Nova Scotia, B.C. groups pair up on court challenge to overturn Canada’s electoral system

A sign points voters to the polling station at St. James Anglican Church on Joseph Howe Drive in Halifax on Monday, Oct. 21, 2019.
A sign points voters to the polling station at St. James Anglican Church on Joseph Howe Drive in Halifax on federal election day, Monday, Oct. 21, 2019. – Ryan Taplin

OTTAWA, Ont. — A Nova Scotia charitable organization wants the courts to force Canada to abandon its winner-take-all electoral system in favour of one that awards seats in Parliament according to the popular vote.

Halifax-based Springtide Collective and Fair Voting B.C. filed an action with the Ontario Superior Court of Justice in Toronto earlier this month arguing that Canada’s first-past-the-post system violates the Charter of Rights and Freedoms’ guarantee of fair representation.

Springtide executive director Mark Coffin said the case has been in the works since 2017. By August of 2019 the groups had raised enough money to cover the costs of preparing a court application and securing expert testimony.

“This is a civil rights issue like any other civil rights issue. It’s always best when politicians take steps in lawmaking that would protect and enhance our civil rights, but when we don’t get that from our politicians, and in this case, when we see time and time again politicians really not enthusiastically supporting or championing reform to ensure that everybody’s votes count, it’s time for the courts to intervene,” Coffin said.

Coffin added there’s a pattern of behaviour where campaign on electoral reform, then back off when elected. Justin Trudeau’s Liberals promised that 2015 would be the last election under first-past-the-post, but abandoned the idea of electoral reform a year later.

The applicants hope the courts will now take the issue into their own hands.

The case alleges that Canada’s current electoral system does not comply with the Canadian Charter of Rights and Freedoms, as well as subsequent rulings on electoral issues, on multiple grounds. Specifically, the application argues that it violates section 3, by denying Canadians effective representation, meaningful participation, and fair and legitimate elections, and section 15, by discriminating against voters and candidates on the basis of political belief.

“The court has in past rulings decided that every Canadian has the right to effective representation and meaningful participation,” Coffin said. “For many Canadians based on their political beliefs, they’re denied effective representation and meaningful participation in the electoral process. . . .Effective representation in the courts means having a voice in the deliberations of government. When more than half of the people vote for candidates that don’t end up in parliament, they’re certainly not represented.”

This election makes the case, the groups argue: 51 per cent of voters cast ballots for candidates that did not end up in Parliament, there were a quarter-million more Conservative voters than Liberal voters but Liberals took 36 more seats than the Conservatives, and NDP voters outnumbered Bloc voters by two to one nationally, yet the NDP will hold fewer seats than the Bloc. Furthermore, they argue, the disproportionate representation of certain political beliefs are concentrated in different regions of the country in ways that are now adding fuel to the fire around national unity.

The two groups involved in the court challenge have hired experienced Toronto-based constitutional lawyer Nicolas Rouleau to represent them. They’re hoping the case will eventually find its way to the Supreme Court of Canada.

If the courts agree with the claims made in the case, they can go as far as to declare Canada’s current electoral system unconstitutional, and order the government to develop a system that complies with the Charter, the applicants say. SOURCE

Court to hear case on whether asylum agreement with U.S. violates charter

OTTAWA — A long-awaited legal look into whether the U.S. remains a safe country for refugees begins today at a Federal Court in Toronto.

At issue is the Safe Third Country Agreement that prohibits people from entering Canada from the U.S. —  and vice versa — at official border crossings and asking for asylum. It was signed by the two countries 17 years ago on the grounds that both are safe places and so those seeking sanctuary should apply in the first country they arrive in.

But as the U.S. has tightened its asylum rules and regulations in recent years, the deal has come under intense scrutiny over concerns that actions taken by the Trump administration no longer make the U.S. a safe harbour for those seeking asylum.

In turn, when Canada rejects people at the border, their charter rights are being violated, advocacy groups and the individual litigant in the case will argue this week as the Federal Court finally hears the challenge begun in 2017.

“Refugee claimants are being detained indefinitely, in conditions that are nothing short of cruel and unusual, simply for seeking protection,” reads one of the memos submitted to the court.

The legal challenge to the agreement was filed after a Salvadoran woman tried to enter Canada at an official border crossing to seek asylum, arguing she was being brutally targeted by gangs at home. She was told she was inadmissible because of the deal. MORE

Toronto court to hear case on whether asylum agreement with U.S. violates charter

Concerns with the Safe Third Country Agreement come as the U.S. tightens its asylum rules and regulations


A girl originally from Congo and her family who had been living in Portland, Maine, approach an unofficial border crossing with Canada, heading down Roxham Road in Champlain, N.Y., on Aug. 7, 2017. A long-awaited legal look into whether the U.S. remains a safe country for refugees begins Monday in Federal Court in Toronto. (Charles Krupa/The Associated Press)

A long-awaited legal look into whether the U.S. remains a safe country for refugees begins today at a Federal Court in Toronto.

At issue is the Safe Third Country Agreement, which prohibits people from entering Canada from the U.S. — and vice versa — at official border crossings and asking for asylum. It was signed by the two countries 17 years ago on the grounds both are safe places, so those seeking sanctuary should apply in the first country where they arrive.

But as the U.S. has tightened its asylum rules and regulations in recent years, the deal has come under scrutiny over concerns that actions taken by the Trump administration no longer make the U.S. a safe harbour for asylum seekers.

In turn, when Canada rejects people at the border, their charter rights are being violated, advocacy groups and the individual litigant in the case will argue this week as the Federal Court finally hears the challenge begun in 2017.

“Refugee claimants are being detained indefinitely, in conditions that are nothing short of cruel and unusual, simply for seeking protection,” reads one of the memos submitted to the court.

The legal challenge to the agreement was filed after a Salvadoran woman tried to enter Canada at an official border crossing to seek asylum, arguing she was being brutally targeted by gangs at home. She was told she was inadmissible because of the deal.

Her attempt to enter Canada came as then newly elected U.S. President Donald Trump was unveiling a series of changes to the immigration system, including an attempt to ban immigrants from Muslim countries and lifting stays on deportations to Central American nations.

The measures set off shock waves not just in the U.S., but also in Canada, even among those who don’t work in the immigration field, said Janet Dench, executive director of the Canadian Council for Refugees, one of the groups challenging the agreement in court.

“Many Canadians . . . instinctively felt it didn’t make sense for Canada to be hitching its wagon to the United States in this way and be sending people back to the U.S. when they could see there was such a lack of attention to the basic rights.”

Ottawa wants case dismissed

While political pressure began building for changes to the deal, the CCR and others also decided to test it in court and worked to find an asylum seeker who had been turned away.

Since the case was launched, restrictions on asylum have tightened even further, including a decision in 2018 by the U.S. attorney general to deny asylum claims based on domestic violence. One of the arguments in the case is that decision effectively leads to discrimination towards refugee applicants on the basis of their gender, which would violate the charter.

But the federal government argues that position, and others taken by the applicants, relate to developments in the U.S. refugee system that don’t apply in the case at hand. The U.S. system still functions, they argue, and the government wants the case dismissed.

“Claimants are returned to a highly developed asylum system that grants protection to large numbers of persons every year, and is subject to both administrative and judicial checks and balances,” lawyers for the Immigration and Public Safety ministries wrote in their submission to the Federal Court.

“Many of the concerns raised by the applicants have been limited by American courts or are still undergoing legal challenges, have no application to [Safe Third Country Agreement] returnees, and/or do not preclude access to protection.”

The applicants hope the court either suspends the deal or forces it to be amended in such a way that allows those seeking asylum to ask for it. MORE

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15 Canadian youths to sue Ottawa for not acting on climate change

They say young people will be more affected than other groups


People hold signs as thousands gather outside Vancouver City Hall before marching downtown during a climate strike in Vancouver on Friday, Sept. 27, 2019. THE CANADIAN PRESS/Darryl Dyck

A group of young people from across the country are suing the Canadian government for not acting on climate change, according to the David Suzuki Foundation.

In a statement issued Wednesday morning, the foundation said the youths have each suffered “specific, individualized injuries due to climate change.”

The lawsuit, which is expected to be filed Friday in the Supreme Court of Canada, will allege Ottawa is violating their rights to life, liberty and security of person under section seven of the Charter of Rights and Freedoms.

The youth will also claim the government’s actions violate section 15, which deals with equality, as they say young people are disproportionately affected by climate change.

They will be represented by Arvay Finlay LLP and Tollefson Law Corporation, and partner with the Pacific Centre for Environmental Law and Litigation and the David Suzuki Foundation.

“The lawsuit calls on Canada to cease its conduct that is violating the youth’s Charter and public trust rights and prepare and implement a plan that reduces Canada’s GHG emissions in a manner consistent with what best available science indicates is needed for the federal government to protect young Canadians, do its fair share to stabilize the climate system, and avert the catastrophic consequences of climate change,” the foundation said in a statement.

The youth will also take part in a march and rally at the northern steps of the Vancouver Art Gallery Friday, coinciding with Greta Thunberg’s arrival and climate strike in the city.

SOURCE

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Quebec could face compensation claims for Bill 21 harms

It’s rare for a government to have to pay for a breach of Charter rights, but the door is open to it, and Bill 21 clearly violates those rights.

Image result for policy options: Quebec could face compensation claims for Bill 21 harms

Might a government owe financial compensation to the individuals it harms via use of the notwithstanding clause in the Canadian Charter of Rights and Freedoms? Specifically, where a law harms fundamental rights and is effective only because the legislature invoked the notwithstanding clause, is it up to individuals alone to absorb those harms? On the contrary, I argue that a court might order a government to pay compensation or damages for the harms it causes.

The question arises most obviously in Quebec. In June, the Legault government in that province adopted Bill 21, An Act respecting the Laicity of the State. It shielded the law from direct challenges under much of the Canadian Charter by use of the notwithstanding clause (section 33). The law’s controversial measures include a ban on religious symbols worn by many categories of public employees. The law prevents visibly religious people from being hired as teachers, principals and government lawyers. Although there is a grandfather clause for employees who held those positions as of March 2019, it won’t cover them if they accept promotion or reassignment.

In my view, it’s open to individuals to seek an award of damages under the Charter’s remedies clause. Section 24(1) states simply that anyone whose Charter rights “have been infringed or denied may apply…to obtain such remedy as the court considers appropriate and just in the circumstances.”

Courts haven’t often ordered the government to pay compensation for breach of someone’s Charter rights, but the Supreme Court of Canada has unquestionably opened the door to doing so. Nearly a decade ago, in Ward, the Supreme Court set out the prevailing approach. In that case, an individual was mistakenly arrested because a police officer believed that he intended to throw a pie at the prime minister. Alan Cameron Ward was strip-searched in violation of his Charter right to freedom from unreasonable search and seizure. He ultimately obtained $5,000. The Court emphasized the potential for Charter remedies to include constitutional damages. In short, Ward tells us that there can be damages for violation of Charter rights. Bill 21 violates Charter rights. Might the harms from Bill 21 be compensable, too?

It’s critical here to understand the textual limits on a government’s use of the notwithstanding clause. Section 33 states: “Parliament or the legislature…may expressly declare…that [an] Act or a provision thereof shall operate notwithstanding…section 2 or sections 7 to 15 of this Charter.” It goes on: “An Act or a provision…in respect of which a declaration made under this section is in effect, shall have such operation as it would have but for the provision of this Charter referred to.” The constitutional language is saying that the law being shielded will continue in force, but it says nothing about what judges may do.

We need to take care not to read restrictions into the text that aren’t there. As observed by Léonid Sirota, section 33 makes no mention of section 24, the remedies clause. That means a government cannot use the notwithstanding clause to shield a law from the remedies clause: it cannot legislate that a law will operate — with potentially harmful effects — notwithstanding the remedies clause. I see no reason for judges to give governments greater immunity from the Charter than its drafters did by developing such a rule themselves. MORE

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We asked 12 Canadian premiers about Quebec’s controversial secularism law


Asiyah Robinson said her hijab is not only a religious symbol but an inseparable part of her identity, during a council meeting in Victoria, B.C., July 11, 2019. Photo by Emilee Gilpin

Last week, Asiyah Robinson, a 22-year-old Muslim woman, presented an impassioned speech that woke the ghosts of an otherwise eerily stoic Victoria city council chambers. Robinson added her voice to a chorus of concerned Canadians speaking against a recent secularism bill passed into Quebec law.

If Robinson were a Quebec citizen, she couldn’t pursue a job as a teacher, lawyer, judge nor police officer while practicing her religion, wearing a hijab, as she has done since she was nine years old. A controversial new Quebec law — Bill 21: An Act respecting the secularity of the State — would prohibit her and any other public service employees in positions of authority who practiced their faith wearing a hijab, turban, kippa, cross and more from doing so, while delivering services to the public.

“First they strip you of your religion, then they take away your cultural practices, then they separate you from your community,” Robinson said. She called an attentive Victoria City Council to think back to the Quebec City mosque shooting. “On Jan. 29, 2017, there was a dreadful mass shooting at the Quebec Islamic Cultural Centre. Six were killed … It was horrible and devastating.”

Robinson said the mosque shooting bears a chilling resemblance to the political movement in Quebec today.

“The shooting was done by one person, and thankfully, the bullets ran out… But to live in a country that proposes and promotes an institutional law that legalizes discrimination based on faith ensures a never-ending supply of ammunition that suppresses not only Muslim, but Canadian values,” Robinson said. “This will not only affect my generation but will ripple into generations to come.”

People gesture during a demonstration in Montreal, Sunday, April 7, 2019, in opposition to the Quebec government’s newly tabled Bill 21. THE CANADIAN PRESS/Graham Hughes

 

As a city, Victoria doesn’t get much further from the province of Quebec, located on the west coast on Vancouver Island. Yet citizens are speaking out against Quebec’s new law as if it existed in British Columbia. It’s rare outrage in a country that has seen few leaders stand up and outwardly proclaim the law to be against Canadian values.

In Victoria, Robinson thanked councilor Sharmarke Dubow, who introduced a motion to city council in support of the legal opposition to Bill 21. Robinson expressed gratitude to Victoria’s city council, which voted unanimously in support of the motion.

“An attack on the constitution in one part of Canada is an attack on the constitution in any part of Canada. This new law will upend people’s lives and livelihoods ⁠— it’s textbook discrimination.”

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