Some Freedoms but no Equality

This winter the Supreme Court (SCC) handed down a decision in the Carter case on the constitutionality of prohibiting assisted dying.[1] This judgement is part of a series first started in PHS Community Services Society (safe drug injection sites) and continued in Bedford (sex work) on the expansion of the right to life, liberty and security of the person.[2] When the Court of Appeal handed its decision upholding the assisted dying ban, I commented on this blog on how, even if the plaintiffs won at the Supreme Court (which they did, unsurprisingly for people who follow constitutional law and/or the issue), the result would be limited to being permitted to exercise a right instead of truly recognizing the equality of the group claiming this right. This post is in part of follow up on my initial thoughts and represents some of my reflections on the advancement of the right to life, liberty and security (section 7 of the Charter), and the fall of the right to equality/non-discrimination (section 15 of the Charter).

Expanding Life, Liberty and Security

The PHS case, by applying principles developed in Malmo-Levine,[3] marks the expansion of the substantive aspects of s 7 rights. The Court in PHS, Bedford and Carter relies on the principles of gross disproportionality and/or overbreadth to declare the impugned provision/action unconstitutional (for a violation of s 7 to exist, a person must show that a law or a governmental action affect negatively their life, liberty or security and that this effect violates or is not in accordance with principles of fundamental justice). These relatively new principles gave the Court the ability to scrutinize further provisions having an impact on fundamental freedoms. In these cases the refusal to give an exemption from the Control Drugs and Substances Act to a safe injection site (PHS), and the criminal provisions prohibiting certain activities related to sex work (Bedford) and to assisted dying (Carter) were all nullified because they had a grossly disproportionate or overbroad impact and affect s 7 rights of at least one individual. While some references to identifiable marginal groups are made in the fundamental principles part of the analysis, s 7 remains a provision focused on individuals as oppose to the more group/community focus of s 15.

Equality vs Individual Rights

Interestingly, a violation s 15 was pleaded in Carter, and could have been pleaded in a non-frivolous manner in PHS and Bedford. However the judges of our highest court dismissed the s 15 claims very quickly by affirming that since a violation of s 7 exists, there was no need to look at s 15. I can assume safely, I believe, that the Court would have behaved similarly in the two other cases if s 15 had been pleaded. While it is in no way my intention to diminish the importance of s 7 rights, the provision (or at least its interpretation by the SSC) is one that is focused on individual liberties and tends to result in fairly narrow rulings. It is easy for most to characterize the two latest decisions as affirming a “right to do sex work” or a “right to assisted dying”. But such characterizations are wrong. The violations found by the SCC are attached to specific circumstances. Adopting a new law, like the Harper government did for sex work,[4] that will seemingly have the same effect as the old one is not impermissible on its face as the adoption of the new law is under new circumstances and allegedly partially addresses some Court’s concerns. While it is unlikely that something similar will happen with assisted dying, the government could adopt a piece of legislation on the topic with extremely restrictive criteria to obtain medical help to die and claim that the law is constitutional. While in both case the courts could still find the new legislations unconstitutional, this would probably take 5 or more years before the SCC renders judgements. An unacceptable amount of time for those affected.

I cannot blame the plaintiffs in PHS and Bedford for not pleading s 15. Carter shows that the Court clearly prefers the framework of s 7 and seems to be more comfortable with the individual right to life, liberty and security.[5] Additionally, the framework for s 15 is a lot more contentious and complicated as the four opinions of Quebec (Attorney General) v A demonstrate.[6] My critique is more geared towards the Courts, especially the appellate courts, poor track record with s 15. In my opinion, the issues in all the cases could have been properly dealt with under the equality provision of the Charter. In fact I think the results would have been better. I claim this because a violation based on discrimination is based on its impact on underprivileged group and thus has a more collective and purposive result. In the case of Bedford, it could have been argued that the prohibition of sex work had a discriminatory impact on women, aboriginal people, and sexual and gender minorities (on the ground of sex, race/aboriginal ancestry and sexual orientation). The justifications that the government could offer would be either a “protecting vulnerable women approach”, “protecting public order one” or “abolishing sex work one” (what I would call the patriarchal-imperialist approach). In all cases, considering Bedford, the violation does not seem like a minimal impairment, a proportional one, or both.[7] A direct criminal approach to sex work would therefore be largely impossible. Moreover, the recognition of this discrimination by the SCC could lead to or be used to force further changes to ameliorate the living conditions of sex workers. It could give a little power to a marginalized group (the framework for discrimination is similar in human rights legislation and could be transposed in that arena as well). This would be applicable to Carter and PHS under the discrimination ground of disability.

A Question of Power

Framing the legal issues mentioned above through s 15 as another advantage, one beyond direct legal results. Equality rights, in my view, reflect better the social power imbalance that exists between the claimants in PHS (drug addicts), Bedford (sex workers) and Carter (people with disabilities), and the respondent, aka the State, than fundamental freedoms. As I mentioned on my previous post on Carter, I am skeptical of the effectiveness of a fundamental freedoms – specifically life, liberty and security – approach because these rights are permissive rights. Permissive rights give the state the opportunity to willingly or not “grant” people some freedoms, like the freedom to end one’s life for medical reasons, and thus appearing progressive, without having to deal with underlying inequalities and inequities. The courts role in bringing real and substantive equality is limited in our system of government. I am very much aware that litigation is not a miracle solution and operates within a settler state setting. However, within the power it holds, the courts, especially the SCC, can send powerful messages and create some boundaries to force the executive and legislative branches to deal in some ways with issues of equality.

Rehabilitating s 15 to fulfill what I think is its true purpose, aptly described by the text of s 15 itself: “every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination” would be the first step. Moving away from a strict and restrictive legal test to a more purposive approach, similar to what the SCC is doing with s 7 rights. This is mostly a question of framing, but anyone involved in litigation knows that framing the issues makes of brakes a case. In the cases of the three recent judgements mentioned in this post, more than one road could have led to victory, but the extent of that victory can change with framing. Yes sex work prohibition has an impact on the security of sex workers, but viewing the problem as only one of security negates the larger problem of oppressive state regulations and more subtle discriminatory state actions of the marginalized people that form the eclectic group that is sex workers. Yes people with disabilities’ rights to liberty and security is infringed by preventing them from ending their lives or accessing safe space for drug use, but again this framework does not recognize the larger problem of differential treatments suffered by people with disabilities. Recognizing formally the power imbalance between a minority (in the power sense, not necessarily but not exclusive of number) and the state/the majority, as the analysis of equality rights requires, is the first step in fixing this imbalance and addressing the needs of minorities. It frames the violation and its remedy in a different way than simply demanding that the state “permit” the exercise of a right. The state, through s 15, is called to address in some way the underlying social problem causing inequalities which in turns create a more purposive dialogue between state institutions.[8]

While Carter was a victory, it did not make me “shout” victoire. The language of the Court might have been even stronger than in Bedford and PHS (a fact that is telling in itself considering the “mainstream” aspect of Carter), but the result still falls short of addressing power imbalance of marginalized group; unsurprising in a society with such focus on individualism.

[1] Carter v Canada (Attorney General), 2015 SCC 5

[2] Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44; Canada (Attorney General) v Bedford, 2013 SCC 72; and s 7 of the Canadian Charter of Rights and Freedoms.

[3] R v Malmo-Levine, 2003 SCC 74

[4] Peter Wrinch, The new sex work legislation explained, Pivot Legal Society, 4 June 2014; and The Canadian Press, Kathleen Wynne says Ontario will uphold new prostitution law, CBC News, 1 April 2015.

[5] However, the British Columbia Supreme Court did hold that s 15 was violated in this case: Carter v Canada (Attorney General), 2012 BCSC 886, see paragraphs 1158 to 1162.

[6] Quebec (Attorney General) v A, 2013 SCC 5

[7] A law or administrative action that violates a Charter right can nonetheless be justified by s 1 through the Oaks test; “(1) the means adopted are rationally connected to that objective; (2) it is minimally impairing of the right in question; and (3) there is proportionality between the deleterious and salutary effects of the law”: paragraph 94 of Carter.

[8] For the notion of dialogue in Charter litigation see Peter Hogg and Allison Bushell, “The Charter Dialogue between Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such a Bad Thing after All)” (1997) 35 Osgoode Hall Law Journal 75.

I am not suggesting that we ought to choose between ss 7 and 15. Both sections accomplish different goals that are not exclusive of each other. A state action can very well affect more than one rights. In my view, it is the courts responsibility to address each violation separately instead of only the most convenient one.

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