Charter Challenge Research Articles

Taxing Disability: A Critical Look into the Medical Cannabis Regime under the New Cannabis Act, 2018

Medical marijuana users represent many people with disabilities in Canada. Recent legislative attempts have allowed people with disabilities to access cannabis as medicine, however the landscape is ever changing. The Cannabis Act was recently introduced, legalizing marijuana for all; however, people with disabilities have not been accounted for when it comes to the issue of access to medicine. Those who rely on cannabis as medicine and those who enjoy it recreationally are now part of the same system, for better or worse. The new medical marijuana regime, under the new Cannabis Act, boasts a “two-stream” process, and it claims that it will be maintaining and improving the old medical regime alongside the new recreational regime. The applicable taxes tell a different story. Medical marijuana has always been subject to sales tax despite being effectively prescribed by doctors to manage and treat many disabilities and illnesses. Now, with the enactment of the Cannabis Act, medical marijuana is subject to an excise tax too—colloquially known as the “sin tax.” Recreational and medical marijuana are subject to the same taxation scheme, making any notion of a “two-stream” process nonsensical and blatantly unfair. The purpose of this article is to provide insight into the varying faults concerning the medical marijuana regime in Canada, with specific emphasis on the issue of taxation. In the simplest terms, taxing medical marijuana is taxing medicine and effectively taxing people with disabilities. Broken down into five parts, this article discusses the underlying reasons for the taxes surrounding medical marijuana, provides a case study of the most important tax case for medical marijuana users, scrutinizes the lack of recognition of medical marijuana as a proper prescription, outlines the ways to improve legislation, and, finally, explores a potential Charter challenge that can be effectively brought against this taxation.

The Unwritten Constitutional Principles and Environmental Justice: A New Way Forward?

Environmental benefits and harms are unequally distributed in Canada. Environmental harms tend to disproportionately impact Indigenous peoples and people of colour as well as those who experience discrimination on the basis of gender, age, or socio-economic status. As it stands, this country’s constitutional framework does not provide adequate protection against such environmental inequality. This paper explores how Canada’s unwritten constitutional principles (UCPs) could play a role in filling this gap, and reduce the environmental injustices faced by Indigenous peoples. To do so, it explores how the UCPs have been applied by the courts to date. It also considers legal scholarship on environmental justice-oriented UCPs, including the proposed UCPs of ecological sustainability, substantive equality, the public trust doctrine, as well as the recognition of Indigenous peoples’ relationship to land, resources, and other peoples as an underlying constitutional value. To demonstrate how the UCPs may let us look at constitutional questions through an environmental justice lens, the principles are applied to two contemporary case studies: the references on the constitutionality of the federal government’s Greenhouse Gas Pollution Pricing Act, and the Asubpeeschoseewagong Netum Anishinabek’s (ANA or Grassy Narrows First Nation) Charter challenge regarding mercury contamination in its territory.

Two-tier healthcare after Cambie.

In 2019, a British Columbia (BC) court decided against a Charter challenge, launched by Cambie Surgical Services (a private clinic). Cambie claimed that various laws in BC suppressing a two-tier system are contrary to the Canadian Charter of Rights and Freedoms and should be overturned. The trial judge carefully weighed the evidence for and against a two-tier system as a “safety valve” for long wait times in public Medicare, finding overall that two-tier will do more harm than good in the BC context. It is a small victory and a reprieve for public Medicare, which is increasingly under attack from various forms of privatization. But the courts cannot save healthcare on their own nor should they be expected to. The commitment and participation of all levels of government to improving waiting times is crucial.

Addiction and Heroin-Assisted Treatment: Legal Discourse and Drug Reform

This article analyzes the arguments put forth over a 3-day period at an injunction hearing, Providence Health Care Society v. Canada, held March 13–15, 2014 in Vancouver, British Columbia. The plaintiffs sought broad interlocutory relief from the Court for the provision of prescription heroin if requested by their physicians. This article fills an identified gap in scholarship by analyzing the civil Charter challenge, including the notice of civil claim, injunction court transcripts, judgment, and individual plaintiffs’ affidavits. We draw from Canada’s unique history of drug prohibition and critical drug research to contextualize our analysis and findings. We argue that the lives of people using criminalized drugs, such as heroin, are affected by legal realms that produce ideas about heroin, addiction, and criminality that ultimately impact public health policies and treatment initiatives.

A successful Charter challenge to medicare? Policy options for Canadian provincial governments.

In September 2016, a case went to trial in British Columbia that seeks to test the constitutionality of provincial laws that (1) ban private health insurance for medically necessary hospital and physician services; (2) ban extra-billing (physicians cannot charge patients more than the public tariff); and (3) require physicians to work solely for the public system or 'opt-out' and practice privately. All provinces have similar laws that have been passed to meet the requirements of federal legislation, the Canada Health Act (and thus qualify for federal funds). Consequently, a finding of unconstitutionality of one or more of these laws could have a very significant impact on the future of Canada's single-payer system ('medicare'). However, should the court find that a particular law is not in compliance with the Canadian Charter of Rights and Freedoms, the baton is then passed back to the government which may respond with other laws or policies that they believe to be constitutionally compliant. The ultimate impact of any successful Charter challenge to laws protecting medicare from privatization will thus significantly depend on how Canadian governments respond. Provincial governments could allow privatization to undercut equity and access, or they could respond creatively with new legal and policy solutions to both improve equity and access and tackle some of the problems that have long bedeviled Canadian medicare. This paper provides an understanding - grounded in comparative health systems evidence - of law and policy options available to Canadian lawmakers for limiting two-tier care in the wake of any successful challenge to existing laws. The paper presents the results of a large inter-disciplinary, comparative study, started in 2015, that systematically reviewed the legal and broader regulatory schemes used to regulate the public/private divide in 15 Organization for Economic Co-Operation and Development countries with a particular eye to what the effect of such regulations would be upon wait times.

Feeling the Heat: Climate Litigation Under the Charter's Right to Life, Liberty and Security of the Person

Citizens are increasingly searching for ways to spur their governments to take climate change action, and recent successes in courtrooms around the world suggest litigation may be an effective recourse. This article evaluates the legal basis for a claim that the Canadian government’s conduct in relation to climate change and greenhouse gas (GHG) emissions violates the Charter’s right to life, liberty and security of the person. A section 7 climate case would raise a number of novel questions, three of which are addressed in detail. The first question arises because there is not one specific law or decision that alone is leading to harmful climate change, but rather a series of government plans, policies and decisions made over many years that infringe rights. Framing the challenge around a constellation of decisions versus the government’s inadequate action in achieving national GHG reduction targets would raise different questions and potentially yield different results. We explore some of these tensions, and argue for a flexible and purposive interpretation of section 7 that overcomes this issue. A second question relates to the issue of the evidentiary burden. Establishing causation is often the thorn in the side of environmental cases. Unlike in many environmental cases, however, the state of climate science provides a rich evidentiary basis that shows how a certain level of GHG emissions leads to warming that causes harm. We discuss the evidentiary burden required in a Charter case and how this would be applied to the context of government conduct in relation to climate change. We also consider and reject the de minimus argument that the government should not be held responsible given that it only emits a small proportion of global GHG emissions (though it still ranks high among emitting countries). The third question relates to justiciability of a Charter challenge. This issue is important in a Canadian context because there have been two climate lawsuits against the federal government and both were dismissed for being non-justiciable. We explain why we believe those cases are distinguishable from the kind of challenge contemplated in this article. Throughout the article we argue that in determining how to handle this relatively uncharted terrain, courts should be guided by a normative approach. In other words, courts should interpret the Constitution in light of its purpose, overarching principles and the evolving circumstances of climate change which poses serious risks to the future of life as we know it. The international community and Canadian governments have acknowledged the severity of the problem and the need to take urgent action to prevent dangerous levels of warming. Ultimately, we believe courts should avoid using the unusual circumstances of climate change to justify a narrow, technical application of the Charter, and rather adapt their reasoning to ensure the Charter achieves its purpose of guaranteeing the fundamental rights and freedoms of Canadians. Canadians are already adapting to the realities of climate change, and judges should do the same.

Equal Rights/Equal Marriage: Creating Spaces for Jurisgenerative Praxis

In Canada, particularly since the protection of minority rights under the Charter, rights rhetoric and judicial challenges have emerged as a critical means of redressing the inequity experienced by subordinated peoples and groups - thereby privileging law and its accompanying equality framework as an agent of enfranchisement. Undoubtedly, no other social group has witnessed such rapid advancement of their rights via legal activism in the Canadian policy landscape as has the LGBTQ community – including access to marriage. This paper uses findings from a qualitative study with LGBTQ individuals who married their same -sex partners to increase our understanding of the impact of the Equal Marriage Charter challenge and associated equality discourse as a mechanism for, or moment of, jurisgenerative praxis for LGBTQ people choosing same-sex marriage.

BC refutes Charter challenge of medicare

It was the British Columbia government’s turn Sept. 12 to rebut a Charter challenge barring doctors from operating both inside and outside the public health care system. However, anyone who came to the BC Supreme Court expecting an impassioned defence of medicare was disappointed. Instead, lawyer

Niqab vs. Quebec: Negotiating Minority Rights within Quebec Identity

Quebec recently proposed legislation (Bill 94) that would require all individuals to reveal their face when seeking a government service. The proposed legislation particularly targets Muslim women who don the niqab. Underlying the present debate is an artificial dichotomy – a tension between a society’s interest in defining a common sense of citizenship and minority claims that seem inconsistent with the will of the majority. A Charter challenge – even if successful – would not fully address this underlying tension. In this paper, I argue that the heart of the present controversy relates to the need for a clear conception of Quebec identity. By considering the historical, social, ethnic, geographic and intrinsic significance of the French language, I argue that the French language, not secularism, is the key element of Quebec identity and facilitates a common sense of citizenship in Quebec. If a minority claim is capable of fitting within this conception of Quebec identity, then it poses no threat to Quebec citizenship, and thus, there should be no reason to exclude the claim – in this case the claim to wear the niqab when seeking a government service – from Quebec society.

THE EVIDENTIARY BURDEN FOR OVERTURNING GOVERNMENT'S CHOICE OF REGULATORY INSTRUMENT: THE CASE OF DIRECT-TO-CONSUMER ADVERTISING OF PRESCRIPTION DRUGS

This article explores Michael Trebilcock's claim that the federal government's present restrictions on direct-to-consumer advertising (dtca) of prescription drugs should not withstand a Charter challenge and his argument that a less intrusive, more nuanced regulatory regime could be implemented. The author explores the government's challenges in mounting a s. 1 defence, analysing the role and limitations of social-science evidence and recognizing that both inherent methodological difficulties and the manner in which health services researchers frame their approach to policy questions are such that there may never be sufficiently robust evidence of competing policy alternatives for the government to use in a s. 1 challenge. The article then goes on to review the appropriate evidentiary hurdles the government should be required to satisfy to justify this kind of policy in the face of a constitutional challenge and raises the question of the courts’ competence to assess the policy ramifications of choosing to take a more stringent approach to review. The policy approaches to dtca in other countries are explored to demonstrate that although alternative regulatory regimes exist in theory, the reality is that they are not enforced, and as such are not real alternatives to the current regime. The author explores what evidence is available regarding the advantages and disadvantages of dtca and concludes that the latter outweigh the former, that the prospect of more nuanced regulations are theoretical only, and that Canada should maintain its present regulatory restrictions.

The evidentiary burden for overturning government's choice of regulatory instrument: The case of direct-to-consumer advertising of prescription drugs

This article explores Michael Trebilcock's claim that the federal government's present restrictions on direct-to-consumer advertising (dtca) of prescription drugs should not withstand a Charter challenge and his argument that a less intrusive, more nuanced regulatory regime could be implemented. The author explores the government's challenges in mounting a s. 1 defence, analysing the role and limitations of social-science evidence and recognizing that both inherent methodological difficulties and the manner in which health services researchers frame their approach to policy questions are such that there may never be sufficiently robust evidence of competing policy alternatives for the government to use in a s. 1 challenge. The article then goes on to review the appropriate evidentiary hurdles the government should be required to satisfy to justify this kind of policy in the face of a constitutional challenge and raises the question of the courts’ competence to assess the policy ramifications of choosing to take a more stringent approach to review. The policy approaches to dtca in other countries are explored to demonstrate that although alternative regulatory regimes exist in theory, the reality is that they are not enforced, and as such are not real alternatives to the current regime. The author explores what evidence is available regarding the advantages and disadvantages of dtca and concludes that the latter outweigh the former, that the prospect of more nuanced regulations are theoretical only, and that Canada should maintain its present regulatory restrictions.

Charter challenge of ban on direct-to-consumer advertising to be heard by Ontario court in mid-June

CanWest Mediaworks Inc. has been granted an indefinite adjournment in a landmark Canadian Charter of Rights and Freedoms challenge case about direct-to-consumer prescription drug advertising that was scheduled to be heard in Ontario’s Superior Court of Justice from Jun. 15–19. Andrew Lokan, a

Censorship, Logocracy and Democracy

This paper argues: (i) Canadian “Hate Speech Laws”, and similar laws in other jurisdictions, are instances of ‘unilateral censorship’, the suppression of a single political viewpoint. (ii) Unilateral censorship infringes upon the democratic commitment to free and fair elections. (iii) The legislated exclusion of some from the political process through the control of speech means that Canadian governance is best described as ‘logocratic’. (iv) It may be possible to mount a new “Charter Challenge” to Hate Speech laws invoking Section 3 of the Charter, based on the idea that unilateral censorship infringes upon Section 3 guarantees of free and fair elections, and eligibility to run for Canadian legislative bodies. (v) The envisioned challenge differs significantly from previous Charter Challenges because what is at issue are not the liberty rights of citizens in a democracy, but the democratic process itself.

Confronting Judicial Supremacy: A Defence of Judicial Activism and the Supreme Court of Cananda's Legal Rights Jurisprudence

RésuméCet article étudie la relation entre le contrôle constitutionnel exercé par la Cour Suprême du Canada et la démocratie en analysant la jurisprudence portant sur les droits garantis par la Charte. Plus précisément, l'article vise à engager le débat avec un groupe influent d'universitaires, les interprétivistes canadiens, illustrés par les contributions scientifiques de F. L. Morton, Rainer Knopff et Christopher P. Manfredi. Contrairement aux interprétivistes qui concluent que l'activisme judiciaire de la Cour Suprême du Canada a compromis le constitutionnalisme libéral, cet article suggère qu'il a plutôt renforcé la suprématie de la Constitution. Cet argument est développé en deux parties. Dans la première, les limites théoriques de la compréhension de l'intention du législateur historique sont explorées pour illustrer les difficultés conceptuelles auxquelles font face les interprétivistes canadiens dans leur tentative de démontrer que le pouvoir judiciaire au Canada est sans contrainte. Nous soutenons que la construction de la compréhension historique est une entreprise hautement subjective qui a crée le mythe de la suprématie judiciaire. Dans la deuxième partie, les limites empiriques de ce mythe sont discutées en identifiant le paradoxe de l'activisme judiciaire: comment il varie, ainsi que son effet, selon l'acteur étatique qui se trouve au centre du recours à la Charte. Grâce à une analyse de cas d'un ensemble de décisions portant sur les droits garantis, l'article confronte ce mythe en démontrant que l'activisme judiciaire contre la police ne renforce point la suprématie judiciaire mais bien celle de la Constitution. En redéfinissant la relation entre les citoyens et l'État par une jurisprudence activiste des droits, la Cour suprême du Canada a effectivement contrôlé des abus de pouvoir par les agents de police. Cet activisme sert bien l'avancement de la suprématie constitutionnelle, quoi qu'en disent les interprétivistes canadiens‥

Self-induced intoxication: balancing principles of justice and responsibility

Mr. Daviault, a 72-year-old alcoholic, was charged with dragging a 65-year-old woman from her wheelchair and sexually assaulting her. This occurred after Mr. Daviault had consumed eight beers and 35 ounces of brandy. The majority of the Supreme Court of Canada (S.C.C.) allowed evidence of intoxication to be presented as a to this general intent offense. The S.C.C. held that evidence of intoxication was available in situations where the accused could establish that the act was not voluntary or the requisite intent was not formed as a result of a state of intoxication akin to insanity or automatism. This created an exception to the general rule that evidence of was allowed to be presented as a only to specific intent offenses. As a result of the decision in Daviault,1 evidence of intoxication could be presented as a to offenses of both specific and general intent. Daviault and decisions that followed Daviault2 illustrate the problem Parliament faced: that an accused may lack the blameworthy mental state necessary to convict him of assault but certainly not be morally blameless. Outcries from society demanded immediate legislative changes. Parliament responded quickly by introducing Bill C-72,3 an amendment to the Criminal Code intended to undo the change in the law that resulted from the S.C.C. decision in Daviault. Parliament proposed to return the law to its previous state by making it clear that the of was not available to any general intent offenses regardless of the level of intoxication. This paper puts the proposed amendment into context and evaluates Bill C-72 under the Canadian Charter of Rights and Freedoms.4 The first section of this paper deals with the case law background of how criminal law has dealt with the intoxicated offender. The second section takes a detailed look at Parliament's suggested solution, Bill C-72. Sections three through five give an analysis of the Charter rights that may be infringed by the bill and evaluates the bill's chance of surviving a Charter challenge under s. 1. I: The case law before and after Daviault A) The law before5 the decision in Daviault It is common to talk of the defense of drunkenness; however, is not a defense. The more accurate terminology would be that there was a lack of mens rea. In this paper the term defence of drunkenness is used, but it is important to remember that evidence of intoxication has the effect of calling into question whether an essential element of the offense has been proved. If the Crown is unable to convince the trier of fact beyond a reasonable doubt of all the essential elements of the offense, then the accused must be acquitted. The law draws a distinction between crimes that require specific intent and crimes that require only general intent. A general intent offense requires such a minimal mental element that the voluntary act itself could satisfy the necessary intent component. Drunkenness was believed to be incapable of negating this minimal intent. For a specific intent offense, the accused must be able to form the more specific intent that is set out in the Criminal Code. This specific intention cannot be inferred from the act. If a person's mind is severely clouded by alcohol or drugs to the point that he or she lacks the ability to form the specific intent to commit the crime, the accused must be acquitted. Before Daviault, evidence of intoxication was allowed before the trier of fact in relation to only specific intent offenses. General intent offenses required such a minimal mental element that the voluntary act itself could satisfy the necessary intent component. Extreme intoxication had been raised before in the S.C.C., but only in side comments.6 The issue of extreme intoxication as a in general intent offenses was unresolved. The S.C.C. was given the opportunity to provide an answer to this question in Daviault. …