BC Civil Liberties Association recently intervened in two cases before Canada's highest court
The British Columbia Civil Liberties Association was in Ottawa recently intervening in two cases at the Supreme Court of Canada. One dealt with judicial review of Charter-right-impacting administrative law decisions, the other with the fairness and independence of military justice.
On Oct. 18, the court heard York Region District School Board v. Elementary Teachers' Federation of Ontario. The BCCLA said it intervened in the case because it raises several important questions about how the Charter applies in schools. It argued that, regardless of the procedure, decision-maker, or Charter right, courts should review under the same legal framework to ensure consistent protection of Canadians’ Charter rights.
Two days before, the court heard R. v. Edwards et al., which consists of five cases dealing with the military justice system. As an intervenor, the BCCLA argued that the court should take a “purposive interpretation” of s. 11(d)’s right of an accused person “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”
In York Region District School Board, a school principal searched a teacher’s work laptop and found private communications between that teacher and another. The communications were related to a workplace dispute. The principal read the personal, password-protected conversation and took screenshots of it, and the school board later used the material to displace the teachers. The teachers’ union filed a grievance and argued that the school board had violated the teachers’ rights to privacy. The arbitrator dismissed the grievance, and a Divisional Court majority upheld the arbitrator’s decision, but the Court of Appeal allowed the appeal and quashed the arbitrator’s award.
The BCCLA said the issue in York Region District School Board is whether the principal violated the teachers’ s. 8 Charter rights by searching their laptops. Fraser Harland, a lawyer at Olthuis van Ert is acting for the group on the intervention.
“The case is important for a number of reasons,” says Vibert Jack, litigation director at the BCCLA. The case deals with whether Charter-guaranteed privacy rights apply to employment relationships in the school setting or for any government workers. Jack says the case could have a broad impact.
The issue on which the BCCLA intervened is the judicial review of administrative decisions that infringe Charter rights. Courts use the framework set out in Doré v. Barreau du Québec, 2012 SCC 12 and Loyola High School v. Quebec (Attorney General), 2015 SCC 12. The BCCLA argued that the SCC must reconsider this framework in light of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, to address the issues in York Region District School Board. The BCCLA submitted that, regardless of the decision-maker, reviewing courts should “employ the same framework on a standard of correctness” to ensure Canadians’ Charter rights receive consistent protection.
“That's going to have very broad implications,” says Jack. “The administrative state is growing larger and larger. As our lives become more impacted by administrative tribunals and decision-makers, it's very important that our Charter rights are protected in those contexts.”
In R. v. Edwards et al., the appellants are Canadian Armed Forces members facing charges in Canada’s court martial system. Each sought a stay of proceedings, arguing that the process infringed their Charter right to trial by an independent and impartial tribunal under s. 11(d). The alleged Charter breach arose through the chief of defence staff’s order designating a commanding officer to consider disciplinary matters.
“The argument by the appellant is that because the military judges are part of the chain of command of the armed forces, they're subjected to discipline by their superiors in that chain of command,” says Jack. “That means that they're not independent, as required by the Charter. Because of that, people who are charged with offences in front of a military tribunal aren't getting a fair trial.”
The BCCLA’s interest in the case concerns the 1992 SCC case that found the military justice system constitutional: R. v. Généreux. The BCCLA argued the decision is dated, and developments in Charter jurisprudence – including the broader interpretation of rights relevant to that case – require the court to depart from the interpretative approach taken in it.
“In Généreux, they took a very narrow approach to interpreting the rights under s. 11(d), and that's led to many problems in the military justice system,” says Jack. “The military justice system has come under a lot of scrutiny in recent years, and particularly due to the problems of its treatment of cases related to sexual offences. The public trust in that system has been greatly eroded.”
“We see this case as an opportunity for the Supreme Court to address that problem and create a more fair system, not only for the accused, but also for complainants.”
