6 Courts Oct 2024 PDF

Advocacy, Government Relations and Strategic Partnerships BUS 9176 THE COURTS Review the structure and role of the court system Review case studies of advocacy through the courts Discuss the role of the courts in advocacy Relevant Reading: The Art of the Possible: Chapter 4 THE COU...

Advocacy, Government Relations and Strategic Partnerships BUS 9176 THE COURTS Review the structure and role of the court system Review case studies of advocacy through the courts Discuss the role of the courts in advocacy Relevant Reading: The Art of the Possible: Chapter 4 THE COURTS Interpret, apply and resolve disputes of the law Created by the Constitution and independent from government Four levels of courts that act as appeal mechanisms Enforce the Constitution’s Canadian Charter of Rights and Freedoms, which provides four fundamental freedoms and six basic rights to everyone in Canada CANADA’S COURT SYSTEM Each province and territory has its own courts, as well as courts that have national jurisdiction. The Supreme Court of Canada presides over the entire system. Each type of court has its own jurisdiction, which means that it has the authority to decide specific types of cases. Canada has four levels of court: 1. Provincial lower courts 2. Provincial superior courts: These courts have jurisdiction over more serious crimes and also hear appeals from provincial lower courts. The Federal Court is on the same level, but is responsible for matters assigned to it by federal legislation (e.g., immigration, patents). 3. Provincial/Federal Courts of Appeal (typically panel of three judges) 4. The Supreme Court of Canada JUDICIAL INDEPENDENCE Judicial independence is a cornerstone of the Canadian judicial system. Judicial independence guarantees that judges will be able to make decisions free of influence and based solely on fact and law. Judges in Canada are appointed upon the advice of a non-partisan screening committee and are not elected. The principle of judicial independence has three components: 1. Security of tenure: Once appointed, a judge is eligible to serve on the bench until retirement. Judges can be removed only by a vote of Parliament or a provincial legislature and only after an independent and impartial investigation shows that there is legitimate reason to do so. 2. Financial security: Governments cannot change judges’ salaries or benefits without first receiving the recommendations of an independent compensation commission, to ensure sufficient compensation (including salary and pension) so that judges are not subject to pressure for financial reasons. 3. Administrative independence: Government cannot interfere with how courts manage the legal process and exercise their judicial functions. For example, only the chief justice can choose how cases are assigned to the judges of their court. CANADA’S SUPREME COURT The Supreme Court of Canada is Canada’s final court of appeal. Its nine judges represent the four major regions of the country (three from Ontario, three from Quebec, two from Western Canada, one from the Atlantic provinces). The Supreme Court has two main functions: o It hears appeals from decisions of the appeal courts in all the provinces and territories, as well as from the Federal Court of Appeal. Supreme Court judgments are final. o It decides important questions about the Constitution and controversial or complicated areas of law. The government can ask the Supreme Court for its opinion on important legal questions (e.g., jurisdiction of provinces, interpretation of Constitution). Each year, the Supreme Court considers an average of between 500 to 600 applications for leave to appeal and hears 65 to 80 appeals. CHARTER OF RIGHTS AND FREEDOMS The Constitution’s Canadian Charter of Rights and Freedoms provides four fundamental freedoms and six basic rights to everyone in Canada. The Charter only applies to government laws and actions (including municipal governments and public school boards), not private matters. Before the Charter, the Canadian Bill of Rights was enacted in 1960. However, the Bill of Rights was only a federal law, rather than a constitutional document, so could be amended by majorities of the House and Senate and had no application to provincial laws and actions. The relative ineffectiveness of the Canadian Bill of Rights motivated many to improve rights protections in Canada. The British Parliament formally enacted the Charter as a part of the Canadian constitution in 1982 at the request of the Parliament of Canada and Prime Minister Pierre Trudeau. CHARTER OF RIGHTS AND FREEDOMS CHARTER OF RIGHTS AND FREEDOMS Under the Charter, all people physically present in Canada have numerous civil and political rights, but some of the rights belong exclusively to citizens of Canada. Section 1*, known as the limitations clause, allows governments to justify certain infringements of Charter rights if the purpose for the government action is to achieve what would be recognized as an urgent or important objective in a free and democratic society, and if the infringement can be “demonstrably justified.” Section 1 has been used on occasion to uphold laws against objectionable conduct such as hate speech and obscenity despite freedom of expression. CHARTER OF RIGHTS AND FREEDOMS The judicial test to determine if the purpose is “demonstrably justifiable in a free and democratic society” is known as the Oakes test: 1. There must be a pressing and substantial objective; 2. The means must be proportional; 3. The means must be rationally connected to the objective; 4. There must be minimal impairment of rights; and 5. There must be proportionality between the infringement and objective. If the legislation fails any of the above tests, it is found to be unconstitutional. CHARTER OF RIGHTS AND FREEDOMS For example, in 1998, the Supreme Court found an Alberta law unconstitutional because it extended no protection to employees terminated due to sexual orientation, contradicting the right to equal treatment under the law. The government claimed it had chosen not to protect people in this situation because it was rare. The Court ruled this was an insufficient objective, because it was an explanation rather than an objective. In another example, the Supreme Court found that Quebec laws in 1988 requiring the exclusive use of French on signs unconstitutionally limited free speech. While it found the law had a sufficient objective of protecting the French language, it was nevertheless unconstitutional because it did not minimally impair rights through rationale alternatives (e.g., smaller English words). CHARTER OF RIGHTS AND FREEDOMS Section 2 lists "fundamental freedoms" namely everyone in Canada has freedom of conscience, freedom of religion, freedom of thought, freedom of belief, freedom of expression, freedom of the press and of other media of communication, freedom of peaceful assembly, and freedom of association. Section 3-5* protect the right to participate in political activities and to a democratic form of government, including: o Section 3: the right of citizens to vote and to be eligible to serve as member of a federal/provincial legislature o Section 4 and 5: setting the maximum duration of legislatures at five years and requiring a minimum annual sitting of legislatures o Section 6: protects the mobility rights of citizens through the right to enter, remain in, and leave Canada. Citizens and permanent residents have the ability to move to and take up residence in any province. CHARTER OF RIGHTS AND FREEDOMS Section 7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The wording applies to all people within Canada, including non-citizens. Section 7 has not been interpreted to convey positive rights or obligations on the government – only that the government’s actions cannot deny these rights. For example, there is not a right to sufficient public health care to everyone in Canada. CHARTER OF RIGHTS AND FREEDOMS Section 8-14 protect the rights of people in dealing with the justice system: o Section 8: freedom from unreasonable search and seizure o Section 9: freedom from arbitrary detention or imprisonment o Section 10: right to be informed promptly of reasons for arrest, legal counsel and the guarantee of habeas corpus (right to recourse under the law) o Section 11: rights in criminal matters such as the right to be presumed innocent until proven guilty, tried in a reasonable time, give reasonable bail with just cause and not to be tried again if acquitted o Section 12: right not to be subject to cruel and unusual punishment o Section 13: rights against self-incrimination (ability to refuse to answer questions/give testimony) o Section 14: rights to an interpreter in a court proceeding CHARTER OF RIGHTS AND FREEDOMS Section 15: right to equal treatment before and under the law, and equal protection and benefit of the law without discrimination Section 16-22: language rights, including that English and French are the official languages, the right to use either language in Parliament, courts and with the federal government Section 23: rights for citizens belonging to French and English speaking minority communities to be educated in their own language Section 24: rights are enforceable by the courts and allows courts discretion to award remedies to those whose rights have been denied Section 25: Charter does not reduce existing Aboriginal rights and freedoms Section 26: clarifies that other rights and freedoms are not invalidated Section 27: requires the Charter to be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians Section 28: all Charter rights are guaranteed equally to men and women Section 29: confirms the rights of religious schools are preserved CHARTER OF RIGHTS AND FREEDOMS NOTWITHSTANDING CLAUSE In addition, some rights are also subject to the notwithstanding clause, which authorizes governments to temporarily override the rights and freedoms in sections 2 and 7–15 for up to five years, subject to renewal. The Canadian government has never invoked it. The Ford Government announced its intention to use it for the first time to override a court decision restricting municipal election riding redistribution but abandoned it when a stay of the decision was granted pending the outcome of the appeal. It was later used to pass the Protecting Elections and Defending Democracy Act, 2021 in early 2022. Saskatchewan has used it for through parental notification regarding gender and pronouns in schools. Quebec used it in 1988 to allow the government to restrict language of signage. Alberta invoked it in 2000 to protect exclusively heterosexual marriage, but since the marriage is federal jurisdiction it was found to be of no force and effect. None of the usages of the notwithstanding clause were renewed, and they each therefore expired after five years. TRIBUNALS Tribunals are quasi-judicial bodies, which means that they hear evidence and render decisions like courts, but are not presided over by judges. Instead, the adjudicators may be experts of the specific legal field handled by the tribunal (e.g., labour law, human rights law, immigration law). Depending on its enabling legislation, a tribunal’s decisions may be reviewed by a court through an appeal or a process called judicial review. o Human Rights Tribunal of Ontario o Ontario Securities Commission o Landlord and Tenant Board o Ontario Social Benefits Tribunal o Ontario Condominium Authority o Public Service Grievance Board o Ontario Energy Board o Workplace Safety and Insurance Appeals Tribunal o Ontario Labour Relations Board HUMAN RIGHTS TRIBUNAL OF ONTARIO The HRTO resolves claims of discrimination and harassment brought under the Ontario Human Rights Code. The Ontario Human Rights Code is a law that protects people in Ontario from discrimination and harassment in five areas: employment; housing; contracts; membership in trade/vocational associations; and good, services and facilities. The Code prohibits discrimination and harassment on any of the following grounds: race, colour, ancestry, place of origin, citizenship, ethnic origin, disability, creed, sex, sexual orientation, gender identity, gender expression, family status, marital status, age, receipt of public assistance, or record of offences. The Tribunal first offers parties the opportunity to settle the dispute through mediation. If the parties do not agree to mediation, or mediation does not resolve the application, the HRTO holds a hearing. HUMAN RIGHTS TRIBUNAL OF ONTARIO ADMINISTRATIVE LAW One role that courts can play is to review the decisions of government decision- makers such as a Minister, board, tribunal or agency, when the decision-maker exercises discretion. Courts ensure that: 1. government decision-makers act within the limits of the authority given to them by the House/Legislature; and 2. government discretion is observed through a procedurally fair manner – that is respecting the right of Canadians to be heard and judged impartially/without bias COURTS AS A METHOD FOR CHANGE The courts and tribunals are often used as a tool for change Sometimes initiated by individuals, advocacy groups, by government and by others The Courts will often allow people, organizations or governments to act as “intervenors” in a court decision, meaning they can argue for one of the ”sides” on the case and file “amicus briefs” Many examples of social change and resistance to attempted government changes happen because of court decisions o e.g., same-sex marriage, medical assistance in dying, separation of Quebec Can happen over time, and can take multiple “tries” before things change CASE STUDY: HIV NON-DISCLOSURE Based on a Supreme Court decision in 1998, it was deemed a criminal act in the Criminal Code to not disclose one’s HIV status before engaging in sexual relations that pose a “significant risk” of transmitting the virus This view was supported by the common law history of fraud impairing consent to sexual relations, and cited Charter section 7 rights (right to life, liberty and security) that respect the interest of a person to choose whether to consent In cases where one partner was HIV positive, and the other was not, the HIV positive partner could be charged with Aggravated Sexual Assault for not disclosing their HIV status, even if there was no transmission Advocates argued that this placed an unfair burden on HIV-positive Canadians to disclose their status During the early 2000s, many examples existed where an HIV positive person was charged with aggravated sexual assault CASE STUDY: HIV NON-DISCLOSURE The science, medicine and social perception of HIV-status were changing, and several high-profile cases made this an important issue for the courts to consider The government (supported by a number of advocates) took the position that anyone who is HIV positive should have to disclose their status, for individual and public safety purposes The defendant (supported by a number of advocates) said that because of the emerging science and research about HIV/AIDS that an individual, under most circumstances, should not have to disclose their HIV status to a partner: o A person’s risk of transmission can be scientifically proven to be so low (by HIV viral t-cell count) such that there is negligible risk of transmission o The use of condoms also sufficiently reduces the risk o The requirement to disclose status is having a broader public health impact, in that people fear getting tested, in order to avoid being put in a position of having to disclose CASE STUDY: HIV NON-DISCLOSURE In 2012, the duty to disclose was made more precise in two decisions from the Supreme Court. Those rulings stated that there is duty to disclose before any sexual relations that pose a “realistic possibility” of transmission. In the decisions, the court ruled that individuals are not required to disclose their HIV status before having sex if a condom is used and the HIV-positive person has a low HIV viral load. The Court also acknowledged that advances in medical treatment may narrow these circumstances. Since the court ruling in 2012, advocates have continued to encourage the federal government to re-assess the Criminal Code as evidence evolves. In December 2018, the federal government issued a directive to federal prosecutors that cases shouldn’t proceed where there is a low viral load, where a condom was used, or partners engaged only in oral sex. CASE STUDY: ASSISTED DYING In 2015, the Supreme Court reviewed a Superior Court decision that upheld the federal Criminal Code provision that everyone who aids a person in committing suicide is committing a crime. Review the Supreme Court decision (Carter vs. Canada): https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14637/index.do CASE STUDY: SAME-SEX MARRIAGE https://www.youtube.com/watch?v=6xQS2QYyXxE Thank You Live Lecture 6:30 on Zoom TOPIC - Policy: how to access government information REMINDER – Quiz # 2 next week