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.”

Edward Snowden: “technology represents the most significant new threat to civil liberties in modern times.”

Speaking from Moscow to the Council of Europe in Strasbourg, France, whistleblower Edward Snowden provided live testimony, declaring:

“Technology represents the most significant new threat to civil liberties in modern times” (8 April 2014).

"Edward Snowden speaks via video link with members of the Council of Europe, in Strasbourg" (The Guardian).

Prominent human rights organizations such as Amnesty International and Human Rights Watch were alarmed to learn that the National Security Agency (NSA) in both the United States and the United Kingdom have intercepted telephone and information exchanges from high-level human rights staff. Snowden stated:

“The NSA has specifically targeted either leaders or staff members in a number of civil and non-governmental organisations…including domestically within the borders of the United States.”

Asked if the NSA had intercepted “highly sensitive and confidential communications,” Snowden replied: “The answer is, without question, yes. Absolutely.”

Snowden emphasized the wide-scale implications of these practices on reputable human rights organizations, and the safety of their human rights workers and staff, and how data-mining practices violate European Union privacy laws, including XKeyscore. He mentioned the NSA operated a “de facto policy of guilt by association.” The Guardian stated:

“XKeyscore allows analysts to search with no prior authorisation through vast databases containing emails, online chats, and the browsing histories of millions of individuals.”

In response to those who criticize his [Snowden's] outspoken account of the inner-workings of the NSA as a former analyst:

“I would like to clarify I have no intention to harm the US government or strain [its] bilateral ties.”

The Council of Europe defended the organization’s choice to invite Snowden’s testimony:

“Edward Snowden has triggered a massive public debate on privacy in the internet age. We hope to ask him what his revelations mean for ordinary users and how they should protect their privacy and what kind of restrictions Europe should impose on state surveillance.”

Amnesty International UK issued a press release following stark revelations. Michael Bochenek, Amnesty International Senior Director of International Law and Policy, stated:

“These allegations, if substantiated, would confirm our long-held fears that state intelligence agencies like the NSA and GCHQ have been subjecting human rights organisations to mass surveillance all along.

This raises the very real possibility that our communications with confidential sources have been intercepted. Sharing this information with other governments could put human rights defenders the world over in imminent danger.

When these concerns were raised before the US Supreme Court, they were dismissed as being ‘speculative’. Snowden’s latest revelation shows that these concerns are far from theoretical – they are a very real possibility.

We now need a full and frank disclosure of the extent of these surveillance programmes as well as water-tight legal guarantees against such indiscriminate surveillance in the future.”

NB: this opinion editorial was written in a personal capacity and does not represent the views of any of the organizations noted above.

UN Approves Inquiry into Rights Abuses in Sri Lanka

This week, the United Nations Human Rights Council passed a resolution (A/HRC/25/L.4/Rev.1), which requests the Office of the High Commissioner to investigate the alleged human rights abused by both parties in Sri Lanka during the civil war. A previous United Nations report estimated that at least 40, 000 civilians had been killed in during the civil war. The resolution also expressed concern about continuing human rights abuses, including sexual and gender-based crimes, disappearances and torture. Twenty-three countries voted in favour of the resolution, twelve voted against and twelve abstained.

Sri Lanka’s Ambassador to the Human Rights Council, Ravinatha Aryasinha, called the resolution “a grave threat to the sovereignty of U.N. member states.” Juliette De Rivero of Human Rights Watch called the resolution “long overdue” and said that “Sri Lanka should seize the moment and work with the UN to deliver what the victims of the war need: justice.”

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.

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.

Judgment triggers investigation into inhumane treatment at Yellowknife jail

Brooklyn Palmantier, a 20 year old offender, spent 132 days of his eight month sentence in the North Slave Correctional Centre in an isolation cell. This included an uninterrupted month of isolation in September, during which he was not allowed a shower, cutlery for his food nor a mattress.

In a judgment issued on March 7th, Judge Bernadette Schmaltz condemned Palmantier’s treatment. She noted in particular the lack of logical connection between Palmantier’s crimes, which included various forms of aggression against jail guards, with the nature of his punishment:

“I do not see how depriving someone of a mattress for seven days is a necessary or an appropriate response [to aggression]… Further, it was not necessary to deprive Mr. Palmantier of a shower or a toothbrush, and there is no relationship between an inmate being threatening or assaultive and turning off the water in an inmate’s cell… When a person is deprived of liberty for committing a crime, that is the punishment – being deprived of his or her liberty.”

The Northwest Territories Justice Department has, in response to the judgment, instigated a review of the policies at the North Slave Correctional Centre. Mounty Bourke, who oversees corrections at the Department of Justice, confirmed that he is looking into how high-risk offenders are managed. He has also asked for the staff to document what happens in the segregation area.

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.

Les peines à perpétuité toujours constitutionnelles au Royaume-Uni

L’an passé, dans le cause de Vinter et al. c. le Royaume-Uni, la Cour Européenne des Droits de l’Homme (CEDH) avait indiqué au Royaume-Uni que l’imposition d’une peine à perpétuité sans possibilité de révision ou de libération conditionnelle consistait en une peine cruelle et inusité au sens de l’article 3 de la Convention Europénne des Droits de l’Homme (CvEDH).

Ce jugement avait fait beaucoup de vagues, notamment en remettant en question l’existence même des peines à perpétuité. C’est que la plupart des conventions internationales ou des pays occidentaux demandent, au minimum, une révision judiciaire après 25 ans (comme c’est le cas au Canada, d’ailleurs).

Le Procureur Général du Royaume-Uni avait alors demandé renvoi à la Cour d’Appel. Le jugement a été rendu la semaine dernière alors que Lord Chief Justice Thomas a réitéré la capacité des cours de justice du Royaume-Uni de prononcer des sentences-vie. Le Royaume-Uni prétend que la CEDH a mal compris la loi anglaise, alors que tout prisonnier peut toujours faire appel auprès de la Cour du Royaume-Uni pour être relâché d’une sentence-vie “pour circonstances exceptionnelles”.

Un argument peu convaincant compte tenu que les seuls octrois faits selon cette clause en jurisprudence a toujours été que lorsqu’il ne restait au détenu que quelques mois à vivre, afin qu’il évite de mourir en prison. On y voit donc une suite au bras de fer qui dure depuis un an ou deux avec une justice criminelle qui veut toujours être plus dure, malgré les recommandations de la CEDH.

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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