On Constitutional Exemptions

Case Commented on: Carter v Canada (Attorney General) 2016 SCC 4

by Nitin Kumar Srivastava

Introduction

In Carter v Canada (Attorney General), 2016 SCC 4 (Carter 2016) the Supreme Court of Canada (SCC) granted an interesting constitutional remedy – a constitutional exemption during an extension of the suspended declaration of invalidity – which has an uncertain foundation in the text of the Constitution Act 1982. This case provides an opportunity to further explore the remedy of constitutional exemptions. In this post, I will be looking at the history of this remedy, its sources, how it operates, issues related to its unpredictable invocation and its availability in the context of present case.

Facts

On January 15, 2016, the SCC granted a four-month extension of its already-suspended declaration that ss 241(b) and ss 14 of the Criminal Code, RSC 1985 c-46 were constitutionally invalid (Carter 2016). These sections deal with assisted suicide.

Last year, in Carter v Canada (AG), 2015 SCC 5 (Carter 2015), the SCC found that the above provisions unjustifiably infringed s 7 of the Charter of Rights and Freedoms (Charter). As such, they were of no force or effect to the extent they prohibited physician-assisted death in accordance with defined criteria (at para 127 Carter 2015). The SCC suspended the declaration of invalidity for 12 months (until February 6, 2016) to give Parliament time to fill the legislative void and bring the law in line with constitutional values (at para 128 Carter 2015).

In Carter 2016, the Attorney General of Canada requested a six-month extension of the suspended declaration of invalidity. The Province of Quebec, other individuals, and civil liberties groups also made submissions, requesting that the SCC grant constitutional exemptions to individuals who were affected during the extended suspension.

There were three questions before the SCC: 

(1) Whether the Court should extend the suspension of invalidity,

(2) If granted, whether Quebec should be exempted from the extended suspension, and

(3) If granted, whether to grant individual exemptions during the extended suspension? (at para 1)

On question one, the majority granted a four-month extension to the suspension of invalidity (at para 7). Granting a temporary suspension of an invalid law is not a common step, as it results in sustaining an unconstitutional law that breaches constitutionally protected rights (para 2). Extending a suspension is even more problematic, as it prolongs the legal uncertainty that was already created by the temporary invalidity of an otherwise unconstitutional law (para 2). To grant such an extension, the applicants must prove that extraordinary circumstances exist. The majority observed that the 2015 federal elections constituted such an extraordinary circumstance that interrupted the task of rewriting the legislation (para 2). As such, a four months’ extension was justified – rather than the requested six-month extension (at para 7).

The Attorney General of Quebec asked the SCC to grant a constitutional exemption from the suspension as it applied to Quebec’s law governing end-of-life assistance (at para 3). Quebec argued for an exemption on two grounds: first, it is imperative to clarify its legal position under the Act Respecting End-of-Life Care, RSQ c S-32.0001 (ARELC), to determine whether it conflicts with the federal prohibition preserved by the extension of suspension; and second, to avoid the chilling effects of the potential violators of the criminal prohibition and possible civil liability during the extension period (at para 3). Preserving its views on the validity of the ARELC, the majority accepted Quebec’s request and exempted sections 4 and 26 to 32 of the ARELC from the four months’ extension (at paras 4, 7).

Individual appellants and civil liberties organizations also requested individual exemptions from the extension (at para 5). This was the first instance in Canada where the Court was asked to grant such a remedy (at para 6).  The majority held that individuals are permitted to apply on humanitarian and compassionate grounds to a superior court for this relief, in accordance with the criteria set out in para 127 of Carter 2015 (at paras 6,7).

Although the SCC was unanimous in granting the four-month extension, it split by 5:4 on the issues of granting constitutional exemptions to Quebec and the individuals. The minority responded to these two issues in the negative (at paras 8, 13).

According to the minority judges, Quebec’s current request for an exemption was unnecessary (at paras 9, 10, 13). The Province passed the ARELC on December 10, 2015 as a “complex regulatory response” to the SCC’s decision in Carter 2015 (para 9) and had never sought an exemption from the declaration of invalidity (at para 10). Additionally, the Quebec Minister of Justice issued a Directive granting protection from criminal prosecution to any physician who complied with the ARELC provisions, in case an extension was refused (at para 10).

Regarding the individual exemptions, the dissenting judges held that the present case was not a suitable occasion to create a mechanism of exemptions during the period of suspended invalidity (at paras 12, 14). As explained at para 125 of Carter 2015, creating complex regulatory regimes falls under the sphere of Parliament, and, should the Court weigh in, it “would create uncertainty, undermine the rule of law, and usurp Parliament’s role” (at para 12). Hence, the legislative process is the most appropriate forum to address such matters (at para 14).

Constitutional Exemptions as a Remedy

The Supreme Court was narrowly divided (5:4) regarding the granting of constitutional exemptions to Quebec and individual applicants. This section considers the complex and controversial underlying theory behind this unusual remedy. 

Definition & History

Within three years of the enactment of our Constitution Act 1982, the SCC recognized that individual constitutional exemptions may be a remedial option available to them, which would exempt individuals from otherwise valid legislation. (See: Dickson CJ in R v Big M Drug Mart Ltd, [1985] 1 SCR 295 at 315; R v Edward Books Ltd, [1986] 2 SCR 713 at para 152). Since then there has been very little guidance on the availability of this remedy, although courts have discussed its possibility in various contexts. These include: Sunday closing laws, rape-shield laws, mandatory minimum sentences, fire arms laws and to a certain extent in the aboriginal law context (For details see: Lokan, AK & Danny Kastner, “Constitutional Exemptions – The Remedy That Dare Not Speak Its Name” (2009) 27 NJCL 179 (Suppl. Constitutional Update 2009) at 181 – 189 [Lokan and Kastner]).

Prof Hogg describes a constitutional exemption as “creating an exemption from a statute that is partly inconsistent with the Constitution so as to exclude from the statute the application that would be inconsistent with the Constitution” (Peter Hogg, Constitutional Law of Canada, (Toronto Ontario: Thompson Reuters Canada Limited 2013) at 40:4 [Hogg: Constitutional Law]).

Professor Kent Roach in his book (Constitutional Remedies in Canada (Aurora Ontario: Canada Law Book 2008) at 14.560 observed that:

Constitutional exemptions, like reading down, are the means of recognizing that statutes may have unconstitutional effect on Charter rights in a few cases, but can be validly applied in most cases. They allow the courts to provide a remedy when necessary, but otherwise preserve legislation that may infringe Charter rights.

In other words, exemptions are a remedial option that can come into play in specific situations that cannot be rationalized with otherwise acceptable regimes (Peter Sankoff, “Constitutional Exemptions: An Ongoing Problem Requiring a Swift Resolution”, (2003) 36 UBCL Rev 231, online: SSRN http://papers.ssrn.com/sol3/papers.cfm?abstract_id=920301) at 13,[An Ongoing Problem: Sankoff]).

According to Lokan and Kastner, (supra at 198) a constitutional exemption generally may be ordered where:

1. a law has an unconstitutional effect on an applicant,

2. the court exempts the applicant from the effect of the law in question, and

3. the court chooses not to strike down the law.

Source of the Constitutional Exemption Remedy

What is the source of the constitutional exemption remedy? Remedies under the Constitution Act, 1982 may be granted pursuant to s 24(1) or s 52(1). These sections read:

Primacy of Constitution of Canada

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. [Emphasis added]

Enforcement of guaranteed rights and freedoms

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [Emphasis added]

The above definitions suggest that constitutional exemptions stand closer to the remedial regime under s 24(1) of the Charter, which grants appropriate and just remedies tailored for individual claimants.  However, the law is not as simple as it seems.

When a court finds that a certain provision of a statute is inconsistent with the Constitution and cannot be justified as a reasonable limit under s 1 of the Charter, it has an express mandate under s 52(1) to render the law of no force or effect to the extent of its inconsistency. A literal reading of s 52 (1) seems to provide the court with the authority only to declare the law invalid; it does not appear to confer any discretion to the courts. This is normally described as ‘striking down’ the law and the law fails by operation of s 52(1). McLachlin CJ in R v 974649 Ontario Inc, [2001] 3 SCR 575 (at para 14) noted that:

If a law is inconsistent with the Charter, s 52 of the Constitution Act, 1982 provides that it is invalid to the extent of the inconsistency.  On the other hand, if a government action is inconsistent with the Charter, s. 24 provides remedies for the inconsistency.

However, a broad reading of s 52(1) implies that the constitutional defect can be cured without wholesale striking down the law. The courts may consider alternatives to striking down such as: severance, reading-in and reading-down.

  • Severance allows a court to strike down only those parts of the statute that are inconsistent with the Constitution, and sever it from the valid remainder.
  • Reading-in is a tool to add words to the statute that is inconsistent with the Constitution so as to make the legislation consistent and retain its validity.
  • In the same fashion, the courts utilize the instrument of reading-down the legislation by interpreting it in a way so that it is consistent with the Constitution (see: Hogg: Constitutional Law at 40-4).

For the enforcement of constitutionally protected rights and freedoms, s 24(1) of the Charter provides a much broader discretion to a court to fashion a remedy it considers appropriate and just in the circumstances.  In a Charter declaration of invalidity, the courts have developed a number of variations on a simple declaration of invalidity and have assumed the power to choose from a range of possible remedies (See: Schachter v Canada, [1992] 2 SCR 679, [Schachter] Lamer CJ at 695-719).

By way of comparison, s 52(1) provides the declaration of invalidity as the only remedy for an unconstitutional law, it does not provide for the grant of personal remedies. Section 24(1) provides appropriate and just remedies for unconstitutional governmental actions committed under the authority of legal regimes, which are accepted to be fully constitutional. (See: R v Ferguson 2008 SCC 6 at para 60 [Ferguson] referring to Eldridge v British Columbia (AG), [1997] 3 SCR 624; Multani v Commission scolaire Marguerite‑Bourgeoys, [2006] 1 SCR 256).

So what are the options available to the court where a law infringes rights guaranteed by the Charter? Can the Court simply declare the law invalid under Constitution Act s 52(1) and provide no remedies to redress violations of the appellant(s)’ Charter rights? The judicial choice hovers between assuming powers to provide just and appropriate remedies under Charter s 24(1), or to declare the law of no force or effect to the extent of inconsistency as per the mandate under Constitution Act s 52(1). Both options have their own drawbacks. Peter Sankoff claims that the courts have gone both ways – without discussing the particular source of constitutional exemptions in detail. (Peter Sankoff, “Constitutional Exemptions: Myth or Reality”, (2000) 11 NJCL 411 at 419, [Myth or Reality: Sankoff]).

There is very little legal clarity to identify the source for the remedy of constitutional exemptions. The majority of cases do not discuss the particular source of exemptions in detail, and rather provide numerous contradictory references (Myth or Reality: Sankoff at 413). Most decisions have simply ignored or avoided a discussion of Constitution Act s 52(1), and tried to summarily justify Charter s 24(1) as the prevailing source for constitutional exemptions on the grounds that it provides considerable flexibility and permits individual remedies. 

For example, Wilson J (in concurrence with L’Heureux-Dubé) in Osborne v Canada (Treasury Board), [1991] 2 SCR 69, [Osborne] describes:

Section 52(1) ….contemplates the exercise by the court of its interpretive function as a first step…..if it is inconsistent, then the court must declare it of no force or effect to the extent of the inconsistency. Section 52(1), in my view mandates this result” (at p 77).

On the other hand, in R v Rose, [1998] 3 SCR 262, L’Heureux-Dubé J, observes that:

s 24(1) of the Charter enables a Court to grant a constitutional exemption from legislation that is constitutional in its general application if in the circumstances of a particular case an unconstitutional result would otherwise occur (at para 66).

In Schachter, Lamer CJ (speaking for the majority) (at p 684-685) states:

Where s. 52 is not engaged, a remedy under s. 24(1) of the Charter may nonetheless be available.  This will be the case where the statute or provision in question is not in and of itself unconstitutional, but some action taken under it infringes a person’s Charter rights.  Section 24(1) would there provide for an individual remedy for the person whose rights have been so infringed.

An individual remedy under section 24(1) of the Charter will rarely be available in conjunction with action under s. 52­ of the Constitution Act, 1982. Ordinarily, where a provision is declared unconstitutional and immediately struck down pursuant to s. 52 that will be the end of the matter.  No retroactive s. 24, remedy will be available.

Peter Sankoff (in Myth or Reality: Sankoff at p 20) argues that the above reading suggests that s 52(1) of the Constitution Act is a more likely source of the constitutional remedy. According to Sankoff, under this option the exemption emerges from the words of the provision itself. The section does not refer to ‘general inconsistency’ and specifically allows the court to invalidate a provision solely to the extent of inconsistency that suggests flexibility is possible under s 52(1) Constitution Act (page 20).

In his later article, (Peter Sankoff, “Constitutional Exemptions: An Ongoing Problem Requiring a Swift Resolution” (2003) 36:2 UBC L Rev 231,[An Ongoing Problem: Sankoff]), Sankoff noted (at page14) that:  

The use of s 52(1) as a mechanism to award individual remedies is an unusual step which was probably never considered by the drafters of the Charter……Utilizing s 52(1) to ostensibly maintain the validity of a statutory provision would make the remedy inquiry a great deal more complicated than it currently is. This approach seems to lead to a conclusion that every application of a mandatory provision is unconstitutional; it is merely the remedy that differs.

In Ferguson, the SCC observed that under s 52(1), the remedy of declaring an invalid law that results in inconsistency with the Charter is a “blunt tool” (at para 38). Prof Hogg also identified the availability of the remedy of constitutional exemptions under the umbrella of Constitution Act s 52(1). At the same time, he says that such alternate remedies do not require the authority of Charter s 24(1) (Hogg, Peter, Constitutional Law of Canada, (Toronto, Ontario: Thompson Reuters Canada Limited 2013 at p 40.19).

The above still does not provide clarity because the constitutional drafters did not design s 52(1) to provide individual remedies, and neither is it worded similar to Charter s 24(1) to allow for appropriate and just remedies. It simply permits the courts to render a provision ineffective/ inoperative to the extent of its inconsistency.

Availability and other issues

The foregoing demonstrates that the underlying theory for the availability of constitutional exemptions is muddy and has potential risks. With the enactment of the Charter in 1982 and an expansive “living tree” approach to the interpretation of the Charter, the courts assumed discretion to fashion creative remedies. The seeds of constitutional exemption remedies lay somewhere between the two divergent theories of judicial activism – protecting Charter rights, and judicial restraint – respecting the constitutional framework. (For details see generally: Weinrib, Lorraine, “The Supreme Court of Canada in the Ages of Rights: Constitutional Democracy, the Rule of Law and Fundamental Rights under the Canadian Constitution” (2001) 80 Can Bar Rev 699, online: SSRN http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2126650; Miller, Bradley, “Beguiled by Metaphors: The Living Tree and Originalist Constitutional Interpretation in Canada” (2009) 22;1 Can J L & Ju 331, online: Hein online http://heinonline.org/HOL/Page?handle=hein.journals/caljp22&div=21&g_sent=1&collection=journals; and [Myth or Reality: Sankoff]).

Regarding the availability of constitutional exemptions generally, the courts have not yet ruled definitively and have expressed both positive and negative evaluations. This has, (as mentioned above) been discussed in certain contexts. For example, in R v Smith, [1987] 1 SCR 1045, Dain J., in the context of mandatory minimum sentences, the Court rejected constitutional exemptions as a remedy on the grounds of uncertainty and their prejudicial effects due to the assumed validity of the minimum sentencing provisions. On the other hand, Arbour J in R v Morrisey, [2000] 2 SCR 90 at paras 82 – 88, expressed his concern that minimum mandatory sentencing provisions would certainly be declared unconstitutional in certain unusual cases if the courts lack discretion to grant exemptions to avoid unconstitutional results.

In Osborne, Wilson J (at p 77) completely rejected the availability of constitutional exemptions in the context of rape-shield provisions and held that once the court finds the provision to breach the Charter, there is no other alternative but to strike down the law under s 52(1) of the Constitution Act. In the same context McLachlin J., in R v Seaboyer, [1991] 2 SCR 577 (at p 628) discussed and declined granting an constitutional exemption, reasoning that it would, in principle, provide a back door entry to something (judicial discretion) that the Parliament specifically intend to exclude. In Schachter, Lamer CJ (speaking for the majority) (at p 684-685), observed that the courts have developed remedies like severance, reading in and reading down to preserve the law from being struck down. The SCC also held that where Constitution Act s 52(1) is not engaged a person can be granted a remedy under s 24(1) of the Charter. But individual remedies under s 24(1) of the Charter in conjunction with s 52(1) may not readily available. The SCC implied that providing a Charter s 24(1) remedy during the suspension of a declaration of invalidity would also be available rarely as it would amount to giving retroactive effect to the declaration of invalidity. In Corbiere v Canada (Minister of Indian and Northern Affairs),[1999] 2 SCR 203, the SCC recognized that the remedy of constitutional exemptions is recognized in a very limited way and it can be available as an interim remedial measure alongside a suspended declaration of invalidity under s 52(1) of the Constitution Act. The court refused to expand the scope of this remedy to stand-alone exemptions (at para 22). McLachlin CJ., in Ferguson (at paras 38-39) identified two arguments for recognizing constitutional exemptions:

(1) first, that constitutional exemption is a better option than wholesale striking down of a law that is constitutional in most of its applications (reasonable hypotheticals analysis) but generates unconstitutional results in a particular matter or in a few cases; and

(2) second, that the remedy is available in the wording of the Charter and the jurisprudence. Granting constitutional exemptions excludes the application of s 52(1) Constitution Act, and appropriate and just remedies may be granted under s 24(1) Charter.

McLachlin CJ noted that the availability of constitutional exemptions for unconstitutional effects of law is, however, “not conclusive”, but further noted that it is similar to the court’s practices of severance, reading in, and reading down, as attempts to preserve the law to the maximum extent possible.  However, she declined to grant constitutional exemptions because it confronts the principles of the rule of law and our constitutional framework (at paras 57, 69, 74). She noted that the remedy of constitution exemption is to be applied with a cautionary note, as the weight of the authority does not generally support its frequent use (para 48).

The Carter 2016 Context

In Carter 2016, the Supreme Court narrowly ruled in favour of granting constitutional exemptions during the extended period of invalidity to both Quebec and individual applicants (at paras 4, 7).

Frustratingly, the majority entirely avoided commenting on the legalities of this remedy. There was complete absence of any reasoning towards the source of the remedy – Charter s 24(1) or Constitution Act s 52(1) — on which the Court is relying.  Nor does the court refer to any jurisprudence on the availability of constitutional exemptions. Its reasons on this point are summed up in four short paragraphs (paras 2-4). Additionally, the primary reason for granting the exemption to Quebec seems to be mainly grounded on the absence of any objections by the Attorney General of Canada and other participating provincial Attorneys General (at paras 3, 4). Further, once Quebec was granted the exemption, on concerns of fairness and equity across the country, the majority preferred to grant individual exemptions (at para 6). This further disturbs the ‘somewhat clear’ proposition held in Ferguson.

Furthermore, the Court in Carter 2015 (at paras 125, 129), while denying constitutional exemptions, upheld the law about individual exemptions recognized in Ferguson. The minority (in Carter 2016) view of denying constitutional exemptions to Quebec on the grounds of redundancy and needlessness seems to comply with the majority of caselaw.

While the majority view of granting blanket stand-alone exemptions to individual applicants is inspiring from a moral standpoint (allowing them to approach the superior court of their jurisdiction and exercise their rights in accordance to the criteria established in Carter 2015), it lacks judicial reasoning for granting this remedy. Ferguson suggests that the remedy is not the one that is readily available as the bulk of jurisprudence does not permit its regular use.  It’s difficult to make out from the majority decision as to why did they decided to depart from the SCC’s reasoning in Carter 2015.

Hence, even after 30 years, since the recognition of constitutional exemptions, the issues related to the scope and availability of the constitutional exemptions lack clarity and certainty. It is left open for a future case to allow the doctrine of constitutional exemptions to attain a level of “settled law”.

Constitutionality of Community Standards By-laws

By: Patrick Shannon and Linda McKay-Panos

Recently, the Alberta town of Taber passed a Community Standards By-Law (see: http://www.taber.ca/DocumentCenter/View/1006) that has garnered a fair bit of attention, even internationally. See: http://www.macleans.ca/news/canada/tabers-real-target-mennonites/ Some of the attention and response has been light hearted, but the passing of the by-law and the response to it actually lead to some more serious questions about the ability of municipalities to pass Community Standards by-laws, which exist in numerous places in some form or another. The issues we see as important include:

1. Is a by-law that resembles a provision of the Criminal Code intra vires (within the jurisdiction or authority of) the municipal government?

2. How do Community Standards relate to Charter rights like freedom of expression and assembly?

The Constitution Act, 1867, provides in sections 92(13) and (16) that provinces have the jurisdiction to pass laws related to property and civil rights, and to matters of a merely local or private nature in the province. In Alberta, municipalities and their powers are governed by the Alberta Municipal Government Act, RSA 2000, c M-26, which provides:

3. The purposes of a municipality are:

(a) to provide good government,

(b) to provide services, facilities or other things that, in the opinion of the council, are necessary or desirable for all or a part of the municipality, and

(c) to develop and maintain safe and viable communities.

7. A council may pass bylaws for municipal purposes respecting the following matters:

(a) the safety, health and welfare of people and the protection of people and property;

(b) people, activities and things in, on or near a public place or place that is open to the public;

Several of the provisions in Taber’s Community Standards By-law 4-2015 are echoed in other jurisdictions. The two provisions that drew our attention to the possibility of a constitutional challenge are:

12. No person shall be a member of the assembly of three or more persons in any Public Place where a Peace Officer has reasonable grounds to believe the assembly will disturb the peace of the neighborhood, and any such person shall disperse as requested by a Peace Officer.

15. No person shall yell, scream or swear in a public place.

We next examine the two important issues stated above with these two provisions in mind.

1. Is a by-law that resembles a provision of the Criminal Code intra vires the municipal government?

It is not uncommon for certain by-laws to overlap in some areas with existing provisions of the Criminal Code. Particularly with regard to traffic offenses, there are a set of laws at the municipal level for less serious infractions and a set under the Criminal Code for criminal acts. As a result, a by-law will not necessarily be found to be ultra vires (outside the jurisdiction of) the province, providing it relates, in pith and substance, to one of the provincial heads of power.

In R v Keshane, 2011 ABQB 525 (“Kehane”), the City of Edmonton passed a Public Places By-law (“by-law”) that contained a provision stating that “a person shall not participate in a fight or other similar physical confrontation in a public place.” The applicant was involved in a fight on public sidewalk and police issued a ticket. The applicant successfully brought application for declaration that the provision was unconstitutional (not within the City’s jurisdiction). However, the Crown’s appeal to the Alberta Court of Queen’s Bench was allowed and the Alberta Court of Appeal upheld the finding that the by-law was constitutional—within the City’s legislative jurisdiction (see R v Keshane, 2012 ABCA 330). The court held that section 7 of the by-law dealing with fighting in a public place, in pith and substance, related to providing a safe and enjoyable public place for the benefit of all residents of and visitors to city, which was within provincial legislative authority as either or both matter of property and civil rights in province under s 92(13) of Constitution Act, 1867, or a matter of merely local nature under s 92(16).

In Smith v St Albert (City), 2014 ABCA 76 (“Smith”), the municipality became concerned about sale of paraphernalia connected to illegal drug trade and city council amended business licence by-law by adding a provision that restricted businesses from displaying or offering for sale three items restricted by by-law. Smith sold restricted products and was ticketed. The Court of Queen’s Bench judge concluded that, in pith and substance, the by-law was criminal law and was ultra vires the authority of the municipality. The municipality’s appeal was allowed, even though the law’s essential character was about suppressing conditions that would be likely to lead to criminal activity (ABCA, para 18). Provincial and Federal offenses can exist and overlap – as is the case with some automobile offenses – provided the provincial law is squarely anchored within a provincial head of power (ABCA, para 42). In this case, the by-law sought to “develop and maintain safe and viable communities” (ABCA, para 48) and to preserve “the safety, health and welfare of people” (ABCA, para 18). The by-law fell under both provincial and federal heads of power, and the provisions were of roughly equivalent importance. The bylaw then for one purpose and in one aspect fell under federal jurisdiction and for one purpose and in one aspect was provincial in jurisdiction. Even so, the Court must ask whether the by-law is at risk of becoming more criminal law. Here, it because applied in limited circumstances – to shopkeepers rather than the public at large – and because it limited the sale of certain products as part of a larger licensing scheme at the municipal level, it was within the municipality’s jurisdiction.

In both Keshane and Smith, the court affirmed that the Constitution Act, s 92(16) provides provinces the right to delegate to municipalities the power to create laws managing local affairs. (This is reflected in ss 3 and 7 of the Alberta Municipal Government Act).  Taber,  may seek to justify its new by-laws under s 7, which provides for “the safety, health and welfare of people and the protection of people and property.”  The police force and government of Taber have mentioned that they hope enacting s 12 of the by-law will permit them to handle the assembly of groups that disturb the peace without recourse to criminal charges. It is not unreasonable for a municipality to enact by-laws that deal with less serious varieties of offenses that exist under the Criminal Code. It would, however, be ultra vires the province to permit by-laws that allow police to avoid charging an accused who has, on the facts, committed a criminal offense. In Smith, the by-laws in question were considered intra vires because they contained limitations clarifying the circumstances in which the laws would be applied. In Smith, the law applied specifically to stores selling a precise number of certain items connected to drug offenses. This kind of constraining language is absent from sections 12 and 15 of Taber’s By-law.

2. How do Community Standards relate to rights such as freedom of expression and assembly under the Canadian Charter of  Rights and Freedoms (“Charter”)?

Valid by-laws may infringe the Charter, providing that they are justified under Charter s 1.

In R v Pawloski, 2014 ABPC 126, Mr. Pawloski was charged under Calgary’s Municipal Traffic 26M96 by-law, for attempting to improperly join the Calgary Stampede parade. He was convicted at trial. The court found that the by-law breached his freedom of expression but was saved by the reasonability provisions in s 1 of the Charter. In its Charter section one analysis, the court held that the objectives of the by-law were pressing and substantial. The limitations proscribed by the law were reasonably connected, constituted minimum impairment, and were proportionate. The law did not prohibit citizens from engaging in lawful expressive activity or protest, except within the confines of the time and place of a permitted parade. The law did not deprive Mr. Pawloski of the choice in exercise of his rights, it simply asked that he obtain a permit if he wanted to participate in a parade – and that he not disturb the parade of other citizens.

In R v Pawlowski , 2011 ABQB 93, Mr. Pawloski, as part of his work with his religious organization, placed large signs, tables, and a large wooden cross in front of City Hall. He was subsequently charged with violating Calgary’s Parks and Pathways by-law. He faced similar by-law charges for operating amplifiers in a public park. He was acquitted at trial. The Court found that the sections of the street by-law dealing with placing material on the street infringed his right of freedom of expression under s 2(b) of the Charter and were not saved by Charter s1. The By-law had no apparent criteria, making it arbitrary, and as result failed the proportionality test as being not minimally restrictive. The appeal was allowed in part, R v Pawowski, 2011 ABQB 93, with the Court finding that the violation of Mr. Pawlowski’s rights with regard to the use of the sound system were justified under Charter s 1 – the object of the law was to control noise and achieve safe and accessible enjoyment for people of the city. The ban minimally impaired freedom of expression in parks, and did not curtail public discourse. The beneficial effects of the by-law outweighed the prejudicial effects.

Thus, some limitation in the interest of safe and accessible enjoyment of public spaces will be found to be justified, while a complete infringement of public discourse will not. The objectives sought by the Taber by-laws may well be pressing and substantial. If, as police have indicated, they seek to limit harassment at hockey games and shouting around drinking establishments, this would fall well within the powers granted to the province to regulate local spaces. Nevertheless, the vague wording used in current bylaw is likely to leave the community and law enforcement wondering what might constitute an infringement. For example, at what point will an assembly be deemed to have disturbed the peace? In the Criminal Code, the disturbance must be “tumultuous”, which means there must be an actual or constructive threat of violence. Would a group of protesters disturb the peace? What about an activist like Mr. Polowski? Similarly, s 15 does not make clear what swear words will be prohibited. Nor does it clarify how these swears might be uttered. Would it be acceptable to swear in a conversation? As a result of stubbing one’s toe? Or would it require repeated cuss words constituting a nuisance? Because these ambiguities may give rise to charges for activities not related to the objective of promoting safe and accessible spaces, it is likely that the effect of these laws will be found disproportionate.

As a result, the problem with the by-laws is not their objective, or necessarily their similarity to existing provisions of the Criminal Code. The town of Taber has the right, granted by the Alberta Municipal Government Act, to make laws that render public spaces accessible, peaceful and enjoyable for all members of a community. By-laws that restrict noise and prevent people from disturbing the peace are rationally connected to this objective, and such laws have been enacted in cities and towns throughout the nation. The issue with these by-laws, as currently written, is that they are overbroad in their language. Even for small offenses carrying fines, the citizens of a community should be able to understand what activities will be prohibited by a given by-law. Moreover, determining the required threshold should not be left entirely to the discretion of peace officers.

 

 

A Constitutional Right to Free Transcripts?

By: Sarah Burton

Case Commented On: Taylor v St. Denis, 2015 SKCA 1

Last fall, the Supreme Court of Canada found a hearing fee scheme unconstitutional because it prevented people from accessing courts (see Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59 (Trial Lawyers)). In Taylor v St. Denis, 2015 SCKA 1 (St Denis), the Saskatchewan Court of Appeal was asked to extend this reasoning to exempt a self-represented litigant from the cost of mandatory trial transcripts. The Court declined this request, choosing instead to distinguish the landmark Supreme Court decision. Unfortunately, the decision in St Denis was impacted by deficits in the applicant’s evidence and arguments. Despite these shortcomings, St Denis serves as a useful indicator to highlight how the Supreme Court’s decision will function as a future precedent.

Facts

The applicant, Taylor, appealed the judgments in two defamation actions he commenced. Under the Saskatchewan Court of Appeal Rules, Taylor was required to pay for and file a trial transcript as part of the appeal record (Court of Appeal Rules, Sask Gaz April 18, 1997, Rule 19; The Court Officials Act, SS 2012, c C-43-101, s. 14(2)). Without relevant transcripts, the appeal would not proceed. If the parties could not agree on relevant extracts to produce, the entire transcript was required. The transcript fee in this case was $20,500. Taylor alleged that he could not afford to pay for the transcripts, and sought an order directing an exemption from the fee. He lost that battle on jurisdictional grounds because, in Saskatchewan, transcribing services are provided by and paid to private third parties. The presiding justice lacked jurisdiction to order a private non-party to forego the fee for their services. Taylor then amended his application to request that the Attorney General pay the transcript fee. The Attorney General intervened in opposition to the amended application.

Reasons for Decision

Taylor’s application failed. As is unfortunately the case with many self-represented litigants, Taylor was not his own best advocate, and many of his arguments were hindered by unfamiliarity with complex legal principles. As such, several of his arguments (including a claim under the doctrine of state necessity, Charter ss. 7 and 15(1) breaches, reliance on Criminal Code provisions, and an assertion that the trial judge’s reasoning breached the rule of law) were dismissed with little difficulty (St Denis at paras 12 – 37).

However, Taylor’s submission that the transcript fee violated a constitutional right to access superior courts merited more detailed discussion. This argument rested on the Trial Lawyers decision, wherein the Supreme Court held that hearing fees impermissibly encroach on s. 96 of the Constitution Act, 1867 and the rule of law if they effectively block access to courts (Trial Lawyers at para 2).

Taylor argued that his situation mirrored that in Trial Lawyers. Madam Justice Ryan-Froslie was less convinced, and distinguished Trial Lawyers on four grounds:

  • Every limit on accessing courts is not an automatic constitutional problem (see, for example, British Columbia (Attorney General) v Christie, 2007 SCC 21 (St Denis at para 59)).
  • Transcript fees differ significantly from the hearing fees in Trial Lawyers. Transcripts are a form of evidence, the assembly of which have always been considered personal in nature. Moreover, transcript fees are charged by private individuals as part of their business. It is not a government fee or method of broader government policy implementation (St Denis at para 60).
  • Appellants have some control over the extent and cost of the transcripts they produce on appeal. Where disputes arise, a court application can determine which transcripts are necessary to an appeal (St Denis at para 61).
  • The government’s position on transcript fees is a question about the allocation of scarce resources. This determination is better left to the legislative and executive branches of government (St Denis at para 62).

Alternatively, even if she was wrong in her assessment of Trial Lawyers, Justice Ryan-Froslie noted that Taylor failed to meet the evidentiary standards established in that case. In particular, Taylor failed to demonstrate that he could not afford the $20,500 fee, as the evidence he submitted regarding his financial position was lacking on several vital points (St Denis at paras 33-35, 63, 65).

On a conciliatory note, Justice Ryan-Froslie adjourned opposing counsel’s cross-application demanding that Taylor’s appeal be perfected. She directed the parties to a pre-hearing conference where they could determine what portions of the trial transcripts were actually necessary to the appeal.

Discussion

Distinguishing the Trial Lawyers Decision

Given the burden that a broad reading of Trial Lawyers could impose on courts and government, this application would have been difficult to win even with an ideal fact pattern and experienced counsel. Unfortunately, neither of these factors was present here. As such, the Court did not hear a clear and compelling argument about how the hearing fees in Trial Lawyers are comparable to mandatory trial transcripts. This missed opportunity permitted the Court of Appeal to emphasize the differences between these two cases and draw on Taylor’s evidentiary weaknesses to reach its decision.

For example, unlike Trial Lawyers, Taylor’s $20,500 transcript fee was not a flat and unavoidable charge. Instead, it depended on the scope and style of appeal being launched. While not stated expressly, it seems that Taylor was demanding that the full trial record from the 29-day trial be transcribed. As Justice Ryan-Froslie correctly noted, there were a variety of methods open to Taylor to reduce the $20,500 fee to a more affordable level. Even though a much more reasonable fee (say $5,000) could still have been too expensive to afford, Taylor’s role in reaching the $20,500 figure significantly weakened his argument that the government should bear the cost.

The Court of Appeal further emphasized the difference with Trial Lawyers by reference to government policy. The Supreme Court in Trial Lawyers was notably influenced by the fact that hearing fees were a tool to implement government policy (in that case, encouraging the efficient use of court time). However well intentioned, this policy had the effect of entirely blocking some people with valid claims from accessing court, and that was unacceptable (Trial Lawyers at paras 22, 51, 52). In St Denis, the transcript fee was not a government fee. Justice Ryan-Froslie used this discrepancy to distinguish the Supreme Court’s decision (St Denis at para 60). A persuasive argument could have been made that that the privatization of transcribing services is indeed a government policy. Arguably, this policy accomplishes the same goal, and has the same shortcomings, as the policy at issue in Trial Lawyers. Unfortunately, this argument was not pursued by Taylor.

Lastly, the St Denis decision was likely influenced by the fact that Taylor sought access to the Court of Appeal as opposed to the Court of Queen’s Bench. Justice Ryan-Froslie correctly noted that Courts of Appeal are “superior courts” (The Court of Appeal Act, SS 2000, c C-42.1 s 3(1)), and that the reasoning in Trial Lawyers applied equally to Courts of Appeal (St Denis at para 57). Nonetheless, this unquestionably lessened the persuasiveness of Taylor’s argument. The Court in Trial Lawyers provided inspired passages on the fundamental importance of superior courts and their core jurisdiction in resolving disputes (Trial Lawyers at paras 31-33). This rhetoric does not resonate as strongly when discussing the Court of Appeal, as Taylor already had his day in court. Given the broad nature of the appeal he was launching, it seemed that he was seeking the right to re-argue that case. In short, Taylor’s facts did not create any incentive for the Court of Appeal to stretch the reasoning in Trial Lawyers to help him out.

Developing Law with Self Represented Litigants

Unfortunately, Taylor’s self-representation clearly hindered his ability to launch a successful argument, and the evidentiary shortcomings may have defeated his case before it began. One cannot help but feel Taylor’s frustration with the complexity of the process. From his perspective, Taylor faced a $20,500 cover charge to launch an appeal. Finding this burden insurmountable, he applied to have the fee waived. His application was dismissed on a jurisdictional point and before he knew it, Taylor was arguing about the constitutionality of s. 14 of The Court Officials Act against counsel for the Attorney General.

This complexity is commonplace in the legal profession, but it does little to make the justice system appear accessible to our community. It also does not help the justice system’s struggling public image as a broken and insular entity (see Dr Julie MacFarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants (May 2013) at 110); Canadian Bar Association, Reaching Equal Justice (November 2013)). Indeed, the Court of Appeal’s written decision itself is legalistic and formal, and I suspect it will serve lawyers looking for a precedent more than it will ever help Taylor understand why he lost his application.

Having said all that, there is a significant positive development in the decision. Justice Ryan-Froslie should be commended for providing a much-needed beacon of practical insight when she directed that the matter proceed to a pre-hearing conference. In so doing, she cut through the complex legal concerns to address the real issue, the $20,500 price tag. Even though there may be no constitutional right to free transcripts, this direction recognizes the Court’s discomfort with fees preventing someone from launching an otherwise meritorious appeal.

By stepping into a role more akin to case management, Justice Ryan-Froslie will be able to achieve more for both parties than any court application would ever accomplish. This step is often invaluable when dealing with self-represented litigants, who have repeatedly expressed their increased satisfaction with Court processes when they can deal with judges in this capacity (see MacFarlane, supra at 13, 14, 126). Shifting to case management orientation is a move that, at first, may appear to strain an already stretched legal system. I would suggest, however, that it will save time and money in clearing the courtroom of many inefficient applications, and will increase public confidence and support of our justice system.

This post was re-printed with the consent of www.ablawg.ca. Check out the original post here: http://ablawg.ca/2015/01/29/a-constitutional-right-to-free-transcripts/

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

By: Linda McKay-Panos

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).

On appeal, only one Alberta Court of Appeal Justice in Pridgen, Marina Paperny, directly addressed the issue of whether the Charter could apply to the University; the University argued that there was an “evidentiary vacuum” that should preclude that analysis (at para 62). For a number of reasons, Justice Paperny held that the Court of Appeal should determine the issue of whether the Charter applied to the University in the context of the case. She provided a thorough review of the previous case law on Charter section 32 (which provides that the Charter applies to government), and concluded that there are five categories of cases in which the Charter may apply. These include (at para 78):

  1. Legislative enactments;
  2. Government actors by nature;
  3. Government actors by virtue of legislative control;
  4. Bodies exercising statutory authority; and
  5. Non-governmental bodies implementing government objectives.

While Justice Strekaf had determined that in this case, the University was a “non-governmental body implementing government objectives”, Justice Paperny would have found that the University, in imposing disciplinary sanctions, was a “body exercising statutory authority” (at para 105). Thus, the statutory authority to discipline students for non-academic misconduct (Student Misconduct Policy) must be interpreted and applied in light of the Charter right to freedom of expression. Furthermore, the breach of the Pridgens’ right to freedom of expression by the decision of the Review Committee could not be saved by Charter section 1.

The remaining two justices at the Alberta Court of Appeal did not consider the Charter’s application directly and decided the matter on administrative law grounds.

Pridgen is one of a number of cases that address the issue of whether and when universities are subject to the Charter (see, for example: McKinney v University of Guelph, [1990] 3 SCR 229; Harrison v University of British Columbia, [1990] 3 SCR 451; R v Whatcott, 2012 ABQB 231). In the UVic case, Cameron Côté, a former student at the University of Victoria, was on the executive of a student club called Youth Protecting Youth (“YPY”). He was informed by the President of the Students’ Society that the University had prohibited YPY from using campus space because of its prior activities (i.e., anti-abortion activities). The activity proceeded and YPY and Côté were admonished for defying the direction of the president of the Students’ Society. Mr. Côté and the British Columbia Civil Liberties Association (BCCLA) asked the BC Supreme Court, among other things, for a declaration that any restrictions or regulations placed by the UVic on students who wish to use the school for “expressive purposes” be consistent with the Charter.

In addressing the issue of whether the University policies were subject to the Charter, the BCCLA and Côté relied on Justice Paperny’s judgment in Pridgen to support their position that any regulation of speech on University property is subject to Charter scrutiny (at para 137). Recall that Justice Paperny’s reasoning was based on the determination that the university was exercising statutory authority and thus was subject to the Charter.

Chief Justice Hinkson of the BCSC distinguished Pridgen for a number of reasons. First, he noted that neither Justices O’Ferrall nor McDonald agreed with Justice Paperny in Pridgen in terms of the Charter issue. In particular, Justice O’Ferrall had held that a ruling on the application of the Charter was unnecessary to the lower court’s disposition of the case and to the disposition of the University’s appeal. He was further influenced in his conclusion because the issue of Charter infringement had not been explored in the original hearing (at para 138). Justice McDonald had held that it was neither appropriate nor necessary for the lower court to have embarked on a Charter analysis in Pridgen (at para 132).

Second, Justice Hinkson noted that Côté, unlike the Pridgens, was not subject to any actual discipline by the University (at para 141).

Third, Alberta’s applicable legislation differs from that of British Columbia, because the BC University Act, RSBC 1996, c 468, specifically prohibits the Minister from interfering with certain powers granted to the University, and also gives the president and senate authority over student discipline (at para 141).

Fourth, Justice Hinkson accepted the University’s submission that in booking space for student club activities, the University is neither controlled by government, nor performing a specific government policy or program (following Lobo v Carlton University, 2012 ONCA 498).

Fifth, the Charter did not apply to the impugned decisions as they were undertaken “by the University with respect to the management of its privately owned land, and not to the exercise of governmental policy or the implementation of a specific government program regulating the use of University land” (at para 147). Thus, the decisions made by the University were within the University’s “sphere of autonomous operational decision-making” and not subject to the application of the Charter (at para 148).

Justice Hinkson thereby concluded that the Charter did not apply to the activity of booking space by students (at para 152). He declined to grant the declarations sought by Côté and the BCCLA.

Commentary

John Dixon of the National Post has criticized this decision and indicated it will likely be appealed (see here). Dixon notes that it is rather ironic the UVic case begins with a quotation from University of Victoria’s Vice President, Jim Dunson:

Universities are places where difficult ideas and issues are often discussed and debated. Freedom of speech is a core component of intellectual inquiry and is a fundamental value of the University of Victoria …

Yet it was Dunson who issued the order to stop the activities and threatened further punishment of the pro-life students in the case at issue.

While Chief Justice Hinkson relied on several factors to distinguish Pridgen, some similar distinguishing factors were present in R v Whatcott, 2012 ABQB 231. In that case, however, the result was very different. The Alberta Court of Queen’s Bench determined that the University of Calgary had used anti-trespassing legislation to prevent an opportunity for participation in a learning activity, and this created a direct connection between the University’s governmental mandate and the impugned activity. The Charter applied, even to a non-student, who was using university property to distribute printed material without university permission. In contrast, in Lobo v Carlton University, 2012 ONCA 498, the activity—refusal of Carleton Life Line’s request to display its Genocide Awareness Project in outdoor area of campus—was characterized as “book[ing] university space for non-academic extra-curricular use,” and thus not subject to the Charter (at para 4).

Whether the Charter applies appears to be dependent on whether the activity is characterized as one that is related to learning or is determined to be purely non-curricular. However, when very similar activities are characterized differently, confusion results. It looks like the Supreme Court of Canada will have to settle this issue.

This post has been reprinted with permission from Ablawg. Check it out here: http://ablawg.ca/2015/02/06/5332/

Bill 202 v Bill 10: Battle of the Bills

By: Ronaliz Veron and Sarah Burton

The Alberta Legislature has been the subject of some controversy in recent weeks. On November 20, Liberal MLA Laurie Blakeman introduced Bill 202: The Safe and Inclusive Schools Statutes Amendment Act, 2014, 3rd Sess, 28th Leg, Alberta, 2014. A week later, in an abruptly called press conference, Premier Jim Prentice described Bill 202 as “unnecessarily divisive” and announced that his government would introduce its own bill dealing with the issues raised by Bill 202. On December 1, Bill 10: An Act to Amend the Alberta Bill of Rights To Protect Our Children, 3rd Sess, 28th Leg, 2014 was introduced by the Progressive Conservatives.  After being subjected to widespread public scrutiny, Bill 10 was amended on December 3, 2014. By the next day, it was clear that the amendment did not quell the rising tide of opposition and on December 4, Premier Prentice announced he was deferring Bill 10’s Third Reading until 2015.

This post will examine the salient parts of both Bill 202 and Bill 10 and their impact on the human rights regime in Alberta. It particularly focuses on the heart of the controversy: how the creation of gay-straight alliances is treated under both Bills.  Serious concerns that remain to be addressed by Bill 10 will also be identified. Given Premier Prentice’s apparent willingness to step back to examine his party’s Bill, we can only hope that these pressing concerns will be addressed in the new year.

Private Member’s Bill 202

Bill 202 aimed to promote safe, inclusive, and supportive learning environments for Alberta students regardless of sexuality, sexual orientation, or gender identity. To achieve this goal, it introduced the following changes to existing legislation (see Global News “Liberal MLA to introduce bill that would mandate gay-straight alliances in Alberta schools” (October 14, 2015).

Gay-Straight Alliances

At present, section 33(2) of the Education Act reads,

33(2)  A board shall establish, implement and maintain a policy respecting the board’s obligation under subsection (1)(d) to provide a welcoming, caring, respectful and safe learning environment that includes the establishment of a code of conduct for students that addresses bullying behaviour.

To further this anti-bullying goal, Bill 202 would have required section 33(2) policies to accommodate student-led organizations that promote a positive school environment for all students regardless of sexual orientation or gender identity. It also allowed the students who form these organizations to identify their group as a “gay-straight alliance” or any other name that is consistent with their group’s purpose.

Section 11.1 of the AHRA

Bill 202 would also have repealed the controversial section 11.1 of the AHRA. Section 11.1 was introduced back in 2009, notably at the same time “sexual orientation” was added as a protected ground of discrimination. Section 11.1 gives parents the legal right to exclude their children from discussions primarily involving religion, human sexuality, or sexual orientation. Linda McKay-Panos discussed the concerning effects of this provision in this post. Bill 202’s removal of s. 11.1 sent a signal that sexual orientation should be treated no differently than any other ground of discrimination.

Reference to the Charter of Rights and Freedoms and Alberta Human Rights Act

Bill 202 would have amended section 16(1) of the Education Act to state that all programs of study in Alberta must respect “the Canadian Charter of Rights and Freedoms and the Alberta Human Rights Act.” While the reference to the Charter and the AHRA is unnecessary given section 1(1) of the AHRA and section 32(1) of the Charter, which make it clear that other statutes operate subject to the AHRA and Charter, it still added clarification to this provision of the Education Act.

Progressive Conservative’s Bill 10

On November 28, 2014, Premier Jim Prentice announced that the Conservative government would be introducing Bill 10: AnAct to Amend the Alberta Bill of Rights to Protect our Children. While Bill 10 purports to deal with the same issues as Bill 202, it has some notable differences, particularly in relation to the creation of gay-straight alliances in schools.

Gay-Straight Alliances

Unlike Bill 202, Bill 10 does not give students a positive right to form student-led organizations that promote a welcoming and safe learning environment (including gay-straight alliances). Instead, a student must ask a school staff member for support creating such a club. That staff member is entitled to refuse to support the student’s initiative. The student is then permitted to appeal that refusal to the school board (see section 2(4) of Bill 10).

Up until December 2, 2014, Bill 10 stated that following a school board’s rejection, a student could make an application for judicial review on issues of jurisdiction and unreasonableness. This onerous process came under severe scrutiny in the media because it raised serious access to justice concerns. Judicial review is a long, costly, and complicated process. In the event of a school board’s refusal, students and their parents would, in all likelihood, be required to hire a lawyer and head to court. Not only would this impose a heavy financial burden on students and parents, it would also have subjected them to an unnecessarily laborious process. Appearing in court can be a very discouraging and intimidating prospect for any adult, let alone a young student. Furthermore, this appeal and judicial review process could be extremely lengthy. A student who was involved in the initiative may already have graduated before a final decision would be rendered.

After a lengthy debate on the evening of December 3, 2014, the Legislature amended Bill 10, purporting to address these concerns. As Bill 10 currently stands, the school board’s decision to support or refuse a student-led gay-straight alliance is final. However, if the board rejects the student’s initiative, that student can send a request to the Minister of Education. The Minister is obligated to facilitate and support the establishment of the organization (see section 2(4) of Bill 10 as amended).

This curious amendment appears to (or at least attempts to) shift the burden of resolving disputes from the student onto the Minister. While the reference to judicial review was removed from Bill 10, it cannot actually preclude a student from challenging the school board’s decision in court.  A human rights complaint against a school board that rejected a GSA would also be an option. However, because the Minister is obligated to support a student’s initiative, any battle over the right to create a gay-straight alliance will now likely occur between the school board and the Minister. So while this amendment provides an avenue of support to the student, it does not remove the possibility that a student could end up before a judge asking to create a gay-straight alliance.

While this change may mitigate some of the more obvious problems with Bill 10, it falls short of addressing many other serious concerns.  First and foremost, the new amendment does not change the fact that schools can prohibit the creation of gay-straight alliances. This implicates Charter issues relating to a student’s freedom of expression, freedom of association, and equality rights. It maintains a separate regime for students who want to start a gay-straight alliance, because only clubs that fall under Bill 10 are subjected to this process. In doing so, it discredits these students’ right to equal treatment. This is particularly vexing because, given Bill 10’s anti-bullying agenda, it bears mentioning that these peer-support groups that have been shown to reduce bullying and lower suicide rates among youth (see Alberta, Legislative Assembly, Alberta Hansard, 28th Leg, 3rd Sess, Issue 12e (3 December 2014) at 357 (Joe Anglin)).

As an additional concern, the Legislature is passing its responsibility to school boards to determine whether or not students have a right to form a gay-straight alliance. Bill 10 ignores the requirement that any legislation must be consistent with the AHRAand theCharter. On its face, that would require equal treatment in allowing student-led groups to address protected grounds of discrimination.

Repeal and Transfer of Section 11.1 of the Alberta Human Rights Act

Another controversial (yet less publicized) amendment included in Bill 10 is its treatment of section 11.1 of the AHRA. While it repeals section 11.1, it places a nearly identical provision into the Education Actand theSchool Act.Similar to the existing section 11.1 of the AHRA, section 58.1(1) of the Education Act and section 50.1(1) of the School Act will allow parents to exclude their children from discussions of religion or human sexuality. While the words “sexual orientation” have been removed from the new parental opt-out provision, absent a clear definition of “human sexuality,” one may argue that “sexual orientation” is subsumed under this category.

From the government’s perspective, this amendment is a smart way to keep a more acceptable form of section 11.1 without changing the status quo. In practice, section 11.1 of the AHRA is often dealt with by schools boards and not the Alberta Human Rights Commission in any case (See section 22(1.1)(a) of the AHRA). In a way then, this amendment merely codifies the existing state of affairs.

“Sexual Orientation” to be added to the Alberta Bill of Rights

Bill 10 also adds “sexual orientation” to section 1(2) of theAlberta Bill of Rights, RSA 2000, c A-14. While this addition may not have a new and ground-breaking legal effect, it is good to bring this legislation in line with the AHRA.

Conclusion

Gay-straight alliance members demand a reform of Bill 10 to make it more consistent with Bill 202 (Leah Holoiday and Jeremy Nolais, “Prentice puts gay rights on hold”, Calgary Metro (5-7 December 2014). Whether the government will listen to these public demands remains to be seen. It will be very interesting to see how this contentious debate continues to unfold over the next few months.  Despite the temporary ceasefire, the Alberta Legislature is still faced with the challenging task of balancing the interests of the LGBTQ students, their allies, parents, and school boards. Ultimately, the critical issue that needs to be addressed is whether or not students should have a positive right to form gay-straight alliances. Anything short of a definitive answer to this question will only perpetuate an already heated and protracted debate.

This article is reprinted with permission from the University of Calgary and ABlawg at: http://ablawg.ca/wp-content/uploads/2014/12/Blog_SB_RV_Bill202_Bill10_Dec2014_final.pdf

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Bills Commented On: Bill 202: The Safe and Inclusive Schools Statutes Amendment Act, 2014, 3rd Sess, 28th Leg, Alberta, 2014; Bill 10: An Act to Amend the Alberta Bill of Rights To Protect Our Children, 3rd Sess, 28th Leg, 2014