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Troy Riddell: No, the notwithstanding clause should not be “off limits” in criminal justice

Commentary
An Edmonton Police officer is seen at City Hall during an investigation in Edmonton on January 23, 2024. A man facing terrorism charges after an armed attack on Edmonton City Hall in January will have to wait a while longer before being able to seek bail. Jason Franson/The Canadian Press

Section 33 of the Charter should decidedly not be “off limits” in criminal justice, as a Globe and Mail op-ed recently argued.

Critics of Section 33 (the notwithstanding clause) point to cases like the recent prosecution of Umar Zameer, a case involving the unintentional killing of a Toronto police officer, as evidence against the so-called “politicalization” of the courts. Wrongful prosecution or conviction, however, most often results from poor decision-making by police officers, Crown prosecutors, and even judges, rather than how rights are defined. Better training (and repercussions for clearly bad decisions) are more germane to protecting against such injustices than questions of the Canadian constitution itself.

However, to the steelman the other side, maybe under revised criminal justice laws (to which Section 33 is applied), more individuals would be held on bail or sentenced more harshly. Police could also be given more latitude to investigate crime.

How therefore do we balance the rights of individuals versus protecting victims and the community and who should decide that balance? Opponents of Section 33 argue that the accused and offenders are often vulnerable and need protection against the state, particularly when it may be politically advantageous to propose a more limited definition of their legal rights. Unelected judges, according to critics of Section 33, are better positioned to dispassionately assess where lines should be drawn. The same people argue that judges have experience in deciding criminal cases to help guide such decisions.

These arguments, however, overestimate the ability of courts to engage in criminal justice policy analysis and the degree to which judicial decisions are devoid of value choices. Courts hear many individual cases, but they are not able to independently conduct research or systematically track the effects of changes to rules in criminal justice. Nor do judges, despite being highly educated, have special philosophical insights into such questions as to how “human dignity” should apply in criminal justice.

Also, it is not uncommon for Supreme Court judges to themselves be divided on important questions of criminal justice policy. Examples include whether maintaining “confidence in the administration of justice” can be used as a basis to deny bail, whether a mandatory minimum for possession of a loaded gun was “cruel and unusual punishment,” or the circumstances under which police could arrest someone in their dwelling place without a warrant.

Research has shown that whether Supreme Court judges are more ideologically liberal or conservative has an influence on how they make decisions in civil liberties and criminal law cases. Although courts play a valuable role in defining and protecting rights, judges are not oracles who neutrally arrive at some ethically and scientifically optimal balance of the many factors in criminal justice; including the right to be presumed innocent, community protection, police power, civil liberties, victims’ rights, rehabilitation, deterrence, and punishment.

Conversely, the notion that Parliament would trample rights to appease the public, particularly under a Conservative government, is a caricature. Mandatory minimums, including those introduced by the Harper government, have been primarily struck down for violating “hypothetical” applications of the law rather than based on the facts of the case before the courts. There have also been examples of governments reassessing policy in the face of opposition, such as when the Harper government withdrew proposals to allow police access to internet subscriber information without a warrant to investigate crimes such as child pornography.

Furthermore, governments have been more “progressive” than courts in protecting the rights of women in sexual assault cases. Conservative leader Pierre Poilievre has been talking about restricting bail rights for “repeat violent offenders” or not allowing mass murderers the possibility of parole—proposals over which reasonable people can disagree. Unlike courts, parliamentarians can engage in democratic debate about such matters and be held accountable for the choices that they make.

Nevertheless, caution is warranted around Section 33. Parliament does not have a good-track record of meaningfully engaging in rights analysis. Data on which to create good policy, especially in criminal justice, is often lacking. Where good research evidence does exist, governments at times have ignored it, such as by exaggerating the impact of longer sentences and mandatory minimums on public safety (while oddly not emphasizing normative values of punishment).

Section 33 should not be off-limits in criminal justice, but it should be used with careful deliberation and only after a court has declared a law invalid under the Charter.  Such judicial decisions can be valuable in highlighting rights that are at risk by legislation and should be part of the policy conversation.

Brian Dijkema: It’s time for freedom of conscience to stop union dues from going to Hamas sympathizers

Commentary
A pro-Palestine march gathers in a Toronto intersection on Sunday October 29, 2023, Protesters took to the street in support of the people in the Gaza Strip amid an ongoing war between Israel and Hamas. Chris Young/The Canadian Press

The Canadian Union of Public Employees (CUPE) held their Ontario convention this week in Toronto against a backdrop of union-supported protests on university campuses across the country, including the University of Toronto itself, notwithstanding troubling evidence of antisemitism.

These protests have had two notable supporters: the head of CUPE Ontario, Fred Hahn, and the Ayotolla Khomeni, the radical Muslim cleric, who is the supreme authority of Iran’s thuggish theocracy. CUPE’s strident support for the protestors in spite of this dubious distinction as well as real concerns about the protests’ content raises bigger questions about union representation of its entire membership, including, in this case, Jewish early childhood educators.

CUPE’s involvement in these anti-Israel protests represent the latest provocation of Canadian workers who may wonder why their union dues are being spent to provide public relations support for causes like intifada, which would burn the conscience of any normal human being.

In the wake of the atrocities committed in Israel on October 7, a number of unions in Canada shocked their membership and the public by making statements supportive of “resistance” which was understandably interpreted as support for Hamas itself. Since that time, CUPE and other unions have doubled down in their support. Consequently revelations have surfaced of structural antisemitism in public sector unions.

Because of this, a number of union members have wanted to redirect their dues to charities of their choice. One member, Carrie Silverberg, writing for Newsweek about a suit that was launched against her union at the Ontario Human Rights Council, said “We want damages for the pain and suffering CUPE has caused us. We want to re-direct our union dues to a Jewish charity of our choice.”

Many agree with her and her colleagues. They recognize that the consciences of these workers have been harmed by their union and believe that there should be some legislative means to meaningfully protect them.

However, most don’t know that provincial and federal labour law, and the case law which supports it, does not provide any access to such a remedy. Instead, union members have to resort to hiring a lawyer and taking it up with human rights tribunals.

It’s time for that to change. It’s time for a recognition and expansion of conscience rights within Canadian labour law that’s attuned to the sociological realities of our current day. It’s time to provide meaningful and actionable means for Canadian workers to exercise their constitutionally protected freedom of conscience in a way that doesn’t unduly hinder the equally protected constitutional right to association as it’s exercised through the forming of trade unions and workers’ associations.

In short, we need legislative change to ensure that union members have the legal ability to effectively opt out of the activities of their unions that harm their conscience.

Current status of conscience rights in Canadian labour law 

Section 2a of Canada’s Charter of Rights and Freedoms states that everyone has the fundamental freedom of conscience and religion.

Provincial and federal labour law do contain clauses which allow for trade union members, even those in closed shops, to cease being union members on the basis of this freedom.

These laws appear to provide adequate and broad protection of religious freedom. In fact, these laws have been interpreted by tribunals in such a highly restrictive way that both vast swathes of religious people—indeed whole religious groups—are precluded from exercising their rights. Even those who claim no religious connection have no viable means for exercising their conscience rights. Most labour laws provide no basis for meaningful exercise of freedom of religion or conscience.

Currently the bar for religious exemptions is quite high and the bar for conscientious objections is non-existent. On the religious front, Alberta’s Labour Relations Board provides an example of the test used by labour boards/tribunals across the country to determine whether or not a member passes the test:

The applicant’s beliefs and objections must be sincere….

[They must also be religious.] “Religious” means the beliefs must relate to the divine, or mankind’s perceived relationship to the divine, as opposed to earthly institutions. A religious conviction or belief involves the human recognition of some higher or unseen power as having control of human destiny, and as being entitled to obedience, reverence and worship. The views must be religious as opposed to being moral, social or political views.

The objection must be tied into the religious beliefs. The objections may emanate from several causes. The religious cause must predominate for the objection to succeed. The religious objection must also go to the fundamental aspects of union membership or financial support, not just incidental aspects of union affiliation. This arises most frequently when a union supports or contributes to a cause to which the applicant objects, even though they do not object to the union itself.

What is clear from this test—which, again, is a precis of the test used throughout the country—is two things:

1. It places an extremely high bar for members’ exercise of religious freedom rights. It restricts objections to unions per se, not the actions, constitutions, or words of any particular union, even though they may be objectionable and harmful of the workers’ religious conscience. For clarity, the largest religious groups in the country—all Roman Catholics, most Jews, Muslims, Sikhs, and most other Christian denominations—do not meet this test.

2. It does not provide any protection of a workers’ freedom of conscience, as opposed to their freedom of religion. Many workers whose consciences might be harmed by membership in a trade union, while not religious, simply have no clear means of exemption, as persons, to their union.

Context mattersreligion and conscience in Canada 

Why does this matter? First, any law intended to protect religious freedom, yet excludes the overwhelming majority of religious people from meeting its test is a failure. Second, it does not provide proper protection of atheist, agnostic, or non-religious Canadians. Consciences are not restricted simply to the religious citizens of this country, but are common to all humans. Nor does it adequately provide protection for conscience rights that are enshrined in positive law via our Constitution and its Charter of Rights and Freedoms. Section 2a does not simply refer to freedom of religion, but explicitly mentions freedom of conscience.

Studies show that there are increasing number of Canadians who are not religious. As a recent report from Statistics Canada notes: “Approximately 12.6 million people, or more than one-third of Canada’s population, reported having no religious affiliation. The proportion of this population has more than doubled in 20 years, going from 16.5 percent in 2001 to 34.6 percent in 2021.”

Given that StatsCan estimates that approximately 65 percent of Canadians are of working age, that means that of this 12.6 million, there are 8.19 million working Canadians who are non-religious. Considering that Canada’s union density rate of approximately 29 percent, this means that approximately 2.375 million Canadians do not have the protection of positive law for their consciences; exemptions apply only for narrow, explicitly religious reasons, and do not extend to “moral, social, or political” concerns.

This is despite the fact that it is clear that moral, social, and political concerns are, indeed, concerns of conscience, as is made evident by the fact that we use terms such as “political prisoner” and “prisoner of conscience” interchangeably in, say international law. Yet, in labour law, consciences are left unprotected. It is, as UBC legal scholar Brian Bird notes, a forgotten freedom.

Consider three case studies:

1. An atheist trade union member, whose conscience does not allow her continued membership in a union, has no means to exercise her conscience by requesting an exemption. The reason is that, despite having deep and profoundly held principles which she personally and sincerely believes are being violated by her union, the law does not specifically cite conscience rights as distinct from religious rights. Furthermore, the tests in case law don’t contemplate equal treatment of conscience and religion.

2. An ethnically Jewish member of a union who is non-religious, whose conscience objects to her union providing public support and endorsement of “resistance” by political authorities which practice the murder, rape, and desecration of Jewish women, has no means to exercise her conscience rights, because she is a secular rather than a religious Jew, and her objections arise from humanist ethical and social, rather than religious reasons.

3. Another Jewish member who is modern orthodox, and attends synagogue regularly shares her fellow secular Jewish union member’s objection to her union’s support for Hamas, has no meaningful way to be exempt from her union. This is because her objections, which, despite being sincerely held and arising from religious grounds, pertain not to “the union itself” but its “moral, and social views.” She believes, for religious reasons, that unions are important, but also believes that she should not be compelled to financially support a union that operates or participates in activities that are explicitly contrary to her religious beliefs, and indeed her identity.

In each of these cases, the members have bona fide objections which are sincerely held, and clearly arise from their consciences. But the law and its interpretation provide the union members with the means to exercise their constitutionally protected freedom of conscience or religion, save for trying to decertify or change their union at the next open period or quitting their job.

The latter pits the exercise of conscience against the worker’s livelihood. The former moves what is an inherent and constitutional right held by a person into something that can only be exercised as a group- some (or many) of whom may not share the person’s conscientious concerns. This is unconstitutional, untenable, and unconscionable.

What can be done to address these issues? 

Canadian governments should enact legislative reforms that bring objection issues in line with the Constitution and with Canadian realities, resulting in meaningful protection of both religious and non-religious conscience rights. How?

Existing exemption clauses should be amended to clarify that they apply to both conscience and religion. Using language from Ontario’s Labour Relation Act as a case study, it should state:

52 (1) Where the Board is satisfied that an employee because of his or her religious conviction or belief, or for reasons of conscience,

(a) objects to joining a trade union; or

(b) objects to the paying of dues or other assessments to a trade union, the Board may order that the provisions of a collective agreement of the type mentioned in clause 51 (1) (a) do not apply

It should specify that such an objection refers not only to religion, but to issues of conscience that include moral, or social views. The test should simply be that they are held bona fide. The legislation of a test is critical to give these consciences meaningful weight, as the current test fails in that regard. How might this look? To use language from Ontario’s Labour Relation Act again, it should state:

52 (1) Where the Board is satisfied that an employee because of his or her religious conviction or belief, or for reasons of conscience, that include moral, or social views,

(a) objects to joining a trade union; or

(b) objects to the paying of dues or other assessments to a trade union,

The Board may order that the provisions of a collective agreement of the type mentioned in clause 51 (1) (a) do not apply

The test for the Board to be satisfied will be whether such religious conviction or belief, or reasons of conscience, are sincerely held and asserted in good faith.

This removes the need for adjudicators to make particular judgments about whether something is—or is not—religious, and whether or not religion (as opposed to conscience) is —or is not—the predominate reason for their objection. In both areas, the court’s and tribunal’s competence can be called into question. It also establishes a test which is more sensitive to real issues of conscience and does so according to test of good faith that are well established in law.

Finally, it should alter the remedy to ensure that the free-rider problem is eliminated, and that the worker is able to direct the dues taken of his or her paycheque to an organization that is more in line with their conscience.  It should clarify that the worker must still have the equivalent of dues taken from their paycheque in the same manner as any other member (as is currently the practice for the very few who meet the existing test), but that the employer must direct that amount to a registered Canadian charity of the worker’s choice.

Current law at various levels stipulates that these processes are followed. But many require that the union and the worker co-determine the direction of the funds, and often place the vice-chair or judge as the arbiter when such an agreement can’t be reached. Clarifying that the direction to a registered Canadian charity makes it clear and simple (charities are registered with the Canadian government, and are easily accessible via the government’s directory) and allows the worker whose conscience has been violated to maintain moral control over the direction of funds that arise as a result of a successful exemption. Propose language using Ontario’s Labour Relations Act might look like as follows:

The Board may order that the provisions of a collective agreement of the type mentioned in clause 51 (1) (a) do not apply to the employee and that the employee is not required to join the trade union, to be or continue to be a member of the trade union, or to pay any dues, fees or assessments to the trade union, provided that amounts equal to any initiation fees, dues or other assessments are paid by the employee to or are remitted by the employer to a charitable organization registered as a charitable organization in Canada under Part I of the Income Tax Act (Canada)identified by mutually agreed upon by the employee. and the trade union, but if the employee and the trade union fail to so agree then to a charitable organization registered as a charitable organization in Canada under Part I of the Income Tax Act (Canada) that may be designated by the Board.  1995, c. 1, Sched. A, s. 52 (1); 2004, c. 16, Sched. D, Table.

These various legislative amendments would create positive legal protection for the inalienable conscience rights of Canadian workers, and will do so in such a way that does not introduce “free-riding.” They provide genuine and meaningful protection of workers’ conscience and religious Charter rights without undermining workers’ Charter right to meaningfully associate in trade unions for their mutual benefit.

Conclusion 

No doubt the first response from the labour movement to these ideas will be to accuse me of trying to undermine their cause and suggest that concerns for conscience and religious freedoms of workers is just a guise for union busting.

My response is that I am on record, in both conservative and other venues, as defending and promoting trade unions as critical institutions that provide genuine community to workers. They serve as buffers against the excesses of capital, and a means for justice in the workplace and in our economy as a whole. Let me say it as clearly as possible: trade unions are good things and we should embrace them as collaborative partners in a successful, productive and growing labour market and economy. The protection of the right to associate is critical to that embrace, and in Canada we have very robust case law that guards those rights. This is a good thing.

But second, and more importantly, the union movement should take seriously its own slogan (taken from the preacher, Rev. Martin Luther King Jr.) that “an injustice anywhere is a threat to justice everywhere.” The same holds for our basic freedoms. Laws that uphold the freedom of association at the cost of freedom of religion and conscience are fundamentally unjust. And it’s hard to look at our labour law—and the case law that defines it—made to protect religious freedom, exclude the overwhelming majority of religious people in Canada from exercising that freedom and call that law just.

Moreover, it’s hard to call a law that provides workers with zero ability to exercise their freedom of conscience “just.” We have decades of court decisions that protect the freedom of association, and there doesn’t appear to be any danger of that changing. These legislative amendments will do little to change that. What they will do is provide workers with meaningful ways for workers to exercise two fundamental freedoms that are part of our culture and our Constitution.