Category: Constitutional Page 36 of 71

Open Letter to Parliament on Bill C-51

On February 28, 2015

Editor’s Note: Several Faculty members signed this letter, the full version of which is available here.

An open letter to members of Parliament on Bill C-51

Dear Members of Parliament,

Please accept this collective open letter as an expression of the signatories’ deep concern that Bill C-51 (which the government is calling the Anti-terrorism Act, 2015) is a dangerous piece of legislation in terms of its potential impacts on the rule of law, on constitutionally and internationally protected rights, and on the health of Canada’s democracy.

Beyond that, we note with concern that knowledgeable analysts have made cogent arguments not only that Bill C-51 may turn out to be ineffective in countering terrorism by virtue of what is omitted from the bill, but also that Bill C-51 could actually be counter-productive in that it could easily get in the way of effective policing, intelligence-gathering and prosecutorial activity. In this respect, we wish it to be clear that we are neither “extremists” (as the Prime Minister has recently labelled the Official Opposition for its resistance to Bill C-51) nor dismissive of the real threats to Canadians’ security that government and Parliament have a duty to protect. Rather, we believe that terrorism must be countered in ways that are fully consistent with core values (that include liberty, non-discrimination, and the rule of law), that are evidence-based, and that are likely to be effective.

Honour Killings and City Buses – The Limits on Advertising Controversial Messages on Public Transit and the Soon-To-Be-Decided Case of AFDI v The City of Edmonton

By Ola Malik

On February 26, 2015

In Constitutional, Municipal Law

By: Ola Malik and Sarah Burton

PDF Version: Honour Killings and City Buses – The Limits on Advertising Controversial Messages on Public Transit and the Soon-To-Be-Decided Case of AFDI v The City of Edmonton

Introduction

Consider these two ads which deal with the subject of honour killings. You are told that the maker of these advertisements, the American Freedom Defence Initiative (“AFDI”) published the ads in order to raise awareness of the subject and to provide support to young girls whose lives are in danger. These ads are similar with the exception of the revisions made to the second ad in italics.

Girls’ Honor Killed by their Families. Is Your Family Threatening you? Is Your Life in Danger? We Can Help: Go to FightforFreedom.us

Muslim Girls’ Honor Killed By Their Families. Is Your Family Threatening You? Is there a Fatwa On your Head? We Can Help: Go to FightforFreedom.us

The second ad has the initials “SIOA”, or “Stop the Islamization of America” added at the bottom.

Advertising for the second ad has been purchased from the Edmonton Transit Service (“ETS”). It will appear in the form of a large panel covering the rear of an Edmonton city bus. AFDI has purchased 5 such ads which will run for 4 weeks.

Do you believe either of these ads constitutes lawful expressive activity such that they are protected by freedom of expression as provided by section 2(b) of the Charter?

What do you make of the second sign? It doesn’t expressly advocate violence or hate, nor is it expressly hateful of the Muslim community. It is a matter of fact that thousands of Muslim girls around the world have been killed in this way.

But is it misleading to suggest that honour killings only happen in the Muslim community and might this expose the Muslim community to vilification and harmful stereotyping by those who don’t know better? Is the logo “Stop the Islamization of America” a laudable aim worthy of protection, or is it simply hateful?

Lawyers’ Representation, Lawyers’ Regulation and Section 7 of the Charter

By Alice Woolley

On February 23, 2015

In Constitutional, Ethics and the Legal Profession

By: Alice Woolley

PDF Version: Lawyers’ Representation, Lawyers’ Regulation and Section 7 of the Charter

Case Commented On: Attorney General (Canada) v Federation of Law Societies, 2015 SCC 7

In Attorney General (Canada) v. Federation of Law Societies, 2015 SCC 7 the Supreme Court of Canada precluded the application to lawyers of certain provisions of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC 2000, c 17, and the Proceeds of Crime (Money Laundering) and Terrorist Financing Regulations, SOR/2002?184. The Court held that, as applied to lawyers, those provisions violated s. 7 and s. 8 of the Charter. The violation of s. 8 arose from the provisions’ failure to protect adequately solicitor-client privilege in the context of searches permitted under the legislation. The violation of s. 7 arose because the provisions put lawyers’ liberty at risk and were inconsistent with fundamental justice. Specifically, because of the “conclusion that the search aspects of the scheme inadequately protect solicitor-client privilege” (at para 105) and, for a majority of the Court, because the provisions interfered with a newly articulated principle of fundamental justice: that the state may not impose duties on lawyers that undermine a lawyer’s commitment to her client’s cause. The Court declined to hold that independence of the bar was a principle of fundamental justice.

The conclusion by the majority that fundamental justice prevents improper interference with lawyers’ commitment to their clients is welcome. The rule of law requires legal counsel committed to protecting the ability of clients to enjoy the respect for their dignity and autonomy that the law provides (see my articles setting out this position here and here). The Court’s view of the legislation as unconstitutional also appears warranted; certainly the legislation’s search provisions seem plausibly to permit improper intrusions into privileged documents and information.

Supreme Court of Canada Strikes Down Ban on Physician Assisted Death

By Jennifer Koshan

On February 18, 2015

In Constitutional

By: Jennifer Koshan

PDF Version: Supreme Court of Canada Strikes Down Ban on Physician Assisted Death

Case Commented On: Carter v Canada (Attorney General), 2015 SCC 5

In a landmark decision, on February 6, 2015 the Supreme Court of Canada unanimously struck down the criminal prohibition against physician assisted death (PAD) in Carter v Canada, 2015 SCC 5. By declining to follow its 1993 decision in Rodriguez v British Columbia, 1993 CanLII 75 (SCC), [1993] 3 SCR 519, which had upheld the prohibition, Carter marks the third time in the first few weeks of 2015 that the Court has overruled previous Charter decisions (see also Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1 and Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, which will be the subject of a future ABlawg post). In Carter, the Court held that the ban on PAD violates the rights to life, liberty and security of the person contrary to the principles of fundamental justice under section 7 of the Charter, and could not be justified as a reasonable limit under section 1. As predicted, however, the Court declined to deal with the claim that the ban on PAD also violates equality rights contrary to section 15(1) of the Charter.

Does the Charter Apply to Universities? Pridgen Distinguished in U Vic Case

By Linda McKay-Panos

On February 6, 2015

In Constitutional

By: Linda McKay-Panos

PDF Version: Does the Charter Apply to Universities? Pridgen Distinguished in U Vic Case

Case Commented On: BC Civil Liberties Association v University of Victoria, 2015 BCSC 39

In Pridgen v University of Calgary, 2012 ABCA 139, one member of the Alberta Court of Appeal, Justice Paperny, came to the conclusion that the Canadian Charter of Rights and Freedoms could apply to the actions of the University of Calgary in disciplining the Pridgen brothers for non-academic misconduct (see a post on that decision here). In BC Civil Liberties Association v University of Victoria, 2015 BCSC 39 (“UVic”), the British Columbia Supreme Court ruled that the Charter did not apply, and distinguished Pridgen on several grounds.

Pridgen involved a number of University of Calgary students in the Faculty of Communication and Culture (now Arts) who posted derogatory comments about one of their instructors on Facebook, and who were disciplined for non-academic misconduct. The discipline included writing mandatory letters of apology and lengthy periods of probation. Some students appealed the faculty’s decision to the General Faculties Council Review Committee, which upheld the finding of non-academic misconduct. The Pridgens sought further appeal to the University’s Board of Governors. One of the grounds of appeal was that their freedom of expression under the Charter had been violated by the University. Justice Jo’Anne Strekaf of the Alberta Court of Queen’s Bench granted the Pridgens’ application for judicial review on both Charter and administrative law grounds (see Pridgen v University of Calgary, 2010 ABQB 644).