Linda McKay-Panos, Author at LawNow Magazine
A Website of The Centre for Public Legal Education Alberta

LawNow Magazine

relating law to life

You are here: Home / Archives for Linda McKay-Panos

About Linda McKay-Panos

Linda McKay-Panos, BEd, JD, LLM, is the Executive Director of the Alberta Civil Liberties Research Centre in Calgary, Alberta.

HUMAN RIGHTS | The Importance of Distinguishing Racism from Racial Discrimination

By

Photo from Pixabay

Recently, anti-racism has received extensive media coverage. Instead of addressing what can be done about it, there has been much discussion about whether racism—particularly systemic racism—exists in Canada, and apparent confusion about the meaning of important terms. For example, on June 9, 2020, CBC reported that Alberta Deputy RCMP Commissioner Curtis Zablocki denied there was systemic racism in policing in Canada. RCMP Commissioner Brenda Lucki said that Deputy RCMP Commissioner Zablocki had indicated he misunderstood the meaning of “systemic racism”. In order to proceed to actually address racism, it is very important that everyone is very clear about terminology.

Racism, racial discrimination and even systemic racism are often used interchangeably, leading to confusion and misinformation. Provincial, territorial and federal legislation prohibit racial discrimination. The Canadian Charter of Rights and Freedoms (Charter) prohibits racial discrimination by the government. There are limited circumstances under this legislation where racial discrimination may be justified by the government or the respondent.

Racism is a combination of racial prejudice (or discrimination) plus power.“Race” is one of several grounds covered under both human rights legislation and s. 15(1) of the Charter. Walter Tarnopolsky defined race for the purposes of human rights law (as quoted in Blake v Loconte (1980), 1 CHRRD/74 at D/78 (Ont. Bd. of Inquiry)) as:

… only one [Board of Inquiry] has attempted to provide a definition of the word ‘race’ and this was the 1976 Board of Inquiry under the Alberta Individual’s Rights Protection Act [S.A. 1972, c. 2, in] the case of Ali v. Such… The Board quoted from Webster’s New World Dictionary (2d. ed.) and Black’s Law Dictionary (rev. 4th. ed) and thereupon concluded that ‘race indicates broad or great divisions between mankind, and each of the definitions indicates that the races have physical peculiarities that distinguish one race from the other’.

Legislation often does not define “discrimination”, but leading cases from the Supreme Court of Canada (SCC) provide guidance. Under human rights law, the leading case is Moore v British Columbia (Education), 2012 SCC 61 (Moore). Moore provides:

[33] … [T]o demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact.

Under s. 15(1) of the Charter, the SCC summarizes the law on discrimination in Quebec (Attorney General) v Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17:

[25] … The test for a prima facie violation of s. 15 proceeds in two stages: Does the impugned law, on its face or in its impact, create a distinction based on enumerated or analogous grounds? If so, does the law impose ‘burdens or den[y] a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating … disadvantage’ (citation omitted).

Intention is not relevant in discrimination; we do not consider whether a person intended to discriminate. It is the impact of the discrimination that we take into account.

In the case of Canada and United States, white people currently possess socially-imbued power and this is reflected in our institutions.The legal tests for “discrimination” and “race” indicate that a person faces racial discrimination any time a person experiences an adverse impact (e.g. caused by the operation of law under the Charter; or in areas such as employment, tenancy or public services under human rights law) because of their race. This applies to white people, persons of colour, black persons and Indigenous people. For example, if a prospective employer did not hire an otherwise qualified person based on their race, that would be racial discrimination. This discrimination is illegal unless the employer can reasonably justify it. In short, it is possible for a white person, an Indigenous person or a person of colour to experience racial discrimination.

The law addresses behaviour and not attitudes. While racial discrimination is an action, it is often caused by racial prejudice, which is an attitude. According to the Calgary Anti-Racism Education (CARED) website:

Assumptions and stereotypes about white people are examples of racial prejudice, not racism. Racial prejudice refers to a set of discriminatory or derogatory attitudes based on assumptions deriving from perceptions about race and/or skin colour. Thus, racial prejudice can indeed be directed at white people (e.g., white people can’t dance) but is not considered racism because of the systemic relationship of power.

Thus, racism is not the same as racial discrimination. Although people sometimes refer to racial discrimination as “racism”, this creates confusion and is not correct. Racism is a combination of racial prejudice (or discrimination) plus power. By “power”, we are talking about who is recognized and accepted as having power in society as a whole. In this context, the power is socially-imbued but not necessarily earned. For example, in Canada and the United States, it is generally accepted that heterosexual white middle-aged males are natural leaders. We can see this by looking at various institutions – such as governments, legislatures, large corporations, justice and other institutions – to see who is at the head (or who has the power).

CARED further explains “power” as follows:

By power we mean: the authority granted through social structures and conventions—possibly supported by force or the threat of force—and access to means of communications and resources, to reinforce racial prejudice, regardless of the falsity of the underlying prejudiced assumption. Basically, all power is relational, and the different relationships either reinforce or disrupt one another.

Systemic racism and institutional racism are subsets of racism. Frances Henry and Carol Tator define racism in The Colour of Democracy 4th ed (Toronto: Nelson Education, 2010) at p 383 as:

A system in which one group of people exercises power over another on the basis of skin colour; an implicit or explicit set of beliefs, erroneous assumptions, and actions based on an ideology of the inherent superiority of one racial group over another, and evident in organizational or institutional structures and programs as well as in individual thought or behaviour patterns.

In order to proceed to actually address racism, it is very important that everyone is very clear about terminology.In the case of Canada and United States, white people currently possess socially-imbued power and this is reflected in our institutions. The Centre for Race and Culture talks about systemic racism in Canadian society as follows:

A system of power and violence that structures opportunity and assigns value based on the social construct of race where privilege is afforded to whiteness. A system that unfairly disadvantages Black, People of Colour and Indigenous Communities while subsequently unfairly advantaging communities and individuals embraced by whiteness.

Another confusing term is being incorrectly used interchangeably with systemic racism—systematic racism. These two terms are not the same. Josh Burnoff provides the following explanation:

Systematic racism is a set of practices that discriminate on the basis of race. Systemic racism is a system that has racism inherent in how it operates.

Systematic racism is relatively easy to fix, if you care to try. Systemic racism requires a deeper level of thinking. I also think it demands including a racially diverse set of decision makers, because a diverse set of people can more easily identify racism in the systems that include racism within it, whether that racism is intentional or not.

Why is it very important to be clear? When a white person says that they have experienced racism, this is not possible in Canada because white people currently possess socially-imbued power. However, they may well have experienced racial discrimination and can obtain a legal remedy in some circumstances. For more in-depth information on racism and racial discrimination, please visit CARED.

The Use of the Peace, Order and Good Government Clause in Canada’s Constitution

By

Photo from Pexels

Recent events in Canada have caused a resurgence of reliance on the Peace, Order and Good Government (POGG) clause in section 91 of The Constitution Act, 1867. When federal and provincial governments seek to pass legislation, they must have authority under section 91 (federal government) or 92 (provincial governments). These sections list subject matters that each government has authority over. Section 91 provides:

91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, …

[this is followed by a list of subject matters; underline added]

There are different theories as to the purpose of the POGG clause. It is often described as a residuary clause. This means it covers subject matters that have developed since Confederation in 1867 (such as pollution, climate change and inflation) or those matters that are distinct from the list that follows the opening clause.

The courts have recognized two main branches to the POGG power:

  1. The Emergency Branch
  2. The National Concern Branch
Emergency Branch

The Emergency Branch of POGG was recognized in 1923 by the Privy Council in Fort Francis Pulp & Power Co v Manitoba Free Press Co., [1923] AC 965. This power contemplates “highly exceptional” or “abnormal” circumstances that require the federal government to assert jurisdiction as needed to address an emergency. The important criteria that the federal government needs to prove in order to rely on the Emergency Branch to pass legislation were set out in the Reference re Anti Inflation Act, [1976] 2 SCR 373:

  1. The federal government can use the emergency power to address matters that are usually under provincial jurisdiction.Legislation must be of a temporary nature (p 427).
  2. There must be evidence that it was rational to conclude there was a crisis (p 423).
  3. There must be an emergency (p 415).

The federal government can use the emergency power to address matters that are usually under provincial jurisdiction. The above three key requirements must still be met.

The recent COVID-19 pandemic has sparked some commentary about whether the federal government should use the POGG Emergency Power. Block and Goldenberg look at all of the bases upon which the federal government could rely on POGG to justify emergency legislation during the COVID-19 pandemic. Thus far, the federal government has been working with the provinces and has declined to exercise its emergency power.

National Concern Branch

As for the National Concern Branch, the leading case in this area is a 1988 decision of the Supreme Court of Canada: R v Crown Zellerbach Canada Ltd. Justice Le Dain, writing for the majority of the Court, summarized the law as follows (at para 33):

1. The national concern doctrine is separate and distinct from the national emergency doctrine of the peace, order and good government power, which is chiefly distinguishable by the fact that it provides a constitutional basis for what is necessarily legislation of a temporary nature;

2. The national concern doctrine applies to both new matters which did not exist at Confederation and to matters which, although originally matters of a local or private nature in a province, have since, in the absence of national emergency, become matters of national concern;

3. For a matter to qualify as a matter of national concern in either sense it must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution;

4. In determining whether a matter has attained the required degree of singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern it is relevant to consider what would be the effect on extra‑provincial interests of a provincial failure to deal effectively with the control or regulation of the intra‑provincial aspects of the matter.

Most recently, there has been a series of three Court of Appeal decisions over whether the federal government can rely on the POGG National Concern Branch to pass carbon tax legislation. The federal government relied on the National Concern Branch of POGG to argue that climate change has become a matter of national concern, so the federal government has jurisdiction to pass carbon tax legislation. In 2019, this The federal government relied on the National Concern Branch of POGG to argue that climate change has become a matter of national concern…argument prevailed in two Court of Appeal cases (Saskatchewan and Ontario). However, in the Alberta Court of Appeal (ABCA), the provincial government prevailed by relying in part on an interesting argument involving The Constitution Act: ss 92A and 92(16). Section 92(16) provides that the provinces have jurisdiction over “Generally all Matters of a merely local or private Nature in the Province” (residuary matters not listed in The Constitution Act). The ABCA agreed that the National Concern Power only applies to matters under s 92(16). However, s 92A explicitly provides that the provinces have jurisdiction over natural resources, and thus the National Concern Branch could not be used. The majority judgment of the ABCA has been critiqued on several grounds, including that it lacks clear reasons on why greenhouse gas emission regulations are laws that relate to the “exploration for, development, conservation or management of natural resources” (s 92A).

It appears as though the Supreme Court of Canada will have to resolve this matter. For more information on these three decisions, please see the LawNow article by Jessica Steingard.

Conclusion

Although the federal government has not relied on the POGG power to pass federal legislation in too many situations, it remains a significant feature of our constitutional law and is highly relevant to current events. This seems logical. The drafters of the Constitution would have desired that this power would guide us into the future, even as non-contemplated subject matters arise.

HUMAN RIGHTS | Overt Discrimination and Hate Crimes are Increasing During COVID-19

By

Photo from Pixabay

Generally, when talking about the situation in Canada, the emphasis is on the prevalence of systemic discrimination —policies or practices that are part of an organization, which perpetuate disadvantage. This is pervasive in Canada and difficult to address because it is reinforced by acceptance as the “normal” way of doing things. However, while complex systemic discrimination continues to exist, recently there are numerous overt examples of discrimination against racialized minorities in Canada. In some cases, the behaviour rises to the level of criminal assault or hate crimes. It seems as though fear and ignorance have caused some people to act out on their racist attitudes.

CTV News reported on April 27, 2020 that a poll carried out by Corbett Communications revealed that 14 per cent of respondents in Toronto, Montreal and Vancouver either “believed that all Chinese or Asian people carry the coronavirus (four per cent) or were uncertain about that (10 per cent).” In the same article, Susan Eng, director for the Chinese Canadian National Council of Social Justice, said that: “With results like this, it is not surprising that we are seeing a growing increase in anti-Asian racism, likely provoked by COVID-19 fears and ignorance, but no less threatening for that.” The poll also found that one in eight respondents were aware of racist incidents in their neighbourhood since the beginning of the COVID-19 pandemic.

There have been several examples of crimes against people of Asian descent across Canada. Vancouver police are investigating an attack on March 13, 2020 against a 92-year-old man as a hate crime. The Edmonton Police Service reports that there have been several incidents of hate-related graffiti reported in Edmonton since March 17. On April 29, 2020, Marichu Antonio of Calgary’s Action Dignity reported that online expressions of hatred towards newcomers who worked at Cargill Meat Packing Plant has resulted in newcomers being turned away from services such as banks and grocery stores. There are almost daily reports of racist incidents across Canada.

… recently there are numerous overt examples of discrimination against racialized minorities in Canada.Several prominent Canadians and world figures have commented on this crisis. United Nations Secretary-General António Guterres pointed out that the world is facing “the biggest international crisis in generations”, stressing that human rights “cannot be an afterthought”. The report states that “the virus is the threat, not the people, and emphasized that any emergency and security measures be temporary, proportional and aimed at protecting individuals.”

Mr. Guterres added that:

We see the disproportionate effects on certain communities, the rise of hate speech, the targeting of vulnerable groups, and the risks of heavy-handed security responses undermining the health response.

On April 8, 2020, Marie-Claude Landry, Chief Commissioner of the Canadian Human Rights Commission, issued the following statement:

The Canadian Human Rights Commission is deeply concerned by the rise of racism across Canada since the start of the COVID-19 pandemic.

Minority groups, in particular people of Asian origin, have been the victims of racist taunts, threats and intimidation in public and online, and physical violence. This is both an issue of public safety and fundamental human rights. No one should feel threatened or unwelcome because of the colour of their skin or where they are from.

Racism and xenophobia are also contributing to misinformation during a global health crisis. Viruses do not have borders. Viruses do not discriminate. People do.

Flattening the curve and slowing the spread of COVID-19 will take cooperation, solidarity and unity. As a country built on diversity, freedom and inclusion, we cannot let racism, intolerance and inequality undermine our peace and prosperity.

We are not safe unless we are all safe.

Hopefully, the majority of us who are deeply troubled by this will take this opportunity to get involved in some way in the human rights movement.On May 5, 2020, Michael Gottheil, Chief of the Commission and Tribunals at the Alberta Human Rights Commission, released a statement:

The COVID-19 pandemic has impacted all our lives in many ways. Unfortunately, it has led to an increase in racism and discrimination towards certain groups of Canadians. Since the beginning of this crisis, minority groups in Alberta, especially people of Asian descent, have been the targets of racist comments, threats, and intimidation.

Even though it may be human nature to want to assign blame or lash out in difficult times, we must be vigilant against xenophobia. To fight this pandemic, we need to look after one another by reaching out to our fellow Albertans and showing compassion, care, and consideration.

… We know that racism and discrimination will not stop when this pandemic ends, and may even worsen for some within our communities. Now, more than ever, Albertans and Canadians need to come together as one to stand up to hate. As we begin to ease restrictions and gradually move toward recovery, it is crucial that all spaces are free from hate, racism, and xenophobia, and that all Albertans feel safe.

There are many individuals and groups taking steps to address the situation. Chief Commissioner Michael Gottheil notes that ACT2endracism recently developed the Covid-19 Anti-Racism Incident Reporting Centre. Individuals can report hateful incidents in multiple languages, either on-line or by text messaging.

The Tyee also listed five steps on April 10 that allies can use to address the current crisis and the long-term implications of racism.

It is unfortunate that it often takes blatantly offensive events to draw attention to the unpleasant and illegal actions resulting from racial discrimination and racism. Hopefully, the majority of us who are deeply troubled by this will take this opportunity to get involved in some way in the human rights movement.

HUMAN RIGHTS | COVID-19: Human rights implications for Canadians held in remand, prisons and jails

By

Photo from Pixabay

We find ourselves in unprecedented times. As we scramble to “socially distance” and address the economic consequences of the global pandemic, inmates in Canadian institutions are particularly vulnerable to adverse effects by virtue of the conditions where they are held. On March 30, 2020, the Canadian Government announced that two inmates in the Port-Cartier Institution of Quebec tested positive for COVID-19. Nine employees of the institution also tested positive.

There are significant numbers of people held in remand or custody. The majority of people held in remand have not been convicted of a crime and are awaiting trial. In 2017-2018 in Canada, there were 38,786 adults in provincial/territorial or federal custody per day, 792 youth in custody on average per day, and about 50% more adults (14,812) in remand that were in provincial/territorial sentenced custody (9,543).

Inmates held in close contact with each other who cannot “socially distance” or who do not have adequate access to hand sanitizer, masks or even soap are likely to become infected and could affect the staff as well. There are currently 700 federal inmates who are over 65 years old; these individuals are at very high risk.

While some people may not be particularly sympathetic, prisoners do have rights to adequate health care, reflected in both international law and in Canada’s Corrections and Conditional Release Act, (CCRA). The United Nations Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules) provide:

Rule 24

  1. The provision of health care for prisoners is a State responsibility. Prisoners should enjoy the same standards of health care that are available in the community, and should have access to necessary health-care services free of charge without discrimination on the grounds of their legal status.
  2. Health-care services should be organized in close relationship to the general public health administration and in a way that ensures continuity of treatment and care, including for HIV, tuberculosis and other infectious diseases, as well as for drug dependence.

Inmates held in close contact with each other who cannot “socially distance” or who do not have adequate access to hand sanitizer, masks or even soap are likely to become infected and could affect the staff as well.While these rules are not legally enforceable, they set the standard for treatment of prisoners that is accepted by countries across the world. The CCRA is legally enforceable in Canada. It provides:

86 (1) The Service shall provide every inmate with

(a) essential health care; and

(b) reasonable access to non-essential health care.

(2) The provision of health care under subsection (1) shall conform to professionally accepted standards.

CRC Commissioner’s Directive 800 defines essential health care as:

Health services: physical and mental health services, which include health promotion, disease prevention, health maintenance, patient education, diagnosis and treatment of illnesses, in accordance with the National Essential Health Services Framework.

It would seem that access to effective measures to address COVID-19 would be part of “essential health care”.

There have been calls by various justice-related groups for prisons and jails to release non-violent inmates, those who are medically vulnerable or those who have less than 90 days left in their sentences to stop the spread of the coronavirus. Some inmates are considering legal action. In Prince Albert, the inmate wellness committee hired Ottawa lawyer Michael Spratt to explore a possible legal challenge on how the government and prisons are handling COVID-19.

Some provinces have taken measures such as releasing some inmates (e.g., those who were serving on weekends) or creating separate spaces for those who become sick. However, those who are still in institutions face more isolation, dealing with no visitors, no recreation or gym time—all of which can result in mental health effects, such as depression or even suicide.

Hopefully, all possible measures will be taken to address the inmate population before some of these dire predictions come to fruition.

HUMAN RIGHTS | Solitary Confinement is a Human Rights Issue

By

Photo from Pixabay

Mahatma Ghandi once said: “A nation’s greatness is measured by how it treats its weakest members.” Canada has used solitary confinement for prisoners for decades. In the past several years, solitary confinement has been the subject of criticism from civil libertarians and mental health advocates.

Usually, solitary confinement involves isolating inmates in a small cell without human contact for 22 hours per day. Often called “administrative segregation”, solitary confinement has been the subject of increased scrutiny because of suicides and mental health issues suffered by prisoners who may be held for years in isolation. In A Sourcebook on Solitary Confinement, Dr. Sharon Shalev (2008), a leading international authority on solitary confinement, states that between one-third and 90% of prisoners experience some negative impacts of long-term solitary confinement. The symptoms may include insomnia, confusion, feelings of hopelessness and despair, distorted perceptions and hallucinations.

For over 20 years, the Correctional Investigator has criticized the overuse of solitary confinement in Canada. For example, see the Annual Report of the Office of the Correctional Investigator 2014-2015 (Annual Report, 2014-2015). The Correctional Investigator notes that solitary confinement is overused particularly for women with mental health issues, and for Indigenous and Black inmates.

The practice of administrative segregation is now called “Structured Intervention”.
In 1992, the Corrections and Conditional Release Act, SC 1992, c 20 (CCRA), originally provided procedural safeguards for administrative segregation in sections 31 to 37. These may be summarized as:

  • Release from administrative segregation at the earliest appropriate time.
  • Reasonable alternatives to administrative segregation must first be explored and exhausted.
  • Inmates in administrative segregation have the same rights as those in the general inmate population, except those that cannot be exercised due to limitations specific to administrative segregation or security requirements.
  • The Correctional Service Canada shall take into consideration an offender’s state of health and health care needs in all administrative segregation decisions (Annual Report, 2014-2015).

There are also international guidelines called the UN Standard Minimum Rules for the Treatment of Prisoners (also called the Nelson Mandela Rules). Rules 43 to 45:

  • prohibit indefinite or prolonged solitary confinement (over 15 days);
  • provide that solitary confinement is to be used only exceptionally; and
  • prohibit use for prisoners with mental or physical health disabilities that will be exacerbated by it.

While not legally binding, Canadian courts will turn to these rules for guidance.

In British Columbia Civil Liberties Association v Canada (Attorney General), 2019 BCCA 228, the B.C. Court of Appeal considered whether solitary confinement violates a person’s s. 7 Charter right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The Court confirmed that the 1992 CCRA provisions authorizing indefinite and prolonged solitary confinement, and internal rather than external review of decisions to segregate inmates in solitary confinement, violated these rights. The Court suspended the declaration of invalidity for one year.

For over 20 years, the Correctional Investigator has criticized the overuse of solitary confinement in Canada.In Canadian Civil Liberties Association v Canada (Attorney General), 2019 ONCA 243, the Ontario Court of Appeal provided, among others, that the CCRA provisions permitting administrative segregation for over 15 consecutive days violated a person’s s. 12 Charter right to freedom from cruel and unusual punishment. The Court found the violation could not be saved by s. 1 of the Charter (reasonable and justifiable violations).

The Supreme Court of Canada recently granted leave to the federal government to appeal these two cases (jointly). (See February 13, 2020 case nos. 38574 and 38814.)

Sections 31 to 37 of the CCRA were amended in November 2019. The practice of administrative segregation is now called “Structured Intervention”. The Canadian Civil Liberties Association notes:

These [structured Intervention] units continue to house inmates in situations of extreme isolation, however inmates are now supposed to be provided four hours daily out of cell and (or including) two hours daily of meaningful human contact, subject to certain exceptions and exclusions. In addition, after hearing from CCLA and others, the law now includes a system of independent decision-makers to review decisions concerning keeping inmates in the SIUs, to consider their conditions, and to review the situation of people with mental health issues in the SIUs. The new law also addresses certain mental health supports and supports for Indigenous inmates.

However, prisoner’s advocates argue that these amendments do not adequately address the concerns about solitary confinement. For example, the new provisions do not set a time limit on solitary confinement. Thus, the federal government did not adequately address concerns about the harms. Advocates do not believe a new name is adequate to address the consequences of the practice of solitary confinement. (See: J. Bronskill, (13 Feb 2020) National Post “Supreme Court of Canada to examine solitary confinement in federal prisons”.)

Many inmates return to society eventually. It is in all of our interests to ensure they do not suffer irreversible harms while in indefinite solitary confinement.

HUMAN RIGHTS | Access to Justice Given a Boost by Downtown Eastside Sex Workers Case

By

20/20: Looking back over the last 20 years

In Downtown Eastside Sex Workers United Against Violence Society v Canada (Attorney General), 2012 SCC 45 (DESW), the Supreme Court of Canada (SCC) adapted the rule on public interest standing. This resulted in the potential for better access to justice, especially for vulnerable peoples who may not otherwise have heard their issues addressed by a court.

History of Standing

Photo from Pixabay

“Standing” means that, in order to participate in a lawsuit (stand before the court and advocate for their position), a person must have a sufficient interest in the issues brought forward.

The Canadian civil litigation system is premised on the norm of “private standing” or “standing as of right”. This means that individual litigants will come to court raising grievances personal to them (for example, they were injured in a car accident and are suing for damages).

Private standing has traditionally been viewed as the best way to operate our court system because:

  • it prevents mere “busybodies” from using up scarce judicial resources;
  • it ensures contending points of view are raised by those personally invested in the outcome of the case; and
  • it preserves the proper role of courts and their relationship to the other branches of government.

Beginning in 1974 and only in limited circumstances, the SCC allowed litigants without a direct stake to proceed under public interest standing (see Thorson v Attorney General of Canada, [1975] 1 SCR 138). Over the next couple of decades, the law of public interest standing evolved. Then, in 1992, the SCC set out a three-step test for public interest standing in Canadian Council of Churches v Canada (Minister of Employment and Immigration), [1992] 1 SCR 236:

  1. There is a serious issue to be tried.
  2. The plaintiff is directly affected by the law or action or has a genuine interest in the issue.
  3. There is no other reasonable and effective way to bring the matter before court.

The third requirement was restrictive and often prevented groups from being granted public interest standing. For example, in Canadian Bar Association (CBA) v British Columbia, 2008 BCCA 92, the CBA challenged government cuts to the legal aid system in British Columbia. The British Columbia Supreme Court held that the CBA lacked standing to bring the claim in part because lawyers would gain by the potential rise in legal fees paid to them with an increase in legal aid fees, and there were other reasonable and effective ways to bring the matter before the court (e.g., a class action lawsuit). The British Columbia Court of Appeal upheld the decision on other grounds.

The test changed again in 2012 when the DESW decision relaxed this third requirement. The Court’s reformulation has significantly reduced the onus on prospective public interest litigants. The case is also important because it was the first time the SCC characterized public interest standing as an access to justice issue. Marginalized groups often lack resources to advance Charter litigation. Public interest standing is a way for these groups to effectively participate in adjudication of important social issues.

The DESW Decision

The DESW is an organization whose objectives included improving working conditions for female sex workers. The DESW and an individual who worked with sex workers (together) sought a declaration that sections 210 to 213 of the Criminal Code, which dealt with prostitution matters, violated several Charter rights. Because the Criminal Code provisions did not directly impact the DESW and the individual, they requested public interest standing.

The Canadian civil litigation system is premised on the norm of “private standing” or “standing as of right”.The DESW case raised the issue of whether the court should treat the three factors set out in Canadian Council of Churches as a rigid checklist or as simply considerations to take into account when exercising judicial discretion with respect to granting standing.

The trial court held that the DESW and the individual did not meet the test for public interest standing. One of the trial court’s reasons, relating to the third factor of the test, was that sex workers themselves could commence a claim. The DESW argued that sex workers in the area were not willing to bring forward a comprehensive challenge because they feared loss of privacy and safety, and increased violence by clients, among other concerns. The British Columbia Court of Appeal overturned the trial court’s decision. Canada appealed the decision to the SCC.

The SCC affirmed the first two factors of the test set out in Canadian Council of Churches. The first factor (justiciability) is important because the court must possess the ability to provide a legal resolution to the dispute. This ability relates to the constitutional relationship of the court to the other branches of government and to the concern about the allocation of “scarce judicial resources”. Courts exercising their discretion to grant standing must stay within the bounds of their proper constitutional role and should analyze whether the Statement of Claim reveals at least one serious constitutional issue. The second factor is concerned with whether “the plaintiff has a real stake in the proceedings or is engaged with the issues they raise” (para 43). The Court confirmed that the issue at hand in DESW satisfied these two factors.

Turning to the third factor, the SCC noted that courts often express it as a strict requirement – there is “no other reasonable and effective manner in which the matter may be brought before the court”. The Court listed several considerations that assist with interpreting the third factor in a manner that “reflects the flexible, discretionary and purposive approach to public interest standing that underpins all of the Court’s decisions in this area”:

  1. The Court has not always expressed and rarely applied this factor rigidly;
  2. This factor must be applied purposively; and
  3. A flexible approach is required to consider the ‘reasonable and effective’ means factor (paras 45 to 51).

DESW constitutes a significant step forward in increasing access to Charter litigation.The SCC noted that courts should apply the third factor in “light of the need to ensure full and complete adversarial presentation and to conserve judicial resources.” The court should have the benefit of hearing:

  • the contending views of the people who are most directly affected by the issues;
  • whether the proposed action is an economical use of judicial resources;
  • whether the issues are presented in a context suitable for judicial determination in an adversarial setting; and
  • whether permitting the proposed action to go forward will serve the purpose of upholding the principle of legality (para 50).

The SCC also provided an illustrative list of examples of matters that courts could find useful when assessing the third discretionary factor. These include:

  • the plaintiffs’ capacity to bring forward a claim – their resources, expertise and whether the issue will be presented in a sufficiently concrete and well-developed manner;
  • whether the case is of public interest – does it transcend the interest of those most directly affected by the challenged law?
  • the lack of realistic alternative means which could favour a more efficient and effective use of judicial resources;
  • the existence of other potential plaintiffs, particularly those who would have standing as of right – will the plaintiff bring any particularly useful or distinctive perspective to the resolution of the issues?
  • the potential impact of the proceedings on the rights of others who are equally or more directly affected.

The SCC concluded that the third factor should be expressed as “whether the proposed suit is, in all the circumstances, a reasonable and effective means of bringing the matter before the court” (para 52).

The SCC concluded that all three factors favoured the Court exercising its discretion to grant public interest standing to the DESW and the individual.

Conclusion

The relaxation of the third factor is a welcome change to those public interest groups who have previously encountered difficulties in obtaining standing.

“Standing” means that … a person must have a sufficient interest in the issues brought forward.There are many examples of the impact of DESW on public interest standing and access to justice. One example is Manitoba Métis Federation Inc v Canada (Attorney General), 2013 SCC 14 (MMF). In that case the trial judge denied standing to MMF (based on the Canadian Council of Churches decision). The Manitoba Court of Appeal upheld the trial court’s decision but a majority of the SCC overturned that decision in light of the outcome in DESW. The SCC granted MMF public interest standing. The action advanced was a collective claim for a declaration intended to reconcile the claims of the descendants of the Métis people of the Red River Valley and Canada. Accordingly, it merited allowing the body representing the collective Métis interest to come before the court.

DESW constitutes a significant step forward in increasing access to Charter litigation. It recognizes that public interest litigants are crucial to realizing the Charter’s democratic potential because they can address the systemic impacts of the law on the most vulnerable people in a way that isn’t possible in individual litigation. The decision paves the way for systemic issue Charter challenges in the future and validates the importance of public interest litigation.

Equality Issues and Assisted Death Legislation

By

Photo from Pixabay

In Carter v Canada (Attorney General), the Supreme Court of Canada (SCC) ruled that Criminal Code sections 241 and 14 deprived adults of their right to life, liberty and security of the person under s. 7 of the Charter. Sections 241 and 14 prohibited physician-assisted dying for competent adults who sought such assistance as a result of a grievous and irremediable medical condition that caused enduring and intolerable suffering. The SCC did not need to rule on whether the Criminal Code provisions violated Charter s. 15(1).

In response, the federal government passed an amendment to the Criminal Code through Bill C-14. There were some concerns about the legislation—particularly the requirement that the person must be suffering from an end-of-life condition. Several scholars argued this would result in a constitutional challenge. However, the federal government passed Bill C-14 without addressing these concerns.

Recent litigation in Québec involves a constitutional challenge. In Truchon c. Procureur general du Canada, 2019 QCCS 3792 (Truchon), both the federal Criminal Code (s. 241.2(2)(d)) and Québec’s Act respecting end-of-life-care (s. 26(3)) were challenged for violating sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms (Charter). (While the Canadian government has jurisdiction over the criminal aspects of assisted dying legislation, the provinces have jurisdiction over health-related aspects.)

At issue in Truchon was the meaning of death which has become “reasonably foreseeable”. Section 241.2(2)(d) of the Criminal Code reads:

Grievous and irremediable medical condition

(2) A person has a grievous and irremediable medical condition only if they meet all of the following criteria:

…(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.

Doctors had declared Jean Truchon and Nicole Gladu ineligible for medical assistance in dying. Truchon and Gladu challenged the constitutionality of the Criminal Code provisions and Québec’s legislation requiring that their natural death be reasonably foreseeable or that they be at the end of their lives.

Jean Truchon, age 51, was born with “cerebral spastic paralysis and tripartism”. This meant that he was completely paralyzed except for his left arm. He led a relatively full life until 2012, when he permanently lost the use of his left arm. He also developed severe pain in his arms and neck, including painful spasms and intense burning. Because there is no treatment or cure and because he is now totally dependent on others, Truchon feels “he died in 2012” (at para 25). Truchon continues to have full mental function and is considered capable of consenting to medical assistance in dying. However, he is not considered to be in a situation where his natural death is reasonably foreseeable, nor is he at the end of his life (at para 45).

The Court ruled that Criminal Code s. 241.2(2)(d) was unconstitutional and delayed the implementation of the ruling for six months.Nicole Gladu, age 73, suffered from polio contracted at age 4. This left her with residual paralysis on her left side and severe scoliosis. When she was 47, she was diagnosed with post-polio degenerative muscular syndrome, which is characterized by generalized fatigue, progressive or sudden muscle weakness and pain that reduces mobility. The condition is degenerative and incurable (at paras 51-55). She only has remaining function in her upper right arm. In addition, she has severe osteoporosis, and her body no longer supports her. The spinal condition has caused severe restrictive pulmonary disease and a lung capacity equivalent to half a lung. This rib compression also causes a hiatal hernia and difficulty with feeding (at para 57). She is capable of consenting to assistance in dying (at para 67). Like Mr. Truchon, Ms. Gladu is not considered to be in a situation where her natural death is reasonably foreseeable, nor is she at the end of her life (at para 68).

The Québec Superior Court made several conclusions on the evidence. (Note: The Court has not yet translated the decision into English. The following is a Google translation of paragraph 466 of the French text.)

  1. Medical assistance in dying as practiced in Canada is a strict and rigorous process that, in and of itself, has no obvious weakness;
  2. The physicians involved are able to assess the patient’s ability to consent and to detect ambivalence, mental disorders affecting or likely to affect the decision-making process or cases of coercion or abuse;
  3. The vulnerability of a person seeking medical assistance in dying must be assessed individually, according to their particular characteristics and not according to a reference group of “vulnerable persons”. Beyond various vulnerability factors that physicians are able to objectify or detect, it is the patient’s own ability to understand and consent that is ultimately critical in addition to other criteria set out in the law;
  4. The physicians involved can distinguish a suicidal patient from a patient seeking medical assistance in dying. In addition, there are important differences between suicide and physician-assisted dying, both in the characteristics of the individuals involved and in the reasons that motivate them;
  5. Neither the national data in Canada and Québec, nor the foreign data, show any drift, slippage or even increased risk for vulnerable people when the imminent end of life is not a criterion for eligibility to medical aid in dying.

The Québec Superior Court found that both pieces of legislation violated Truchon’s and Gladu’s life, liberty and security of the person under Charter s. 7. However, the Court ruled this violation was not saved under Charter s. 1 (see paras 125 to 142). The Court also addressed equality under s. 15(1) of the Charter. I will focus on the Charter s. 15(1) issue in relation to s. 241.2 of the Criminal Code.

The Court noted that Charter s. 15(1) addresses substantive equality and is not simply a question of similarity (at paras 641-3). The Court then applied the following two-step approach (as is also found in Andrews v Law Society of British Columbia, [1989] 1 SCR 143):

  1. Does the law establish, prima facie or by its effect, a distinction based on an enumerated or analogous ground?
  2. If so, does the law impose a burden or deny a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating the disadvantage?
Distinction Based on Enumerated or Analogous Ground

At issue in Truchon was the meaning of death which has become “reasonably foreseeable”.The Court held that the “reasonably foreseeable death” requirement creates a distinction based on physical disability. Because of their physical conditions, Gladu and Truchon could not obtain medical assistance in dying even though they met the other requirements of the law. The Court also noted that the reasonably foreseeable death requirement did not take into account the effect of this requirement on the applicants (at para 654). Further, this requirement by its effect established a distinction according to the nature and type of disability (para 661). The restricted category is persons with disabilities who suffer intolerably of serious and incurable conditions but are not close to death (a para 663).

Imposition of a Burden or Denial of a Benefit

The Court applied a contextual analysis and concluded that the requirement of “reasonably foreseeable death” did not take into account the actual circumstances, characteristics and needs of the claimants, in a manner that respects their value as human beings compared to others the law allows to obtain a medically assisted death (at para 673). Thus, the lack of equality in the recognition of autonomy and dignity is discriminatory in this case (at para 678).

The Court also held that the discrimination was not saved by Charter s. 1. The Court ruled that Criminal Code s. 241.2(2)(d) was unconstitutional and delayed the implementation of the ruling for six months. The Court also granted both parties an exemption so that they could proceed to apply for assisted death.

Peter Hogg notes there are other places where the new legislation departs from the direction given by the SCC in Carter. It remains to be seen whether these will also result in constitutional challenges.

Gay-Straight Alliances

By

Photo from Pexels

Gay-straight alliances (GSAs) are groups formed in schools and run by students with teacher support or sponsorship. The purpose of a GSA is to create welcoming, caring, respectful and safe spaces for LGBTQ2S+ (Lesbian, Gay, Bisexual, Transgender, Queer or Questioning, Two-Spirit, Intersex, Pansexual, Asexual, Androgynous) students and their allies. GSAs often work on advocacy, human rights and awareness projects to make their communities more inclusive. According to Calgary’s Centre for Sexuality, over 100 schools in Calgary and area have GSAs.

Overview of GSAs

GSAs have sprung up in schools across the United States and Canada over the last thirty years. These groups have been formed mostly in response to some troubling statistics about LGBTQ2S+ youth. A 2011 Canadian survey revealed the following:

  • one in five Canadian LGBTQ students experience bullying every day;
  • 90% of those are bullied with words;
  • 70% hear transphobic (fear, discrimination or hatred against transgender people) remarks every day;
  • 37% of students are harassed about their parents’ sexual orientation;
  • 44% of LGBTQ youth reported thinking about, considering or planning suicide (compared to 26% of heterosexual youth);
  • 50% of LGBTQ youth reported self-harming (compared to 35% of heterosexual youth);
  • 53% of LGBTQ youth felt unsafe at school (compared to 3% of heterosexual youth); and
  • 30-50% of homeless youth identify as LGBTQ.

According to Ian Macgillivray (see: Gay-Straight Alliances: A Handbook for Students, Educators and Parents, 2007), gay-straight alliances ARE:

  • student clubs started and run by students, for students;
  • treated like any other student club in a school;
  • a safe place for students to get support that they sometimes cannot find at home;
  • a good way to address the social and emotional isolation endured by some LGBTQ students;
  • an effective way to educate the school community about human rights, equality and diversity; and
  • shown to decrease bullying, violence and risky behaviours.

On the other hand, he notes that gay-straight alliances are NOT:

  • sex or dating clubs;
  • an official endorsement of sexual orientation;
  • limited to LGBTQ students; or
  • anti-faith or anti-religious.

Bill 8: The Education Amendment Act will come into force on September 1, 2019.Studies conducted in schools with GSAs indicate that GSAs make schools safer for LGBTQ students by sending a message that verbal and physical harassment will not be tolerated. Further, LGBTQ students are less likely to miss school because of safety issues. GSAs also help LGBTQ students identify supportive school staff, which can have a positive impact on their academic achievement and experiences. (See Gay-Straight Alliances: Creating Safer Schools for LGBT Students and their Allies, GLSEN Research Brief.) In addition, the University of British Columbia concluded that GSAs in schools reduce the risk of suicide for all students.

History of GSAs in Alberta

Alberta Education has stated that students who attend schools with GSAs are far more likely to say that their schools are supportive of LGBTQ people. Students are more willing to reveal their sexual orientation or gender identity and see their school climate as becoming less homophobic. Other positive impacts reported by Alberta Education include:

  • greater school attachment and connectedness which lead to higher academic achievement, greater participation in the school community, and lower levels of depression;
  • increased student safety and decreased incidents of bullying;
  • improved mental health and student well-being;
  • higher self-esteem and positive identity development;
  • increased development of advocacy and leadership skills;
  • increased representation of visible LGBTQ identities, which can help to challenge stereotypical gender norms; and
  • improved climate of gender inclusion and improved respect for differences.

In 2015, the Alberta government amended the School Act. The key amendments provided that:

  • Alberta schools could not notify parents if their child joined a GSA;
  • principals could only inform parents that a GSA existed in the school (s. 50.1; s. 16.1(6));
  • if a student or group of students applied for permission to establish a “student organization” (this included GSAs), permission should be immediately granted by the principal (s. 16.1);
  • principals could not prohibit or discourage students from calling the club a “gay-straight alliance” or “queer-straight alliance” (s. 16.1(3.1)); and
  • all schools in Alberta that receive public funding must publish a policy that clearly allows students to form a gay-straight alliance (s. 45.1).

Section 45.1(5) of the School Act set out requirements for these policies:

A code of conduct … must contain the following elements:

(a) a statement of purpose that provides a rationale for the code of conduct, with a focus on welcoming, caring, respectful and safe learning environments;

(b) one or more statements about what is acceptable behaviour and what is unacceptable behaviour, whether or not it occurs within the school building, during the school day or by electronic means;

(c) one or more statements about the consequences of unacceptable behaviour, which must take account of the student’s age, maturity and individual circumstances, and which must ensure that support is provided for students who are impacted by inappropriate behaviour, as well as for students who engage in inappropriate behaviour.

In 2018, a group of parents, private schools and two public interest groups started a lawsuit challenging the constitutionality of sections 16.1 and 45.1 of the School Act. They alleged that GSAs are harmful and expose children to inappropriate, sexually explicit information, as well as information about gender and sexuality that was harmful, ideological or harmful to parents’ and schools’ beliefs (at para 10). They also argued that the limitation on notifying parents would violate their Charter s. 7 rights (at para 11). The parties applied for:

  • an interim injunction to suspend the operation of s. 16.1; and
  • a second interim injunction to prohibit the Minister of Education from not funding their schools for not complying with s. 45.1 of the School Act, until the court could hear the constitutional issues.

Justice Kubik denied the injunctions on June 27, 2018. A majority of the Alberta Court of Appeal upheld this decision.

Changes to the Law

During the recent Alberta election campaign, the United Conservative Party (UCP) stated it would amend some of the GSA provisions (such as parental notification) and proclaim the previous Education Act (that existed in 2014 under the former government). Bill 8: The Education Amendment Act will come into force on September 1, 2019.

With respect to GSAs, the Alberta Government notes the main changes made by Bill 8 include:

  • removing the requirement that a principal must immediately form a GSA upon request;
  • removing the guarantee that students can use “gay” or “queer” in their school club’s name;
  • while schools are required to create policies dealing with welcoming, safe, caring and respectful schools, the new legislation does not contain the same requirements for the content of the policies; and
  • while Alberta privacy legislation governs privacy considerations, the provisions in the School Act prohibiting notification have been deleted.

There have been several protests against Bill 8. One concern with the proposed changes is that students will no longer be protected from being “outed” by their teachers to their parents. This can be a safety concern and could also prevent some students from joining GSAs. The new Education Minister, Adriana LaGrange, assured Albertans that existing privacy legislation will protect students.

There are two Alberta laws on privacy of personal information:

  1. the Freedom of Information and Protection of Privacy Act (FOIPPA), which applies to school boards and charter schools; and
  2. the Personal Information Protection Act (PIPA), which applies to private schools.

Both laws allow disclosure of personal information in the following situations:

  • where a school receives credible information that someone is threatening to harm GSA members;
  • if information comes to the attention of a teacher as a result of a student disclosure made in the GSA setting (e.g. possibility of self-harm), disclosure may be justified in order to stop or minimize a risk of harm; or
  • if disclosure is required for the purposes of law enforcement.

Alberta’s Privacy Commissioner, Jill Clayton, released a “rare” statement outlining the privacy implications of the new GSA laws. The Advisory on Disclosing a Student’s Participation in a School Club (Advisory) states that public or private schools cannot disclose personal information except as allowed under FOIPPA or PIPA. Even where the disclosures are allowed under FOIPPA or PIPA, these disclosures are discretionary (schools are not required but are allowed to use their discretion in releasing the personal information). The Advisory notes that a student’s membership in a GSA is personal information to which FOIPPA and PIPA apply. Further, it sets out the provisions in FOIPPA and PIPA describing when personal information of students may be disclosed.

The purpose of a GSA is to create welcoming, caring, respectful and safe spaces for LGBTQ2S+ …  students and their allies.Of interest is the ability of children (people under 18) to consent (agree) to the release of personal information, including informing others that they are members of a GSA. Only children who are mature minors (children considered mentally capable of consenting) can consent to the release of their personal information, including that they belong to a GSA. For all other children at public schools or charter schools, the individual’s guardian can consent to the release of the information, but only if the exercise of this right would not constitute an unreasonable invasion of the minor’s personal privacy (FOIPPA s. 84(1)(e)). For private schools, PIPA provides that an individual under 18 can consent to the release of their information if they understand their right and the consequences of exercising that right. If the individual does not meet these requirements, their guardian can consent on their behalf.

The Advisory highlights the complex privacy issues surrounding GSAs. Instead of barring absolutely the release to parents of information about their children’s membership in a GSA or attendance at a GSA function, teachers now decide whether they should tell the parents that a child has joined a GSA. This could discourage some youth from joining GSAs out of fear of not being able to decide themselves when to reveal their sexual orientation or gender identity to their parents. Arguably the students who need the most support from GSAs will not get it.

When is Reinstatement Possible for Employment Discrimination?

By

Human Rights Law ColumnA worker experiencing discrimination must choose the legal avenue that will give them the result they want. For example, if pursuing the matter in court, the worker will have to start a contract claim (e.g., wrongful dismissal) or tort claim. One cannot sue in tort for discrimination, but one can sue in tort for the intentional infliction of mental suffering. The usual remedies available to the worker under tort or contract claims are money damages:

  • money in lieu of notice;
  • aggravated damages (if the employer terminated the plaintiff in a way that caused mental distress); or
  • punitive damages (awarded in extreme cases to punish the employer for harmful behaviour).

All of these remedies have one thing in common: the court can only award money to address the losses suffered by the employee.

There are times when a worker may want money compensation, but also an apology or for the employer to introduce a discrimination policy.

In some cases, the worker may want their job back, but without having to continue to experience the discriminatory behaviour. There are ONLY two ways that a worker can get their job back:

  1. For union workers, if the collective agreement allows for reinstatement; or
  2. If a complaint is started under human rights legislation or occupational health and safety legislation that allows for reinstatement, and the complainant requests reinstatement. Human rights commissions usually have the ability to grant reinstatement. However, reinstatement is not possible in every situation and will depend largely on the facts of each case.

The recent Pratt v University of Alberta (Pratt) case may open the doors wider to the possibility of reinstatement. Carmen Pratt made a human rights complaint in June 2013 alleging discrimination at work under section 7(1) of the Alberta Human Rights Act (AHRA) (Pratt at paras 1, 4). The Alberta Human Rights Tribunal heard Pratt’s complaint. Chair D. Jean Munn, Q.C., held that the employer, the University of Alberta (U of A), had discriminated against Pratt on the ground of mental disability.

… reinstatement is not possible in every situation and will depend largely on the facts of each case.Further, Chair Munn held that the U of A failed to acknowledge its duty to accommodate (Pratt at para 18). After the complainant has established prima facie discrimination, the burden shifts to the respondent (the employer, in this case) to show that the treatment of the complainant was a bona fide occupational requirement or otherwise was reasonably justified (Pratt at para 154). The onus is on the employer to show that it would be impossible to accommodate the employee without undue hardship.

Chair Munn found that there was no evidence that the U of A ever considered whether Pratt needed accommodation for a disability. At a meeting on June 26, 2012, Pratt told her supervisor about her limitations and asked the supervisor to modify her job duties. At this point, the U of A had a duty ask for more information (Pratt at para 155). Chair Munn also noted that the U of A had accommodation policies in place and that it could have and should have asked Pratt to provide evidence from health professionals as to her limitations (Pratt at paras 155-156). Chair Munn concluded that there was no justification for the U of A’s failure to accommodate Pratt (Pratt at para 157).

Having found discrimination, Chair Munn turned to the remedy. This is where the parties differed:

  • The Director of the Human Rights Commission asked for $25,000 to $30,000 in compensation for discriminatory treatment and lost wages for a period of 12 months.
  • Pratt sought reinstatement and compensation for lost wages. She claimed she had not been able to find similar employment and that the U of A should be able to accommodate her disability given its size and sophistication (Pratt at para 168).
  • The U of A argued that the appropriate range of damages for hurt feelings should be between $8,000 to $10,000 and that the claim for lost wages should be limited to the end of the six-month probationary period (August 31, 2012) (Pratt at para 158). The U of A opposed reinstatement, arguing that the employment relationship was no longer healthy. For example, Pratt had demonstrated dislike towards her supervisor.

Chair Munn awarded damages for injury to dignity and self-respect in the amount of $20,000 (Pratt at para 162). Chair Munn also ordered an award for loss of income of $34,795.40 (Pratt at para 167).

… there was no evidence that the U of A ever considered whether Pratt needed accommodation for a disability.Chair Munn then looked at three previous cases where reinstatement had been ordered. In all three cases, the workplace was large and sophisticated, and there was an opportunity for the employee to be placed in a setting outside of where the discrimination had occurred. Further, the complainants did not hold any ill will toward the respondent organizations as a whole (Pratt at paras 171-177). In one case, the Tribunal found that the complainant’s career would have ended without reinstatement given the nature of his termination (Pratt at para 177).

Chair Munn concluded that:

  • Pratt had been unable to secure comparable employment and is unlikely to do so, thus eliminating her career options (Pratt at para 179);
  • Pratt’s pursuit of legal rights and remedies within the employment setting and beyond should not be held against her; and
  • there are numerous and varied library systems at the U of A that would allow Pratt to be placed in a similar position but not in a position with her immediate supervisor where there may remain “hard feelings” (Pratt at para 180).

Chair Munn ordered that the U of A reinstate Pratt as an employee.

In conclusion, it would seem that the remedy of reinstatement may be available if:

  • the employer is “large and sophisticated”;
  • there is an opportunity to re-instate the person into an equivalent position but in a different setting; and
  • the position is rather specialized or depends on particular training and education, and the employee’s career would likely end (e.g., teacher, police officer, library staff).

Decision-makers should consider reinstatement more often, if the facts support it.

Freedom of Expression at Canadian Universities: A difficult compromise?

By

Human Rights Law Column

Recently, Ontario’s Premier Doug Ford passed a new policy that Ontario universities should adopt free-speech policies, or face receiving less money from the Government. The policies must meet “a minimum standard prescribed by government.” This means that “while members of the university/college are free to criticize and contest views expressed on campus, they may not obstruct or interfere with the freedom of others to express their views”. Universities must report on their progress in implementing the policy to the Higher Education Quality Council of Ontario. In addition to threatened funding cuts, students who do not comply with the policy will be subject to university discipline policies.

Other provinces, such as Alberta, have indicated they will consider whether the “Chicago Principles” should be applied to university campuses. Conservative Leader Andrew Scheer also indicated in his campaign that his government would include a similar free speech proposal.

… if an outside agency determines the university has not implemented and followed policies (like the Chicago Principles), threatening to cut funding ironically imposes on both freedom of expression and academic freedom. The Chicago Principles are intended to “reflect the long-standing and distinctive values of the University of Chicago and [affirm] the importance of maintaining and, indeed, celebrating those values for the future”. Universities are encouraged not to suppress “offensive, unwise, immoral, or wrong-headed” ideas. Instead, members of the university community and the university itself should openly and forcefully contest the ideas they oppose. The Chicago Principles also recognize the U.S. law’s limitations on free speech:

The University may restrict expression that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that is otherwise directly incompatible with the functioning of the University. (Chicago Principles.)

Unlike most Canadian universities, the University of Chicago is a private research university and is not operated or funded by governments, but may be subject to government regulation.

Academic freedom and freedom of expression are not the same concept. How do they differ?

However, academic freedom and freedom of expression are not mutually exclusive. They are similar or related in these ways:

  • In Canada, there are limits on both concepts (neither is absolute):
    • Freedom of expression does not protect violence or threats of violence. It is limited by our Criminal Code hate speech laws, our provincial human rights codes’ hate/discriminatory speech provisions, and anti-defamation laws.
    • Academic freedom “is constrained by the professional standards of the relevant discipline and the responsibility of the institution to organize its academic mission” (Axelrod).
  • Alberta Court of Appeal Justice Marina Paperny, in Pridgen v University of Calgary, explained how these two concepts do not usually compete:

[115]      Academic freedom and freedom of expression are inextricably linked. There is an obvious element of free expression in the protection of academic freedom, whether limited to the traditional conception of academic freedom as protecting the individual academic professional, or applied more broadly to promote discussion in the university community as a whole. Interestingly, the protection of free speech on campus is not universally seen as a threat to academic freedom.

…[117]      … Academic freedom and the guarantee of freedom of expression contained in the Charter are handmaidens to the same goals; the meaningful exchange of ideas, the promotion of learning, and the pursuit of knowledge. There is no apparent reason why they cannot comfortably co-exist. That said, if circumstances arise where these values actually collide, a [Charter] section 1 analysis would be required to properly balance them. …

Freedom of expression is guaranteed under the Canadian Charter of Rights and Freedoms, but it is not clear whether the Charter applies to campuses …

While freedom of expression is an important value, it is only one tool that supports the main purpose of universities. That purpose is “to serve society by pursuing knowledge and advancing our understanding of the world in its many aspects. Universities exist not merely to communicate, but to try to get the story right” (see: Shannon Dea, “First dispatch: Academic freedom and the mission of the university” (Dea)). On the other hand, academic freedom is complex and may be defined as “a cluster of freedoms associated in various ways with various scholarly personnel and institutions. Freedom of expression is just one of those subsidiary freedoms” (Dea).

The freedom of expression and academic freedom issues that arise from Doug Ford’s policy are:

  1. Does the difference between Canadian and U.S. law, and funding of universities practices, require that the policies be modified or implemented differently?
  2. Can a provincial/federal government refuse to provide funding to a university that fails to adopt freedom of expression policies and practices that are approved?

First, there is a significant difference between the U.S. and Canada when it comes to free speech (freedom of expression). In the U.S., commitment to the First Amendment protections of free speech is almost limitless, and it could be said to almost supersede all other considerations (including academic freedom). In Canada, the rights and freedoms guaranteed by the Charter are subject to both internal limitations (e.g., freedom of expression does not protect violence) and the limitations of Charter section 1 (reasonable and justifiable in a free and democratic society). Applying Charter section 1 can involve balancing other rights with freedom of expression—such as the right to equality, which may be harmed by expression in some situations.

… academic freedom is complex and may be defined as “a cluster of freedoms associated in various ways with various scholarly personnel and institutions. Freedom of expression is just one of those subsidiary freedoms”. In Canada, universities and degree granting colleges receive most of their funding from governments and tuition fees. Conversely, in the U.S., universities and colleges receive funds from many sources, including states and the federal government. However, it does not appear that following the Chicago Principles is tied to the receipt of government funding.

Second, while the concept of freedom of expression at Canadian universities (if the Charter applies) would seemingly encourage broad debate that would seek to arrive at the “truth”, this debate should be done in a respectful and civil way that complies with Charter section 1. The “appropriate” topic of the expression should not be forced on universities by governments (which are subject to the Charter) by threatening their funding. Rather, open debate should be encouraged.

Finally, if an outside agency determines the university has not implemented and followed policies (like the Chicago Principles), threatening to cut funding ironically imposes on both freedom of expression and academic freedom. This would ultimately amount to government intervention into the autonomy of universities.

LawNow

Funded by

Connect

 
Font Resize
Contrast