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. (Edmonton Journal, R. v. Canadian Newspaper Co. etc.) As s.241.6 clearly interferes with that right, it would be my expectation that the Crown will concede the infringement and the real issue will be s.1. Vicki would benefit from the consistent rejection by the courts of P. Stewart's thesis that the press requires special protection because of its job to serve as a check on government. As A. Lewis among others has pointed out, this justification of "freedom of the press" would bring with it a quality standard that The Muckraker would likely not meet. Given the courts have never required quality reporting to invoke s.2 (b), an infringement would almost certainly be found.

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 ( McKinney), approval of regulations by the Ministry (Vancouver) or appointment of board members (Vancouver) are not conclusive for a finding of control. Since the majority of board members is elected internally and the appointed minority represents community rather than government interests, this points to a finding that TINO is not government. The same applies to the regulation: it was the result of internal debate and only got a stamp of approval (Vancouver) from the Ministry without changes. The factors for a finding of applicability in Lavigne and Douglas College are not present, i.e. 100% appointed board with duty to pursue government interests or government as a contracting party. I would therefore conclude that the TINO is not likely to be found government. However, as the Harassment Procedure is clearly penal in nature and appears to be binding on all TINO students and staff, its enactment may be found to be an act of government.. While this falls short of the ability to make laws that are binding on the public at large, the ability to make laws and order sanctions are essential government functions, so that the enactment may be found an act of government and the regulation affects a substantial number of people.

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.