Amici Curiae: What Should Canada Do About Guns, Limitation of Fundamental Protest Rights and Assisted Suicide?

Summer of the Gun

For those in Toronto, this has become the summer of gun violence. Just a few weeks ago, a shooting in the Eaton Centre, Canada’s largest shopping mall, sent shockwaves through the city. It left two dead and a handful of innocent weekend shoppers injured. In broad daylight, shots were fired in one of the highest density places in the country. Last week, Toronto experienced its darkest episode of gun violence. A street party in Scarborough ended with two people killed – including a 14-year old girl. Over twenty people were injured as bullets went flying in the neighbourhood.

Sure, much of it is rabble rousing. Regardless, lawyers and politicians are scrambling to find a “fix” for this problem. For example, the Attorney General of Ontario, John Gerretsen, demanded that the federal government re-examine our country’s gun laws. Specifically, he calls for a complete ban on handguns.

Toronto Mayor Rob Ford points to minimum sentences. He argues that we need get “tougher” on crime; particularly we need to boost mandatory minimum sentences for those convicted of illegally possessing weapons. This comment stands in stark contrast to a recent Ontario Court decision, where a judge struck down the automatic three-year sentence for firearms trafficking, stating that the sentence was disproportionate to the offence.

But there is more. Another proposal made by Mayor Rob Ford is to remove all convicted gun criminals from Toronto. He made this rather brazen remark Wednesday night: “I don’t want them living in this city. They can go anywhere else, but I don’t want them in the city.”

From banning handguns altogether to kicking all convicted gun criminals out of the city, it is no wonder that many critics are calling Ford’s bluff. Even after the dust settles from Monday’s shooting rampage, this conversation about gun violence will surely continue – and hopefully become a more constructive one.

Canada’s ‘Alarming’ Limitation of Fundamental Rights, Thanks to Bill 78

A few weeks ago, we covered the student protests against the tuition fee hike in Quebec, and the passage of Bill 78, or An Act to enable students to receive instruction from the postsecondary institutions they attend. The major concern highlighted was the Bill’s violation of the students’ right to peaceful assembly and freedom, by heavily penalizing protestors who did not comply with the new ‘8-hour protest notice’ requirement of the Bill.

To add more fat to the fire, the United Nations High Commission for Human Rights (UNHCR) recently criticized Canada for the passage of the Bill, with Commissioner Navi Pillay slamming it as ‘alarming,’ given the width of restrictions it places on the right to peaceful assembly. And then, she went on to speak of the mass atrocities in Syria, Mali, Eritrea, Nepal, Mexico, Ukraine, Moldova and Russia in the same breath, effectively bringing Canada in that fold. Ottawa was quick to defend itself, with the primary justification for the Bill being that the rule of law was not being respected by the same protestors who left the government with no other choice but to implement the harsh measures of Bill 78. Other comments asked the UN to focus on more pressing human rights abuses around the world, and to consider Geneva’s own stringent 30-day protest notice rule.

The controversy begs the question of whether the best way to fix civil disobedience, if it can be called that, is through suppression of the entire fundamental right to dissent. A protest is arguably that – a group of people disagreeing with the actions and opinions of another group, except in the formalized context of civilians versus the government, as the Quebec student protests were. The true alarm in the matter might be in the vague wording of the Bill itself, which could have a chilling effect on all protests, and not just the current student ones – because it could make “protests about anything anywhere in Quebec illegal.”

No Surprise Here: Carter v Canada Appealed

“The laws surrounding euthanasia and assisted suicide exist to protect all Canadians, including those who are most vulnerable, such as people who are sick or elderly or people with disabilities…. The Supreme Court of Canada acknowledged the state interest in protecting human life and upheld the constitutionality of the existing legislation in Rodriguez (1993).” These were the words expressed by Justice Minister, Rob Nicholson last Friday when the Federal government announced it would be appealing Justice Lynn Smith’s decision in Carter v Canada 2012 BCSC 886. This appeal, was no surprise as the 400-page decision effectively created an exception to the Criminal Code to allow for physician-assisted suicide.

Section 241 (b) of the Criminal Code prevents anyone who “aids or abets a person to commit suicide.” Justice Smith found that the law was unconstitutional, violating the s. 7 rights of liberty and security of the person. Additionally, the right to life is affected in cases where individuals like  Ms. Taylor conclude she needs to take her own life earlier than the date that she would have otherwise deemed necessary. These violations were found to be inconsistent with the principles of fundamental justice – the provisions are overbroad and the legislative response of an absolute ban was found to be grossly disproportionate to the objectives of the legislation. The provision was also found to discriminate against those with physical disabilities, and those who might need a form of assistance to exercise their rights to take their own lives. This violation of s. 15 rights (equality) could not be justified under s.1 of the charter.

In her lengthy decision, Justice Smith was able to overcome the challenges of the Supreme Court’s decision in Rodriguez v BC [1993] SCR 519 — which upheld the provision in the code– by wading through a tremendous amount of evidence and compiling a thorough legal analysis. She ultimately found however, that it was up to Parliament to re-write the law, giving them one year to do so. She also recognized the time sensitive nature of Ms. Taylor’s condition allowing an immediate exception for Gloria Taylor and her doctor. Taylor suffers from ALS (Lou Gehrig’s disease). Rob Nicholson has sought a suspension of all aspects to the ruling, including the exception for Ms. Taylor.

Despite the comprehensiveness of Justice Smith’s decision, it is really no surprise that the Justice Minister has appealed the decision. This is one of the major Charter cases of the century – not only is it an expression of the strength of sections 7 and 15 of the Charter, but also indicates the progress case law has made since Rodriguez was decided in 1993.