There were some important Canadian legal stories this year, particularly stories from British Columbia relating to social justice. Reasonable Doubt counts down the top five Canadian legal news topics of 2014.
5. Cruel and unusual treatment
In Canadian Doctors for Refugee Care v. Canada, the Federal Court of Appeal ruled that health-care cuts to refugee claimants were a form of cruel and unusual treatment and therefore unconstitutional. The cuts had removed health-care funding for various classes of refugee claimants.
Canadian Doctors for Refugee Care did not capture as much attention as the other legal stories this year but that does not take away from its importance for the development of law interpreting the Canadian Charter of Rights and Freedoms. This is the first case to apply the cruel and unusual treatment or punishment provisions of the charter outside of the criminal law context, thereby opening up a new avenue for citizens to challenge government conduct. It was also a rare decision that forced the government to take positive action to remedy a constitutional wrong.
4. Harper versus the Supreme Court of Canada
The Harper government has appointed six of Canada’s nine Supreme Court judges. Prime ministers—not surprisingly—appoint judges they believe will make decisions in line with their party’s political agenda. But 2014 was another sobering year of Supreme Court decisions for the Harper government.
In March, the Supreme Court ruled that Harper’s choice, Marc Nadon, was ineligible to be appointed to the Supreme Court. The court also ruled that the government’s attempt to legislate away the rules preventing the appointment of Nadon were unconstitutional.
The Harper government later alleged that the chief justice (the highest judge in Canada) tried to have an inappropriate conversation with him in July of 2013 about the appointment process, which Reasonable Doubt covered here. The International Commission of Jurists called on the prime minister to apologize and withdraw his allegations, which he did not do.
In Canada v. Whaling, the Supreme Court struck down a law that applied retroactively (meaning that the law changes the consequences of actions that were committed before the law existed) to limit day parole to non-violent offenders. The court found that the retroactive legislation amounted to adding punishment onto someone who had already been tried and sentenced, thereby infringing key charter rights.
In R. v. Summers, the Supreme Court addressed the Harper government’s attempt to limit pre-sentencing credits. Pre-sentencing credits concern the time that an offender spends in jail before being convicted and sentenced for their crime. The time spent in jail before being sentenced is then deducted from the overall sentence, usually at a rate of more than 1-1.
Pre-sentencing credits recognize the cost of jailing someone before they’ve been convicted of a crime; the fact that the pre-sentence time in detention does not count towards parole; and, the crowded conditions with little to no access to treatment or rehabilitation that are typical of remand facilities. The Supreme Court confirmed that pre-sentencing credits of 1.5–1 would be the norm despite the government’s position that they should be the exception.
Whaling and Summers are two examples of the many legal challenges in recent years to the Harper government’s so-called “tough on crime” agenda.
3. Indigenous people and the law
The past year had multiple news stories about the interaction between indigenous people and the law, with one large victory at the Supreme Court of Canada.
The First Nations Transparency Act required 582 First Nations to post audited financial statements online and to provide them to their members. The act has been met with applause by people who believe that it will increase accountability and met with criticisms by others for reinforcing racist narratives and its potential to be used as a political tool against indigenous people. The government is now taking the many First Nations who have not complied with the reporting requirements to court.
Arguably the largest story to come out of the First Nations Transparency Act was the “million-dollar chief” story where chief Ron Giesbrecht earned over one million dollars for his job as chief and economic development officer for the Kwikwetlem First Nation.
If nothing else, the reporting of the million-dollar chief story highlighted many of the racial and racist tensions present in Canada surrounding indigenous governance and rights, as covered by Reasonable Doubt here.
In Tsilhqot'in Nation v. British Columbia, the Supreme Court of Canada ruled in favor of the Tsilhqot'in Nationon a landmark land title case. The British Columbia government granted a license to a company to log self-declared Tsilhqot'in territory, which led the nation to assert their claim on the land and set up blockades preventing further logging.
All eight Supreme Court judges hearing the case ruled in the nation’s favor,granting them title to over 1,750 square kilometres of land and declaring that the government breached the duty to consult owed to the nation.
The Tsilhqot'in ruling increases the government’s duty to consult with First Nations and will make it easier for First Nations to establish title to land. We do not yet know the exact consequences of this ground-breaking decision but it seems clear that it will have a significant impact on negotiations over existing land disputes, with some calling it a “big equalizer”.
The Tsilhqot'in decision is one of several court victories from the past several decades that had an important impact on indigenous governance and economic development; it will take its place in the history of the growing political strength of indigenous movements in Canada.
2. Discrimination in education
Trinity Western University made headlines across the country for their attempts to accredit a law school. The controversy arose from a covenant that TWU required all students to sign which prohibited sex out of heterosexual marriage, thereby discriminating against LGBTQ people.
The B.C. government and the Law Society of B.C. initially approved TWU’s applications. Advocates and lawyers swiftly responded to the Law Society’s decision to accredit TWU, resulting in a binding referendum by B.C. lawyers that led the Law Society to revoke TWU’s accreditation. Recently, the B.C. government also revoked their approval for the TWU law school, likely in response to the strong, grassroots mobilization.
Similar stories played out around the country, with only four law societies voting to accredit TWU. The matter will ultimately make its way through the courts before there is a final resolution.
Another notable mention is the Vancouver school board amendment to their policy to allow students to be addressed by a name that corresponds with their gender identity and use gendered washrooms of their choice, an important victory for trans* people.
The TWU and school board stories are an indication of the advances made by the LGBTQ movement in recent decades while the backlash is an important reminder of how far we still have to go in regards to equality rights.
1. Violence against women
Multiple news stories this year highlighted how our social environment and culture negatively affect the application of our laws to women.
Ghomeshi-gate brought much needed attention to Canada’s endemic of sexual assault. The Ghomeshi allegations created a national conversation on how rampant sexual assault is in Canada (460,000 each year), the reasons so few survivors report (3.3 percent) and the reasons why so few offenders (0.3 percent) are ultimately convicted.
Ghomeshi took to Facebook to deny all claims of sexual assault; something that is no doubt now causing his defence lawyer fits. He lost his job and dropped his $55-million lawsuit against the CBC, paying a portion of the CBC’s legal fees in the process. Ghomeshi was arrested after women continued to come forward with similar allegations of assault, leading him to hire the high-powered criminal defence lawyer, Marie Henein.
Since Ghomeshi-gate, our country has engaged in a much-needed conversation about equality, feminism, and the real life application of law as it relates to sexual assault.
The United States saw similar stories about violence against women with the allegations against Bill Cosby and the domestic violence reports against Ray Rice and other professional athletes.
Reasonable Doubt covered the Ghomeshi story here, here, and here, exploring the current state of our criminal law on sexual assault and the social factors that explain why reporting and convictions are so low; we explored domestic violence here.
In Canada v. Bedford, the Supreme Court of Canada ruled that the Criminal Code provisions that outlawed public communication for the purposes of prostitution, operating a bawdy house or living off of the avails of prostitution were unconstitutional because they created severe danger for sex workers. Vancouver’s own Pivot Legal Society intervened to help provide perspectives from the downtown Eastside.
The Bedford decision was released on December 20, 2013, but its effects continued into 2014. The decision had a huge impact on our country’s conversation about sex work, poverty and sexism. The government recently enacted new provisions regulating sex work, which may ultimately lead to new court challenges. Reasonable Doubt wrote on issues surrounding the decriminalization of sex work here.
This year there was a continued call for an inquiry into murdered and missing indigenous women. Indigenous women are murdered and go missing in Canada at a much higher rate than other women—they are three times more likely to be a victim of violent crime and four times more likely to be murdered. Amnesty International referred to it as a human rights crisis and called for a concerted national response. The NDP called for a national inquiry (see Romeo Saganash’s emotional and personal speech here) but the issue is unfortunately not high on our current government’s radar.
Honourable mentions: the Burnaby Mountain protests and Kinder Morgan’s failure to renew the injunction that allowed them to continue work on their drill sites; Vancouver becoming the first city in North America to offer prescription heroine outside of clinical trials; Internet privacy with class actions continuing against Facebook and the hacking and leaking of nude celebrity photos; and former Conservative campaigner Michael Sona being convicted of election fraud after the robocalls scandal.