freedoms in that it denied equal protection to common law spouses when it comes to alimony payments.

On January 18^th of this year, Quebec’s National Assembly refused entry to four Sikh men, ironically coming to appear at a conference on reasonable accommodations, when they refused to remove their Kirpans (A Kirpan is a religious object shaped as a knife). Keeping the Kirpan is to many devout Sikhs a religious obligation in the same way that wearing a yarmulke is for many Jewish people. To quote Dr. Sukhdev Kooner, president of the Sikh Cultural Society of Metropolitan Windsor, “We are supposed to wear this all the time, even when we are sleeping, taking showers, cutting the grass…” While the Supreme Court has held that the position of religious authorities on the matter is not determinative (see Amselem, infra) this example goes to show the extent to which some Sikhs might feel compelled to keep the Kirpan on their person.

Bearing this in mind, we are once again required to delve into the question about how to properly balance religious rights as protected by article 2a) of the Canadian Charter of Rights and Freedoms with alleged fears for safety and security. In their 2006 decision Multani v. Commission scolaire Marguerite‑Bourgeoys, the Supreme Court found that sweeping prohibitions against Kirpans in schools are an unconstitutional infringement of the Charter right, though the Court did say that certain conditions can be imposed. Although this decision appears not to extend beyond schools, its principles are instructive. After all, if Kirpans can be allowed in schools where there are children running round, can they not be accepted in other places too, including a provincial legislature where there are security officials present? Indeed, Parliament (where Nadveep Singh MP has been wearing one for 6 years) and the Supreme Court allow Kirpans so it naturally begs the question as to why prohibitions are felt to be needed in other such places.

The decision to prohibit the Kirpan was, as is usual, justified on the basis of a fear for security. And while strictly speaking the National Assembly does not have to follow the lead of other provincial legislatures such as Queen’s Park which permit Kirpans, we must ask whether such prohibitions are necessary or even rational. In my view, they are not. This is not the case of a Sikh man flying on an airplane where security concerns could justify banning Kirpans. On all Canadian flights, for example, scissors in a purse are not allowed, yet no one would question a woman bringing them to the National Assembly. Flying in airplanes is truly a unique exception. Here on the other hand, we are in a situation where these men were personally invited to come. They have no criminal background and are not considered dangerous by anyone. Any perceived danger by virtue of the Kirpan is at most minimal. Indeed, as is suggested by blogger Marco Fortier, the Kirpan is no more dangerous a weapon than the table knives in the Assembly’s restaurant. There has never been one instance of a politician being hurt in a legislature by a Kirpan attack. Any threat to security is largely illusionary.

The Supreme Court in Syndicat Northcrest v. Amselem found that freedom of religion:

…consists of the freedom to undertake practices and harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials.

Taking for granted that these Sikh men had the voluntary and sincere belief that wearing the Kirpan was an important religious practice, any intrusions thereof must be fully justified. As in Multani, I think it’s fair to say that sweeping prohibitions would violate the “minimal impairment” part of the Oakes test. The security officers could have, for example, ensured that the Kirpans would be sealed inside the men’s clothing, as was the recommendation of the Court in Multani. There are many other possibilities. It is reported that last year, a Sikh man carrying a Kirpan was allowed in the National Assembly with escorts. Certainly, this kind of accommodation should have/could have been made available here especially since it was well known that religious Sikhs were coming to the legislature. If in Amselem the Court can require a condo to permit a Sukkah notwithstanding concerns for fire safety by-laws, certainly requiring security accommodations for Sikh men does not seem outlandish.  Unfortunately, what this prohibition does is place religious Sikhs in a situation whereby they either can enter the legislature or comply with their religious obligations but not both. In my view, they should not be forced into such a choice. Certainly, any regulations concerning Kirpans can be, to use the American phrase, narrowly tailored to meet the objective of ensuring security. In my view, unless there is a significant threat or reasonable belief that there is a danger present, legislatures throughout the country should allow Sikh men to keep their Kirpans.

Citing the need for “clarification,”  justice minister Fournier said the Quebec government will seek leave to appeal to the Supreme Court concerning the appellate court decision which allowed common-law spouses to claim alimony payments. Fournier says the appellate decision goes against 30 years of Quebec jurisprudence on the matter.

To some of our friends living outside of Quebec, it may seem perfectly normal that a couple which lives together for a significant amount of time and acts in most ways as a married couple, although not legally married, should at least have some of the same benefits and rights as married couples do. This has long been held valid under the designation “common law marriage” or “union de fait.” Quebec, being a province owing to the civil law tradition, has tended to resist this trend. In this province, an unmarried couple could find themselves in a “tacit partnership” (see Beaudouin-Daigneault v. Richard, [1984] 1 S.C.R. 2), but aside from this exception, in Quebec you were either married/civil union or you were not, and if you were not, the general rule was that you did not benefit from the advantages that did married couples.

With regards to alimentary support, and barring any further legal action, things change on November 3^rd, 2011. On November 3^rd of this year, the Quebec Court of Appeal declared article 585 of the Civil Code of Quebec inoperative on the basis that it is unconstitutional and in violation of the section 15 equality provisions of the Canadian Charter of Rights and Freedoms (suspended for one year). The Droit de la famille – 102866 2010 QCCA 1978 decision should be held as an extremely significant judgment because, for those who are not familiar with Quebec civil law, it should be known that Quebec judges are quite reluctant to meddle with provisions in the Civil Code, it being the jus commune of Quebec representing the clear intention of the Quebec legislature (see Doré v. Verdun (City of), [1997] 2 S.C.R. 862).

The lower court judgment in this case, reflecting a history of Quebec jurisprudence on this matter, essentially repeated the idea, it would seem, that people are free to get married or not and if they choose to not get married it follows that they could be treated differently (para. 33). This reasoning seems logical but at the same time it is rather harsh and myopic, especially considering the fact that the highest number of “common law relationships” are to be found in the province of Quebec (34.6%) versus an average of 18.4% in the rest of Canada (para. 11). It is also worth noting that 60% of Quebec children are born of such relationships. It seems as though those who have chosen not to be married experience discrimination in the sense that not only are they treated differently from those who have a marriage certificate, they are also at a significant disadvantage from their friends of similar circumstances in all other parts of the country.

Article 585 of the Civil Code of Quebec reads as follows:

Married or civil union spouses, and relatives in the direct line in the first degree, owe each other support.

By not including  “union de fait” in this article and the fact that “conjoint de fait” is included in other articles of the Code such as 511 CCQ, it is clear that common law relationships were meant to be excluded. The question that this Court was asked to decide on was whether this article was in violation of section 15 of the Charter. It found that it was, insofar as alimentary support is concerned. We are reminded in R. v . Kapp, [2008] 2 S.C.R. 483 that section 15(1) challenges are based on two criteria: 1) Does the law create a distinction based on an enumerated or analogous ground? 2) Does the distinction create a disadvantage by perpetuating prejudice or stereotype? Although it would appear at first glance that it would be difficult to establish that in this day and age that the distinction between those married and those in a “common law marriage” creates a disadvantage by perpetuating prejudice or stereotype, the Court very skilfully established that it does. As for the first step of the test, it was easily established given that in Miron v. Trudel, [1995] 2 S.C.R. 418 the Supreme Court decided that marital status was an analogous ground of discrimination for the purposes of article 15.

To analyse the second question, the Court applied the test from Law v. Canada (M.E.I.), [1999] 1 S.C.R. 497. Dutil J. essentially said that historically common law relationships were seen as unstable, read short-term, and as such were seen not to deserve recognition in law and certainly should not be taken into account with regards to a rupture in the relationship (paras. 89-90). This stereotype, the Court found, is exemplified by the omission of such relationships in article 585 CCQ.

To quote from the reasons of Dutil J. at paragraph 96:

En omettant d’y inclure les conjoints de fait, il les considère comme étant moins dignes de la protection offerte que les conjoints mariés et ceux unis civilement alors que les unions de fait peuvent présenter plusieurs similitudes avec ces types d’unions.

In addition to finding that there was stereotyping involved in this case, the Court found that there is significant evidence to suggest that common law relationships lasting over a certain period of time can be just as stable and secure as marriages or civil unions (para. 113).

Is it right that in a case of divorce in a 10 year “true marriage” the spouse must pay alimentary support but in the case of a 10 year common law marriage they do not? The Court said it is not. In my view, this Court should be applauded for moving the law in a new direction and although I should say on a purely personal note I like the idea of common law couples receiving more benefits similar to married couples (i.e. separation of property etc…), the Court found that the precedent established by the Supreme Court in Nova Scotia (Attorney General) v. Walsh, [2002] 4 S.C.R. 325 was to be followed.

Former British Member of Parliament George Galloway has decided that in spite of the fact the voters of the English constituency Poplar and Limehouse weren’t keen to elect him as their representative in Westminster in May (he received 17.5% of the vote), Canadians might me more inclined to listen to what he has to say in a  multi-city tour of the country beginning in November. Although banned from entering the country last year because of the Ministry of Citizenship and Immigration’s finding that he supports terrorists, Federal Court Justice Mosley in a decision rendered on September 27, 2010, agreed with Galloway and his supporters that, to quote at paragraph 8:  “It is clear that the efforts to keep Mr. Galloway out of the country had more to do with antipathy to his political views than with any real concern that he had engaged in terrorism or was a member of a terrorist organization.” See also paragraphs 91 & 98.

In this case, Mosley J. found that the government had in fact overreached in concluding that Galloway was complicit in terrorist activities and was certainly not “engaging in terrorism” for the purposes of article 34 (1) (c) of the IRPA (para. 114), although the decision was not subject to judicial review because Galloway had not at that point attempted to enter Canada. Nevertheless had Galloway attempted to enter the country, Mosley J. said that the actions of the government would bring about a reasoned apprehension of bias (para. 148). Although the Court had to reject Galloway’s application based on the purely technical issues, it was clear that the judgment was a severe rebuke of the government’s actions. As a result of the decision, Galloway entered Canada on October 2^nd, and it appears as though no one tried to stop him.

Final arguments in the case of accused terrorist Mohamed Harkat will begin on Tuesday, March 30 in Federal Court. In 2002, he was declared a national security threat and was detained under a security certificate which allows the government to present evidence in secret. Harkat’s lawyers contend that the government committed various abuses of his Charter rights and in particular, the right to a full and fair defense by having access to all of the evidence against him held in secret by CSIS. They argue that the case should be stayed.

Love her, hate her or simply don’t care, controversial right-wing speaker and author Ann Coulter has certainly taken the University of Ottawa and its students to task for allegedly violating her rights to freedom of expression by not being able to speak at a scheduled on-campus event. For a week now, the university has been belittled by  Canadian and American media who have more or less concurred with Coulter’s assessment that the school is “bush-league.”

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Although his civil suit was initiated six years ago, it was only in the spring of 2009 that Omar Khadr increased his claim to 10 million dollars, from the original amount of 100,000$ after learning about the involvement of Canadian officials in his detention. Khadr was subject to a “sleep-deprivation” technique called the “frequent flier program” in addition to other forms of mistreatment.

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The Federal Court of Canada will conduct a judicial review of the government’s decision to deny George Galloway, a British Member of Parliament, entry into Canada. The Canada Border Services Agency barred Galloway from Canada in March of 2009 and this decision was upheld by Immigration Minister Jason Kenney. The reason provided was that Galloway had supported Hamas, which Canada lists as a terrorist organization, financially.
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