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.

What should the relationship between MLAs and government employees look like in Nunavut?

“Threats, intimidation, bullying is unacceptable in this government.”

The member of the legislative assembly for Iqaluit-Tasiluk, George Hickes, spoke adamantly against a perceived wall that exists between government employees and MLAs this past week. His comments sparked a back-and-forth with the minister responsible for the Public Service Act on the issue of when it is acceptable for government employees to speak with MLAs and what information can be disclosed in those circumstances. Read the rest of this entry »

Conservatives may consider renaming Nadon to SCC

Despite the Supreme Court of Canada’s 6-1 decision regarding the unconstitutionality of Marc Nadon’s appointment to the high court, Justice Minister Peter MacKay wouldn’t rule out advancing Mr. Nadon’s nomination to the SCC:

Peter MacKay won’t rule out renaming Marc Nadon to Supreme Court.

“As you would expect, we’ll look at all the details of the decision, which I did read already with interest, including Mr. Justice [Michael] Moldaver’s dissent. And we’ll look at the details of the decision, we’ll examine our options as we ensure that the Supreme Court has its full complement,” MacKay said.

Marc Nadon Denied Appointment to SCC

In a long-awaited decision from the Supreme Court of Canada, six justices of the top court have confirmed Justice Marc Nadon’s ineligibility to sit as the ninth justice of the SCC, concluding that Prime Minister Harper’s appointment was unconstitutional (paras 1 to 107). Three of the six justices were appointed by Harper themselves.

Justice Michael Moldaver dissented (paras 108 to 154). Justice Marshall Rothstein recused himself from the decision (speculation is that he identified a conflict of interest.)

The full judgment of Reference Re Supreme Court Act, ss. 5 and 6, 2014 SCC 21 can be read here.

An article from the CBC stated:

“The court ruled that its composition is constitutionally protected, and Parliament’s attempt to change the Supreme Court Act through a budget bill is unconstitutional,” and “Changes to the court’s makeup require a constitutional amendment with the unanimous consent of the provinces, the court says.”

Québec judges require the knowledge of the civil law code, different from the common law administered in other Canadian jurisdictions.

Rocco Galati, a Toronto-based lawyer, challenged the Prime Minister’s appointment because Justice Nadon came from the Federal Court of Appeal, rather than a court of Québec, and therefore was unqualified to fill one of three seats from the province of Québec.

[4] In our view, the answer to this question is no: a current judge of the Federal Court of Appeal is not eligible for appointment under s. 6 as a person who may be appointed “from among the advocates of that Province”. This language requires that, at the time of appointment, the appointee be a current member of the Québec bar with at least 10 years standing.

An interview with University of Ottawa Faculty of Law professor Adam Dodek featured interesting discussion, including:

Q. Can you elaborate on what part of the language struck you as especially firm?

A. In many ways this is a declaration of independence by the Supreme Court of Canada. So by going beyond the first question of the statutory language of whether a Federal Court judge qualifies for appointment and into the second question on the constitutional issues, for the court to say that it is constitutionally entrenched through a number of provisions, went beyond what was minimally necessary for the case.

Q. So this is a landmark ruling about where the court fits in the structure of our government.

A. Very much. It is an instant landmark ruling, a classic ruling. And remember, we expect the Senate reference later this year. Together with the Senate reference, these two decisions will be the most important decisions since the [court's 1998] secession reference.

Q. Is there anything in the Nadon ruling that foreshadows what we should expect the court to say about the government’s desire to press ahead with Senate reform, instituting a sort of election of senators and imposing a limit on how long future senators serve?

A. I think the judges were very, very careful not to say anything that would relate or tip their hand on what they will ultimately decide on the Senate.

Q. Some will look for a sort of hidden partisan political struggle between the Supreme Court and Prime Minister Stephen Harper. But I notice that of the six judges who ruled against the Prime Minister on Nadon, three were appointed by him to the top court.

A. I think in many ways the decision shows the independence of the Supreme Court and the independence of individual judges on the court. You know, I think Justice Moldaver’s dissent shows his independence of thought and has nothing to do with the fact that he’s a Harper appointee.

Q. Is it possible that Justice Nadon, having been rejected because he’s not a current member of the Quebec bar, could join it and be reappointed?

A. I don’t know Justice Nadon at all. I think the government has done him a great disservice through this whole process. I don’t know if he would want to continue to go through that.

The unprecedented decision will have widespread implications for the SCC’s ongoing Senate Reference deliberations.

SCC to Rule on Marc Nadon’s Appointment

An important decision will be released Friday, March 21, 2014 regarding Prime Minister Stephen Harper’s appointment of Marc Nadon to the Supreme Court of Canada. The appointment already underwent extensive judicial review and attracted substantial controversy due to debates over Justice Nadon’s eligibility for the top court.

“The Supreme Court of Canada will rule on Friday whether to accept or reject Prime Minister Stephen Harper’s latest choice for that court, the first time it has had to decide on the legal qualifications of an appointee in its 139-year history.”

Carissima Mathen of the University of Ottawa stated:

“It’s going to be tremendously exciting because the case has morphed beyond the initial question about statutory interpretation, to Quebec’s place in our legal system and to questions about constitutional amendments,” Carissima Mathen, a University of Ottawa law professor, said in an interview.

“It has the potential to be one of the most important decisions from the Supreme Court this year, and in the last several years,” Prof. Mathen said.

Earlier, Toronto-based lawyer Rocco Galati challenged Marc Nadon’s appointment in Federal Court.

Read the full article here.

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

Jeunesse, justice pénale et littératie

« Chaque enfant qu’on enseigne est un homme qu’on gagne.
Quatre-vingt-dix voleurs sur cent qui sont au bagne
Ne sont jamais allés à l’école une fois,
Et ne savent pas lire, et signent d’une croix.
C’est dans cette ombre-là qu’ils ont trouvé le crime.
L’ignorance est la nuit qui commence l’abîme.
Où rampe la raison, l’honnêteté périt. »

Extrait de : Écrit après la visite d’un bagne, Victor Hugo


La criminalité chez les jeunes connaît plus d’un facteur contribuant à son augmentation, notamment l’analphabétisme. Le mois dernier, l’organisme d’alphabétisation national,  « Collège Frontière», s’est penché sur le sujet dans le cadre d’une conférence intitulée « Jeunesse, justice pénale et littératie ». Read the rest of this entry »

Op Ed: Why the Proposed “Fair Elections Act” is Unfair

Section 3 of the Canadian Charter of Rights provides that: “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” The Fair Elections Act must ensure that this right is provided and provided for all citizens.

The proposed bill eliminates the ability of a registered voter to vouch for the identity of another to allow that person to vote, thereby disenfranchising many Canadians. The current Chief Electoral Officer, Marc Mayrand, estimates that eliminating the vouching provisions will affect over 100 000 voters, many of them Aboriginals living on reserves, as well as young people and seniors.

Read the rest of this entry »

Québec’s Gun Registry Appeal to the SCC

There is no shortage of tension between the federal Conservative government and the province of Québec.

Matters include: the Supreme Court of Canada Senate Reference; the intention to appoint Justice Marc Nadon to the Supreme Court of Canada as a representative from Québec; ongoing debate surrounding Bill 52 (Euthanasia); and of course, Québec’s gun registry appeal to the SCC, one of the most controversial law enforcement changes in Canadian history.

In its lifetime, the federal long-gun registry database has cost Canadians over $1 billion.

It’s important to place the long-gun registry and its purpose within an historical context. In 1993, the federal Liberal Party of Canada created the long-gun registry, in part because of the tragic events of December 6, 1989, the massacre of 14 women at École Polytechnique in Montréal, who were discriminated against because of their gender.

Fast-forward almost twenty years later. The Conservative government announces their intention to destroy federal long-gun registry data through Bill C-19: Ending the Long-Gun Registry Act. Québec vehemently opposes the motion. February 15, 2012, Bill C-19 passed third reading in a 159 to 130 vote in the House of Commons. The gun-registry database would soon be dismantled, including information on 5.6 million rifles and shotguns, and 1.6 million rifles registered by Québec residents. The Conservatives even had a count-down clock on their website prior to the vote. Québec remained outraged and expressed its intention to create its own registry.

Parti Québecois leader Pauline Marois expressed her discontent toward abolishment. Following the Conservative Party’s announcement of a cocktail party to celebrate the federal Bill’s passing, she commented that the dismantling of the registry was “indecent and unacceptable.” She also read the names of the 14 women killed in Montréal’s 1989 massacre.

Bob Rae, Interim Liberal Leader, expressed concerns about the cocktail celebration:

“All of us should be sensitive to the feelings of Canadians across the country,” Rae told reporters. “The more they celebrate, the more they distance themselves” from Canadians who don’t always agree with government policies.

Québec Conservative MP Maxine Bernier was of a different view and towed the party line:

“[...] my colleagues [the Conservatives] will have a reception this evening to underline the fact that we have realized another of our election promises,” Bernier said. “Certain colleagues want to meet with the people who have worked for many years to abolish the registry.”

After passing the House of Commons, the federal bill to scrap the long-gun registry passed the Senate on third reading on April 4, 2012, in a vote of 50 to 27.

On February 19, 2013, Bill-20: Firearms Registration Act was presented in Québec’s National Assembly by the Provincial Minister of Public Security Stephané Bergeron.

June 27, 2013, the Québec Court of Appeal overruled a Québec Superior Court ruling and sided with the federal government, rejecting Québec’s claims to preserve long-gun registry data. The decision stated:

“Québec has no property right to the data in the  [Canadian Firearms Registry],” the appeal court decision reads. “The data does not belong to Québec, and the provinces have no control over it.”

The decision also discussed the complex area of federalism:

“It quoted a recent Supreme Court ruling that said that as popular as ‘flexible federalism’ might be, it ‘cannot sweep designated powers out to sea, nor erode the constitutional balance inherent in the Canadian federal state.’”

Québec’s Justice Minister, Bertrand St-Arnaud, responded within the 15-day appeal period with the intention to appeal the decision to the Supreme Court of Canada. Mr. St-Arnaud stated:

“All political parties represented in the national assembly defend this position and strongly oppose the federal government’s decision to abolish the firearms registry.”

November 21, 2013, the Supreme Court of Canada agreed to hear Québec’s opposition to the Court of Appeal decision. No reasons were given for the decision to hear the case, which is the norm. The case has certainly received widespread public interest:

“The decision of the court reaffirms the fact that there is public interest in studying Québec’s request for an appeal on the decision to destroy the records on 1.6 million rifles and shotguns registered in Québec,” [Coalition for Gun Control] president Wendy Cukier said in a release.”

Gun-registry data has now been destroyed from all provinces and territories except Québec. The province remains the birthplace of the long-gun registry, and may be the final resting place of an ongoing federal-provincial battle that will extend to 2014 — maybe beyond.

Surveillance & the Rule of Law: the Road Paved with Good Intentions

A month ago, Ron Deibert, director of the Citizen Lab at the University of Toronto, visited Green College at the University of British Columbia to speak about Cyber Swarming: Distributed Counter Intelligence and Surveillance as Global Civil Security . Deibert called his pitch a “model for a countermovement” against the troubling story of ever-increasing privacy rights violations by state actors.

(Side note: In contrast to my discussion of privacy in the abstract as a weak concept, Deibert’s sketch of the unfolding government surveillance saga looks at what is happening in the real world, now. Just wanted to state for the record that my objections to privacy as a rights-bearing tool are not intended to comment on current state actions.)

What struck me most in the talk was its legal subtext: written all over his narrative was the deterioration and subversion of the rule of law – and how such failures were ushered in the very idealism that birthed the internet. The irony is that it’s the same old “those who forget history are doomed to repeat it” story we never seem to fully grasp. I want to take a moment to scrutinize Deibert’s history from a legal perspective, in the spirit of thumbing my nose at this stupid pattern. I think this is something we need to do more often, so that we learn to recognize the signposts of going down the same treacherous roads before we embark on them.

The Background: the promise of a legal vacuum / a space devoid of legal constraint

So let’s get into the history. Before the swollen constellation we know as the interwebs looked like it does today, Al Gore was a figure instrumental in pushing us in towards this model. He advocated for the consolidation of various unconnected networks by spearheading the High Performance Computing and Communications Act. While he used government to help build the apparatus, he also, according to Deibert, deserves credit for the initial push to extricate government forces from its administration.

As a result, thanks at least in part to Gore, the internet flourished in a space largely devoid of law. The ideology behind this approach was utopian: we wanted the internet to be a free space because we thought that its exemption from law was a safe social experiment. It was new and not terribly important to our daily lives at the time, so why not futz around? It could be a place for unrestricted innovation, collaboration and sharing.

We couldn’t really conceive then that practices taking place in a virtual world might infiltrate the real world irreversibly, and that partly as a result, internet-based practices could be powerful and dangerous. In this context, it gradually accumulated our dependency.

The evolutionary morphing of “security threats”

Deibert identifies 9/11 as the game changer when it came to how state intelligence agencies thought about information and surveillance. Before, says Deibert, it was a “spy versus spy” sort of world – governments against governments. 9/11 saw the coming of age of The Terrorist Threat. As a dispersed and slippery malice, it caused spy agencies to turn away from states and towards their citizens. This movement was exacerbated by the fact that 9/11 was widely characterized as an intelligence failure. It changed the conversation: since there were hints that weren’t picked up on, adequate surveillance technology was clearly available. In hindsight, we thought properly executed violations of privacy seemed like a small price to pay for the now-extinguished lives of thousands of Americans.   

So we’ve got roughly 2.5 conditions here necessary for the perfect storm of government surveillance active today:

  • the growing relocation of commercial and interpersonal communication from other communicative technologies onto the web (and the means to track it) and
  • the primary focus of a threat to national security now located at the situs of the individual rather than the state

It’s easy to see now how what looked at first like a legal haven could have been better described as a vacuum: through the tragedy of the commons, the lowest common denominator of government and private action rushed in. Eventually.

In 2002, American John Poindexter (of Reagan-era scandal fame) championed a bill to launch the Total Information Awareness program, which failed in Congress partly as a result of his connection with it. The program aimed to develop capacities to

“turn everything in cyberspace about everybody …  into a humongous, multi-googolplexibyte database that electronic robots will mine for patterns of information suggestive of terrorist activity,”

as an article from the New Yorker in 2002 by Hendrik Hertzberg describes. But, Deibert points out, the bill’s failure in congress didn’t stop the program from moving forward. It got atomized into different projects and black-budgeted.

Regardless of how commonplace a practice like this might be, I would like to pause here and marvel at just how repulsive this is to a democratically-minded palate: if Congress tells you to bugger off and take your horror-house program with you, you bugger off. I thought that that’s what following democratic procedure means. You don’t add food dye to your rotten meat, repackage it and send it back to the marketplace.

The private sector and state intervention: a waltz

With the public hand of government extracted from the internet, it is now (and has always been) run by private companies.

What do you do if you are a private company and there are no rules?

Deibert offered a couple of case studies, I’ll only mention one here. He pointed to the oft-downplayed Green Revolution or Twitter Revolution in Iran, which happened in 2009, awhile before the Arab Spring is said to have kicked off. When it became clear that Twitter was an indispensable vehicle for the protests, the Iranian government sought and obtained “lawful intercept capability” from Nokia to figure out who was associated with which incendiary tweets. Then came arrests, and the movement was quashed pretty quickly.

It’s easy for us chastise Nokia for complying with Iran’s ask. But think about it: what was this company supposed to do? You’re in an internet with no rules! As Nokia, you have the authority figures of a government knocking at your door, and no playbook to go by except maybe some ethical queasiness. But up against that is the potential threat of getting your business shut out of an entire country.

This is exactly the scenario that government intervention, in the form of legislation, is designed to prevent (presuming, of course, that the legislation we would like to see should have come from Nokia’s home turf). Since we never designed corporations to have moral compasses, it is the job of legislation to let them know where the limits are. Without limits, the worst request is going to get complied with.

A fairly short interval gets us from this point to the government surveillance nightmare we are currently staring down. Thanks to the Snowden saga, Deibert says, countries around the world are taking this government surveillance style and running with it. An activist from Bahrain is arrested, tortured, and presented by his government captors with transcripts of his Skype conversations. The Ethiopian government has used spyware against an opposition party prior to an election. Using the Chinese version of Skype, if you try to type in phrases like “Tiananmen Square” you just can’t.

Garret Hardin wrote “The Tragedy of the Commons” in 1968. I appreciate the difference between the idea of using up a resource and governments abusing power in a space without legal constraints, but I think there is sufficient similarity to merit the comparison. We put in legal frameworks because we want to set a floor for standards of behaviour, government or civilian. Undoubtedly internet culture wouldn’t look the way it does if we had done this from the get-go. What is more important?

All I am saying is, I think it’s fair to demand that when we are presented with a new resource, we don’t approach it with the kind of naïve idealism that leads us to unleash it with insufficient restrictions on behaviour when we have seen this pattern before.

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