What You Don’t Know

The BC Court of Appeal delivered an important decision this week, holding that the Charter does not protect the right of persons conceived with donor sperm (or egg) to “know their past”―that is, to know the identity and medical and social history of the donors whose biological offspring they are. The decision is Pratten v. British Columbia (Attorney General), 2012 BCCA 480. The plaintiff argued that legislation which allowed people who had been adopted to obtain this information, without making similar provision for “donor offspring” such as the plaintiff, was a violation of her equality rights protected by s. 15(1) of the Charter. She also argued that the “right to know one’s past” was protected by s. 7 of the Charter. The Court of Appeal rejected both these claims.

The ruling has been criticized: over at The Court, Nikita Rathwell blames the s. 7 holding on the courts’ “usual timidity,” while writing in the Globe and Mail, Juliet Guichon, a professor of medicine at the University of Calgary, calls it “an ignoble step backward.” But as a matter of law, I think it is exactly right; indeed, this case demonstrates the limitations of judicial review as a means of changing social policy.

The trial judge found that donor offspring face a number of problems due to not knowing the medical history of their biological parents. It is more difficult and takes longer to diagnose medical conditions from which they suffer. And the gaps in their identity and history cause them anxiety, frustration, and other psychological difficulties. They also “commonly, and legitimately, fear inadvertent consanguinity. ” (par. 17). Their situation is essentially similar to that of adoptees. These findings were not challenged on appeal. The government’s argument was rather that they were not constitutionally problematic.

The first issue is that of s. 15 of the Charter. S. 15, on the one hand, prohibits discrimination on the basis of a number grounds, such as race, age, gender, etc., and other similar ones (subs. 15(1)).  On the other, it explicitly authorizes “any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups” (subs. 15(2)). And as the Supreme Court held in R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, at par. 41,  subs. 15(2) means that

[a] program does not violate the s. 15 equality guarantee if the government can demonstrate that: (1) the program has an ameliorative or remedial purpose; and (2) the program targets a disadvantaged group identified by the enumerated or analogous grounds.

The parties agreed, as did the Court, at least for the sake of argument, that “manner of conception” of an individual is one of those similar and thus protected grounds. But while the plaintiff contended that allowing adoptees but not donor offspring to access information about their biological parents amounted to discrimination on the basis of their manner of conception, the government argued that the provisions it had made for adoptees were designed to remedy the disadvantages of adoptees, who, as the trial judge found, “ha[d] historically, if not currently, been subject to negative social characterization” (par. 38). The Court accepted this claim; in its view, “[t]he purpose of the impugned provisions is to remedy the disadvantages created by the state-sanctioned dissociation of adoptees from their biological parents” (par. 37). Under the Kapp test, this is enough to save the law from scrutiny under subs. 15(1). The Supreme Court clarified that test in Alberta (Aboriginal Affairs and Northern Development) v. Cunningham,  [2011] 2 S.C.R. 670, 2011 SCC 37, holding that subs. 15(2) protected only measures that “in a real sense serve or advance the ameliorative goal” pursued by the government. The plaintiff argued that the distinction between adoptees and donor offspring did not serve such a purpose. But the Court rejected this submission. In its view, the disadvantages the adoptees faced and which the legislature sought to redressed resulted from the change in their legal relationship with the biological and adoptive parents, and the legislation was tailored to address that problem. Since donor offspring did not face it―they never had a legal relationship with their donor biological parents to begin with―their exclusion from the scope of the legislation is justified.

I think that’s the right outcome. There are real differences in the way relationships between adoptees and donor offspring and their biological parents arise and are severed; in particular, the state intervenes in the relationship between the adoptee and his or her biological parents in the way it does not in the relationship of donors with their offspring. It is not obvious that these groups must be treated identically, and s. 15(2), as the Supreme Court held in Cunningham, permits differences in the remedial measures offered to various disadvantaged groups.

The second issue in Pratten was the existence of a “right to know one’s past” under s. 7 of the Charter. The trial court did not accept the plaintiff’s position on this point; nor did the Court of Appeal. The plaintiff argued that s. 7 should be expanded not only to prevent deprivations of life, liberty, or security of the person effected by the state, but also to require the state to provide these benefits―a proposition which the Supreme Court rejected, albeit narrowly, in Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429. The Court refuses to expand s. 7 in this way. It points out that “the right to know one’s past” is not generally regarded as fundamental in Canada. Neither the decisions of Canadian courts nor the interpretations of international conventions to which Canada is a party have recognized such a right. The Court also notes that

the rights in s. 7 are guaranteed to “everyone.”  Accordingly, recognition of what can be called the right “to know one’s past” would have implications reaching well beyond adoptees and donor offspring.  Further, it is pure speculation to suggest that only minimal resources would be needed to give effect to such a right.

The s. 7 claim is rejected.

Rightly so. For one thing, it is not open to the Court of Appeal to disregard Supreme Court precedent as the plaintiff invited it to do. For another, it is indeed difficult to regard a right which neither legislatures nor courts have ever recognized as a general one as fundamental to the workings of the Canadian legal system. And the Court is right to point out that recognizing it as such would extend it to every person however conceived. Exactly how this right could be enforced for the benefit of individuals conceived the natural way, without a medical record, is not clear at all―such enforcement would require invasions of privacy on a scale difficult to imagine. But rights are rights are rights. Which means that they should not be extended lightly.

This case highlights the deficiencies of judicial review as a means to change social policies where multiple interests are at stake. It is one thing for courts resist attempts by legislatures or the executive to expand their coercive powers, or when politicians distort the democratic process in order to entrench themselves in power. It is something else for courts to intervene when legislatures try to strike a balance between the interests of different groups of citizens. The donor offspring have good reasons to want to know “their past.” But it may well be that many donors would not have donated sperm or eggs without the benefit of anonymity. Which, of course, would mean that infertile couples would not be able to have children. There are thus at least three groups of citizens―none of them, I should note, so numerous or powerful as to use its strength to dominate the political process at the expense of the others―whose interests must be taken into account and balanced. Legislatures can and ought to do that. Courts cannot, and should not try.

Thanks for Nothing

Last week, the Superior Court of Ontario has issued a ruling on two important motions in a challenge to the constitutionality of the abolition by Parliament of the long-gun registry brought by an Ontario NGO, the Barbara Schlifer Commemorative Clinic, which I first mentioned here. The decision, Barbra Schlifer Commemorative Clinic v. Canada, 2012 ONSC 5271, deals with the government’s motion to strike the application and the applicant’s motion for an interlocutory injunction prohibiting the destruction of the gun registry data pending the ruling of the court on the merits of the application. Justice Brown denied both these motions.

The government’s motion to strike was based on two grounds.

First, the government argued that the constitutional challenge was outside the court’s jurisdiction because the abolition of the gun registry is functionally identical to a refusal to set one up in the first place, and courts cannot entertain a challenge to a legislature’s failure to legislate. Justice Brown makes rather short work of this claim. The abolition of the gun registry is provided by an Act of Parliament; that Act, no less than any other, must be constitutional, and its constitutionality is subject to judicial review.

The government’s second argument was that the Clinic’s application disclosed no reasonable cause of action. The application is based on infringements of ss. 7 and 15 of the Charter, protecting respectively the rights to life, liberty, and security of the person, and equality rights. On s. 7, the government contended that the law abolishing the gun registry in no way touches on Charter rights of women victims of violence which the Clinic says it infringes. The law simply abolishes the gun registry; any use of newly-unregistered guns in violence against women is not the Parliament’s doing and thus not the courts’ concern. The courts cannot impose on Parliament an obligation to keep a law on the books. After pointing out that the Clinic alleges that the abolition of the gun registry will cause violence against women to increase and that it is arbitrary and grossly disproportionate, and that if it can prove these allegations, it will prima facie make out a violation of s. 7 of the Charter, Justice Brown turns to the question whether, in any case, the decriminalization of conduct, such as the abolition of the requirement to register a firearm is, can amount to a violation of the Charter. On the one hand, Parliament is generally free to choose which conduct it criminalizes, and which it doesn’t. On the other, suppose Parliament decriminalized murder―or, say, the murder of some part of the population. Would potential victims not have a Charter recourse? Perhaps, concludes Justice Brown, the Charter does impose a positive requirement that Parliament criminalize certain conduct. “With Canada’s constitutional forest populated with living trees, how can one say with certainty that the interpretation of section 7 of the Charter advanced by the Clinic stands no hope of success?” (Par. 72) As for the s. 15 claim, while Justice Brown seems rather skeptical of its prospects, he also points to the absence of authorities directly on point and decides that the government hasn’t shown that it has no chances of success.

Justice Brown then turns to the Clinic’s motion for an injunction to prevent the destruction of the gun registry data while litigation is ongoing. He takes note of the Québec Superior Court’s judgments in the case about Québec’s bid for the gun-registry data, which first granted an interlocutory injunction and then an injunction-like declaration preventing the destruction of Québec-related gun-registry data, but points out that Québec’s claim was based on federalism, not the Charter. He thinks that it means that the Québec court’s reasoning is not applicable to this case.

Applying the test for granting an interlocutory injunction, Justice Brown finds that there exists a serious issue to be tried, but only in the limited sense that the case brought forward by the Clinic is not frivolous, vexatious, or bereft of any chance of success. It is, otherwise, very weak:

[t]he statistical evidence filed on this motion provides little forensic support for the Clinic’s allegation that a causal relationship existed between the enactment of the long-gun registry and the most serious type of violence against women – homicide – and, therefore, that the repeal of the registry would increase the risk of such violence. (Par. 136)

This conclusion also influences Justice Brown’s view of the second prong of the test, the existence of irreparable harm, which is that the Clinic hasn’t established that women will actually suffer violence―and thus an irreparable harm―if the registry data is destroyed before the resolution of the case. And the registry can always be recreated if the Clinic’s challenge succeeds, albeit at a cost to the taxpayers, so the loss of data is not an irreparable harm either. Nor has the Clinic proven that balance of convenience favours its position.

Thus the Charter challenge to the abolition of the gun registry survives to live another day, but only just, and it is not clear what the fruit of a victory would be. The gun registry data will be destroyed well before the case is resolved. Recreating a new registry from scratch is always possible, as Justice Brown says, but if past experience is any guide, it will be an embarrassingly long and expensive process. And although theoretically this should not be so, one cannot help but suspect that this fact will colour the courts’ judgment when the case is decided. It would have been one thing to order the government to keep going an already-existent legal regime. It will be something else to order it to incur massive start-up costs to re-build one from scratch.

State, Means, and Ends

I am auditing Jeremy Waldron’s seminar on human dignity this semester. Since prof. Waldron’s rule is that auditors “must be seen but not heard” in class, I will use the blog as an outlet for thoughts and comments.

One thing we did in yesterday’s seminar was to go through the rights-protecting amendments to the U.S. Constitution and look for ways in which they can be said to rely on or further dignitarian ideas. It’s an interesting exercise, because it highlights the variety of these ideas, and shows how specific rights are connected to some of them, but not others. For example, dignity is associated with autonomy or self-direction, and the First Amendment’s protection of the “free exercise” of religion can be read as upholding that autonomy. Dignity is also associated with (high-status) equality, and the guarantee of the “equal protection of the laws” in the 14th amendment, or voting equality in the 15th and the 19th are related to that strand in the dignitarian thought. (Of course, a right can be related  to more than one facet of the concept of dignity. For example, the prohibition of slavery in the 13th amendment is related both to autonomy and to equality.)

Now there was, as I remember it, a single section of the Bill of Rights for which no one, apparently, seemed able to come up with a dignitarian explanation: the Third Amendment, which prohibits the quartering of troops in private houses in peacetime without the consent of the owner. But I think that it can actually be related to one familiar dignitarian idea: Kant’s injunction against treating persons as means to an end rather than as ends in themselves. When the government, without your consent, uses your house as improvised barracks, it treats your expense of time and/or money on building or buying and keeping up the house as means to its own ends.

The Bill of Rights contains other rights related to the same sense of dignity, notably in the Fifth Amendment, which includes protections against the taking of private property by the state without compensation and against compelled self-incrimination. (Arguably, the Canadian Charter of Rights and Freedoms is rather less protective of this aspect of dignity, but it also includes a protection against compelled self-incrimination.) Yet in other ways the U.S. Constitution (as well as the Charter) countenances and arguably even requires the use of citizens as means to the government’s ends. It does not prevent the draft, for example. It also protects the right to jury trials, which means that the state must conscript citizens to serve as jury members.

I wonder what to make of this contradiction. Is it even a contradiction, or is there some broader principle, or some distinction, that I am missing? If it is, is it wrong? Can or should we do things differently? Your thoughts are very welcome.

Is There Voice after Exit?

First of all, an apology for the overextended silence. I couldn’t find anything interesting to blog on, I’m afraid. Fortunately the CBC has rescued me by reporting on a challenge to the provision of the Canada Elections Act, S.C. 2000 c. 9 (CEA) which prohibits Canadians who have resided abroad for more than five consecutive years (except members of the Canadian forces, civil servants, diplomats, and employees of international organization) from voting in federal elections. (Indeed the disenfranchisement potentially extends even to those Canadians who have been abroad for less than five years but do not intend to return to Canada as residents, or even those who are unable to provide the Chief Electoral Officer with “the date on which [they] intend[] to resume residence in Canada,” pursuant to par. 223(1)(f) of the CEA. It is not quite clear whether the challenge extends to the requirement of an intent to return (on a certain date). While the intent requirement  is in the same provision (par. 11(d) of the CEA) as the five-year limit, it might be easily severable; certainly the individuals bringing the challenge emphasize their desire to return to Canada.

The CBC writes that

[t]he rule denying the vote to Canadians outside the country for more than five years was enacted in 1993 amid debate about the strength of their ties to Canada and how well informed they are about the domestic political situation. However, it was only in 2007 that Elections Canada began to enforce the rule to “more clearly reflect the intention of Parliament,” said spokesman John Enright. Until then, the five-year clock would reset for expats who returned even for short visits. Now, they have to “resume residency” before leaving again to regain their right to vote abroad.

It adds that

[a]ccording to economist Don DeVoretz, professor emeritus of Simon Fraser University, close to 10 per cent of all Canadians live abroad – a larger population than all but four of the provinces. About one-third of them live in the United States.

The leading case on the disenfranchisement of a class of citizens is Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519, which the Supreme Court held ― by a 5-4 majority ― that denying the right to vote to prison inmates serving sentences of two years or more was a violation of s. 3 of the Canadian Charter of Rights and Freedoms, which provides (in part) that “[e]very citizen of Canada has the right to vote in an election of members of the House of Commons,” and that this violation was not justified by s. 1 of the Charter. The government had conceded the s. 3 violation, which I assume will also happen in this case. The real debate in Sauvé was, and will be here, on the s. 1 justification.

Chief Justice McLachlin, writing for the majority in Sauvé, warned that “[l]imits on [the right to vote] require not deference, but careful examination” (par. 9). While “logic and common sense” could serve as justifications in the absence of hard scientific evidence, “one must be wary of stereotypes cloaked as common sense, and of substituting deference for the reasoned demonstration required by s.1” (par. 18). The prohibition on prisoner voting utterly failed the s. 1 test. For one thing, prisoner voting gave raise to no specific concern which Parliament sought to address by prohibiting it. Parliament’s stated objectives of promoting respect for the law and enhancing the purposes of criminal punishment were vague and symbolic, so much so that their “rhetorical nature … render[ed] them suspect” (par. 24); they were not pressing and substantial, as required by s. 1. For another, even if Parliament’s objectives were satisfactory, deprivation of the right to vote was not rationally connected to them. “[A] decision that some people, whatever their abilities, are not morally worthy to vote — that they do not  ‘deserve’ to be considered members of the community and hence may be deprived of the most basic of their constitutional rights” (par. 37) runs against the direction of historical progress towards universality of the franchise and “is inconsistent with the respect for the dignity of every person that lies at the heart of Canadian democracy and the Charter” (par. 44).

How will these comments apply to the denial of the franchise to Canadians living abroad? It seems to me that the government is again going to have a hard time articulating the objective of this measure, “the harm that the government hopes to remedy” (par. 23). My best guess is it will be something like “preventing voting by people who are uninformed or do not care about Canadian politics, or who have abandoned their membership in the Canadian community.” The applicants who launched this challenge, as the CBC story describes them, certainly give lie to any such claims. Especially now, thanks to the Internet, it is in fact as easy to keep abreast of Canadian news while living in New York as in North York, in Melbourne as in Montreal, in Kolkata as in Calgary. And of course it is now easy to maintain one’s ties to one’s family and friends in Canada, and to remain part of the broader community (as indeed I am trying to do with this blog for example). Add to this the fact that those Canadians living in Canada need not show that they are in any way informed about politics or current events, or that they have any sort of community ties, in order to be able to vote, and the denial of this right to those living abroad looks perfectly arbitrary. As with the prisoners, it is a judgment that they are not morally worthy to vote ― and such judgments are not open to Parliament, according to Sauvé.

I wish the challengers, and their lawyers, the best of luck.

Rants and Freedoms

Some university students think the lecturer whose class they are taking is doing a lousy job. Someone creates a hyperbolically-named Facebook group to rant; others join; a few post derogatory messages on the group’s wall. So far, so normal. But, after the semester ends and the lecturer, for reasons unknown, is no longer employed by the university, she somehow learns of the Facebook group, and complains to the university’s authorities. A kangaroo court is held, and finds the members of the group ― including those who posted no messages at all, and those whose messages were quite innocuous ― guilty of “non-academic misconduct.” Some of the students are required to write an apology letter to the former lecturer and put on probation. An appeal to a higher university instance is fruitless, and the university’s Board of Governors refuses to hear a further appeal. Judicial review and an appeal ensue.

That’s the scary story of Keith and Steven Pridgen, (former) students at the University of Calgary, whose right to rant the Alberta Court of Appeal vindicated in a recent decision. One has to hope that it will serve as a lesson for professors and university administrators (as well as teachers and school principals) in the future. Students, in case such people forget, have always ranted about their professors, and always will. It’s not always nice, and it’s not always fair; get over it. (This is, as much as anything else, a note to self as an aspiring academic.) The fact that rants now leave a digital record does not change anything, it seems to me: just because they used to circulate (and of course still circulate) by word of mouth, rants were no less pervasive and durable in the past. Stories about professors are handed over from one cohort of students to the next; they are an ineradicable part of university’s environment.

Legally, the Alberta Court of Appeal is interesting in a number of ways. Each of the three judges wrote a separate opinion. They all agree in finding the university’s decision unreasonable  and hence invalid on administrative law grounds, because the university’s decision bore little, if any, relationship with the evidence it ought to have been based on ― evidence of harm to the lecturer, or of the specific actions of each accused student. Justice O’Ferrall also finds that the utter failure to consider the students’ free speech rights contributes to making the decision unreasonable. The judges disagree, however, on whether to address the other issue debated by the parties (and several interveners) – the applicability of the Charter, and its guarantee of freedom of expression.

Justice Paperny thinks the question deserves to be addressed, since it was debated at length by the parties and is important; her colleagues disagree, because it is not necessary to the resolution of the case (since it can be resolved on administrative law grounds) and important constitutional questions should not be addressed unless it is necessary to do so. Both arguments have merit; I’m not sure on whose side I would have come out if I had to vote. Justice Paperny devotes much of her opinion to arguing that the Charter does indeed apply to universities, at least in their disciplinary dealings with their students. Her review of the case law is comprehensive, her argument about the universities’ and the government’s roles in contemporary society sometimes sweeping. And it is persuasive (and Justice Paperny’s colleagues, one senses, do not actually disagree with its substance).

One final thought. The court did not pause to consider whether the university even had the power to punish students for something they wrote on Facebook. Yet it seems to me that it’s a crucial jurisdictional question. (Needless to say, the university did not consider it either.) I can see why a university might be interested in what is being said in its lecture halls, or online on forums it maintains (in connection with courses for example). It does have an interest in maintaining a welcoming, respectful learning environment, although arguably this interest does not play out in the same way as a school’s, since everyone at a university is an adult and is there by choice. But does this interest give a university the right to police the conduct of its students off-campus or online? I think not; but in any case, it’s too bad the court did not ask itself the question.

A Belated Happy Birthday to the Charter

I wasn’t able to post yesterday, but still want to say something good on the Charter‘s anniversary. My doubts and worries notwithstanding, I believe that the Charter has done Canada a lot of good.

With Lord Acton, I believe that “[l]iberty is not the means to a higher political end. It is itself the highest political end.” And Canada is a freer country today than it would have been had the Charter not been enacted. To be sure, there are aspects of freedom which the Charter does not protect – economic freedom in particular. But in those areas with which it is concerned, it has helped curtail the state’s imposition of its views on citizens, its arbitrariness, its bigotry.  But for the Charter, we might well still have a Lord’s Day Act; we would probably still be extraditing people to face torture or the death penalty; and we would almost surely be convicting and imprisoning people on the basis of arbitrary, brutal, or otherwise disreputable actions of the police or prosecutors.

Pace legislative optimists such as Jeremy Waldron – whom I much admire as an idealist, a scholar, and a teacher – we ought to be realistic in thinking about how best to protect our right and freedoms. In some perfect world, legislatures might do the job. In other, dystopian, worlds, judges will become agents of repression worse than any legislators. But in Canada as we have known it in the last three decades, and as it is likely to be in the decades to come, the Charter and the courts that apply it have been and remain our best hope.

But as we celebrate the Charter, we must recall Pierre Trudeau’s words at its proclamation:

No constitution, no Charter of Rights and Freedoms, no sharing of powers, can be a substitute for the willingness to share the risks and grandeur of sharing the Canadian adventure. Without that collective act of the will our constitution would be a dead letter and our country will wither away. … Let us put our faith first and foremost in the people of Canada who will breathe life  into it.

We owe a debt of gratitude to the courts that have nurtured this breath of life, though not without making serious mistakes along the way; and even more so, to the men and women who have, sometimes at considerable cost to themselves, fought for the recognition of their rights. As the profiles of some of them put together by the Globe show, they have often been perfectly ordinary people; it is a safe bet that without the Charter, none of them would have been able to contribute to the freedom of Canadians in the way they did. In this way, the Charter has lived up to Trudeau’s perhaps paradoxical billing of it as “the people’s package.”

The Charter is good, but more importantly, it is ours. Let’s make it even better.

A Charter Child’s Blues

This was originally written more than three years ago now, but I am fond of the text. I thought I would repost it tomorrow, on the Charter‘s 30th anniversary, but decided to do it today. Hopefully I’ll come up with something more celebratory tomorrow.


I am a proud Charter child. A copy of the Charter is hanging in my room; right above my bed in fact. Every night I fall asleep secure in the knowledge that “the Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” You might I’m really taking too far – or even that I’m nuts. You can even tell me this in so many words. That’s fine. “Everyone has the following fundamental freedoms: freedom of thought, belief, opinion, and expression.” But the Charter, according to our Chief Justice, belongs to the people, so it belongs to me too. I’m not the fat old lady, or the gentleman wearing some sort of cross between a Chinese hat and a sombrero, or a kid playing hockey, or any other character gracing my copy of the Charter. But collectively, they all are me. So why is that that I have been having the Charter blues?
Continue reading “A Charter Child’s Blues”

A Right to Bear Arms? Canadian Cases

Here’s something I should have done yesterday, before launching into my analysis of the Charter‘s protection of liberty and of the right to bear arms: read some actual cases! Well, better late than never.

In R. v. Hasselwander, [1993] 2 S.C.R. 398, Justice Cory, writing for a 3-2 majority, opined,  at p. 414, that “Canadians, unlike Americans do not have a constitutional right to bear arms.  Indeed, most Canadians prefer the peace of mind and sense of security derived from the knowledge that the possession of automatic weapons is prohibited.” However, the issue in that case was not the right to bear arms itself, but rather the definition of the Criminal Code‘s provision banning automatic weapons. There had been, in all likelihood, no argument on the right to bear arms, and there was no detailed analysis of the Charter.

The Supreme Court upheld the federal licensing and registration requirements for long guns in the Reference re Firearms Ac (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783, which has subsequently been cited for the proposition that possession and use of firearms is heavily regulated in Canada. But the Charter was not at issue in this case – it was only about division of powers between Parliament and the provinces. And of course something being heavily regulated does not mean that it is not also a constitutionally protected right – electoral campaign speech is heavily regulated by Parliament and provincial legislatures, but there is a right to engage in it, and at least some regulations will be unconstitutional, as those struck down in Libman v. Québec (A.G.), [1997] 3 S.C.R. 569.

The Supreme Court’s last engagement with the right to bear arms came in R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895, a brief decision holding that a mandatory prohibition on firearms ownership attaching to a conviction for some (non-violent) drug offences is not “cruel and unusual punishment” contrary to s. 12 of the Charter. Again, a general right to bear arms, or s. 7 of the Charter, was not at issue.

In my view, the Supreme Court has not conclusively pronounced on the possibility that s.7 of the Charter protects a right to bear arms. The question was never directly put to it. The Ontario Court of Appeal, however, took a contrary view in a recent decision. But that decision, as well one by the Saskatchewan Court of Appeal, rejected a challenge based on the English Bill of Rights of 1689. The Bill of Rights was variously said to have been made part of the Canadian constitution by the preamble to the Constitution Act, 1867, or by s. 26 of the Charter, but those arguments were very weak. Again, s. 7 of the Charter, although mentioned in passing, was not the object of a full argument by the parties or analysis by the courts.

So it seems to me that in theory, a well-developed argument based on s. 7 could yet be brought. But as I wrote yesterday, I think that the chances of such an argument, if based on the s. 7 guarantee of liberty, would not be good. What’s left to explore is an argument based on the s. 7 guarantee of the “security of the person.” I hope to get to it next week.

A Charter Right to Bear Arms?

My friend Michael Cust makes an interesting suggestion in a blog post asking whether there is a right to bear arms in Canada: while there is no self-standing right to bear arms, “a case could be made that it’s part of our right to liberty” protected by section 7 of the Charter, because history suggests that, in the last resort, weapons are necessary for citizens to protect their freedom from the government’s oppression.  Michael believes, however, that section 1 of the Charter would allow limits to be imposed on the scope of the right to bear arms read into s. 7, although the controls it would sanction would be less strict than those which could otherwise be imposed. Although I am profoundly sceptical of the underlying claim that weapons are an essential, or even an effective protection for our rights and freedoms, I put this problem to one side, in order to address the less philosophical and more technically legal difficulties with Michael’s claim.

The s. 7 liberty protection, as the Supreme Court has interpreted it, extends to freedom from physical restraints and also to “important and fundamental life choices.” (Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, par. 49). I strongly doubt that the courts would accept that a decision to own a weapon is such a choice. And I doubt that they would extend the scope of s. 7 to a sort of collective freedom guarantee protecting the Lockean right of rebellion. So I think that an attempt to read a right to bear arms directly into the s.7 right to liberty, as Michael suggests, could not succeed. But there are at least two more ways to go about try to have the right to bear arms read into s. 7.

The first one is to argue that the right to bear arms, or at least some form of it, is a principle of fundamental justice  and Parliament or the provincial legislatures cannot subject people to the threat of imprisonment (thus uncontroversially engaging the right to liberty) in contravention to this principle. The difficulty of course would be to show that the right to bear arms is a principle of fundamental justice in Canada. As restated in R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3, at par. 46,  a principle of fundamental justice

(1)   … must be a legal principle.

(2)   There must be a consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate.

(3)   It must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.

Can the right to bear arms fit those conditions? I don’t think so, if only because there is surely little consensus about its status or importance in the Canadian legal system. One could try to argue, persuasively enough, that the right to defend one’s rights is in fact a principle of fundamental justice, operating for example to render unconstitutional  a law preventing citizens from suing the government or asserting the unconstitutionality of a statute. (These examples are not entirely imaginary either, as cases such as Amax Potash and Air Canada v. BC demonstrate.) But could such a principle be extended to a right to vindicate ones rights, not in a court of law, but by force of arms? I very much doubt it.

The final possibility would be to link the right to bear arms not to liberty, but to security of the person, which s. 7 also protects. Arguably, a restriction on one’s ability to own a weapon for self-defence impairs one’s “security of the person.” But this post is getting out of hand, and since it is not directly related to Michael’s argument, I will discuss this possibility later on.

Emergency Wiretaps and Privacy Rights

Well, the Supreme Court of Canada has great timing. Or maybe I do, but saying that would be immodest, right? In any case, the day after I wrote that the Court latest privacy decision was a mess, it has released its decision in R. v. Tse, 2012 SCC 16, addressing the conflict bewteen the right to privacy protected by s. 8 of the Charter and s. 184.4 of the Criminal Code authorizing warrantless interception of private communications by a peace officer if

(a) the peace officer believes on reasonable grounds that the urgency of the situation is such that an authorization could not, with reasonable diligence, be obtained … ;
(b) the peace officer believes on reasonable grounds that such an interception is immediately necessary to prevent an unlawful act that would cause serious harm to any person or to property; and
(c) either the originator of the private communication or the person intended by the originator to receive it is the person who would perform the act that is likely to cause the harm or is the victim, or intended victim, of the harm.

The Court’s decision is unanimous, and authored by its two newest members, Justices Karakatsanis and Moldaver. The Court holds s. 184.4 unconstitutional, because it does not create any mechanisms by which the peace officers engaging in warrantless wiretapping can be held accountable. Parliament now has a year to re-write the legislation to bring it in conformity with the Charter.

Generally speaking, warrantless searches (including interceptions of private communications) are contrary to the Charter. But they can be justified in emergencies. The question in this case, says the Court, is whether s. 184.4 “strike[s] a reasonable balance between an individual’s right to be free from unreasonable searches or seizures and society’s interest in preventing serious harm?” The Court spends a considerable time on clarifying the interpretation of s. 184.4, ensuring that it remains a narrow and exceptional source of authority, to be used only in circumstances of “dire emergency.” It also expresses concern at the fact that this authority might be conferred on too many people – not only police officers but other “peace officers”, including mayors and prison guards. But since this case implicates police officers, there is no record on the basis of which to conclude that this renders s. 184.4 over-broad.

The trouble with s. 184.4, says the Court, is that, unlike other provisions allowing interception of private communications, its use is subject to no after-the-fact accountability measures. At least one such measure, disclosure to the parties whose communications were intercepted, is constitutionally required. Others, such as reporting to Parliament and record-keeping would be welcome, but are not necessary. In its present form, s. 184.4 does not meet the requirements of s.8 Charter. Furthermore, it cannot be saved under s. 1, since a less restrictive measure – a similar provision incorporating after-the-fact notice requirements – is easily available to Parliament.

Seems like a good decision to me. Interestingly, expectations of privacy do not feature at all in the Court’s analysis. It does not ask itself whether it is generally expected that infringements of our privacy will be reported to us. It simply holds that that the Charter requires that they be. Perhaps this is one way out of the problem which so bothered Judge Kozinski and about which I wrote yesterday. Still, courts cannot operate in a vacuum. When they ask themselves whether a search of seizure is “unreasonable,” they bring their, and society’s, expectations to the table. We cannot count on courts to protect our privacy to a much greater extent than we want it protected.