Court Cases

LGBTQ+ and GENDER EQUALITY TRIUMPH: TWU v LSUC

LGBTQ+ and gender equality prevailed today, consistent with CCLA’s position, before the Supreme Court of Canada in Trinity Western University, et al. v. Law Society of Upper Canada, 2018 SCC 33, and Law Society of British Columbia v. Trinity Western, 2018 SCC 32. The majority affirmed that the Law Society of Upper Canada’s (LSUC) decision not to accredit Trinity Western University’s (TWU) proposed law school was reasonable and represents a proportionate balance between the Charter rights of equality and religious freedom. The SCC endorsed the LSUC’s conclusion that it could not accredit a proposed law school that condones a mandatory Covenant that effectively excludes LGBTQ+ students, faculty and others. That Covenant was held by the Court to be “discriminatory” (McLachlin C.J.’s Reasons, at para. 138) and “degrading and disrespectful” (Majority Reasons, at para. 101) against individuals and groups based on sexual orientation, gender, marital status and religion. The majority decision is consistent with certain key principles advanced by the Canadian Civil Liberties Association as intervenors in the matter.

While the court recognized that the Charter right to freedom of religion was engaged in this case, it held that… “it is inimical to the integrity of the legal profession to limit access on the basis of personal characteristics. As a public actor, the LSUC has an overarching interest in protecting the values of equality and human rights in carrying out its functions.” CCLA had argued before the Supreme Court that accreditation of a law school confers upon the host university a significant public benefit – financial and reputational. An institution receiving a public benefit of this nature cannot then exclude individuals on the basis of sexual orientation or other grounds.

The majority of the SCC held that while the Law Society’s decision not to accredit TWU’s law school was a breach of religious freedoms, it was a justifiable one because the LSUC exercised a reasonable balancing act to reach its decision that took into account TWU’s religious freedom and the LSUC’s statutory mandate to protect the public interest. The majority decision and the Chief Justice diverged on whether the infringement upon freedom of religion, expression and association was of “minor” significance, but they agreed on the result.

A joint dissenting opinion concluded that the Law Society’s purpose in approving a law faculty’s educational standard was found in their governing statute. That purpose was to ensure that individual graduates are fit to become members of the legal profession because they meet minimum standards of competence and ethical conduct. Given the absence of any concerns relating to the fitness of prospective TWU law graduates, the dissent held, the only defensible exercise of the LSUC’s statutory discretion would have been to approve TWU’s proposed law school.

The CCLA was represented by Alan D’Silva and Alexandra Urbanski of Stikeman Elliott LLP. We are very grateful for the pro bono service of these eminent lawyers and their firm.

Read CCLA’s factum here.
The LSUC decision can be found here. The LSBC decision can be found here.

 

Court Cases

Victory For Free Speech in Supreme Court Decision: Groia

The Supreme Court today has released its decision in Groia v. Law Society of Upper Canada, a case that considers when a law society can discipline a lawyer for alleged “incivility” in the courtroom. The Court overturned the Law Society’s discipline decision, finding it unreasonable based on the particular circumstances and context of the case. All in all, this is a good result for freedom of speech and the rights of clients.

Groia was initially found guilty of professional misconduct because of statements he made about the conduct of the prosecutors in pursuing his client for violations of the Securities Act. The statements were made in court, before a judge, and in defence of his client’s constitutional rights to a fair trial. CCLA intervened in the case because of a concern that an overly broad reading of the civility requirement could have a chilling effect on lawyers and deter them from zealously advocating for their clients’ rights. We argued that the threshold for disciplining a lawyer for incivility based on in-court statements should be very high: only in the clearest of cases, where the alleged incivility seriously undermines the administration of justice or is likely to result in a miscarriage of justice. We also argued that any after-the-fact review by the legal regulator should give due regard to how the conduct was addressed (or not addressed) by the presiding judge at the time the statements were made.

While the majority of the Supreme Court did not adopt the high threshold that CCLA proposed, it recognized the central importance of allowing lawyers the freedom to express themselves, particularly in defence of their clients’ rights. It also noted that incivility prosecutions should target behaviour that has a negative impact on the administration of justice or the fairness of a particular proceeding.

Ultimately, the majority found that the approach adopted by the Law Society Appeal Panel engaged in a proportionate balancing of freedom of expression with the Law Society’s mandate and function, and held that due regard should be given to how a presiding judge deals with in-court statements by counsel that are later alleged to amount to incivility. Significantly, the majority also found that a lawyer’s mistake about the law (made in good faith and with a reasonable basis) could not form the basis of a finding of professional misconduct based on incivility. In short, it is not uncivil to be mistaken.

Although the ultimate result in this case is encouraging, the CCLA remains concerned that the approach adopted by the Court may not give sufficient guidance to lawyers about the boundaries of acceptable conduct, and ultimately affect how clients are represented. It will be important to monitor how legal regulators interpret the decision and what effect it has on counsel, particularly those engaged in criminal defence work.

Read the Supreme Court’s judgment here.

Court Cases

Locking Up the Poor for being Poor: CCLA at…

This week the Canadian Civil Liberties Association will be at the Supreme Court of Canada to argue that a mandatory victim surcharge, imposed on all “offenders,” is a cruel and unusual punishment that should be struck down by the Court.

The victim surcharge requires individuals to pay a financial sum — over and above any fines that are a part of their sentence — if they are found to be guilty of a criminal offence. Failure to pay the surcharge can be grounds for imprisonment. In 2013, the federal government removed judges’ discretion to waive the surcharge in certain circumstances. At issue in the cases before the Supreme Court this week (Tinker et al v Her Majesty the Queen and Boudreault v Her Majesty the Queen) is whether this removal of discretion was constitutional.

Imprisoning the poor for being poor is the populist resurrection of the barbaric debtor’s prison pilloried by Charles Dickens. Mr. Justice Binnie put it this way:

Debtors’ prison for impoverished people is a Dickensian concept that in civilized countries has largely been abolished.  Imprisonment for civil debt was abolished in Ontario by the end of the 19th century.  In its 1996 sentencing reforms, Parliament decreed that jail should be reserved for those whose conduct deserves to put them there.  Here, the trial judge thought a fit sentence would be a suspended sentence with probation, but this was not possible under the Act.  Yet debtors’ prison “in the community”, which is what a conditional sentence amounts to, is repugnant in the case of an individual who is undeserving of jail yet who simply cannot pay.  As will be seen, the purpose of imposing imprisonment in default of payment is to give serious encouragement to offenders with the means to pay a fine to make payment. Genuine inability to pay a fine is not a proper basis for imprisonment. (R. v. Wu, [2003] 3 SCR 530).

As Doherty JA wrote in that case on appeal:  “Economic imprisonment whether in jail or in the community is offensive to the present provisions of the Criminal Code relating to fines.” (R. v. Wu) at para. 40).

By removing judicial discretion to waive the surcharge for indigent offenders, the mandatory surcharge punishes and discriminates against the indigent. A person who is genuinely unable to pay the surcharge must face the the persistent spectre of incarceration. The stress associated with non-payment is compounded by a host of additional legal and personal consequences which an indigent individual will never realistically hope to escape. This includes the stigma of being indebted to society but being unable to repay the debt and take even the first step down the road to rehabilitation. It also includes an individual’s ineligibility to obtain a pardon and the associated effects of this ineligibility on one’s prospects for employment, rehabilitation, and reintegration into society.

A mandatory financial punishment that is imposed regardless of financial circumstance has no place in a fair and just criminal justice system. Criminal law must be flexible enough to allow the judiciary to fashion appropriate and individualized responses to criminal conduct and to avoid imposing unnecessarily cruel and harsh sentences on individuals living in poverty.

Counsel in this case is Christopher D. Bredt, Pierre N. Gemson and Alannah M. Fotheringham of Borden Ladner Gervais LLP.

For a webcast of the hearings, click here.

For CCLA’s intervenor factum in the case, click here.

News and Analysis

A Win for Privacy in Text Messages: Marakah and…

CCLA’s voice was heard in the Supreme Court of Canada’s decision released today in R v Marakah and R v Jones. Decisions about reasonable expectations of privacy should be made based on principle, not based on the way technologies work. The Court has sent a clear message, in both of these cases, that individuals do have privacy interests in conversations conducted through electronic means.

The cases addressed questions around reasonable expectations of privacy in text messages once they have been sent and received. The cases also examined the related question of whether individuals should have the legal right to challenge the admissibility of those messages into evidence if the texts are no longer under their direct control.

The cases were not about – and CCLA did not argue – that police should never be able to use text messages in a prosecution. The cases were asking whether an individual’s privacy rights must be considered, and appropriate judicial authorizations acquired, whether the messages are on a sender’s device, or a recipient’s.

The right to privacy is protected under section 8 of the Charter rights against unreasonable search and seizure.

CCLA’s submissions to the Court had argued that having control over the phone or office where the message is found should not be the deciding factor when considering whether a person has a reasonable expectation of privacy in a text message. The Court agreed. CCLA explained that if police read messages that are from the individual, or the message speaks to the person’s biographical core – information that is intimately about them or connected to them – then that person should have standing (the right to be heard and raise arguments) about whether their privacy has been violated, regardless of whether he or she controls the device or system from which the messages are taken.

The Court concluded that Mr. Marakah did have standing to argue that his Charter-protected rights against unreasonable search and seizure had been violated.

In R v Jones, the Court again incorporated factors put forward by CCLA, and emphasized that a text is an electronic conversation and a private communication. The Court upheld the conviction, but confirmed that an individual who authors a text has a direct privacy interest in the content of electronic conversations that describe aspects of their biographical core.

CCLA is represented by Christine Lonsdale and Charlotte-Anne Malischewski of McCarthy Tétrault.

CONTACT:

Christine Lonsdale, Counsel for CCLA, McCarthy Tétrault
416-601-8019
clonsdale@mccarthy.ca

Brenda McPhail, Director of Privacy, Technology and Surveillance Project, CCLA
416-646-1406
bmcphail@ccla.org

Read CCLA’s factum in Marakah.
Read the Ontario Court of Appeals decision in Marakah and in Jones.

 

Court Cases

CCLA at Supreme Court in Trinity Western Case –…

FOR IMMEDIATE RELEASE

November 29, 2017

TORONTO, Ont. – This week- on November 30th and December 1st – the Canadian Civil Liberties Association (“CCLA”) will appear before the Supreme Court of Canada in Trinity Western University, et al. v. Law Society of Upper Canada.

The case concerns a private evangelical Christian university which requires all students and faculty to sign a Community Covenant based on evangelical Christian notions of Biblical teaching and morality. The Covenant prohibits, among other things, sexual intimacy outside of “marriage between one man and one woman.” Trinity Western University (TWU) would deny admission to any student who refused to sign the Covenant. The Law Society of Upper Canada (and the Law Society of British Columbia) denied accreditation to TWU’s prospective law school because of the discriminatory nature of its Covenant.

CCLA is an intervenor in the case, and will argue before the Supreme Court that accreditation of a law school confers upon the host university a significant public benefit – financial and reputational. As such, any law society must take into account the fact that the Covenant discriminates, and must make its decision about accreditation in light of human rights, Charter rights and Charter values. These include liberty, privacy, and equality, all of which would be violated if accreditation is granted.

CCLA will argue that accreditation of the proposed TWU law school will lead to a myriad of rights violations, unresolvable privacy and disciplinary issues for the Law Society if TWU law school graduates were to face academic penalties or complaints based on any same sex relationship students or alumni may have had during their studies.

“[T]he inquiry into one’s private sex life and the ongoing “monitoring” of one’s personal life is unwarranted, discriminatory and completely divorced from the requirements of a law school education, and individuals’ reasonable expectation of privacy.”

– CCLA’s factum to the Supreme Court

“Consenting adults can and should be able to choose to enter a closed, private religious community, and as part of that community, may choose not to pursue the privacy, equality and other rights to which they are entitled. An academic institution seeking a significant public benefit is a very different kind of entity, and is not entitled to violate the equality, privacy, liberty and other fundamental rights of its students and faculty.”

– Noa Mendelsohn Aviv, Acting Executive Director, CCLA

The CCLA is represented by Alan D’Silva and Alexandra Urbanski of Stikeman Elliott LLP.

Details of the hearing are as follows:

Dates:                   November 30th and December 1st, 2017
Time:                    9:30am
Location:              Supreme Court of Canada

*This is expected to be a highly publicized hearing. Doors open 1-hour before, and will be open to the general public at 9:00am. Seats are on a first come first serve basis.

Read CCLA’s factum here.
Read TWU’s Community Covenant here.

Contact:

Noa Mendelsohn Aviv, Acting Executive Director, CCLA
416-363-0321 x226
mendelsohnaviv@ccla.org

The Canadian Civil Liberties Association (CCLA) is a national non-partisan, non-profit organization that works to protect the rights and freedoms of all people in Canada. Its mission is to promote respect for and observance of fundamental human rights and civil liberties, and to defend, extend, and foster recognition of these rights and freedoms.