Anti-loitering spikes removed after Montreal Mayor voices outrage

Outside a music and book store in downtown Montreal, metal spikes were erected alongside the building to deter people from sitting on a ledge beside the store, the CBC reports. These anti-loitering measures are seen as a controversial effort to prevent homeless or itinerant individuals from sitting outside the storefront.

The spikes were removed after the mayor of Montreal expressed his outrage over these “anti-homeless spikes,” and he along with other city councillors demanded their removal. Quebecor, the owner of the store, subsequently released a statement denying anything to do with the spikes and stating that it does not own the building. The company was quick to distance itself from any anti-homeless sentiment, saying it is “heavily involved” in the community and “concerned about homelessness.”

Landmark homeless Charter challenge may never be heard if government wins bid to quash case

This week, lawyers representing the Centre for Equality Rights in Accommodation (CERA) and four individuals are arguing for a chance to continue with their Charter challenge that deals with the rights of homeless individuals, writes the Toronto Star. They are appealing a decision made by the Ontario Superior Court of Justice that dismissed the Application based on the Ontario and Canadian governments’ motions to strike, stating that,“[t]here is no viable issue raised that could demonstrate a breach of either s.7 or s.15(1) of the Charter.”

The Charter challenge was originally launched in May 2010 and claimed that Canada and Ontario violated sections 7 and 15 of the Canadian Charter of Rights and Freedoms by “creating and maintaining conditions that lead to and sustain homelessness”, writes the Advocacy Centre for Tenants Ontario. The Applicants’ goal is to have the court order the federal and provincial governments to create strategies to deal with the current housing crisis.

The hearing at the Ontario Court of Appeal will last three days and will include eight interveners, including Amnesty International, the Ontario Human Rights Commission, Women’s Legal Education and Action Fund, the Colour of Poverty, and various community legal clinics.

New Brunswick’s flag protocol at schools to be reviewed

Due to concerns raised when the rainbow pride flag was prohibited at Fredericton’s Leo Hayes High School last week, Premier David Alward promised to review the province’s flag policy. The school, which has raised the flag during Pride Week for the past two years, was forbidden from flying the flag because of the provincial government’s flag protocol, which disallows non-official flags from being flown on public property.

The CBC reports that subsequently, Premier Alward has requested the ministerial steering committee on inclusive education to supply recommendations on how diversity and inclusion can most effectively be represented in the flag protocol at schools. The recommendations should be implemented by September, for the beginning of classes, he told reporters.

Many gay rights organizations and advocates have urged the Premier to change the flag protocol, as flying the pride flag is important for promoting acceptance.

 

Montreal terrasses lack wheelchair accessibility

In Montreal, many people with disabilities are unable to enjoy one of the delights of summer in the city: outdoor patios. According to a CBC investigative report, the majority of patios in Montreal are not accessible to individuals who use wheelchairs. Many sidewalk patios are entered by stairs, making them inaccessible to people in wheelchairs, as well as some of the elderly and people recovering from injuries. In many cases even those patios equipped with ramps have entrances that are too narrow and tables too close together to accommodate wheelchairs. Even more troubling, many restaurants that do have accessible patios do not contain accessible washrooms.

While the issue of accessible patios concerns recreational activities, disability activists argue that it is an issue of equality. They want to be able to enjoy the same summer pleasures that other individuals in Montreal are able to access. It is about a right to enjoy life and fully participate in society. They are asking the city to focus not only on basic needs like transportation, but to also to look into the accessibility of entertainment and leisure activities.

 

Shortage of Mental Health Services for Youth in PEI

A shortage of hospital beds on P.E.I. for youth requiring mental health treatment have left some patients without the full spectrum of services, the CBC reports. There are four psych beds for youth on P.E.I., in Unit 9 of Charlottetown’s Queen Elizabeth Hospital. The executive director of mental health for Health P.E.I. said that those beds are always full, and when that happens, youth experiencing mental health emergencies are placed in the pediatric unit or ER, where they do not receive the full spectrum of mental health services. One mother said that her daughter has attempted suicide multiple times, and that they have tried to admit her to Unit 9 in the past but have been told there was no room.

Health P.E.I. reports that the demand for youth mental health services is up about 20% over the last three to four years, and they are reviewing to determine whether the current four beds are enough.

Op Ed: The Right to a Fair Trial is a Fundamental Human Right

When I came to law school three years ago, I had no idea what a security certificate was. I first learned about this regime in my immigration and refugee law class. I remember thinking that I must be missing something because it couldn’t be possible that this existed in Canada – the right to a fair trial is a fundamental human right. On Wednesday, the Supreme Court upheld the security certificate regime as constitutional.

Security certificates allow the government to deport or detain persons indefinitely that are deemed to be a risk to the security of Canada. The named person need not be charged with a crime. In a criminal trial, the accused must be proven guilty beyond a reasonable doubt. Under the security certificate regime, there must be reasonable grounds to believe that the person is a risk to the security of Canada. It is also easier for the government to use secret evidence in a security certificate proceeding than a criminal trial (see paras 65 – 66 of the Harkat decision).  The security certificate regime is not a criminal trial, but the consequences of each are the same: a deprivation of liberty, and, in the case of named persons subject to security certificates, the possibility of deportation to a country where there is a risk of torture or death. Like a criminal trial, the security certificate regime involves the same fundamental human right – the right to a fair trial.

What I find most striking is the contrast to the Supreme Court’s discussion of the right to a fair trial in Harkat compared to criminal law cases I have read in law school. For example, in R v NS, when considering the right to a fair trial for an accused in a criminal proceeding, Chief Justice McLachlin wrote:

The right to a fair trial is a fundamental pillar without which the edifice of the rule of law would crumble.  No less is at stake than an individual’s liberty — his right to live in freedom unless the state proves beyond a reasonable doubt that he committed a crime meriting imprisonment.  This is of critical importance not only to the individual on trial, but to public confidence in the justice system (para 38).

In contrast to NS, the Harkat decision is missing any meaningful discussion of the right at stake for named persons – the deprivation of liberty – and of the fundamental importance of guaranteeing the right to a fair trial for the rule of law in Canada. The Court mentions no international legal obligations. In fact, the Supreme Court stated that Mr. Harkat has “benefited from a fair process” (para 111). Mr. Harkat’s “fair process” included the use of summaries of destroyed intercepted phone conversations that were only ever disclosed to Mr. Harkat in an abridged form (paras 94 – 99) and that were destroyed as a result of “unacceptable negligence” by the Minister (para 94).

The Supreme Court ruled that the security certificate system is not perfect, but it is fair (para 110). However, making a process fairer, with the introduction of special advocates, does not necessarily make it fair. On the Supreme Court’s focus on the judge’s discretion to ensure that named persons are given a fair process, Amnesty International said, “when it comes to protecting fundamental rights, including something as essential as fair trial rights, discretion is simply never good enough.”

Most Canadians may not be personally affected by security certificates, but this is an issue all Canadians should care about. The Charter of Rights and Freedoms can only be meaningful if the rights guaranteed by it are meaningful for all. This includes suspected terrorists. The Criminal Code contains terrorist offences, which these men could be charged with.

Recently, I went to the premiere of Secret Trial 5 at the Hot Docs film festival. The documentary was a powerful reminder that there are real people subject to and affected by the security certificates. The constitutionality of the security certificate regime is not about whether the named persons are guilty or innocent. It is about a fundamental human right. In the words of Justice McLachlin herself, “the right to a fair trial is a fundamental pillar without which the edifice of the rule of law would crumble.”

More information about the Secret Trial 5 documentary can be found at http://secrettrial5.com.

 

32 years of the Canadian Charter of Rights and Freedoms

Today, April 17th, marks the 32nd anniversary of the establishment of the Canadian Charter of Rights and Freedoms as part of Canada’s Constitution Act. Liberal MP Irwin Cotler and former Minister of Justice and Attorney General of Canada, now Professor Emeritus at McGill University, has written a thoughtful and reflective opinion editorial in The Globe and Mail:

“On this Charter anniversary, let us reflect upon all that Canada has gained from the Charter in its short existence, and appreciate the contributions the document has made alongside the role of women and minorities in its crafting. All Canadians should be proud of this monumental constitutional moment, and look forward to having an inspiring reason to celebrate April 17 in years to come.”

Mr. Cotler also reflects on the Charter‘s role in fostering a sense of justice, equality, and fairness for all:

“Simply put, the Charter of Rights and Freedoms is promotive and protective of what the pursuit of justice is all about. It is promotive and protective not only of the inherent dignity and worth of every human being, but the equal dignity and worth of all human beings – where one can aspire to a society which celebrates both equality and human dignity – a society which not only speaks to us in terms of who we are – that recognizes the dignity of difference – but also in terms of what we as Canadians, both collectively and individually, can aspire to be.”

Freedom of Conscience & Religion: Loyola High School v Québec (AG)

On March 24, 2014 the Supreme Court of Canada heard arguments in the case of Loyola High School et al v Attorney General of Québec.

The case deals with freedom of conscience and religion and the province’s mandatory ethics and religious culture  (“ERC”) program. In 2008, the Québec provincial government made the class mandatory. Loyal High School applied for a ministerial exemption which was denied.

Question before the court: Could the appellant (Loyola), a private Jesuit school in Notre-Dame-de-Grâce, Québec, refuse to teach a compulsory comparative religions and ethics class, which is taught in a secular context?

In 2010, the case was heard at the Québec Superior Court, namely: Loyola High School v Courchesne, 2010 QCCS 2631, Courchesne serving as the Minister of Education, Recreation and Sports at the time. The court ruled the mandatory nature of the class would violate the school’s religious freedom, concluding:

[333] GRANTS the reamended motion of the plaintiff Loyola High School;

[334] QUASHES the decision of the Minister of Education, Recreation and Sports dated November 13, 2008 (P-5) and signed by Line Gagné;

[335] DECLARES the plaintiff Loyola High School exempt, in accordance with the first paragraph of section 22 of the Regulation respecting the application of the Act respecting private education, from using the program established by the Minister of Education, Recreation and Sports (exhibits PGQ-31 and NK-3) and contemplated in the first paragraph of section 32 of the Act respecting private education (R.S.Q., c. E-9.1) to teach the compulsory subject ERC in the two cycles of general secondary education, namely, Secondary I, II, IV and V;

[336] AUTHORIZES the plaintiff Loyola High School to teach the compulsory ERC course using its program described in Exhibit P-2, as clarified in exhibits P-1 and P-4;

[337] THE WHOLE with costs, including expert costs.

In 2012, the same case was appealed by the Minister of Education to the Québec Court of Appeal, namely: Québec (Attorney General) v Loyola High School, 2012 QCCA 2139. The earlier decision by the Québec Superior Court was overturned.

June 13, 2013, leave to appeal from the Québec Court of Appeal was granted to the applicants (Loyola High School) by the Supreme Court of Canada and arguments were heard on March 24, 2014.

The court considered Section 2(a) of the Canadian Charter of Rights and Freedoms (“freedom of conscience and religion”) and Section 3 (“freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association”) of the Charter of Human Rights and Freedoms of Québec.

The decision will now take several months for release. The case will determine important constitutional and administrative matters.

La sexualité chez les personnes ayant une déficience intellectuelle

Dans son édition du samedi 22 mars, le journal La Presse consacre un dossier à la sexualité des personnes ayant une déficience intellectuelle. Plusieurs parents d’enfants ayant une telle déficience souhaient les soumettre à une stérilisation forcée. Dans les faits, certains médecins acceptent de conduire de telles opérations, autant chez les hommes que chez les femmes, alors que cela viole leur consentement. En effet, très peu des personnes en situation de handicap mental comprennent la portée d’une telle opération, ou ses conséquences futures. Read the rest of this entry »

SCC Unanimously Upholds Sexual Assault Conviction

A decision rendered March 7, 2014 from the Supreme Court of Canada unanimously upheld a sexual assault conviction of a Nova Scotia man, Craig Hutchinson.

The man attempted to trick his then-girlfriend into pregnancy by poking holes in the condoms they used during intercourse. In 2006, the accused poked holes in condoms using a pin, resulting in his girlfriend’s pregnancy and subsequent abortion. The woman was later treated with antibiotics having suffered a uterus infection.

Per R v Hutchinson, 2009 NSSC 51, the Nova Scotia Supreme Court originally found Hutchinson not guilty of aggravated sexual assault.

The Crown had to prove the “sexual activity in question” was not consented to, specifically unprotected intercourse, per Section 273.1(1) of the Criminal Code.

September 28, 2011, Hutchinson was found guilty by the Supreme Court of Nova Scotia and convicted of sexual assault. He was sentenced to 18 months on December 2, 2011 per R v Hutchinson, 2011 NSSC 462. Coughlan J of Halifax (para 25) writes:

Considering the case law and legislation, the circumstances of the offender and the offence, I sentence Mr. Hutchinson to incarceration for a period of eighteen months.

In a subsequent hearing at the Nova Scotia Court of Appeal the appellant appealed both the conviction and eighteen month sentence. In R v Hutchinson, 2013 NSCA 1, MacDonald, CJ, writing for the majority, concluded:

The judge was correct to conclude that the “sexual activity in question” [as envisaged in s. 273.1(1) of the Criminal Code] was unprotected sex which the complainant did not consent to. With all other elements of the offence made out, the appeal against conviction should therefore be dismissed.The sentence was not demonstrably unfit, nor did it reflect an error in principle. Therefore, the appeal against sentence should also be dismissed.

However, Farrar J provided a dissenting opinion which gave grounds for the appellant’s appeal to the SCC:

The trial judge erred in finding there was no consent under s.273.1(1) of the Criminal Code. The proper approach would have been to determine whether consent was vitiated under s. 265(3)(c) by fraud. The appeal should be allowed and a new trial ordered.

In a unanimous 7-0 ruling, the SCC concluded in R v Hutchinson, 2014 SCC 19 that Mr. Hutchinson’s actions of poking holes in condoms vitiated his girlfriend’s consent. The Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario were interveners.

McLachlin, CJ & Cromwell, J (para 71) write:

We conclude that where a complainant has chosen not to become pregnant, deceptions that deprive her of the benefit of that choice by making her pregnant, or exposing her to an increased risk of becoming pregnant by removing effective birth control, may constitute a sufficiently serious deprivation for the purposes of fraud vitiating consent under s. 265(3)(c).

Paragraph 70 of the judgment discusses a woman’s right not to become pregnant:

The concept of “harm” does not encompass only bodily harm in the traditional sense of that term; it includes at least the sorts of profound changes in a woman’s body — changes that may be welcomed or changes that a woman may choose not to accept — resulting from pregnancy. Depriving a woman of the choice whether to become pregnant or increasing the risk of pregnancy is equally serious as a “significant risk of serious bodily harm” within the meaning of Cuerrier, and therefore suffices to establish fraud vitiating consent under s. 265(3)(c).

Key Timelines and Jurisprudence

R v Hutchinson, 2009 NSSC 51

R v Hutchinson, 2011 NSSC 462

R v Hutchinson, 2013 NSCA 1

R v Hutchinson, 2014 SCC 19

Related Cases

R v Mabior, 2012 SCC 47, [2012] 2 SCR 584

R v Cuerrier, [1998] 2 SCR 371

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