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Purposive approach taken to analyzing the statute
The courts used a purposive approach when interpreting the regulations as stated in the Youth Criminal Justice Act (YCJA). The main purpose of the YCJA as established by the court is to “lay down special rules for young persons” (para. 6 of the S.J.L.-G. decision). These special rules have to be applied in conjunction with the rules of general application for adults. Since the YCJA does not explicitly answer the two issues arising in this case, the Court determined that they must interpret both the general rules and the special rules “and determine to what extent the general rules are consistent with the special rules for young persons, and whether the rules for adults must be adapted when being applied to young persons” (para. 6)

Issue 1: Can the Crown proceed by direct indictment when trying young persons?

s.67(7) of the YCJA elaborates in detail the procedure that has to be followed to be able to have preliminary inquiry. By default, a youth will be prosecuted by way of summary conviction, that is, without preliminary inquiry. The exception to this rule arises in cases where the youth is charged with murder or he/she is liable to be sentenced as an adult. In such circumstances, he/she may elect a mode of trial, which many involve a preliminary inquiry if requested by the Crown or the young person. However, the YCJA does not provide any enlightenment with regard to direct indictment. When looking at the general rules of adults, by preferring a direct indictment, the prosecution may terminate or skip the preliminary inquiry stage.

The Supreme Court looked at the words of s.67(7) of the YCJA and found that the Court of Appeal erred by supporting the assertion that the words of s.67(7) of the YCJA make preliminary inquiry mandatory. The SCC determined that the words do not rule out the possibility of proceedings by direct indictment. The words simply state that the “courts have no discretion to refuse preliminary indictment if one is requested.” (para. 12)

Preliminary inquiry has the benefit of acting as a screening mechanism for determining whether the Crown has sufficient evidence to commit the accused to trial. Furthermore, a preliminary inquiry protects a youth from an unnecessary or abusive trial if the courts determine that there is insufficient evidence. However, the advantages of testing the credibility of witnesses and better appreciate the Crown’s evidence does not provide a constitutional right to these proceedings. In 2002, the Parliament made reforms that made preliminary inquiry optional, allowed agreements to limit the scope of the inquiry and authorized a pre-hearing conference to promote a fair and efficient inquiry.

The courts determined that the reforms imply the adoption of a flexible and adaptable mechanism and not imposition of inflexible procedures. These reforms were found to have no effect on direct indictment. Where a direct indictment is preferred, the Attorney General has the discretion to allow or not. The courts will only intervene in cases where there is an abuse of power. In this case, the SCC concluded that there is no reason to not allow direct indictment because preliminary inquiry would not be any more beneficial.

The SCC concluded that preliminary inquiries are optional. Where the Crown prefers a direct indictment, the option of preliminary inquiry is not available. The SCC further stated that “[t]he direct indictment is not inconsistent with the YCJA, since Parliament has not conferred special status on the preliminary inquiry and the direct indictment remains useful in both criminal justice systems.” (para. 41) The courts added that even though direct indictment is available, the process will have to be adjusted according to the objectives and principles of YCJA to ensure consistency.

Issue 2: Can a young person be tried jointly with an adult?

The Court of Appeal decided that adults and youths cannot be tried together as it would go against Parliament’s intent to create a separate youth criminal justice system. The SCC concurred with the Court of Appeal decision and concluded that a young person cannot be tried jointly with an adult.

The Attorney General of Manitoba, as an intervener for the appellant, submitted that separate trial gives rise to issues of inconsistency of decisions because of multiplicity of proceedings, which can be avoided in a joint trial.

The common law rule on joining trials states that “two or more accused persons may be prosecuted on a single indictment or information, and accused persons charged on separate indictments or informations may be joined for trial, if they committed an offence together”. (para 48) Nothing in this common law rule of joinder disallows the joint trial of a youth and an adult.

As mentioned earlier, joint trials do not give rise to practical difficulties such as those faced in separate trials. However, the courts determined that a joint proceedings would be inconsistent with the principles of the YCJA such as the need for a separate justice system for the youth and adults.

This principle of the YCJA was established because youths were considered to be less morally blameworthy and more vulnerable than adults. Because of distinction, they were afforded more leeway and were treated differently. Judges for youths were asked to “favor rehabilitation, reintegration and the principle of fair and proportionate accountability that is consistent with the young person’s reduced level of maturity” as compared to judges for adults who were asked to emphasize punishment with little or no deference. This “special” treatment would not be able to continue if the trial for adults and youths were joined.

This principle is codified in the preamble of the Juvenile Delinquents Act, which stated that “youthful offenders should not be classed or dealt with as ordinary criminals” (para. 65) This distinction between treatment of youths and adults does not support holding joint trials for adult and youths.

Conclusion
The SCC concluded that the only way to try adults and youths together was to transfer the youth to an adult court. However, special circumstances were required for such a transfer to take place. The transfer of youths to adult court has now been abolished, and replaced by the possibility of youths being given an adult sentence. This abolition further solidifies the separation of youth justice system and adult courts, thus, prohibiting joint trials of adults and youths. The appeal was allowed.

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Conservative Mike Allen (Tobique-Mactaquac) echoed Mr. Blaney’s argument that the Supreme Court already demonstrates bilingualism by providing all its services in both languages and allowing parties to use either language in written and oral proceedings. He added that all but one of the current SCC judges are able to hear cases in either official language without the aid of an interpreter; as well, high-quality interpretation and translation services are available during the court’s hearings, and ongoing language training is available to the members of the court. Like Mr. Blaney, Mr. Allen also noted that the Act requires at least three SCC judges from Quebec, honouring the country’s bi-juridical nature, and that the court must demonstrate a broader legal pluralism by ensuring that its judges are drawn from all regions of Canada.

These Conservative critiques did indicate the importance of maintaining competence in both official languages, but de-emphasized the primacy placed upon bilingualism to the perceived detriment of pluralism. Whether this opposition will be strong enough to defeat the bill is a matter that will be watched closely by TheCourt.ca in the coming weeks. Given that 2009 is the 40th anniversary of the Official Languages Act, the renewal of this debate could not have come at a better time.

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Despite the widely-held belief in the anonymity of internet usage, Leitch R.S.J. applied the troubling logic of both Plant and Tessling in order to determine that Canadians ought not to hold any expectation of privacy in the above regard.

It may be recalled that in Plant, a case concerned with privacy with regard to household electricity records, the Court determined that the s. 8 Charter guarantee against unreasonable search and seizure protects a “biographical core” of personal information. Using this vague threshold, the majority found that electricity consumption within the home is not protected because it reveals “very little about the personal lifestyle or private decisions of the occupant of the residence.” Although she agreed with the outcome in Plant, McLachlin J. (as she was then), registered a deep concern that the “territorial” implications of the search had been eclipsed by Court’s focus on “informational” privacy. For despite not being facially as revealing as some other records, electricity records are undoubtedly capable of inferentially “tell[ing] a story about what is happening inside a private dwelling, the most private of places.”

With Tessling, the Court’s assault on the the level of privacy that Canadians may expect in relation to household activities gained further momentum. In approving the unauthorized use of plane-mounted infrared photography upon an accused’s home, not only did the Court cement the Plant majority’s formulation of a narrowly-defined “biographical core, but it adopted an atomistic interpretation of police information collection. According to Binnie J., despite the fact that the objective of the search was to determine what was going on inside the home, police had not really searched the home, but rather had conducted a search about it.

What is more, Binnie J. declared, the “heat profile” recorded by police was “on its own meaningless.” Of course, what Binnie J. did not care to explicitly note was that (in conjunction with the statements of informants) it was precisely this “meaningless” information that eventually secured a “valid” search warrant.

Returning to R. v. Miles Wilson, in Leitch R.S.J.’s decision, we find a disturbing coalescence of the above-noted decisions. First, in rejecting the accused’s s. 8 claim, Leitch R.S.J. determined that one’s name and address, or that of one’s spouse, falls beyond the inference-resistant “biographical core” threshold of Plant. Second, Letich R.S.J. found that given the fact that names and address are “information available to anyone in a public directory”, they are, in isolation, largely meaningless pieces of information as far as s. 8 is concerned.

Ultimately, R. v. Miles Wilson discloses an inattention to the profound social implications of providing police with an unregulated power to attach one’s identifying information with their IP address. The nexus of these two pieces of information provide police with the ability to access anyone and everyone’s online history without acquiring a search warrant. However creditable Leitch R.S.J.’s concern about the scourge of child pornography, her decision is yet another disheartening step toward the mass surveillance of household activities in Canada. While the ruling does not bode well for Mr. Wilson, even worse are its broader implications, which potentially represent an Orwellian nightmare for us all.

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The Supreme Court of Canada

The Supreme Court of Canada commented briefly on the appropriateness of calculating a certain amount of credit for pre-sentencing custody in R. v. Wust, [2000] 1 S.C.R. 455. Justice Arbour, writing for a unanimous 7-judge panel, wrote:

[44] I see no advantage in detracting from the well-entrenched judicial discretion provided in s. 719(3) by endorsing a mechanical formula for crediting pre-sentencing custody. As we have re-affirmed in this decision, the goal of sentencing is to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence. I adopt the reasoning of Laskin J.A., supra, in Rezaie, supra, at p. 105, where he noted that:

… provincial appellate courts have rejected a mathematical formula for crediting pre-trial custody, instead insisting that the amount of time to be credited should be determined on a case by case basis… . Although a fixed multiplier may be unwise, absent justification, sentencing judges should give some credit for time spent in custody before trial (and before sentencing). [Citations omitted.]

[45] In the past, many judges have given more or less two months credit for each month spent in pre-sentencing detention. This is entirely appropriate even though a different ratio could also be applied, for example if the accused has been detained prior to trial in an institution where he or she has had full access to educational, vocational and rehabilitation programs. The often applied ratio of 2:1 reflects not only the harshness of the detention due to the absence of programs, which may be more severe in some cases than in others, but reflects also the fact that none of the remission mechanisms contained in the Corrections and Conditional Release Act apply to that period of detention. “Dead time” is “real” time. The credit cannot and need not be determined by a rigid formula and is thus best left to the sentencing judge, who remains in the best position to carefully weigh all the factors which go toward the determination of the appropriate sentence, including the decision to credit the offender for any time spent in pre-sentencing custody.

The trial judge in Wust had granted credit of one year for Wust’s pre-sentence custody of seven-and-a-half months, and the SCC found that the sentence was appropriate.

Seeing is Believing

The community’s frustration at seeing convicted individuals get two-for-one credit for pre-sentence custody is quite understandable. Indeed, the day before the government announced its plan to introduce Bill C-25, I had a similar reaction when I read a newspaper article about a man who, having pleaded guilty to manslaughter of a baby less than a year old, was sentenced to six-and-a-half years in prison but would be released in less than six months because he had already spent three years in pre-sentence custody. That said, the debate over 2-for-1 credit is characterized by cogent policy concerns on either side.

As a law student, I have limited experience in criminal law practice. However, in the course of my summer employment and my participation in the criminal intensive program at school. As part of the latter experience, I had the opportunity to visit Warkworth, a medium-security federal penitentiary as well as the Don Jail. The conditions in the Don Jail in particular, were truly depraved; it is hard to believe that some people have to live in those conditions for months or even years, waiting for their trials.

Because of the gruesome conditions in prison, many accused persons choose to plead guilty so as to avoid remaining in jail. I personally witnessed a woman in bail court who, upon being informed that her lawyer was not present and that she would have to be remanded, began crying and said she will plead guilty so that she would not have to go back to the detention centre.

It has become an increasingly common refrain to say that jail is not meant to be a pleasant place: “Can’t do the time, don’t do the crime, etc. etc.” However, the majority of people at detention centres are accused person waiting to stand trial. It is a fundamental principle of our criminal justice system, now entrenched in section 11(d) of the Charter, that any person charged with an offence is to be presumed to be innocent until proven guilty according to law.

Perhaps the problem with enhanced credit for pre-sentence custody is that the two-to-one ratio has become the “rigid formula” against which Justice Arbour had warned. It would appear that sentencing judges now tend to apply this ratio automatically. In fact, a failure to do so usually leads to a sentence appeal. That being said, the Truth in Sentencing Act represents a highly inappropriate, legislative response to a fundamentally judicial problem.

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The second, and even more compelling rationale, is that unlike an actual sentence, the period spent in pretrial custody is not open to remission for good behavior and the offender is not eligible for parole. For example, an offender sentenced to more than two years is eligible for parole after 1/3rd of their sentence and must be paroled, barring exceptional circumstances, on the completion of 2/3rds of their sentence. In contrast, an offender who spends two years in pretrial custody awaiting trial spends two years in custody with no chance for remission. Giving enhanced credit for pretrial custody is meant to provide some redress for the fundamental unfairness that would otherwise result, unfairness that the Conservatives now wish to legally mandate.

It is true that some offenders do attempt to take advantage of the enhanced credit given for time spent in pretrial custody, deliberately racking up so-called “dead time” in order to reduce their ultimate sentence. Where a judge concludes that an offender has done this she has the authority to refuse to grant enhanced credit. See R. v. Thornton, 2007 ONCA 366. In other words, it is less than clear that this is a problem in need of a legislative solution.

The Conservatives remain committed toward efforts to substantially reduce the discretion of Canadian judges when imposing sentence. This is prefaced on a perception, which has much public sympathy but no empirical support, that Canadian judges are too lenient and that criminals are being treated with kid gloves.

It is interesting that this was the sentiment that swept over the United States a generation ago, leading to a wave of harsh mandatory minimum sentences. It is now relatively well accepted that these efforts have not succeeded in deterring crime. What really influences deterrence is certainty of apprehension rather than the severity of the potential punishment. It is because of this that the Americans have finally begun to rethink mandatory minimums. For example, just this week, the New York legislature reached consensus on a plan to repeal many of that state’s 1970’s era-drug laws that imposed mandatory minimum sentences. (See Jeremy W. Peters, “Albany Reaches Deal to Repeal ’70s-Era Drug Laws”, New York Times, online edition, March 26, 2009 .)

If the American experience over the last forty years teaches us anything, it is that eliminating judicial discretion from sentencing doesn’t advance the fight on crime. Rather, it simply serves to fill more and more jails with people who do not necessarily pose a threat to public safety. It is unfortunate that our Government seems committed to pursuing criminal justice policies that have already been tried and failed in the United States.

It is hard not to be cynical about the true motivation behind such efforts. This most recent announcement seems like just another sad example of politicians exploiting the criminal justice system to score political points with the electorate, on an issue that few would understand without a full explanation, all at the expense of an easy target, convicted criminals.

To be sure, there are a great many areas of the criminal justice system in need of legislative reform to redress real problems. The elimination of enhanced credit in sentencing for time spent in pre-trial custody isn’t however one of them.

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The review included all decisions from January 1, 2004 to March 24, 2009 with several caveats:
-All non-appeal matters were excluded such as references and procedural motions
-Ambiguous decisions were excluded. For example, decisions involving both an appeal and a cross-appeal were excluded if one was allowed and the other dismissed; if both the appeal and cross appeal were allowed,however, the case counted as allowed; if both were dismissed, the case was categorized as dismissed
-Decisions in which multiple appeals were joined counted as a single case unless the appeals arose from different provinces, in which case it counted once for each originating province

This review follows closely behind statistics released by the Supreme Court itself on it’s own workload. Of particular note is that our top court appears to have dramatically improved efficiency last year as compared to trends in recent years; whereas the number of appeals heard per year had dropped from 89 to 58 between 2005 and 2007, in 2008 the court bounced back to a total of 74 appeals heard.

Despite the increase in the number of appeals, the delay at various stages of the proceedings did not increase. The time between filing for leave to appeal and a decision on leave remained steady at an average of 3.2 months, similar to previous years. Likewise, the time between granting of leave and hearing of the appeal stayed at a average of 8.9 months, the second lowest it had been in a decade. The time between the hearing and judgment dropped to an average of 4.8 months in 2008. To some extent, however, this drop in delay in 2008 may be explained by the reduced number of appeals from the previous year, meaning a reduction in backlog. But nonetheless, one is left wondering if provincial courts might have something to learn from Canada’s top judges on procedural efficiency!

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Louise Arbour’s new role with the ICG will be the latest chapter in an illustrious career spanning criminal law and international human rights. She was a popular professor here at Osgoode Hall Law School before she received her first judicial appointment, in 1987, to the Supreme Court of Ontario (now the Ontario Superior Court of Justice). Soon after in 1990, she joined the Ontario Court of Appeal. In 1996, she briefly left Canada to be Chief Prosecutor for the International Criminal Tribunals for the former Yugoslavia and for Rwanda, during which time she successfully indicted several heads of state for war crimes and crimes against humanity. Arbour’s prosecution of Slobodan Milošević was the subject of a made-for-television movie, Hunt For Justice; she was played by Wendy Crewson.

Arbour’s tenure on the Supreme Court of Canada from 1999 to 2004 was highlighted by several seminal criminal law decisions, including R. v. Nette [2001] 3 S.C.R. 488 (in which the standard of causation for homicide was restated as a “significant contributing cause” of death), R. v. Buhay [2003] 1 S.C.R. 631 (which deemed that people enjoyed a reasonable expectation of privacy in the contents they leave in a bus terminal locker), and R. v. Golden [2001] 3 S.C.R. 679 (in which Arbour, writing with Iacobucci, elucidated a higher standard of reasonableness for strip searches, for the purposes of s. 8 of the Charter).

Arbour left the SCC in 2004 to accept an appointment as the United Nations High Commissioner for Human Rights. As the Washington Times notes, the commission is “one of the most politically sensitive and thankless” at the UN, and naturally attracts controversy. It was inevitable, then, that Arbour’s high-profile work would draw both praise and criticism. She spoke out against the atrocities in Darfur and helped bring greater attention to violence towards women; however, she was criticized for not speaking out more against Russia and China’s human rights infractions, and also suffered a backlash from making condemnatory statements about the 2006 Israel-Lebanon conflict. Few can deny, however, that Arbour was unafraid to speak out against popular or powerful governments. She courageously used her pulpit to promote humanitarianism and fundamental justice around the world, including lambasting the Bush administration’s detention of terrorist suspects at Guantanamo. Arbour was made a Companion to the Order of Canada last year.

Last April, we at TheCourt.ca welcomed Louise Arbour back to Canada after four high-profile years at the United Nations. Her new role at the ICG will undeniably be a continuation of her work in international human rights. We congratulate her on her ongoing success and hope that she isn’t kept away from Canada too frequently.

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Prior to Haida the Crown had contended that it had no duty to consult unless aboriginal title had been proven in court. Thus Haida is significant because the SCC spoke in clear and unequivocal terms in rejecting unilateral action by the Crown during this period:

To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource. That is not honourable.

I revisit Haida for two reasons. First two recent decisions from the British Columbia Court of Appeal (BCCA) show how the Crown and courts have interpreted the the duty to consult established in Haida. Some believe there is “no doubt” these cases will eventually reach the SCC. Secondly, in light of these decisions, I wish to take stock of eminent aboriginal lawyer Maria Morellato’s observation: “There is a marked discrepancy between what is required of the Crown at law and how the Crown’s duty to consult and accommodate is currently being exercised.”

Carrier Sekani: “No New Physical Impacts”
Carrier Sekani Tribal Council v. British Columbia (Utilities Commission), 2009 BCCA 67 (Carrier Sekani) involves a “massive scale” power project to reverse the flow of a river and drive the water through a tunnel under a mountain to drive generators. The BCCA stated the interests of the Carrier Sekani Tribal Council as follows:

The appellant’s interest (asserted both in a pending action for Aboriginal title and within the treaty process) is in the water and related resources east of the discharge of the Nechako Reservoir created by Alcan in the early 1950s to drive its generators in Kemano for use at the Kitimat aluminum smelter. The appellant claims that the diversion of water for Alcan’s use is an infringement of its rights and title and that no consultation has ever taken place.

The Carrier Sekani sought to be heard before the British Columbia Utilities Commission under s. 71 of the Utilities Commission Act, R.S.B.C. 1996, c. 473 to determine whether the Crown fulfilled its duty to consult. The Commission rejected the Carrier Sekani’s motion because there were no “new physical impacts” created by the proposed Energy Purchase Agreement. With regards to B.C. Hydro’s duty to consult, the Commission decided not to consider this issue since it had already found there would be no new physical impact.

The BCCA held that the Commission wrongly decided whether it should consider the Crown’s duty to consult:

In my respectful judgment, the Commission wrongly decided something as a preliminary matter which properly belonged in a hearing of the merits. The logic flaw was in predicting that consultation could have produced no useful outcome. Put another way, the Commission required a demonstration that the appellant would win the point as a precondition for a hearing into the very same point.

I do not say that the Commission would be bound to find a duty to consult here. The fault in the Commission’s decision is in not entertaining the issue of consultation within the scope of a full hearing when the circumstances demanded an inquiry.

The BCCA reopened the Commission’s hearing to determine whether a duty to consult, and if necessary accommodate, the Carrier Sekani exists and has been met.

Kwikwetlem and “Ministerial Discretion”
Kwikwetlem First Nation v. British Columbia Utilities Commission, 2008 BCCA 208 (Kwikwetlem) was decided at the same time as Carrier Sekani. This case involves a power line which proponents say is necessary to meet energy demands of the British Columbia lower mainland. The line originates, terminates or passes through the traditional territory of the appellants. The basis for the Kwikwetlem appeal was:

This appeal under s. 101 of the Utilities Commission Act, R.S.B.C. 1996, c. 473, questions the approach of the British Columbia Utilities Commission (“the Commission”) to the application of the principles of the Crown’s duty to consult about and, if necessary, accommodate asserted Aboriginal interests on an application under s. 45 of that Act, for a certificate of public convenience and necessity (“CPCN”) for a transmission line project proposed by the respondent, British Columbia Transmission Corporation (BCTC). [Links added]

The BCCA identified the major issue in Kwikwetlem is the role of the Commission in assessing the adequacy of the Crown’s consultation prior to issuance of a CPCN. The Commission decided the government’s consultation process involved ministerial discretion and it should defer to that process accordingly. The Kwikwetlem argued “the Commission’s refusal to permit them to lead evidence about the consultation process in that proceeding effectively precludes consideration of alternatives.”

The Court held it was the Commission’s constitutional duty to assess the fulfillment of the Crown’s duty to consult before it decides that a project is “necessary and convenient in the public interest.” Therefore the role of the Commission includes: (1) determining if the Crown’s duty to consult with regards to this project arose; (2) the scope of that duty; and (3) whether it was fulfilled.

The BCCA ordered the Commission reconsider its scoping decision to exclude aboriginal concerns.

Future of the Duty to Consult
Recal Marletto’s “marked discrepancy” between the Crown’s legal duty to consult and the results on the ground post Haida. In my view, Carrier Sekani and Kwikwetlem stand for the proposition that the duty to consult demands a substantive result. Tribunals such as the British Columbia Utilities Commission can no longer dismiss constitutionally protected aboriginal interests by simply finding “no new physical impacts” or “ministerial discretion.” The BCCA held “the Commission is required to assess [consultation] efforts to determine whether the Crown’s honour was maintained in its dealings with First Nations regarding the potential effects of the proposed project.”

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In its stead, the appellants suggest that the principles laid out by the SCC in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835/R. v. Mentuck, [2001] 3 S.C.R. 442 with regards to the common law determination of publication bans should be adopted. At para. 49, they write:

In light of the s. 2(b) limitation that has been established in this case, the fourth Wigmore criterion should be reformulated as follows, to integrate a requirement of demonstrable justification into the analysis:

When the first three Wigmore criteria have been established, and the party claiming the privilege has shown that disclosure of the information will infringe s. 2(b), disclosure of the information should only be ordered if the state can establish that:

(a) disclosure is necessary in order to prevent a real and substantial risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects arising from disclosure outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression and the efficacy of the administration of justice.

Time will tell whether the SCC is convinced by this line of argument, which imports a higher threshold of ‘real and substantial risk’ before the news reporter will have to disclose his/her confidential source. If they are, the above test may very well become the law in Canada as it pertains to the delicate balance between the competing interests in this case.

With webcasts now available online, interested parties will no longer have to travel to Ottawa to see the hearings in person. That said, in light of the profound implications that National Post is likely to have on Canadian journalism, many journalists will choose to make the trip anyway.

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The Aftermath

California was the first state to implement, and then remove, marriage rights for same sex couples. The significance of this cannot be understated. It is one thing to bar access, but another to strip rights from a particular class of people. Imagine, for instance, if Hispanics had been denied the right to vote.

Protests against the passage of Prop. 8 have been widespread. Same-sex action groups have organised boycotts of Mormon-owned businesses. On December 10, an organised “Day without a Gay” saw hundreds “call in gay” and not participate in economic activity, drawing attention not only to Prop. 8, but of the fact that only 20 states protect employees from discrimination based on sexual preference. However, the campaign is not over yet. A number of legal challenges have arisen over the nature of the amendment.

Constitutionality

The case of Strauss v. Horton challenges the very nature of the proposition. At question is whether Prop 8. is a constitutional amendment. If it is merely a constitutional revision, which it has been argued to be because it alters the underlying sentiment of the Constitution, it is not open to citizens to vote on via referenda.

Related to Strauss v. Horton is Tyler v. Horton (whilst Horton may seem like a homophobe, he is really just the Attorney General), which seeks to invalidate the proposition based on the equal protection clause. It is argued that the initiative powers do not allow citizen initiated referenda to divest politically unpopular minorities of protection. Thus, Prop. 8 not only subverts the power of the courts to make these decisions, but it denies protection of individual rights by the state.

Both of these cases are scheduled to be heard in March 2009. However, they raise wider questions about the position of the lesbian, gay, bisexual, and transgender/transsexual community in the wider legal framework.

This issue sits at the heart of the clash between liberalism and democracy. Whilst it may be the democratic will to deny the rights of a particular group, it sits oddly with liberal ideas. Most Western democracies are founded on ideals of individual liberty as paramount, and thus each citizen has certain rights that, no matter how unpopular they are with the rest of the population, are inalienable. To allow such rights, especially of a politically unpopular group, to be put to a vote, makes minorities vulnerable to changing moods.

To illustrate the point, suppose that Prop. 8 instead removed the right to vote for all people of a particular income class (say, earning under $10 000 per year). As an initiative, it passes because the majority of voters fall into a class higher than this and feel that their contribution to society is limited by those who earn less. However, the upper classes aren’t adversely affected by such a change. They can still vote, and their voice still counts. But the poor have everything taken away.

Now, it could be argued that this is just the will of the people and should be enforced as such. But whether the voice of the people is an appropriate mechanism, especially where minorities are concerned, needs careful consideration. Prop. 8 is not the end of gay marriage in California. The push to allow gay couples equal benefits won’t be stopped by a vote financed by groups who have always been opposed to all things gay.

Gay marriage is just the most recent debate in a long line of issues that challenges the very nature of Western democracy.

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