The court room of the Supreme Court of Canada is pictured on May 22, 2014 in Ottawa.Dave Chan
The Supreme Court and the Prime Minister's Office have had their share of recent run-ins – the judges have struck down prostitution laws, rebuffed the government's arguments for Senate reform, and rejected the government's nominee to the court, Marc Nadon. Amid all of it, the government made a veiled accusation that the Chief Justice acted improperly in trying to speak to the Prime Minister.
The streak of clashes appears set to continue. Stephen Harper's government is pushing ahead at least five bills – three of them already law – despite warnings from critics that the bills are unconstitutional or, at least, vulnerable to a constitutional challenge. One has already been challenged days after becoming law.
However, the complaints have largely fallen on deaf ears in Ottawa. They come as another case, that of Ed Schmidt, works its way through the Canadian courts. Mr. Schmidt's lawsuit is seeking clarification over government's role in notifying the House of Commons when a bill is not Charter-compliant. A retired federal lawyer, Mr. Schmidt said the government hasn't been producing such reports in cases where there's even a remote chance the bill could be found constitutional – in other words, not warning Parliament even in cases where a law is likely to be ultimately struck down. "It fosters an environment in which inconsistent legislation can be brought forward," Mr. Schmidt said in a recent interview.
The government, however, has argued that many of the bills on this list are constitutional. Here are five that appear headed for a court battle.
Cyberbullying
Bill C-13, the "Protecting Canadians from Online Crime Act," or the anti-cyberbullying bill, remains before the House of Commons.
The cyberbullying bill has been widely criticized for including a host of new police powers. In particular, the bill gives legal immunity to telecommunications companies who voluntarily hand subscriber information to police and other public officials.
A court ruling earlier this month said that type of information is private and should generally require a warrant. The government has pledged to review the bill but Justice Minister Peter MacKay has rejected suggestions that Bill C-13 should be changed.
Many witnesses, however, warned that the bill was vulnerable even before the Court ruling.
"Overreaching legislation will spend the next five to 10 years in the courts, and in our view, will be ultimately struck down as a violation of Canadians' constitutional rights," James Turk, executive director of the Canadian Association of University Teachers, told a Parliamentary committee considering the bill.
In other testimony, defence lawyer Michael Spratt of the Criminal Lawyers' Association called the bill "likely unconstitutional," and one that "represents a dangerous and in our opinion unconstitutional pattern of erosion of privacy" when considered with other bills considered by parliament this spring.
In addition to the immunity clause, the bill's low threshold for certain new warrants – police need only reasonable grounds to "suspect," not "believe," a crime has taken place, or will – also attract "not only charter scrutiny here but indeed charter infirmity," Mr. Spratt said.
He also cites another "minor" issue: the bill penalizes reckless distribution of an intimate image, which Mr. Spratt warned could cast too wide a net and attract "some charter scrutiny." The Canadian Bar Association echoed that. "Prosecuting someone who does not have the knowledge or intent required for a criminal offence would be a violation of section 7 of the Charter," Marian Brown, an executive member of the CBA's criminal justice section, told a committee considering the bill.
Electoral reform
Bill C-23, the "Fair Elections Act," received royal assent and became law June 19.
Bill C-23 proved to be a lightning rod this spring, with Charter questions once again playing a role. The bill eliminated vouching, whereby one elector can vouch for another who doesn't have sufficient ID. The Conservatives said it was too open to fraud, but many observers said it was a critical tool for ensuring Charter-protected voting rights.
Eliminating vouching "undoubtedly contravenes the provisions of the Canadian Charter of Rights and Freedoms," Pierre Lortie, a Senior Business Advisor at Dentons Canada who led Canada's Royal Commission on Electoral Reform and Party Financing two decades ago, told a committee considering the bill. "…In essence if you have a charter that tells you have the right to vote, bureaucratic measures don't trump that."
The Fair Elections Act generally requires more ID to vote, which the British Columbia Civil Liberties Association argued was an "unjustifiable violation" of the Charter. "Removing vouching further makes these voter ID laws unconstitutional and ripe for a Charter challenge," the BCCLA's Raji Mangat told a committee.
The bill also did away with use of the Voter Information Card as a way for some to confirm their addresses, and therefore be eligible to vote. "This would certainly have a serious repercussion, potentially, and infringe on the rights of individuals under the charter," warned Carolann Barr, Executive Director of Raising the Roof, which works to alleviate homelessness in Canada.
The bill also puts new limits on what Elections Canada can say or advertise publicly. The Federation of Francophone and Acadian communities of Canada warned that the clause, along with changes to how poll workers are appointed, could violate the Charter rights of Francophone and Acadian voters across Canada in part by adding barriers to voting in areas that are largely Anglophone.
Outcry over the bill led the Conservatives to back down on certain provisions, including vouching, which was replaced with a similar yet stricter oath system. The change is an improvement, but the provision may "still be vulnerable to a (potentially successful) Charter challenge," Cara Zwibel, director of the Canadian Civil Liberties Association's Fundamental Freedoms Program, said in an e-mail.
The Council of Canadians and the Canadian Federation of Students have already announced they intend to file a constitutional challenge of C-23 and its restrictions on Elections Canada's advertising and speech mandate, as well as the elimination of use of the voter card. They're hoping to get the sections overturned in time for the next election.
Citizenship
C-24, the "Strengthening Canadian Citizenship Act," received royal assent and became law June 19.
The government billed C-24 as a once-in-a-generation overhaul of citizenship law, but some of its provisions proved deeply divisive. Foremost among those is a clause that allows the government to strip citizenship from Canadian-born citizens if they've been convicted of treason, espionage or terrorism and have citizenship in another country.
Toronto lawyer Rocco Galati launched a legal challenge against the provision on June 25, saying the government doesn't have the constitutional authority to make the change. That was after several earlier warnings during committee consideration of the bill.
"It appears to be against the Charter, and I expect there will be significant litigation," Barbara Jackman, a member of the Canadian Bar Association's National Immigration Law Section, told a Senate committee considering the bill.
The CBA also took issue with a change in the bill that asks applicants to declare an intent to reside in Canada. Citizenship and Immigration Minister Chris Alexander has brushed aside concerns, saying Canadians aren't required to stay in the country, but critics have pointed to provisions in the bill that allow citizenship-stripping in cases of fraud, and asked whether the "intent" clause could be considered in a fraud case. The CBA said the provision is "likely unconstitutional."
Mr. Alexander assured a committee studying the bill that it was constitutional, a point put to Ms. Jackman by the committee.
"I would remind the committee that [government has] passed other legislation that, again and again, the Supreme Court of Canada has struck down just recently. So the fact that the Department of Justice and the minister say it is constitutional doesn't mean it is," she replied.
Audrey Macklin, a professor and Chair in Human Rights Law at the University of Toronto, echoed many of the warnings on Charter compliance but also said that under C-24, those about to be stripped of citizenship are given the onus to prove they do not hold citizenship elsewhere – which would stop the process, as Canada won't leave someone stateless – rather than making the government prove that person does hold citizenship elsewhere. Prof. Macklin warned that such a "reverse-onus provision" also violates the Charter.
The Canadian Civil Liberties Association also has raised warnings about the constitutionality of C-24.
"CCLA is seriously concerned that Bill C-24 has created a second tier of citizenship that is incompatible with equality principles," General Counsel and Executive Director Sukanya Pillay said in an e-mail. "…We must remember that citizenship includes rights, and to strip individuals of citizenship is to re-introduce archaic punishments such as exile and banishment – the possibility of statelessness is also a serious concern. Any arbitrary loss of citizenship is incompatible with democratic values and fundamental rights."
Trademarks
C-31, "Economic Action Plan 2014 No. 1" or the budget bill, received royal assent and became law June 19.
The omnibus budget bill overhauls trademark laws, going from a goodwill-based system – designed, observers say, to prevent people sitting on trademarks they're not actually using – to a registration-based system that critics argue doesn't actually require use of a trademark. Government officials have said, however, that use of a trademark "remains the basis for a registration application."
The Canadian Chamber of Commerce warned that the bill's trademark-law changes could be vulnerable to constitutional challenge, as federal authority for "regulation of trade and commerce" would be moot if a trademark is not actually being used, and therefore not spurring trade or commerce.
Coleen Morrison, the vice president of the International Federation of Intellectual Property Attorneys, echoed the concern.
"By removing the use requirement – in other words, allowing the registration of marks that have never actually been used in trade or commerce – the validity of Canada's regime may be called into doubt. This would be destabilizing and economically counterproductive, to say the least," she told a Senate committee as it considered the bill.
The omnibus bill also implements in Canada the United States' Foreign Account Tax Compliance Act, or FATCA, which will force Canadian banks to collect and eventually hand over certain financial information of American citizens and green-card holders to, ultimately, the U.S. Internal Revenue Service (IRS). It will allow the U.S. to seek financial information on Canadians who hold American citizenship. This provision is also expected to face a constitutional challenge, in part because it targets Canadian citizens who are American born.
Prostitution
Bill C-36, the "Protection of Communities and Exploited Persons Act" or prostitution bill, remains before the House of Commons.
The Supreme Court struck down Canada's prostitution laws late last year largely on the basis that sex workers had the right to a safe working environment, one violated by the laws as they existed.
In response, the federal government came up with the widely criticized Bill C-36, which critics say is a surefire target to be challenged once again for many of the same reasons. One of the sex workers whose challenge led to the old laws being tossed out has already pledged to challenge these.
"The Charter rights engaged by this draft law include life, liberty, security of the person, freedom of expression, and equality. Arguably all are breached," Pivot Legal Society, an intervenor in the case that led to the old laws being tossed out, said in a briefing note. It called Bill C-36 "an unconstitutional variation of our broken laws that imposes more danger, more criminalization, and fewer safe options."
The day after the bill was released – with no briefing or lengthy explanation – the NDP asked whether the Conservative government would refer C-36 immediately to the Supreme Court. Justice Minister Peter MacKay didn't answer specifically. In response to another question later that day, he said the law is "respectful of the Supreme Court decision."