Court of Appeal for Alberta Upholds Mandatory Minimum Previously Declared Unconstitutional

In a recent decision, the Court of Appeal for Alberta upheld the constitutionality of a mandatory minimum sentence provision in section 153(1.1)(a) of Canada’s Criminal Code. The decision is called R v EJB, 2018 ABCA 239. The mandatory minimum in section 153(1.1)(a) compels a sentencing judge to impose a term of imprisonment of at least one year for any person convicted of the offence of sexual exploitation where the Crown prosecutor elects to proceed with the prosecution by indictment.

The sexual exploitation offence captures a broad range of conduct. The offence criminalizes sexual contact between a person aged 16-17 and a person who is in a position of trust or authority towards that young person, or a person in a relationship of dependency towards the young person, or a person who is in an exploitative relationship with the young person. Relationships of dependency and exploitation tend to be foreseeable. However, a position of trust or authority can be constructed from the dynamics of the relationship between the 2 individuals and can therefore criminalize a range of conduct which many Canadians may find immoral but which arguably should hardly be considered criminal, much less punishable by a term of one year of imprisonment. In this vein, it should be noted that the criminal law regards 16 year olds as capable of consenting to sexual activity.

Because the offence criminalizes a broad range of conduct, those found guilty of the offence will vary substantially in their moral blameworthiness and degree of responsibility, key considerations for sentencing. Nonetheless, the mandatory minimum requires a one-year term of imprisonment regardless of the degree of responsibility or moral blameworthiness.

Mandatory minimums place a great deal of power in the hands of Crown prosecutors, who alone have the choice of whether to proceed with a charge, and if so, whether to proceed summarily (with a lesser minimum punishment) or to proceed by indictment (which carries with it a higher minimum punishment). The prospect of a mandatory one-year term of incarceration, regardless of the circumstances of the offence, serves as a powerful incentive for accused persons to plead guilty. In this sense, mandatory minimum sentences have the potential to be coercive tools that discourage presumptively innocent accused persons from exercising their right to a day in court.

Constitutional challenges to mandatory minimums are commonly framed as violations of the right to be free from cruel and unusual punishment under section 12 of the Canadian Charter of Rights and Freedoms. In R v RJB, the Crown appealed from the sentencing judge’s decision that found the mandatory minimum to be grossly disproportionate, the legal standard for whether a mandatory minimum amounts to cruel and unusual punishment under the Charter.

Two decisions from Canadian courts outside of Alberta have concluded that the mandatory minimum in section 153(1.1)(a) constituted cruel and unusual punishment that violates section 12 of the Charter. Those cases are R v Hood, 2018 NSCA 18 from the Nova Scotia Court of Appeal and R v Cristoferi-Paolucci, 2017 ONSC 4246 from the Ontario Superior Court of Justice. In light of the Court of Appeal for Alberta’s decision in R v EJB, there is now a conflict between the courts of appeal and superior courts across the provinces on a constitutional question which requires a unified answer. Hopefully, the Supreme Court of Canada will hear an appeal from R v EJB and further the overwhelming judicial trend in recent years of striking down mandatory minimums as unconstitutional by reversing the Court of Appeal for Alberta’s decision.

 

Posted in Access to Justice, Rule of Law | Comments Off

Parenting and Polyamory: What is in the Child’s Best Interests?

In an April 4, 2018 judgment the Newfoundland and Labrador Supreme Court awarded a declaratory order pursuant to section 7 of the Children’s Law Act that three persons be named parents of one child. The current legislation in the province (and in most provinces) does not permit a child to have more than two parents. The three parents in question are a polyamorous family made up of two men and one women. When the woman had a child the family petitioned the court for the declaration recognizing them all as parents.

The court applied a best interests of the child test and determined it was in the best interests of the child for both fathers to have a recognized legal relationship with the child and therefore named them all as parents. The identity of the biological father has never been determined.

The court acknowledged the legislation never contemplated more than two parents. The court recognizes that when there is a gap in the legislation, such as not contemplating more than two parents, the determining factor has to be to protect the best interests of the child.

The court also recognized that it is important to take into account changing cultural norms in ensuring children’s best interests are protected. The court found in this instance the family was stable and provided a positive environment for the child. The court found there was nothing about the family make up which detracts from the best interests of the child. In fact the court supported the idea that to remove the status of one of the fathers would be detrimental to the best interests of the child.

Some specific facts in this case which may distinguish it from others include that there was an equal probability of biological parentage between the two fathers and the stable nature of their home. This could lead future courts to examine the home environment provided by families petitioning for similar treatment. A future court could potentially determine this ruling would not apply in the event the biological parents were clearly known.

Other courts in the country have named more than two parents in differing circumstances but not in a polyamorous family such as this where the family intends to parent together in one household. With this case and similar cases of multiple legally recognized parents across Canada, it may become appropriate to see a matter like this reach the Supreme Court for further clarification.

CC(Re), 2018 NLSC 71. Case Comment by Collin Smith, 2018

Posted in Access to Justice, Diversity, Equal Rights, Freedom of Association | Comments Off

Legislatively mandated “outing” is a form of compelled speech

On November 15, 2017, the Alberta Legislature passed Bill 24: An Act to Support Gay-Straight Alliances (GSAs). Previous legislation permits students to establish GSAs in Alberta schools, and Bill 24 extends GSA protections by prohibiting teachers from informing parents of students’ participation in GSAs without the permission of the student. The legislation is aimed at preventing the “outing” of students who choose to join a GSA and are uncomfortable sharing such information with their parents. The introduction of this legislation raises a number of potential civil liberties issues. On one hand, parents and religious-based schools are concerned about the bill’s impact on freedom of religion, expression, and association, along with parental rights. On the other hand, the proponents of the bill seek to guarantee the rights of students to exercise autonomy of their sexual identity without fear of being “outed”. Both perspectives will be explored in turn.

Parental Rights and Freedom of Religion and Expression

Advocating for parental and religious rights, the Justice Center for Constitutional Freedoms (JCCF) recently launched a court challenge, claiming that Bill 24 “violates the rights of parents and schools protected by section 2(a), 2(b), 2(d), and 7 rights” under Canada’s Charter of Rights and Freedoms. Alberta’s School Act mandates that school codes of conducts must comply with sections of the Act that might contradict the moral codes of conduct held by some independent schools and parents. Bill 24 amends the School Act by mandating the establishment of GSA clubs upon request. According to the JCCF, these provisions undermine section 2(a) of the Charter, which guarantee freedom of conscious and religion. Independent schools and parents hold “sincerely held religious beliefs regarding gender, marriage, and sexuality” and, according to JCCF’s claims, legislation requiring “government promoted ideology” contrary to these religious beliefs undermines freedom of conscious and religion.

The JCCF also points to section 2(b) of the Charter, which guarantees freedom of thought, belief, opinion, and expression. Bill 24 effectively compels independent schools to establish codes of conduct and clubs, even when those are in opposition to the school’s beliefs. Bill 24 also requires the Minister to write codes of conduct for schools not in compliance with the Act — something the JCCF argues could interfere with freedom of association under section 2(d).

Finally, JCCF argues that Bill 24 violates section 7 of the Charter, which guarantees life, liberty, and security of the person. According to JCCF, section 7 guarantees parental rights over decisions regarding their children’s education and development, including issues pertaining to morality and sexuality. By barring schools and teachers from notifying parents about their children’s membership in certain clubs, JCCF claims, Bill 24 effectively strips parents of their right to discharge parental responsibility and make decisions regarding education and morality.

The Rights and Autonomy of the Student

The arguments advanced by JCCF fail to account for the rights and perspectives of students. “Outing” students based on their association with a GSA would potentially engage several charter provisions as well as the Alberta Human Rights Act which supports the principle “that all persons are equal in: dignity, rights and responsibilities without regard to race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation.”

The School Act as it currently stands prohibits teachers from telling parents that a student has joined a GSA. However, nothing in the School Act prohibits parents from having a conversation with their child. And nothing prevents a student from telling their parents (or anyone else) they have joined a GSA. The elephant in the room is that if parents are unaware their child has joined a GSA it is because the child has chosen not to share that with their parents.

The proponents of parental rights argue for a legislative scheme that would require public servants – teachers – to observe, gather and record information about whether a student has chosen to join a GSA, and report that information to the student’s parents. What is the likely effect of such a measure? Well, if under the current legislation a student has chosen not to inform their parents that they have joined a GSA, that student is unlikely to join or continue to participate in the GSA if the legislation mandates disclosure to the student’s parents. The effect is a denial of access to the support and community that GSA’s offer LGBTQ students.

Further, the student will be effectively “outed” to their parents as LGBTQ and on terms not of their own choosing. A GSA’s straight allies are unlikely to care much about their parents being notified of their participation in a GSA. They can simply explain the nuance of being a straight ally. An LGBTQ student, however, will either have to reveal their sexual orientation to their parents or they will have to lie and pretend they are not who they truly are.

Several civil liberties issues flow from this. Section 2(b) of the Charter guarantees freedom of expression, which includes the right not to be compelled to speak. Legislatively mandated “outing” is a form of compelled speech, violating students’ freedom of expression. Further, Section 2(d) protects the fundamental freedom to establish, belong and maintain an association. Driving LGBTQ students away from GSA’s under threat of being outed to their parents effectively denies students the right to associate in the form of a GSA.

Further, section 7 protects every student’s right to life, liberty and security of the person, which cannot be deprived except in accordance with the principles of fundamental justice. The principles of fundamental justice include that a measure must not be grossly disproportionate to its objective. The right to liberty protects an irreducible sphere of individuality from deprivation by the state and applies whenever the law prevents a person from making fundamental personal choices. That irreducible sphere of individuality must include sexual orientation and gender identity, and a law which compels an LGBTQ individual to come out against their wishes deprives that individual of the fundamental personal choice of when, where, how and to whom they wish to come out to.

Security of the person guarantees the mental and physical wellbeing of LGBTQ students against interference by the state. A 2011 study found that 68% of transgender students, 55% of lesbian or bisexual students, and 42% of gay or bisexual students experience harassment and bullying based on their gender identity or sexual orientation. The extent of persecution includes physical harassment and assault in some cases, as well as sexual harassment. Driving students away from GSAs can only exacerbate these issues by depriving LGBTQ students of the safe, welcoming supportive community which GSAs foster for vulnerable students. Compelling disclosure of one’s sexual orientation also violates the principles of Alberta’s Human Rights Act that serve to safeguard equality rights and protect diversity. Any law that would effectively target individuals who join GSAs — regardless or because of their sexual orientation or gender — jeopardizes their safety and sends the very clear message that Alberta is not a safe or welcoming place for LGBTQ. Creating an environment that undermines individuals’ rights to security and privacy, as suggested by the proposed measure, would foster bullying and harassing of LGBTQ students and, indeed, anyone who associates with them through the common activity of being a member of a GSA.

Finally, section 15 guarantees equality before and under the law, as well as the equal protection and benefit of the law without discrimination based on, for example, sexual orientation or age. The law proposed by parental rights proponents would clearly have a disparate impact on LGBTQ youth. It would either overtly or effectively target GSAs, whose membership is comprised mostly, if not entirely, of LGBTQ youth. By driving students away from GSAs, the proposed measure perpetuates prejudice against LGBTQ youth and denies them access to the beneficial support which GSAs provide. The effect is a law that widens the gap between a disadvantaged group of young people and the rest of society, and invites further discrimination towards members of GSAs. Such discrimination is both an unconstitutional violation of Canada’s Charter or Rights and Freedoms and a violation of Alberta’s Human Rights Act.

In addition, disclosing a child’s at-school activities without the child’s consent would breach the child’s rights under the province’s Freedom of Information and Protection of Privacy Act. FOIP states that “A public body [a school] may use personal information only to the extent necessary to enable the public body to carry out its purpose in a reasonable manner” and the Education Act is clear that the purpose of a school is education. Indeed, the Education Act states that “the educational best interest of the child is the paramount consideration in making decisions about a child’s education.” The Education Act does acknowledge that “parents have the right and the responsibility to make informed decisions respecting the education of their children,” however, participation in a voluntary student organization falls outside the parameters of education.

Furthermore, the Education Act is clear that staff members shall act as the liaison for voluntary student-established organizations but does not provide for staff to attend the meetings or monitor participation. Thus, monitoring students’ extra-curricular activities and club memberships would be beyond the scope of the Education Act; and revealing such activities, without the student’s consent, would be a breach of their privacy rights and a contravention, by the school, of the Freedom of Information and Protection of Privacy Act.

Posted in Freedom of Association, Freedom of Expression | Comments Off

Access to Justice and Legal Aid Funding in Alberta and Canada

Introduction

Legal Aid Alberta’s vision statement is “[a]n Alberta where everyone can access justice and achieve fair and lasting resolutions to their legal issues.” Sadly, that vision is far from the reality facing Albertans today.

On April 16, 2018, the Calgary-based Criminal Defence Lawyers Association (CDLA) sent an open letter to Alberta’s Minister of Justice Kathleen Ganley decrying the chronic underfunding of legal aid in Alberta. After promising a revamped legal aid service in 2017, the Government of Alberta chose keep legal aid funding flat, despite the fact that Legal Aid Alberta ran out of money last fiscal year and had to receive emergency funding. In its letter the CDLA called on the Government to increase legal aid spending by 65% over four years. In the interim, the CDLA’s membership will no longer perform the many unpaid tasks which legal aid does not cover.

In 2016, the Supreme Court of Canada released its decision in R v Jordan, case under the Canadian Charter of Rights and Freedoms (Charter) which set a presumptive deadline of 30 months for Alberta Queen’s Bench criminal trials and 18 months for Alberta Provincial Court trials. After the deadline, the accused person’s Charter-protected right to a trial within a reasonable time is presumptively violated. In the wake of Jordan, governments across Canada, including Alberta, have managed to scrounge up additional justice system spending for law enforcement, court staff and prosecutors — but not for legal aid.

The Access to Justice Crisis

Legal aid funding across the country is inadequate, resulting in limited coverage by provincial legal aid societies both in terms of the types of legal problems covered and the low-income thresholds to receive coverage. The chronic underfunding of legal aid has exacerbated the access to justice crisis in Canada. Today, the justice system is inaccessible to all but the richest Canadians. The cost of legal services and lack of legal aid coverage are major factors preventing people from obtaining legal services (see here), resulting in self-representation in court and prolonged unresolved legal problems, costing the public hundreds of millions of dollars (see here). Without accessible legal services, the rule of law, upon which our free and democratic society depends, is being seriously threatened.

Within a given three year period, nearly 50% of the adult population experiences at least one legal problem which is serious or difficult to resolve and only 19% of those who encounter such a problem obtain legal advice (see here and here).

The burden of unmet legal needs falls disproportionately on Canada’s poor and vulnerable populations, who are statistically more likely to encounter legal problems.

For a country that proclaims the rule of law as one of its foundational principles, these statistics — and the reality of the situation — demonstrate a true crisis of access to justice.

Provincial and federal governments do not provide sufficient funding for legal aid. From 2003-2015, the federal contribution to legal aid across Canada’s 13 provinces and territories remained stagnant at $112.4 million annually — while the cost of delivering legal aid services during that time increased substantially (see here).

Legal aid programs cover very few legal problems outside of the criminal law context, and even within that context, they tend to only cover the most serious criminal charges with significant jail time on the line (see here). Further, only those of extremely modest means can obtain legal aid, and most of the people who do not qualify for legal aid cannot afford a lawyer. For example, in Alberta individuals who receive the maximum Assured Income for the Severely Handicapped benefit — $1,588 per month — do not qualify for legal aid (compare the AISH standard benefit with Legal Aid’s eligibility guidelines).

With so many people unable to afford a lawyer, there has been a steady increase in self-representation. The Canadian Bar Association (CBA) estimates that, in the last 20 years, rates of self-represented litigants have increased from 5% to between 10-80% of litigants, depending on the nature of the claim and level of court.

In a CBA survey, judges expressed concerns that self-represented litigants struggle to articulate their case, fail to address the most important issues, and are often overwhelmed by their emotional attachment to the case. A large body of research from the United States suggests that self-represented litigants experience significantly worse outcomes, losing in court more often and more substantially than those who obtain legal assistance (see here and here).

The problem of unmet legal needs affects more than individuals and their families: it exacerbates inequality. People from marginalized or vulnerable groups — such as women, the poor, the disabled, aboriginals, or other racialized minorities — are more likely to experience legal problems and less likely to be able to afford a lawyer (see here). The broader societal cost that comes from unresolved legal problems includes an estimated $450 million in employment insurance claims, $248 million in social assistance, and $101 million in health care costs per year.

Underfunding legal aid imposes a massive cost on the public purse and undercuts the public’s confidence in the justice system, leaving many Canadians to think that the justice system is unfair, inaccessible, and does not reflect them or their needs.

Why Does It Matter That Legal Services Are Unaffordable?

Social costs and policy concerns aside, there is a momentous problem when legal services are unattainable. On a basic level, the fact that self-represented litigants receive worse outcomes in the justice system suggests that some litigants are losing cases they ought not to have lost. In the criminal context this means wrongful convictions, which results in increased demand for facilities, and increased costs for the bureaucracy to operate jails and administer the corrections system

The golden thread running throughout our criminal justice system is the presumption of innocence, premised on the logic that “it is better for ten guilty persons to escape than that one innocent suffer” (See Blackstone’s Commentaries on the Laws of England (1765)). The Charter also protects the right of any person charged with an offence “to be presumed innocent until proven guilty according to law in fair and public hearing”.

But just how real is the presumption of innocence when only the most serious crimes receive legal aid coverage for only the most destitute individuals? How fair is a criminal trial when a person of modest means is made to do battle in our adversarial system of justice against a Crown prosecutor who attended law school and has experience running trials 4 days a week?

Beyond the presumption of innocence, nearly every Charter right is threatened when legal services are inaccessible.

The result of inaccessible legal services is a general diminishment of all civil liberties, as enforcing legal rights is beyond the grasp of all but the richest few in Canada. Who in 2018 could afford to prosecute a constitutional challenge to vindicate their right to freedom of expression or religion or security of the person? Not many. That does not portend well for the rule of law in Canada.

Posted in Access to Justice, Rule of Law | Tagged | Comments Off

National Privacy and Data Governance Congress, March 6-8, 2018

RMCLA is pleased to announce that it is sponsoring the 2018 National Privacy and Data Governance Congress. We encourage you to register for this congress. See: https://pacc-ccap.ca/congress/register/

The National Privacy and Data Governance Congress

March 6, 7, & 8, 2018
Venue: Carriage House Inn in Calgary, Alberta
Location:
9030 Macleod Trail South, Calgary T2H 0M4

If you have not yet registered, CLICK HERE TO REGISTER

The 2018 Congress is your opportunity to explore leading issues at the crossroads of privacy, access, security, law and technology. Network with peers and colleagues from industry and government to explore this year’s theme — The Road Ahead — Balancing privacy and the public interest. Get a clearer view of how privacy, access, security, compliance, law and technology intersect, and why that matters to you, your career, and your organization.

The PACC Congress takes a refreshingly pragmatic approach. We think it’s important to offer a truly varied assortment of perspectives and experiences — that offer practical guidance. Speakers from different locations, industries and organizations offer a range of views that are never the same-old, same-old.

Unlike most industry events, we do not offer manels (all-male panels); we do make sure that women’s speaking time at the PACC Congress typically is equal to or greater than the time that men speak; and we encourage speakers to leave the PowerPoint presentations behind so that they can have meaningful conversations with attendees instead of focusing on a screen.

The Congress is a unique professional development opportunity. Sessions are longer than at most conferences, and formal presentations are shorter — so that speakers have plenty of time to present their views, and delegates have time to ask questions and get real, unscripted answers. To accomplish that — and because the Congress is about quality, not quantity — registration is strictly limited.

The Privacy and Access Council of Canada is the host of the congress. The congress website is at: https://pacc-ccap.ca/congress/.

We look forward to seeing you there.

Donate

RMCLA cannot do its work without your financial support. We can only offer events; conduct research; publish articles reports or newsletter, and stay on-line with donations from you. If you want a voice for civil liberties in Alberta, then please give a donation. Donate today at: http://rmcla.ca/donate.html

Kelly Ernst, President, Rocky Mountain Civil Liberties Association

Posted in Uncategorized | Comments Off

Public-funding of religious healthcare violates Charter rights and freedoms: The time for change is now

When the provincial government funds healthcare facilities operated by religious organizations which deny Albertans access to medical procedures prohibited by that religion, for example, abortion, emergency contraception (such as the morning-after pill) and medically-assisted dying, it violates rights and freedoms guaranteed by the Canadian Charter. In 21st century Canada, those violations cannot be demonstrably justified. Thus the public funding of those healthcare facilities should be struck down as unconstitutional.

Funding religious healthcare facilities violates sections 2, 7 and 15 of the Charter. Let’s take these, briefly, one by one. Section 2(a) guarantees freedom of conscience and religion. By allowing religious healthcare facilities to deny certain medical treatments for religious reasons, the government is sanctioning the imposition of a certain set of religious beliefs on people who do not subscribe to that religion, or indeed perhaps to any religion at all, for we must remember that Canadian courts are clear: freedom of religion in Canada includes the right to be free of religion, if that is your choice.

Section 7 of the Charter protects Canadians’ right to life, liberty and security of the person. By funding a religious organization that denies certain medical procedures, not for medically relevant reasons but for medically arbitrary reasons, the government is violating Albertans’ security of the person.
Section 15 (1) of the Charter ensures that Canadians are free from discrimination by the government. By funding religious groups to run healthcare facilities that are supposed to serve all Albertans, the government is discriminating against all those Albertans that do not subscribe to those religious beliefs.

It’s true that Charter violations can be justified under section 1 of the Charter. But section 1 of the Charter specifies that in order to be justified, violations can extend only “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” So can the public funding of institutions that impose one religion’s beliefs on people who do not follow that religion possibly be “demonstrably justifiable” in a free and democratic Canada?

The answer must be “no” because the Canada of today is very different from the country it once was. From its founding as a country in 1867 through the Second World War, Canadian society and politics were dominated by the two founding European colonial peoples – the French and the British. For examples, Indigenous people were hugely disrespected and regularly tormented by government in a wide variety of ways, and immigration policy was unabashedly racist.

Significant social change started in the early 1900s, for example, when women got the right to vote. But it wasn’t until after WW II that human rights law in Canada started to change significantly. The culmination of human rights reform was addition of the Charter of Rights and Freedoms to the Canadian constitution in 1982.

Today, Canada has one of most highly diverse populations in the world. The legacy of British-French domination is still present – in many ways, it is still strong – but is much weaker than before. Powerful positions in government, business and the community more broadly are now held by a (not wide enough but) much wider range of people. Indigenous people are gradually gaining the respect and rights that have been denied them for so long and people from all over the world flock to Canada in search of better lives.

So whatever was considered permissible in Canada’s earlier days, it is not now constitutional for a government in Canada, including the Alberta provincial government, to fund an organization that does not respect Canadians’ rights under the Charter.

This isn’t a radical claim: Canadian law is supposed to evolve over time to reflect new social realities. The Supreme Court of Canada has consistently ruled that “our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.” These are the words of former Chief Justice McLaughlin in the Reference Re Same Sex Marriage in 2004.

It is also important to appreciate that, had those who drafted the Charter and advocated for its adoption wanted to protect religious healthcare facilities from a Charter challenge, they could have done that in the same way they insulated separate schools from Charter challenges with Article 29:
Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.

This means that Charter arguments based on freedom of conscience or discrimination cannot be used to declare separate schools unconstitutional.
But the framers of the Charter did not do the same regarding the funding of healthcare facilities. We can therefore conclude that our Charter rights can be applied to strike down the public funding of religious healthcare facilities.
As Ryan Hoskins says in his Alberta Views article “Holy Healthcare, Our religious hospitals problem”: “If we were to redesign the healthcare system today, we wouldn’t allow Catholic [JK: or any other religious] administration to continue… We now have a much cleaner separation of church and state… It’s the political norm [now] that state institutions be even-handed [neutral] about religions. It’s time to change course.”

Janet Keeping, Member, Rocky Mountain Civil Liberties Association.

Posted in Uncategorized | Comments Off

Canada’s Right-to-Die Legislation

“We respect your religious views, but they cannot, in a secular society, trump our clients’ constitutional rights.”
Joe Arvay, lawyer, responding to religious testimony in the Supreme Court of Canada’s hearing on assisted death

On February 6, 2015 the Supreme Court of Canada unanimously ruled that the prohibition on assisted suicide, as specified in the Criminal Code of Canada, was unconstitutional, and the Court gave direction on how this should be remedied by new legislation. The responsibility to make a legislative change fell to the new Liberal government, which passed Bill C-14, on medically-assisted death, on June 17, 2016.

The Court had specified that, according to our Charter of Rights and Freedoms, all competent and consenting adults who have a grievous and irremediable medical condition that causes enduring and intolerable suffering should have access to assisted death. Bill C-14, however, fell somewhat short of that directive. In Clause  241,2(2)(d) the Liberals arbitrarily limited eligibility to those for whom natural death is “reasonably foreseeable.” Many observers, including eminent Constitutional lawyers Peter Hogg and Joe Arvay, felt that the imposition of this limitation was a violation of constitutionality as determined in the Court ruling. The Court specified the eligibility of “competent and consenting adults …” with grievous and incurable medical conditions, not just those about to die anyway.

The requirement that death must be reasonably foreseeable was indeed a major limitation in the bill – a limitation that not only appears to be unconstitutional but which deprives many Canadians of the right to seek medically-assisted death. In May 2016 I spoke to the Standing House of Commons Committee on Justice and Human Rights about this serious problem with the proposed legislation. I spoke about my recent book (The Right to Die, April 2016) which reviews the significant court cases involving assisted death in Canada since 1940. It appeared that at least half of these cases would not have been alleviated by the new legislation, largely because of the reasonably foreseeable clause. In September 2016 I prepared a Government of Canada e-petition on the same issue and was successful in getting the necessary 500 signatures to have the petition presented in the House of Commons, which happened February 6, 2017.

I was far from being the only person to protest this limitation in the legislation. There were a great many others who felt that Bill C-14 is a betrayal of all the work that had been put in by so many people to get the court to the point where it could make its sweeping ruling. With that ruling and with the new legislation in the works, it appeared that Canada would finally have strong and compassionate assisted death legislation – legislation that would save many people from agonizing suffering and save many more from worrying about reaching a state of unendurable pain but being ineligible for assisted death. With the Supreme Court ruling, our legislation could have been among the best and most compassionate in the world. Instead, while better than nothing, it, is tragically inadequate, leaving many desperate people with no prospect of relief from their pain.

The offending clause remained and Bill C-14 passed. A challenge was inevitable, and the BC Civil Liberties Association, which took the lead in the original case (Carter vs. Canada), quickly formulated a new case on behalf of Julia Lamb, suffering from spinal muscular atrophy, type II, a hereditary disease that causes weakness and wasting of the voluntary muscles. Her death was not reasonably foreseeable, but she faced the possibility of many years of debilitated suffering. She wanted to know that she could get assistance in dying if her condition reached the point of being unbearable. A second plaintiff, Robyn Moro, suffering from Parkinson’s disease, also joined the case.

The first ruling on this case came down from the BC Supreme Court on October 11, 2017. The Civil Liberties Association wanted the finding of facts from the previous Carter case, which led to the Supreme Court ruling, to hold for this case as well. The Carter case produced one of the strongest documents ever to be written in support of the idea of assisted death – written by BC Supreme Court Justice Lynne Smith. This landmark document provided powerful backing for the ultimate decision of the Supreme Court of Canada. Now Smith’s acute and far-reaching analysis may well be irrelevant, as the facts surrounding the issue may be revisited by the new judge.

Whatever happens, the new decision on the case will take months or years to be resolved by the BC Supreme Court, and then it will inevitably go to the BC Appeals Court, and then to the Supreme Court of Canada.

This process will go on for years, with millions of dollars being spent, and with much additional unnecessary suffering by those barred from having access to assisted death. All of this is the result of the Liberals’ unreasonable intransigence on the matter of “reasonably foreseeable” death.

This article is an excerpt from a longer essay entitled “When Metaphysical Beliefs Trump Human Compassion”.

Gary Bauslaugh is a Victoria writer whose latest book, The Right to Die, was published by James Lorimer and Co, Toronto, in April 2016.

Posted in Freedom of Religion, Fundamental Human Rights | Comments Off

Parental Rights are only to Act in the Best Interests of Children

Alberta’s Bill 24 has passed that ensures youth attending Gay-Straight Alliances (GSAs) are not outed to parents for mere attendance in the student clubs. Although the legislation has passed, the debate in the public square continues regarding if parents should be informed of their children’s attendance in these clubs. Some have suggested they will challenge the legislation in court, based on a charter challenge.

RMCLA conducted a province-wide public consultation on GSAs in schools in 2015. The recommendations from this report were submitted to the Premier and Minister of Education. It contained many recommendations that were repeated by the government of the day and enacted in legislation. The report contained additional recommendations and rationales on parental and child rights.

Given the current debate, on whether or not parents need to be informed about children club choices, we feel it is time to repeat the findings of the public consultation and our review of law regarding the issue.

We feel that youth have the right to choose the clubs they wish to attend, regardless of their parental wishes. There is no strong rationale for schools to inform parents regarding their attendance in these clubs. We also feel that a constitutional challenge of Bill 24 regarding children’s choices would fail.

The reason for these conclusions are below and come from the original RMCLA Report and Recommendations on Gay-Straight Alliances in Alberta Schools. You can read the full report at the link below. Major segments are as follows:

http://www.rmcla.ca/GayStraightAllianceFinalReportRMCLA2015.pdf

Parental Rights are Not to Act in their Personal Interest

“Parental rights are not rights in a vacuum but rather emanate from the children themselves. Neither such ‘rights’ are absolute. Parental rights as described by the United Nation’s statements on the rights of the child are conferred so that parents may care for their children and act in the best interests of the child, not necessarily of the parent’s personal interests.

Canadian laws and Supreme Court of Canada decisions are consistent with this principle. The duty to protect minors takes precedence over any “right” or other authority of their parents. Parental rights are more akin to a privilege to exercise the rights of another individual (the child); and such authority diminishes over time as the minor matures. Thus parental “rights” are not analogous to the other rights listed in the Alberta Bill of Rights, and merely including “parental rights” in that legislation together with other rights would not clarify or identify these underlying principles or the complex nature of parental rights.

Arguably, the law relating to parental authority is already well established or settled. Unintended consequences are likely to flow from enshrining parental rights into the Bill of Rights by diminishing the importance of the underlying duty to protect minors or diminishing a parent’s responsibility to act in the best interest of the child through whom the ‘right’ flows to the parent. A great deal more study of such unintended and other consequences is required in various areas of law such as child welfare, family, adoption, health and mental health, criminal, agency, trusts, banking and many others. Paradoxically, including ’parental rights’ in the Bill of Rights without a great deal of definition and without amendment to numerous other laws may point toward many of its limitations and actually erode in the public’s mind the sense of what parental rights ought to be.

Mature Minor Doctrine

The mature minor doctrine underscores the importance of self-determination and choice in a young person’s life. The Supreme Court of Canada has determined that, as children mature, their capacity for making decisions on their own increase, and the influence of their parents decrease. The Court noted that,

The purpose of the Child and Family Services Act is to defend the “best interest” of children who are “in need of protection” — this means, in this context, children who do not have the capacity to make their own decisions about medical treatment. When applied to young persons who possess the requisite capacity, the presumption has “no real relation” to the legislative goal of protecting children who do not possess such capacity. The deprivation in the case of mature minors is thus arbitrary and violates section 7 of the Canadian Charter of Rights and Freedoms.[1]

The ‘mature minors doctrine’ enables and affords legal protection for the rights of persons under the age of majority to make (sometimes significant) medical and life choices, including the undertaking of practices and behaviours — such as pre-marital sex and the use of contraception — that are contrary to some religious teachings and can have serious and life—altering consequences.

The Child, Youth, and Family Enhancement Act17 includes (at s.2) the provision that, when “a child is in need of intervention, a Court, an Appeal Panel and all persons who exercise any authority or make any decision under this Act relating to the child must do so in the best interests of the child and must consider” [among other things]:

2(d) a child who is capable of forming an opinion is entitled to an opportunity to express that opinion on matters affecting the child, and the child’s opinion should be considered by those making decisions that affect the child.[2]

It is clear that in scenarios such as those suggested by s. 2, a child’s opinion in relation to her or his interests must be considered. It is just as appropriate that a student’s opinion in relation to the formation of, or participation in, GSAs should be considered.

GSAs are voluntary clubs that exist typically in secondary schools. Legislation allowing GSAs in any school based on student requests would acknowledge students’ right to associative and expressive liberty and self-determination. Given the entirely voluntary nature of the club, a GSA does not infringe on any students who wish not to be involved in this same club. However, not allowing GSAs in schools does diminish the fundamental liberties of LGBTQ students.

In January 2015, the Supreme Court of Canada reiterated that freedom of association is “essential to the development and maintenance of the vibrant civil society upon which our democracy rests”.[3] The purpose of freedom of association is “to recognize the profoundly social nature of human endeavours and to protect the individual from state-enforced isolation in the pursuit of his or her ends”. The associative freedom includes collective activity that enables those who would otherwise be vulnerable and ineffective to meet on terms that are more equal with the power and strength of those with whom their interests interact and, perhaps, conflict. The guarantee of freedom of association empowers vulnerable individuals to form supportive groups and helps them work to right imbalances in society.

The School Act (and the Education Act) give students rights to be involved in certain decisions at age 16. In addition, Bill 10’s amendment providing that children could appeal the decision of a school board was a tacit acknowledgement by our government that minors, especially mature minors, have a role in determining their treatment and their future. Nevertheless, minors might not yet have the resources to enable their decisions to be put into action. As noted in the section 5.2.5, the Child, Youth, and Family Enhancement Act also notes the importance of mature minors being involved in decisions affecting their lives.

GSA members are youths who have or are in the process of developing the capacity to make informed decisions about when, where and with whom they wish to associate. The absence of legislation permitting or mandating GSAs means that many students who would otherwise form GSAs will be denied their associative rights to seek the support of a group and will have to face, alone, the oppressive climate that, according to various participants in the public consultations, is an everyday occurrence in Alberta schools. Legislation mandating the formation of GSAs when they are requested would permit the exercise of the students’ Charter right to freedom of association.

The law enables mature minors to be involved in decision-making in a variety of respects. Some of those decisions may entail life-altering consequences; yet, in a variety of respects society and the government recognize that the minor should, at a certain stage, be involved in those decisions. Accordingly, we suggest that such recognition should also extend to the establishment of, or participation in, student clubs or societies.

Parental Rights

As has been noted throughout this report, one of the hallmarks of a GSA is that participation is entirely voluntary. No student is required to join or participate. The panel did not receive any evidence or submission that the formation of a GSA or the voluntary participation of students in a GSA would eliminate the possibility of any parent from involvement in their child’s life, or involvement in decision making with the child.

Parental rights are neither enjoined nor infringed by the presence of a GSA. Parents retain the same unencumbered scope to instruct their children in their values and beliefs, make informed choices as to their children’s education, support their children’s wish to participate in a GSA or instruct their children not to.

Freedom of religion and conscience encompasses the right of parents to educate their children in their own values and religious beliefs, and rear their children according to those values and beliefs.

Parents who do not wish their children to participate in a GSA have no right, individually or as a group, to impose that view upon parents who would like their children to participate in a GSA or indoctrinate other parents’ children by way of the school system or otherwise. Nor do they have a right to deny other children the opportunity to participate if those children’s parents support participation.

The responses to our public poll — from public, separate and private schools supporters —suggested that there is not unanimity of views regarding GSAs, although the clear majority of people in all types of schools supported GSAs. Consequently, the minority parent view to impede the formation of GSAs so that all students (even those with parents that support GSAs) cannot voluntarily join such a club would be the imposition of a few parental views upon the majority of others.

We did hear, in our public consultation, information about parents who are abusive or do not act in the best interest of their children. We are all aware that within our society, and in all sectors of our society, there are parents who abuse their children or who fail or are unable, for various reasons, to look after the best interests of their children or provide them with the support and comforts that the children need.

The government’s duty to protect minors from, amongst other things, abuse and neglect trumps parental authority. We see that principle enshrined in a number of our laws. Our consultative process heard descriptions of LGBTQ students experiencing parental abuse and rejection, and of others who do not receive support from their own parents. We heard that in such cases a GSA might be the only safe place in the student’s life. In these cases, especially where the mature minor doctrine applies, the student’s own decision-making abilities must be recognized in determining whether the student should participate or not in a GSA. In cases such as these, respecting the student’s privacy and maintaining confidentiality of their choices regarding is also vital to the student’s safety and well-being.

Responses to our poll — from public, separate and private schools supporters — showed little support for entrenching parental rights within the Alberta Bill of Rights or elsewhere. We also advise caution in light of the unintended consequences of proclaiming ‘parental rights’ in the Alberta Bill of Rights or other enactments. Albertans have seen, in the past and even today, where unencumbered ‘parental rights’ lead to horrific consequences for children. A review of the Leilani Muir case is one such example.19 Forced marriages of children20, honour killing and the view of some on aggressive corporal punishment for misbehaviour are other examples at the extreme of the spectrum.

Beyond these examples, the law relating to parental authority is, arguably, already well established or settled. Unintended consequences are likely to flow from enshrining parental rights into the Bill of Rights by diminishing, or being interpreted or perceived to diminish, the importance of the underlying duty to protect minors or diminishing a parent’s responsibility to act in the best interest of the child through whom the ‘right’ flows to the parent. A great deal more study of such unintended and other consequences is required in various areas of law such as child welfare, family, adoption, health and mental health, criminal, agency, trusts, banking and many others. Paradoxically, including ’parental rights’ in the Bill of Rights without a great deal of definition and without amendment to numerous other laws may point toward many of its limitations and actually erode in the public’s mind the sense of what parental rights ought to be.

There simply is neither strong evidence nor support for placing “parental rights” in the Alberta Bill of Rights or other legislation.”


[1] A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181 http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7795/index.do

[2] Child Youth and Family Enhancement Act, RSA 2000, c-12

[3] Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1

 

Posted in Diversity, Freedom of Association, Freedom of Expression, Freedom of Religion | Comments Off

The Convenience of Covenants: Getting Around Your Rights and Liberties

RMCLA is often asked, “What are the differences between human rights and civil liberties, and how far can my liberties be restricted?” One way to think of fundamental human rights are that these are the rights protected by law and stated in the constitution, whereas, the liberties you have are related to the choices and actions you can make concerning each of these rights.

Fundamental freedoms are typically noted as the following:

  1. freedom of conscience and religion;
  2. freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
  3. freedom of peaceful assembly; and
  4. freedom of association.”[1]

Of course, we have more constitutional rights, but we most often refer to our liberty or choice to make decisions within these fundamental rights. For example, we have the option to join one protest (and use our freedom of peaceful assembly) over another protest, or not join any protest. We also have the choice to follow one religion rather than another, have one belief preference over another, or say some words and not others. We can also decide not to follow any religion or not to make any choices regarding freedom of conscience and religion, not have a particularly defined belief, or not to express oneself on any specific topic. These are some examples of our liberties, of course there are many more.

Restricting Liberties

There are plenty of examples in society where our liberties are restricted. In any society, citizens must follow a specific set of laws and not break these laws; these restrict our liberties and typically for good reasons that are justified under the constitution. We see this in other walks of life as well. When you decide to follow a certain religion, there may be pressure to follow a set of behaviours over other behaviours. When you join a company as an employee there may be a code of behaviour that states certain behaviours can and cannot be followed. In all these cases, when liberties are restricted it may or may not be justified under the constitution. It can be especially problematic when government directly or indirectly through laws, contracts, or their boards, authorities, or other bodies, restrict our rights.

Restricting Liberties through Covenants

It is the set of restrictions related to organizations that are of recent concern to RMCLA. When employers or organizations request that a person can only be an employee, or part of the association of people that make up the organization, and ask the person to sign a contract that restricts behaviours as a condition of this association, then the agreement is called a covenant. Signing employee contracts and agreeing to such codes of conduct are commonplace. The question regarding whether covenants are problematic arises when the contract or covenant restricts an employee’s fundamental freedoms as noted by the constitution, or when the covenant obliges the employee to restrict the rights of others. These may be customers, clients, patients, or other people that may served or supervised.

How far can covenants go? How obliged are employees to follow the covenants? What are the rights that people may loose if they join with, or seek services from, an organization with specific covenants? The questions concerning covenants are endless.

In many cases, organizations are arms of the government (such as schools, health authorities, and so on) and restrictions of our liberties can occur through these types of organizations, and although may not be directly limited by legislation are in fact sanctioned by governments. Covenants can produce unique problems in education of children, university or college education, and in health. In this case, we will focus on health covenants.

Covenants concerning Health Care

Health covenants can have implications for the types of service offered to and received by the public. For example, some covenants state that the health professionals cannot provide physician-assisted dying, even though Canadian law allows a person to choose assisted dying under strict circumstances. Abortions, the morning after pill, voluntary sterilization, and birth control may not be offered through some organizations due to these covenants. The right of some LGBT people to join with their sick partners and assist in making health decisions may be restricted or blocked. This list goes on and on.

Many of the above scenarios appear to be true in Alberta for those receiving services from ‘Covenant Health,’ a Catholic health organization. Covenant Health believes that it has a,

…“thousands-of-years-old calling to serve others… through protecting the sanctity of life from conception to natural death.” This includes guiding the policies adopted by Covenant on, among other things, birth control, pregnancy termination and end-of-life care.”[2]

A key phrase here is “sanctity of life from conception to natural death.” Covenant Health is one of the largest health organizations in the province; in 2015 its budget was $895-million. The funds directed toward Covenant Health are entirely at the discretion of the government. This is about 5 per cent of the provincial health budget. The organization is dependent on public funding, with 88 per cent of its revenue in 2015 coming from the Alberta government. Some Alberta communities only have Covenant Health serving it so that people there have no other options in the community.

A fundamental question arises as to what degree Covenant Health can restrict its services and make decisions for patients and communities they serve, when it is contracted to provide the full range of public health services by the Alberta government.

We invite you to come to a discussion about Alberta’s covenants in health care on January 13th, 2017 at the University of Calgary’s law school.

In the meantime, we encourage you to read various articles about covenants in health and other services. These include:

Ryan Hoskins (2017). Holy Healthcare: Our religious hospitals problem. Retrived from Alberta Views, Calgary, Alberta.

Ailsa Watkinson (2017). Faith-based health care should end with Sask.’s health region amalgamation. Retrived from CBC News., Toronto, Ontario.

Christina Frangou (2017). Assited dying: Still sensitive but now legal. Retrived from Alberta Views, Calgary, Alberta.

 

 

Posted in Freedom of Religion, Fundamental Human Rights | Comments Off

Freedom of Expression and Hate Speech – RMCLA’s Position

This article is a reposting of an RMCLA position paper. On October 17th 2017 an event at the University of Calgary discusses free expression and hate speech. This article summarizes RMCLA’s position on the issue.

RMCLA Position Paper

In 2013, the Rocky Mountain Civil Liberties Association campaigned to have section 3 of the Alberta Human Rights Act repealed. This section refers to expressions of discrimination and hate speech. The following document outlines RMCLA’s most recent position on the Alberta Human Rights Act as it refers to matters of free expression.

RMCLA is not only mandated to ensure the protection of expression for Albertans— it is also within its mandate to promote the fundamental dignity and worth of all Albertans. As such, it abhors acts of discrimination and hate. RMCLA realizes that conflicts and dilemmas may arise when the protection of differing rights may be required, such as protection of both fundamental dignity and free expression. RMCLA’s position on free expression is not only intended to best protect free expression, but also to forward what we believe to be the best way to also uphold the fundamental dignity of all persons.

RMCLA’s Position

After considerable study of the Act and its possible consequences, RMCLA suggests that Section 3 is far too broad and infringes on citizen’s free expression. Section 3 of the Alberta Human Rights Act should be repealed. Failing its full repeal, the minimal repeal of Section 3 (1) (b) should occur.

Section 3

The applicable portions of section 3 of the Alberta Human Rights Act read:

3 (1) No person shall publish, issue or display or cause to be published, issued or displayed before the public any statement, publication, notice, sign, symbol, emblem or other representation that

(a) indicates discrimination or an intention to discriminate against a person or a class of persons, or

(b) is likely to expose a person or a class of persons to hatred or contempt

because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or class of persons.

(2) Nothing in this section shall be deemed to interfere with the free expression of opinion on any subject.

Objection to the Act

The fundamental reasons for RMCLA’s position are related to use of the words “likely to expose” in the statement of 3(1)(b): “likely to expose a person or class of person to hatred or contempt.” RMCLA is of the position that the wording of section 3 has two fundamental problems.

  • “Likely to expose”  is far too broad and captures offensive, humiliating, disdainful or hurtful speech that is subjectively held by the target of the speech, or by an audience in receipt of the speech; and
  • “Hate or contempt” is not clearly worded. These terms are complexly interpreted in law and not well understood by the public; the public’s common understanding and legal interpretation are quite different. As they are written, the wording is vague and remains undefined for the public leading too often leading to overly broad and subjective interpretations that include speech (as noted above) that is not defined legally as hate or contempt.

Issues related to the above objections

As written, Section 3 may lead to an overabundance of complaints because the section is open to subjective interpretation. Despite Supreme Court of Canada and other court rulings on hate speech, the human rights complaint process is a complaint-driven system. As such, the Human Rights Commission must accept and consider all complaints, even those that are not hate speech per se and merely offensive, humiliating, disdainful or hurtful speech. It may be that such complaints are rejected by the human rights commission, but once a complaint is submitted, resources must be allocated to review these files; scarce resources that could be used to deal with other cases that are more appropriately the focus of the Commission.

The section can also have a counter intuitive effect. Rather than protecting people vulnerable to discrimination, it could be applied to speech intended to counter hateful or offensive speech. If a well-intentioned person hopes to counter/critique discrimination or hateful speech and the recipient of the message is offended, then the recipient could lodge a human rights complaint against the well-intentioned person. This of course would have the effect of squelching forms of counter speech and critique of hate/discrimination. The section of the Act also provides no defences to the complaint, such as truth, which may lead to the anomalous situation that a true comment, made to counter discrimination, may nonetheless be found to impugn s. 3.1. Further, that true comment would not be protected by the Charter of Rights due to s. 3.2 deeming that nothing in the section interferes “with the free expression of opinion on any subject”.

In both of the above scenarios, we can see many possible examples of suppression of free expression. The theme of suppress the messenger, including the message, is clear. It becomes very difficult to police which messages are objectionable and which are not when terms of the legislation are not well defined or invite overly subjective and broad interpretation.

It should also be noted that the Human Rights Commission and complaint process is also not well understood by the public. It is often seen as having a quasi-judicial process that is assumed to be far less process-oriented or to require less bureaucratic response than a court. This of course is not necessarily true and the process to lodge a complaint is a very detailed process that can sometimes be best conducted by legal counsel; it can be lengthy; and cost both the complainant and respondent considerable time, money and resources. For people with little financial resources and/or with cognitive challenges, even quasi-judiciary processes can act as a significant hindrance to resolution of issues, at times not different than what might be seen in a regular court scenario (it is an access to justice issue that requires further exploration and is beyond this scope of this position paper).

Supreme Court Clarification of Hate Speech

Understanding what does and what does not constitute hate speech is a complex issue. Courts have tried to clarify the issues surrounding legislation but this has not necessarily made the clarification issue easier.

The most recent decision that is often quoted to support keeping Section 3 is the Supreme Court of Canada’s decision Saskatchewan (Human Rights Commission) v Whatcott. The case struck down part of the Saskatchewan Human Rights Code’s section 14, while upholding other parts of the section that were very similar to those in Alberta’s section 3. The parts of section 14 that were struck down were NOT similar to those in Alberta’s section 3.

The Whatcott decision did clarify that the legal interpretation of human rights legislation related to hate speech and uses a very high test for setting limits on freedom of expression. The decision eliminated the use of words in the Code that were too close to limiting expression that might be deemed as merely offensive by striking down the words, “ridicules, belittles or otherwise affronts the dignity of the person.” It upheld limiting free expression, even if it was of a religiously held belief, if the expression was of the most extreme nature and “exposed” an audience to hatred.

The Whatcott decision noted three elements of hate speech that must be present to be considered hate speech and not simply offensive speech:

  1. Objectively, “a reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred.”(2013 SCC 11, [2013] 1 S.C.R. 467, p.5)
  2. The message is that of an extreme manifestation… “Hatred or contempt” must be interpreted as being restricted to those extreme manifestations of the emotion described by the words “detestation” and “vilification”. This filters out expression which, while repugnant and offensive, does not incite the level of abhorrence, delegitimization and rejection that risk causing discrimination or other harmful effects.”(p.5)
  3. One must consider the effect of the message, not the intent. “Tribunals must focus their analysis on the effect of the expression at issue, namely whether it is likely to expose the targeted person or group to hatred by others. The repugnancy of the ideas being expressed is not sufficient to justify restricting the expression, and whether or not the author of the expression intended to incite hatred or discriminatory treatment is irrelevant. The key is to determine the likely effect of the expression on its audience,…” (p.5)

Some have suggested that because the wording of the Saskatchewan Code that is synonymous with the Alberta Act was not struck down that this should be a rationale for keeping Section 3. However, it should be noted that the Supreme Court did not comment on how human right commissions or tribunals should functionally deal with complaints, only that the legal interpretation of terms in relation to hate has a high bar. This high bar goes far beyond what most people might personally define as a hateful statement, which more often refers to offensive, humiliating, disdainful or hurtful speech. The Whatcott decision noted that even statements which are malicious, libellous, and false do not by themselves meet the test for hateful speech. This underlines the importance for legislation to have extremely clear wording, something the Alberta legislation lacks.

Having a Supreme Court decision that seems to support a section of an act may confirm that the legislation is constitutional but does not in itself make good law or public policy. Legislation that falls within the parameters of Supreme Court’s decisions may be a necessary component to law-making, but this in itself is not sufficient. Good laws not only ensure laws are constitutionally valid, but also that it is good public policy, that justice is served and the public follows the rule of the law. It remains to be seen if the Human Rights Commission can handle complaints based on free speech in reasonable amounts of time while allowing those with the least resources to access the complaint process. The Supreme Court decision also does not functionally stop submission of complaints that fall below the high bar for hate speech. For these reasons alone, the risk for suppression or chilling of speech remains high and a  good rationales for repealing the section as written remain.

The Criminal Code and Hate Speech

The Canadian Criminal Code does have a provision for hate speech. Section 319 (2) states:

Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

The same high bar for defining hate speech applies to the Criminal Code as it does for human rights legislation. However, the Criminal Code also provides defences to the charge- among them truth, the good faith expression or attempt to establish by argument an opinion on a religious subject and good faith intent to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada. All of these are absent in our provincial human rights legislation. Given the Whatcott decision and its three criteria for hate, in Alberta and other provinces that have similar hate speech legislation, the Criminal Code is also only used for incidents of an extreme nature. When the two type of legislation are placed side by side and the Supreme Court’s criteria are applied to both, it is clear the legislation overlaps. However, the criminal applications of hate incidents have a far greater penalty.

It should be noted that for many of the reasons cited above, the Federal Government has repealed similar hate legislation (section 13) in its Canadian Human Rights Act, preferring to leave these cases to the jurisdiction of the criminal courts.

Some people argue that because they do not see large volumes of charges being laid under the Criminal Code, that human right legislation is needed. These arguments negate a myriad of issues with the application of hate speech legislation, and instead make an immediate leap (not logically) that the Criminal Code must be a failure. Such simplistic interpretations of legal applications of hate speech are not convincing and negate the successful applications of hate speech criminal law. Given the hate speech laws are designed and upheld to be reserved for the most extreme in nature, and the relatively liberal nature of Canada, one would expect very few cases to go forward in law.

Another point referring to the provincial legislation versus federal legislation is that given there is Criminal Code referring to hate speech, there is no need for similar provincial legislation. In fact, criminal matters are federal legislative jurisdiction, not provincial. Provincial legislation may actually be legislation in areas reserved for federal jurisdiction.

Purpose of Human Rights Acts

It should be noted that human rights acts were not intended to address criminal matters. These acts were intended to address discrimination in the application of services, employment and housing. They were never intended to address or suppress free expression. RMCLA believes the Human Rights Act needs to return to its base:  to protect people from acts of discrimination, rather than policing people’s expressions and feelings.

Not all jurisdictions include the words “expose a person or a class of persons to hatred or contempt” or even reference hate. For example both Ontario’s and Manitoba’s Human Rights Codes do not have references to hate, but do retain references to statements regarding discriminatory acts or incitement of discriminatory acts. It is doubtful that inclusion of Alberta’s Section 3(1)(b) has led to fewer acts of hate, hateful statements, or acts of discrimination on a per capita basis than other provinces. Each province has its successes and failures regarding respecting human dignity, but the human rights successes need considerable attention in jurisdictions that do not have legislation limiting free expression; why is it human dignity is similarly respected (in some cases more so) in other provinces that do not have synonymous legislative statements to Alberta’s Section 3(1)(b)?

Conclusion & Discussion

For the reasons stated in the above position paper, RMCLA suggests that Section 3 of the Alberta Human Rights Act is far too broad and infringes on citizen’s free expression. Section 3 of the Alberta Human Rights Act should be repealed. Failing its full repeal, the minimal repeal of Section 3 (1) (b) should occur.

RMCLA would suggest to the public that there are far better means to address disdainful/hateful speech than through the use of human rights commissions and tribunals. If the goal of human rights acts are to promote a society where we all live well together, then there are more effective responses to hateful expressions that enhance free expression.

  • Critiquing the message and messenger. Exposing the person who disseminates hateful and disdainful messages to the public as a person with inaccurate messages and/or undignified messaging, plus replacing the message with ones that uphold respect and dignity for all is the most effective way to ensure dignity for all remains a fundamental principle of our communities.
  • Proactive messaging. Ensuring ongoing messages and education of the public occurs to uphold dignity for all, tolerance, understanding of differences, and so on is a far better way to create community values, rather than waiting for hateful messages to occur. It also gives those in positions of low status/power and opportunity to become involved in building a better community and a voice for encouraging dignity for all.
  • Debate. When offensive beliefs seem to take hold, then debate the message in medias, news, forums, and other types of debate. Messages that uphold respect and dignity for all tend to win over other types of negative messaging.
  • Advocacy. Sometime people with in positions of low status/power and opportunity don’t feel empowered to speak out. This underlines the great need to those who are more able to advocate for the rights and dignity of others.
  • Anti-bullying responses. Bullying in the current era of social media is noted as a problem. Assisting others to counter bullying, encourage respectfulness and so on builds an environment of respect.
  • Public condemnation. When hate does occur, then publicly condemn acts and statements of hate with your own condemnation.
  • Protest. Sometimes when hate and discrimination occurs in institutions or by groups of people, then larger statements are required. Protests that attract the media can be an effect means to counter statements of hate and encourage a dignified society.
  • Community rallying. Don’t wait for hate. Rally people together from time to time to give expressions of dignity. A community that sees dignified actions often becomes a society based on dignified values.
Posted in Freedom of Expression | Comments Off