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Category: Constitutional Page 28 of 72

Taking Proportionality Seriously in Charter Adjudication: R v KRJ

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On September 9, 2016

In Constitutional, Supreme Court of Canada

By: Stephen Armstrong

PDF Version: Taking Proportionality Seriously in Charter Adjudication: R v KRJ

Case Commented On: R v KRJ, 2016 SCC 31 (CanLII)

Introduction

The rights and freedoms enshrined in the Charter are not absolute. They are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (Canadian Charter of Rights and Freedoms, section 1). In R v Oakes, 1986 CanLII 46 (SCC), Chief Justice Brian Dickson established the legal standard by which an infringement of a Charter protected right may be justified, which has come to be known as the “Oakes test.” An infringing law must (1) pursue a pressing and substantial objective, (2) be rationally connected to that objective, (3) minimally impair the right or freedom in question, and (4) there must be a proportionality of effects between the deleterious and salutary effects of the law (Oakes at paras 69-70). It is possible to find each of these elements described in somewhat different language throughout the case law, but these four components are the essence of the Oakes test.

In R v KRJ, 2016 SCC 31 (CanLII), the Supreme Court of Canada was tasked with delicately balancing the Charter right of an offender not to be punished by the retrospective application of a punitive law, against Parliament’s objective of protecting children from sexual violence perpetrated by recidivists (KRJ at para 64). I will elaborate on the substance of the decision below, but what is of interest to me in this case is the lengthy and substantial “proportionality of effects” analyses engaged in by Justices Andromache Karakatsanis (writing for the majority), Rosalie Abella (dissenting in part), and Russell Brown (dissenting in part). The most substantial point of disagreement between the three judgements occurred at the final stage of the Oakes test.

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Charter Equality Challenges to the Income Tax Act: The Unsuccessful Streak is Strong, 30 Years On

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On September 2, 2016

In Constitutional, Tax

By: Kyle Gardiner

PDF Version: Charter Equality Challenges to the Income Tax Act: The Unsuccessful Streak is Strong, 30 Years On

Research Commented On: Shea Nerland Law LLP Fellowship Project on Tax Law and Equality, Summer 2016

On 2 May, 2016, I began a research project with Jonnette Watson Hamilton, Jennifer Koshan and Saul Templeton examining the role section 15 of the Charter plays in tax law. Over 50 variables were recorded from each of the 134 equality challenges to tax law that we analyzed. To read my post on one of these cases, Grenon v. Canada, 2016 FCA 4 (CanLII), see here. The data promises to be a rich tool for examining equality in the realm of tax law.

When I was conducting a literature review for this project, I reviewed Kathleen Lahey’s “The Impact of the Canadian Charter of Rights and Freedoms on Income Tax Law and Policy” in David Schneiderman & Kate Sutherland, eds, Charting the Consequences: The Impact of Charter Rights on Canadian Law and Politics (Toronto: University of Toronto Press, 1997) 109. In that study, Lahey conducted a review of 300 cases in which Charter challenges were brought to various income tax provisions between 1985 and 1995. The current research extends Lahey’s study, systematically reviewing section 15(1) Charter challenges to tax law that have been brought since the conclusion of her study in October, 1995. While many taxation provisions outside of the Income Tax Act, RSC 1985, c 1 (5th Supp) have seen their share of section 15(1) challenges, the cases examined in our study were specifically section 15(1) equality challenges to a section or sections of the Income Tax Act. Our data awaits further statistical analysis beyond what has been done preliminarily here.

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Trinity Western Decision Fails to Clarify Approach to Balancing Conflicting Charter Rights

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On August 23, 2016

In Administrative Law, Constitutional, Legal Education

By: Joshua Sealy-Harrington and Marita Zouravlioff

PDF Version: Trinity Western Decision Fails to Clarify Approach to Balancing Conflicting Charter Rights

Case Commented On: Trinity Western University v The Law Society of Upper Canada, 2016 ONCA 518 (CanLII)

Two days before Canada Day, the Ontario Court of Appeal upheld the Law Society of Upper Canada’s decision to not accredit the proposed law school at Trinity Western University—a private Christian university in British Columbia which requires all prospective law students to abstain from gay sex. Many progressives hailed the decision as a victory for equality, and it undoubtedly was. But while the outcome was progressive in this case, its reasoning need not result in progressive outcomes in future cases. For this reason, we critique the Court’s reasons for failing to discuss the appropriate approach to balancing conflicting Charter rights.

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When the Burden of Proving Institutional Bias Rests on a Prisoner

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On August 19, 2016

In Constitutional, Criminal

By: Amy Matychuk

PDF Version: When the Burden of Proving Institutional Bias Rests on a Prisoner

Case Commented On: Canada v Ewert, 2016 FCA 203 (CanLII)

Prisons use psychological tests to determine if inmates are likely to reoffend, but are the tests accurate for Aboriginal inmates? In a recent Federal Court of Appeal case, the court found that there was not enough evidence to prove the tests are biased. However, the analysis overlooked a few important factors.

In Canada v. Ewert, 2016 FCA 203 (CanLII) (Ewert FCA), Justice Dawson overruled a Federal Court decision that Correctional Service Canada’s (CSC’s) tests are unreliable when used to assess Aboriginal inmates. She held that Mr. Ewert, a 53-year-old Métis offender serving two life sentences in federal prison, did not provide enough evidence that the tests generate “false results and conclusions” due to cultural bias against Aboriginal people (at para 34). Mr. Ewert argued that these psychological tests do not take Aboriginal cultural differences into account. He alleged that his test scores affected “[his] eligibility for parole, his security classification and his ability to be granted escorted temporary absences” (at para 7). Because the tests generate inaccurate results for Aboriginal inmates, he said, relying on his scores to restrict his freedom was a violation of his rights. Justice Phelan of the Federal Court agreed, finding a section 7 Charter breach and a breach of the Corrections and Conditional Release Act, SC 1992, c 20 (see 2015 FC 1093 (CanLII) (Ewert FC)). However, the Federal Court of Appeal overturned that decision, and ruled that Mr. Ewert had not established on a balance of probabilities that the tests were unreliable.

Justice Dawson’s main reason for overturning the Federal Court ruling was that Justice Phelan failed to require that Mr. Ewert meet the necessary burden of proof (at para 15), which was to establish his claims on a balance of probabilities (at para 19).

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Section 7: Superhero, Mere Mortal or Villain?

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On August 9, 2016

In Constitutional, Human Rights

By: Jennifer Koshan

PDF Version: Section 7: Superhero, Mere Mortal or Villain?

Comment On: Section 7 of the Canadian Charter of Rights and Freedoms

Many people love superheroes. My favourite was always Spider-Man – he had the most interesting back story, the coolest superpowers, and the grooviest soundtrack and visuals (at least in the cartoon of my youth). Section 7 could easily be seen as the superhero of the Charter. It has the power to strike down laws and government policies that increase the risk of death and bodily or psychological harm, as well as those that deprive people of the ability to make fundamental personal decisions free from state interference. Those powers have been used by the Supreme Court of Canada in ways that may make the members of the Court the actual superheroes in the eyes of many individuals and groups who are vulnerable to the effects of state (in)action (for recent examples see Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 (CanLII), Canada (Attorney General) v Bedford, 2013 SCC 72 (CanLII), and Carter v Canada (Attorney General), 2015 SCC 5 (CanLII)).

But the courts do not always embrace the role of superhero. They can be timid Peter Parkers who are afraid to use their powers under section 7, especially when the use of those powers is seen as imposing positive obligations on governments. Conversely, section 7 powers may sometimes be used in ways that usurp the role of other Charter sections such as section 15, leaving equality rights and the individuals and groups who are the intended beneficiaries of that section in the dust. Alternatively, the courts, like Spider-Man, may be seen as villainous, fully intending to protect society but, by overextending their powers, harming society instead. Indeed, Asher Honickman, in The Case for a Constrained Approach to Section 7, argues that the Supreme Court has expanded section 7 beyond its proper limits.

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