This is a model answer to the April
1997 exam question.
Question I:
• Application of the Charter
As the constitutional issues revolve around a criminal offence, the Charter
clearly applies. I will deal with the issues concerning John and Joseph first,
i.e. the constitutionality of ss. 241.1-5.
In any Charter challenge, the onus is on the person asserting an
infringement to show that the interest sought is protected by a Charter
right.
• Security and Life Interest under s.7
S.7 is applicable where a right to life, liberty and security of the person
has been limited in a way not in accordance with fundamental justice. The three
interests are seen as a kind of trinity, both three and one, in that they each
provide context for the others without having to be conjunctively affected .
The security interest in s. 7 of the Charter is clearly implicated in
the CLAA(1), analogous to s.241 in Rodriguez
where eight judges agreed that, where the right to make choices over one's own
body is limited, a security interest is affected, especially where criminal
prohibitions are involved (per Sopinka). Cory J. also found the life interest
affected in that case, as he saw death as a part of life and the interest in a
dignified death therefore implicated the life interest. Making attempted (and,
curiously, successful) suicide a criminal offence affects the ability to make
choices concerning one's own body. S.7 is therefore engaged. Now, we have to
show that this interest is being infringed not in accordance with the
principles of fundamental justice.
• Fundamental justice [f.j.]
• arbitrariness
The principles of f.j. refer to both procedural and substantive issues (Ref.
Re Motor Vehicle Act). However, human dignity or similarly broad moral
concepts are not principles of f. j. (per Sopinka in Rodriguez). In
considering whether a provision offends f.j., the rationale and legislative
history of a provision are important. Here, the CLAA recriminalises (attempted)
suicide, while providing a procedural option to escape liability. As Parliament
enacted the CLAA following the "Report of the Justice Committee", the
rationale underlying the CLAA is arguably found in the Report in s.1, i.e.
enabling terminally ill persons to commit assisted suicide without liability
for the assisting person. The recriminalisation of suicide clearly does not
serve this rationale and is arbitrary in that sense (per McLachlin J.
dissenting in Rodriguez, the majority agreed with the test, but not with
its application). (It is not arbitrary in the sense that a distinction between
physically able and disabled people is drawn, the sticking point in Rodriguez
for McLachlin J.) However, Sopinka J. also indicated in that case, that the
decriminalisation of suicide in 1972 did not result from a parliamentary
consensus to grant Canadians a right to suicide, rather, the causes and
potential remedies seemed outside the law and did therefore not mandate a legal
remedy. As the Report and the CLAA show a heightened tolerance for suicide in
certain circumstances, this consensus has arguably been reached. In the light
of this, the recriminalisation of suicide may well be found to be unconstitutional,
as it interferes with the security interest in s.7 and is arguably arbitrary in
the outlined way and thus not in accordance with f.j. (The rationale analysis
would, of course, also be relevant for s.1, according to McLachlin in Rodriguez,
this is the only proper place for the analysis.)
• procedural problems
In Morgentaler, the provisions regulating therapeutic abortions were
found to be contrary to the principles of f.j. because the mechanism for
obtaining the required certificate was often not accessible, there was no clear
legal standard and the rules were unnecessarily cumbersome given the objective.
The amended CC ss. 241.2 - 4 seem to address at least some of the concerns
leading to the striking down of the abortion provisions, ss. 241.2 - 4
guarantee accessibility and a signing-off procedure by a doctor and
psychiatrist does not seem overly cumbersome given the objective, the committee
may be found to be onerous, but as it fulfils essentially an appeal function,
this may not weigh heavily. The composition of the ethics committee means that
it is not possible for doctors alone to decide on a question with legal
implications, a major critique of the abortion provision by Dickson C.J.C. The
criteria in ss. 241.2 and 3 are probably sufficiently certain to avoid the
"clear legal standard" problems in Morgentaler. However, In B.(R.)
v. C.A.S. of Metro Toronto, f.j. was found to require the following
principles of administrative law regarding committee procedures: a right to
notice, access to information and rights of representation. None of these
requirements are met: There is no notice requirement for any hearing before the
ethics committee, no access to information rights as to criteria, reasons for
denial of an application etc. There is, most importantly, no provision for a
right to representation.
The thanatological committee, on the other hand, may be vulnerable to the
"clear legal standard" test, as it is apparently only made up of
medical staff, but as their purpose is the assignation of facilities and as
they are obliged to assign, I do not think this will be a very strong argument.
The arbitrariness of the provision with regard to its objective and the
failure to provide for adequate administrative procedures may, however, well be
fatal to the CLAA.
s. 2 (a): Freedom of conscience and religion
Wilson J. held in Morgentaler, that the freedom of conscience also
protects non-religious beliefs. Where, as here, a criminal provision prohibits
an individual from exercising her options, in that case the right to choose
whether to have a child and in John's case the choice to end a life that is no
longer experienced as worth living. The present case is arguably stronger in
that it does not involve conflicting rights (i.e. rights of the foetus in Morgentaler),
but only affects the suicide himself. Wilson J. held that such an infringement
could never be in accordance with the principles of f.j. and would therefore
have to be justified under s.1. Given the procedural emphasis of f.j. analyses
in recent S.C.C. cases (e.g. B. (R.)), this argument may not help much.
Nevertheless, an infringement of s.2 (a) rights would appear to be made out.
If either or both s.2 (a) and s.7 rights are found to have been infringed
and these infringements are not found justifiable under s.1, the CLAA or parts
thereof will be found unconstitutional..
• Additional Problems concerning Joseph:
• Is the person assisting immune from liability?
The CLAA does not seem to provide an exemption from criminal liability even
for the unit designated to assist a patient in the suicide. A fortiori, it does
not exempt non-authorized persons from liability for assisting in a suicide So
whether the CLAA is constitutional or not may be of little relevance to Joseph.
However, as the CLAA does also (a) not provide that the medical unit is the
only body to assist in suicides, (b) the fact that immunity from criminal
liability for the unit would seem to follow by necessary implication, and (c)
given that penal law always has to be construed strictly and in favour of the
accused, Joseph could possibly benefit from the gap in the legislation.
• How does the CLAA affect the required mens rea of s.241 (b)?
As in all intentional homicide provisions, the constitutionally required
mens rea is actual foresight of death or bodily harm and recklessness as to
whether death occurs. These are clearly met. However, no-one can be convicted
of a crime not on the books at the time of his act (with the possible exception
of crimes against humanity). If Joseph justifiably thought that assisting in a
suicide where the procedures to obtain a "death certificate" had been
followed, was legal, could he have had the requisite mens rea for the offence?
In my opinion, his actual knowledge would be decisive, if he knew about the
certificate, but not about its destruction and was not reckless, he would
arguably not have had the constitutionally required mens rea for the offence
(see the Martineau and Logan line of cases.) If that fails, he
would be faced with CC s. 241 (b), which was found constitutional in Rodriguez.
• attempted murder
With regard to the attempted murder, he may also try for an application of
the rule against multiple convictions, which I won't discuss as it is not a
constitutional defence.
• Vicki Victor
The obvious route in this case is an attack of s.241.6 under s.2 (b) of the Charter
(freedom of the press): The right clearly includes (at its very centre) the
right to report the news. Restrictions of that right will only be acceptable in
very special circumstances. (
Question II: Ernesto Zorro
• Does the Charter apply?
The Charter applies to the legislative, administrative and
executive branches of government and their acts. It does not apply to private
actors unless they act as agents of government.. For purposes of s.32, the
issue is whether the TINO(2) is government or,
alternatively, whether the act (initiation of the harassment procedure and
threat of suspension) is an act of government. The test for whether an
institution such as TINO is government as it evolved from the majority in McKinney
and Vancouver General and the majority and concurring judgement in Lavigne
is essentially whether government has routine and regular control over the body
in question. Indicators such as establishment by legislation (
Assuming this or assuming that my conclusion with respect to TINO not being
government is wrong, the issue becomes whether the Harassment Procedure
violates Zorro's Charter rights.
• s.2 (b) freedom of expression
The test for infringement of the s.2 (b) right of freedom of expression was
enunciated by the S.C.C. in Irwin Toy. First of all, the (speech) act
must convey or attempt to convey meaning. While Zorro was not exactly very
clear, he obviously attempted to convey meaning, therefore the speech is
clearly within the ambit of s.2 (b). Secondly, the speech cannot be a
prohibited form of speech. As there was no threat of violence or actual
violence, this was clearly not a prohibited form of speech (Dolphin Delivery)
Thirdly, is the purpose of the regulation to restrict expression? As the
harassment procedure includes psychological harassment and as this is obviously
understood to include speech acts based on their content, this would appear to
be the case. It is therefore unnecessary to proceed to the last two steps of
the test which inquire into effect of the regulation and value of the speech
respectively. An infringement of Zorro's right to freedom of speech would
appear to be made out.
• S.1
The next issue is whether the infringement is justified under s.1. Here, the
government has the onus to show that the infringement is demonstrably justified
in a free and democratic society.
• "prescribed by law": Vagueness
Vagueness affects both s.7 and s.1. As it is difficult to bring Zorro's
interest within the scope of the rights of s.7, I would argue vaguenss in s.1.(3) Again, there are two possibilities. Vagueness
can affect the requirement that all restrictions of rights be "prescribed
by law" and, alternatively, it interferes with the "minimal
impairment" branch of the Oakes test. (Nova Scotia
Pharmaceuticals). The harassment procedure is arguably so vague that it can
neither form a basis of legal debate (Nova Scotia Pharmaceuticals) nor
put a limit on prosecutorial discretion (Zundel No. 2), as it only
outlines behaviour that has some (potentially) negative effect without
specifying what kind of behaviour and what sorts of effects would attract the
procedure. A law has to be extremely vague in order to fail the 'prescribed by
law' test. But even this high standard may be satisfied here. The inquiry would
end at this point, because there can be no justification under s.1 unless the
restriction is prescribed by law. (Administrative acts can never be justified
under s.1 Therens) .
• proportionality test
If that fails, the TINO can go on showing (1) a pressing and substantial
objective and (2) proportionality between the effect (both positive and
negative acc. to Dagenais) of the legislation and the infringement of
the right.
• a pressing and substantial objective
The standard for pressing and substantial objectives does not appear to be
very high. It cannot be incompatible with Charter values, must be
within the jurisdiction of the body and the objective cannot have shifted from
the originally intended. (Big M). Anti-harassment procedures are
arguably an equality measure and therefore may be compatible with Charter
values. TINO had jurisdiction to make regulations and the objective is
obviously still the same. Promoting civility and curbing harassment on campus
is arguably a pressing and substantial objective. The right to be educated in
an environment free of discrimination was held pressing and substantial in Attis.
In my opinion, the first test will not be a barrier to TINO.
• proportionality
Under this heading, there are three factors to be considered: (1) rational
connection, (2) minimal impairment and (3) proportionality between measures and
objective.
(1) The rational connection between the measure and the objective can either
be shown by scientific evidence or by logic/reason/common sense (RJR).
This evidentiary standard is considerably lower than originally envisioned in Oakes
and seem to apply even in criminal (so-called singular antagonist) cases (Keegstra
etc.) Since we are clearly dealing with competing social interests and not with
criminal law, the lower standard applies without question. As we do not know
what sort of evidence would be adduced by TINO, it is difficult to foresee what
would happen. Did the Institute have a long-standing problem with harassment?
Has it gone away? Is the procedure being applied? are all questions we may want
to address (and investigate).
(2) Minimal Impairment: Again, the standard may be higher in singular
antagonist cases, but here any evidence of a reasonable delineation of limits
would suffice. The legislative body does not have to choose the least ambitious
means to achieve its goal (Irwin Toy, Edwards Books etc.)
However, the same vagueness arguments as above can be made here and if they did
not succeed in the first instance, they will here. Not only is the wording of
the Harassment Procedure so vague as to give no outline of what is being sanctioned,
it is also overbroad in its application. Where such tentative and on their face
inept but inoffensive statements as made by Zorro can qualify for harassment,
it is self-evident that the provision is overbroad. The provision does not give
fair notice in that it fails to advise people what sort of behaviour is
problematic, and it also prevents a person from making full answer and defence
against allegations. Furthermore, the provision allows for the complainant to
remain anonymous. This is clearly a major hurdle in both a mediated solution as
foreseen in the harassment procedure, and in a hearing. Even by the most
generous standards, the chosen procedure cannot be said to infringe the right
in the least possible degree for the objective.
(3) If I am wrong about the foregoing, the last step would be to inquire
into the proportionality of the infringement and the objective. There are two
subissues in this step: (a) is there proportionality between the objective and
the negative effects of the measure and (b) given the first, is there
proportionality between the positive and the negative effects of the measure
itself (Dagenais, RJR). Again, the answers to these questions
would depend on the kind of evidence adduced by TINO and also our ability to
point to evidence showing an absence (or low level) of positive and a high
level of negative effects. For this, we should investigate how the procedure
has been applied in the past, whether there have been spite-motivated
accusations, what was the retraction rate etc.
Summary: If the Charter is found to apply, the Harassment Procedure
clearly violates Zorro's s.2 (b) rights. This violation cannot be justified
because it is too vague, overbroad and infringes the right more than necessary
even by lenient standards.
1. Criminal Law Amendment Act, 1997
2. Technical Institute of Northern Ontario
3. An argument might be made that being suspended from one's job interferes with one's security interest, but as the result will be similar, I will not address that here.