Protecting Political and Conscientious Speech

Last month the Supreme Court released judgment in Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component, 2009 SCC 31, ruling that the transit authority unjustifiably limited the claimants’ freedom of expression by prohibiting political advertisements from being displayed on the sides of buses. The case is a victory for civil libertarians, relieved to see s. 2(b) of the Charter withstand considerable incursion by the offending authority’s policies.

The facts of the case are well-known and described here by Chris Donovan for TheCourt.ca. For our purposes, I will provide a brief gloss of his excellent summary. The claimants attempted to purchase advertising on horizontal panels running along the sides of public buses operated by the appellant transit authority. One proposed ad, which was characteristic of the content and tone of the other impugned ads, featured a silhouette of a concert crowd with the caption “ROCK THE VOTE BC.com”.

The transit authority permitted ads which “communicate information concerning goods, services, public service announcements and public events,” although not those which are “likely, in the light of prevailing community standards, to cause offence to any person or group of persons or create controversy.” Ads which “advocat[e] or oppos[e] any ideology or political philosophy” or which “conve[y] information about a political meeting, gathering or event, a political party or the candidacy of any person for a political position or public office” are especially not permitted.

At issue was whether the transit authority could lawfully circumscribe the content of the claimants’ otherwise free expression in a public location.  By ruling that it could not, the Supreme Court deserves praise for protecting Charter rights from undue government intrusion. Just as pertinently, the SCC’s decision may pre-empt religious objections to atheist bus ads, since their contentious subject matter seems analogous to that of the voter recruitment ads permitted by Greater Vancouver.

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The Ontario Court of Appeal’s unanimous decision in Kerry (Canada) v. DCA Employees Pension Committee, 2007 ONCA 416, was welcome news for Canadian employers everywhere. Nevertheless, in light of the SCC’s decision to hear an appeal of the case, Canadian employers held their breath in preparation for possible changes to come. Many theorists had ruminated on the outcome of the appeal and the potential of additional costs to employers administering a pension plan. With such fatalistic prospects, employers can now breathe a huge sigh of relief at the SCC’s decision in Nolan v. Kerry (Canada), 2009 SCC 39, to dismiss the appeal and reaffirm the Ontario Court of Appeal’s finding.

The SCC supported three main conclusions. First, where the pension plan has an actuarial surplus, the company may use this surplus to pay “contributed holiday” obligations. Second, where the plan agreement is silent, reasonable pension plan expenses can be paid out from the pension fund. Finally, where the defined contributions portion was not part of a separate and distinct plan, the surplus from the defined benefit portion can be used to pay the defined contribution obligations. An analysis of this tripartite decision is detailed below.
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The Supreme Court’s recent decision in R. v. Suberu, 2009 SCC 33, is disappointing. In attempting to clarify an issue set forth in R. v. Mann,, 2004 SCC 52, the SCC has inadvertently demonstrated that the new reasonable person standard is not, in fact, entirely reasonable.

As the SCC sets out, in Mann it was held that not all police interactions with the public qualify as detentions, and in R. v. Grant, 2009 SCC 32, this was clarified so that detention would crystallize when a reasonable person in the subject’s position would conclude that he or she had been detained. These are reasonable positions to take, and this post does not seek to quarrel with them.

However, the theoretically objective nature of the Grant standard is one with the potential to be abused (presumably unintentionally) by judges unwilling or unable to consider that the reasonable person standard, when applied to interactions with the police, must address a shift in that standard when accounting for persons of certain races and classes predisposed to not trusting police officers or trusting them less.
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Defining the Criminal Standard of Proof

A few weeks ago, the Supreme Court released judgment in R. v. Layton, 2009 SCC 36, an appeal seeking definitive instruction on how trial judges should explain to juries the criminal standard of proof “beyond a reasonable doubt”. Although these words are commonly used in everyday parlance, they assume a specific meaning in the legal context that may not be intuitive to ordinary citizens.

Indeed, at which point does a jury’s doubt become “reasonable” enough to mandate an acquittal? Perhaps when a doubt is merely fleeting, so as to slightly compromise full confidence in an accused’s guilt? Or perhaps when a doubt is quite substantial, tipping the scales of probability in favour of an accused’s innocence?

The correct criminal standard falls somewhere in between. Navigating this amorphous territory is the leading case R. v. Lifchus, [1997] 3 S.C.R. 320, which provides model instructions on how to explain the meaning of proof “beyond a reasonable doubt”. In that case, Cory J. holds that a “reasonable” doubt is not farfetched or frivolous, nor is it based on sympathy or prejudice, but is one that logically arises from evidence relating to an essential element of the offence. The standard is much higher than that used in the civil context, proof on a balance of probabilities, and yet is slightly lower than absolute certainty, which is an impossibly high standard in any context. The correct criminal standard would seem to fall closer to the latter.

While the Lifchus terms are not a “magic incantation”, to quote Cory J., jury instructions modeled after them have proven unassailable. The issue in Layton, then, becomes whether a trial judge should provide any additional explanation of “reasonable doubt” in the event that the jury does not understand its initial Lifchus instructions.

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The accused’s right to make a full answer and defence as well as the right to full disclosure has been brushed aside by the SCC in its recent ruling in R. v. Bjelland, 2009 SCC 38. In a close 4:3 decision, the SCC supported the final view that the only real remedy available for late disclosure is adjournment. The SCC concluded that evidence could only be excluded in the “clearest of cases”. This ambiguous standard has been retained from its conception in R. v. O’Connor, (1995) 4 S.C.R. 411, without changes or updates.

In this decision, the SCC has given the prosecution unstated leeway in their timing for disclosure of information. The prosecution has the opportunity to introduce new evidence a few days before trial with the only remedy available to the accused being adjournment.

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R. v. Kapp, 2008 SCC 41, was a s. 15 Charter challenge to British Columbia’s issuing of communal fishing licences to aboriginal bands. The majority of the Supreme Court decided that s. 15(2) provided a full defence to the claim, making it unnecessary to conduct a full s. 15(1) analysis. Nevertheless, McLachlin C.J. and Abella J. take the opportunity to address the heavy criticism that has been levelled at the court since its decision in Law v. Canada, [1999] 1 S.C.R. 497.

Since Law, the Supreme Court has struck down nearly every equality claim to come its way, often using the third step of the Law analysis by assessing the impact of the impugned law or program on the claimant’s “human dignity.” Legal commentators have argued that this third step has become a significant barrier to equality claimants who have to prove that their dignity has been affronted, and that it has allowed formalism to creep into the court’s understanding of equality.

In Kapp, the court acknowledges this criticism, and responds by saying that Law should not be understood as introducing a new test for discrimination, but as focussing the analysis on combating discrimination in a substantive way. It remains to be seen if the Supreme Court will modify its approach to make s. 15 more accessible to claimants in the future.
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On the Eve of Confirmation

As of this writing, the full United States Senate has begun deliberating the nomination of Sonia Sotomayor to become the first Hispanic and only third female justice to serve on the U.S. Supreme Court. With a majority of senators already indicating their support for the nominee, Justice Sotomayor’s appointment is all but assured, although that is very much despite some commentators’ efforts to colour her as lacking judicial restraint and engaging personal prejudices in her decisions.

Previously reviewing the biography Judging Bertha Wilson: Law as Large as Life by Ellen Anderson helped inform my opinion that “empathy” in adjudicators of rights, which Justice Sotomayor would seem to possess very amply, need not code for activism or more insidious forms of “prejudice”, but simply responsiveness to social change.  I later argued that Justice Sotomayor’s most notoriously prejudicial comment, regarding one “wise Latina woman,” is perfectly commensurate with sound judicial philosophy.

On the eve of her appointment, I am inspired to draw from another outstanding biography – Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey by Linda Greenhouse – in articulating my closing arguments in support of the historic nominee. Harry Blackmun’s own “becoming” on the high court, vividly illustrated by Greenhouse, produced several opinions that may be unequaled in their impact on contemporary social issues and policy, while reflecting a legal sensibility that seems to resemble Justice Sotomayor’s own.

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The SCC has laid down new protocol for judges when handling cases dealing with tainted evidence in the four companion cases of R. v. Grant, 2009 SCC 32, R. v. Suberu, 2009 SCC 33, R. v. Harrison, 2009 SCC 34 and R. v. Shepherd, 2009 SCC 35 released recently. The decisions in these cases are predicted to have far reaching impacts on a number of criminal cases that are currently before the court, redefining the way that evidence is excluded from a criminal trial after a Charter breach has been found.

In Shepherd, the court dismissed an appeal on an impaired driving charge by Curtis Shepherd. The appellant was charged with impaired driving, driving over 80, and failing to stop for a police officer. At trial, he attempted to exclude two breath samples taken after his arrest on the basis that they were obtained in violation of section 8 of the Charter. After much deliberation, the SCC concluded that the police officer had enough evidence to believe on reasonable and probable grounds that Mr. Shepherd’s ability to drive had been impaired by alcohol, in accordance with section 8 of the Charter.

Although the other three cases dealt with section 24(2) of the Charter, the SCC in Shepherd chose to focus on section 8 of the Charter, leaving the section 24(2) of the Charter analysis to Grant. The court concluded that it was “unnecessary to address the submissions regarding the exclusion of the breath samples under s. 24(2) of the Charter.” However, it noted that, “the s. 24(2) issues argued by counsel on appeal are fully canvassed in Grant, released concurrently.”

For a further s. 24(2) analysis of Shepherd and a detailed background of the case, I would recommend revisiting Eric Baum’s TheCourt.ca post here. Below is a brief summary of the necessary facts and procedural background of the case.
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This week, The Globe and Mail responded to the Supreme Court’s decision in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, critically. (The decision is summarized and discussed by TheCourt.ca Senior Contributing Editor Daniel Del Gobbo here.) The Globe was critical of the Supreme Court’s decision requiring the Hutterites to participate in Alberta’s photo ID system if they wished to obtain driver’s licenses, arguing that the Hutterites’ wish to remain unphotographed did not particularly impinge on the security concerns advanced by the photo identification system.

However, oddly, the Globe chose this route of attack in its editorial:

The court seemed strangely in thrall to Alberta’s digital facial-recognition technology, and accepted the need for a perfect, identity-theft-proof system. By contrast, the court did not demand perfect protection from terrorists when it struck down Canada’s security-certificate system last year, Mr. Justice Louis LeBel said in a separate dissent. “Important as they were, the objectives of the law were not treated as absolute goals, which had to be realized in their perfect integrity.”

The Globe is of course referring to Charkaoui v. Canada (Minister of Citizenship and Immigration), 2008 SCC 38. It’s an inflammatory comparison, obviously intended to scold the SCC for being more worried about the threat of a bunch of pacifistic Hutterites as opposed to (presumably bloodthirsty) terrorists. The fact that the case against Adil Charkaoui was never anything more than extremely weak, and has only gotten weaker with time, seems to not inform the Globe’s accusation at all. It is also rather inaccurate because, as Mike Larsen previously pointed out on TheCourt.ca, the net effect of Charkaoui was merely to add a judicial gatekeeper step to the security information disclosure process.
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Mandating Photographic Driver’s Licences

The Supreme Court has finally released judgment in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 – a case closely watched by constitutional scholars and popular media for its engagement with the Charter’s s. 2(a) freedom of religion guarantee. Very unfortunately, the outcome may signal to members of some religious faiths that their sincere beliefs and practices, incommensurate with broad social legislation, may not be guaranteed at all.

The case concerns Alberta’s Traffic Safety Act, R.S.A. 2000, c. T-6, and its long-standing requirement that all drivers of motor vehicles on highways hold a valid photographic licence. Since 1974, the requirement was excepted for individuals who objected to having their photos taken on religious grounds, until a 2003 amendment made the requirement universal. The primary reason for doing so was to ensure the integrity of facial recognition software used in combating identity-related fraud.

The claimant members of the Wilson Colony of Hutterian Brethren maintain a communal and self-sufficient lifestyle in rural Alberta. Its members believe that the Second Commandment, forbidding idolatry, prohibits them having photographs or other likenesses taken of them. That belief and the Province’s universal licensing scheme would seem to be in conflict, necessitating that Colony members cease highway driving in adherence to their faith or continue highway driving despite it. The question is, of course, whether compelling such a choice would withstand Charter scrutiny, and is one of considerable significance as Colony members contend that highway transportation is integral to their fulfilling responsibilities to the community.

In a rare 4-3 decision, the Supreme Court narrowly found for the Province, leaving this writer distressed by the majority’s atypical indifference to religious freedoms in the wake of an unconvincing legislative design.

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