Category Archives: Charter of Rights and Freedoms

In the name of workplace justice: the Court continues to beef up freedom of association

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In two decisions released only two weeks apart, the Supreme Court of Canada has clearly moved to “refang” the union movement, especially insofar as it involves government employers. In its first decision of the year, Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, the majority of the Court ruled that the laws prohibiting RCMP members from being able to freely organize their own independent labour association (ie. a labour union) contravened their freedom of association as protected by s. 2(d) of the Charter and could not be justified under s. 1. In last Friday’s decision, Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, a majority of the Court held that Saskatchewan’s “essential services” laws which prohibit the public service from striking were similarly contrary to s. 2(d) and unconstitutional. In both cases, Justice Rothstein (joined by Justice Wagner in the second decision) provided powerful dissents. As a result of these decisions and other relatively recent decisions, Canada constitutional protection of freedom of association has now come to protect core elements of labour relations, such as the right to bargain collectively, the right to strike and the right to freely choose an independent labour association to represent their interests viz-a-viz the employer. We have come a long, long way from the labour trilogy of 1987.

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The SCC rules on warrantless searches of cell phones: Police 1; Privacy 0

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The Supreme Court closed out 2014 with a ruling that has met not without some controversy. In R. v. Fearon, 2015 SCC 77, a bare majority held that the common law police power to search incident upon a lawful arrest survived the Charter‘s protection of the right of privacy, albeit with some limitations as imposed by Justice Cromwell (for the majority). Although the search in this case did not comply with the newly imposed qualifications and was therefore not compliant with the Charter, Justice Cromwell held that the evidence so obtained should not be excluded. The minority, led by Justice Karakatsanis, would have found the warrantless search to be unconstitutional and would have excluded the evidence so obtained. The qualifications to the police power to search incident upon an arrest are not easily and objectively assessed, and the principal criticism levied against them is that it will be difficult for the police to know if they are onside or offside of the constitutional mark.

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Je suis Charlie….

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The recent attack on the Paris offices of Charlie Hebdo, a French magazine known for its cutting political satire, by militant jihadists on January 7, 2015 leaving a dozen dead and another dozen wounded has underscored the need for all those who value freedom of speech, freedom of the press and freedom of thought, conscience and opinion to stand up and be counted.
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David Suzuki and the plea for a constitutional right to a healthy environment

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Dr. David Suzuki, that famous Canadian scientist who has used the media to advance his arguments for the protection of the environment, is up to it again. As part of his recently concluded “Blue Dot Tour”, he has pressed for the amendment of the Canadian Charter of Rights and Freedoms to include a “right to a healthy environment” (Newfoundland & Labradaor, TheIndependent.Ca, September 24, 2014). He states that virtually all Canadians would support such an objective.

While I agree with Dr. Suzuki’s overall objectives, I think other types of constitutional reforms may be more effective in achieving the ultimate goal of a clean and healthy environment.

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The iRevolution revisited: when you share, are you expressing?

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Speakers’ Corner, London, United Kingdom, October 25, 2014 (taken by Arthur Grant)

For over 150 years, people have come to Speakers’ Corner in Hyde Park, London, for the debates. Some come to speak. Others come to heckle. And others just listen and observe. A couple of weeks ago, I ended walking to Speakers’ Corner and listening with great interest to the “debates”. Some of the debates were about religious issues. Some were about immigration. Others seemed to be about nothing at all. It was fascinating to watch this all unfold, this fundamental exercise of freedom of expression.  As important as the speakers are the hecklers – described by one of the placards to the Corner as “essential to the dynamics of Speakers’ Corner”. I would also argue that equally important were the observers – those who stood and watched much like me, not saying anything but listening to the cut and thrust of the debates and simply taking in the mood of the crowds.

Speakers’ Corner is an important manifestation of the exercise of free speech. Its origins date to the mid-19th century – some date it even earlier than that. It is a reflection of a time when oral debates – heard and seen by many people – were a means of addressing matters of public interest. The world has changed dramatically since then.

We now live in a world bound together by radio-communications, by cell phones, televisions, mobile devices, satellite signals and, most prominently, by the Internet. The world has become a much smaller place. We communicate with each other around the world using Skype and FaceTime. We text and email and tweet and exchange documents and photos and videos nearly instantaneously.  The global village exists now.

Part of that global village involves file-sharing. In earlier posts, I spoke about the importance of the iRevolution to society in general and the dawning realization of the judiciary of the importance of the Internet: “The Internet Turns 25 Years Old – the Court and the World Wide Web”. In this post, I want to underscore the fact that by sharing files, whether they be audio-files, video-files, text-files, or software files, we are engaging in the extension of what is Speakers’ Corner. We are engaged in a human exercise of freedom of expression, freedom of speech.

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“I forgot” – no excuse for infringing an accused’s right to counsel

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An innocent omission, a slip of the mind, an honest mistake of an arresting police officer is not sufficient to prevent the Court from excluding evidence obtained following a violation of an accused person’s right to counsel. Last Friday, the Supreme Court of Canada reinforced that right and determined that, notwithstanding the inadvertent nature of the police’s behaviour, the correct remedy was to exclude the evidence subsequently obtained.

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Privacy and the Internet – The Supreme Court Defends Anonymity of Online Users

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Mr. Matthew David Spencer won the battle but lost the war in the recent ruling of the Supreme Court of Canada of R. v. Spencer, 2014 SCC 43. The unanimous 8 member panel has made it very clear that persons using the Internet have a reasonable expectation of privacy, including a reasonable expectation that their anonymity will be respected. While the Court allowed the admission of evidence obtained in this case through the police’s warrantless acquisition of Mr. Spencer’s identity from the internet service provider (“ISP”), from this point on, police in Canada must understand that they will need authorized searches through the use of properly issued warrants in order to overcome this presumption of preservation of anonymity.

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Trinity Western University and Law School – Is the Law Society Complicit in the Discrimination if it Accredits TWU?

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On April 11, 2014, the benchers of the Law Society of British Columbia approved the application of the future law school of Trinity Western University, a Christian faith-based university located in the Fraser Valley of British Columbia, to be an accredited law school. TWU obliges its students to sign and comply with a religious-based covenant that only sex in marriage between a man and a woman is permitted. The concern is that this covenant discriminates against gays and lesbians (and unmarried couples). The Law Society’s vote was 15 to 6 in support of the application. One of British Columbia’s most eminent constitutional scholars, Joseph Arvay, Q.C., was one of the six who opposed the application. On April 24, 2014, the Law Society of Upper Canada rejected TWU’s application for accreditation. The vote was 28 to 21 against accreditation. The next day, the Law Society of Nova Scotia met and voted 11 to 9 to approve TWU’s application — on the condition that TWU drop the requirement that its students sign and respect the covenant. In the meantime, back on the West Coast, over 1000 members of the Law Society of British Columbia signed documents demanding that the decision of the Law Society’s benchers be reconsidered by a full meeting of the membership. Only 500 such members were necessary to require such a special meeting. That meeting will have to be held sometime in the next two months. This collision between equality and anti-discrimination rights on one hand and freedom of religion has been played out before. The British Columbia College of Teachers and TWU went to the Supreme Court on this issue nearly 15 years ago and TWU won: Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31.. Before the law societies, TWU has argued that this case is no different. I must say that I disagree.

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The Court says “No” to retroactive punishment

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Today, in the case of Canada (Attorney General) v. Whaling, 2014 SCC 20, the Supreme Court of Canada pushed back against one small element of the government’s “tough on crime” agenda, namely, the retroactive abolition of early parole for offenders already serving their sentences. In a unanimous decision, the Court held that the Charter‘s prohibition against double punishment (s. 11(h)) presented an insurmountable obstacle to the government’s attempt to get tough, not only on offenders who were to be convicted and sentenced in the future, but on offenders who had already previously been convicted and sentenced before the amending legislation, Abolition of Early Parole Act, took effect.

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The Internet Turns 25 Years Old – The Court and the World Wide Web

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In one of my earlier posts, “Freedom of Expression and the Internet – The new realities of a cyberspace inhabited by copycats” (January 24, 2014), I provided the first installment respecting the relationship between freedom of expression and the courts in the World Wide Web. This is the next post in that series. The Internet is a relatively recent phenomenon but despite its youth, it has reshaped our human environment. After only 25 years, not only has it changed our economies and our social lives but it is penetrating deep into our jurisprudence. One might argue that the courts and the law are institutions that are slow to alter course. That is usually true. But at the level of the highest court in our land, the Internet appears to have seized the imagination of the justices.

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