Left Column (Draft Filler)

UNDER CONSTRUCTION - FILLER - DRAFT - Section 7 violations are not easily saved by s. 1.  In Re B.C. Motor Vehicle Act I said:  “Section 1 may, for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s. 7, but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like.”  This is so for two reasons.  First, the rights protected by s. 7 – life, liberty, and security of the person – are very significant and cannot ordinarily be overridden by competing social interests.  Second, rarely will a violation of the principles of fundamental justice, specifically the right to a fair hearing, be upheld as a reasonable limit demonstrably justified in a free and democratic society:  New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 CanLII 653 (S.C.C.), 1999 CanLII 653 (S.C.C.), 1999 CanLII 653 (S.C.C.), [1999] 3 S.C.R. 46; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 (CanLII), 2002 SCC 1 (CanLII), 2002 SCC 1 (CanLII), [2002] 1 S.C.R. 3, 2002 SCC 1 .

While t

he Canadian approach, unlike the American, does not apply special tests to restrictions on commercial expression, our method of analysis does permit a sensitive, case-oriented approach to the determination of their constitutionality.  Placing the conflicting values in their factual and social context when performing the s. 1 analysis permits the courts to have regard to special features of the expression in question.  As Wilson J. notes in Edmonton Journal, 1989 CanLII 20 (S.C.C.), 1989 CanLII 20 (S.C.C.), 1989 CanLII 20 (S.C.C.), [1989] 2 S.C.R. 1326, not all expression is equally worthy of protection.  Nor are all infringements of free expression equally serious.  The expression limited by the regulation here is that of dentists who wish to impart information to patients or potential patients.  The two opposing factors -

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that the expression is designed only to increase profit, and that the expression plays an important role in consumer choice - will be present in most if not all cases of commercial expression.  Their precise mix, however, will vary greatly, which is why it is inadvisable to create a special and standardized test for restrictions on commercial expression, as has been

 done in the United States: Rocket v. Royal College of Dental Surgeons, 1990 CanLII 121 (S.C.C.), 1990 CanLII 121 (S.C.C.), 1990 CanLII 121 (S.C.C.), [1990] 2 S.C.R. 232; R. v. Keegstra, 1990 CanLII 24 (S.C.C.), 1990 CanLII 24 (S.C.C.), 1990 CanLII 24 (S.C.C.), [1990] 3 S.C.R. 697; R. v. Butler, 1992 CanLII 124 (S.C.C.), 1992 CanLII 124 (S.C.C.), 1992 CanLII 124 (S.C.C.), [1992] 1 S.C.R. 452.

UNDER CONSTRUCTION

July 2011

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Innocent until proven Facebook: Vancouver Hockey Riot 2011

BY KENT-DANIEL GLOWINSKI, VANCOUVER SUN JUNE 21, 2011

When I worked for the Ontario Office of the Information and Privacy Commissioner in 2006, the commissioner would regularly warn young Canadians about the possible dangers of disclosing too much personal information on social media websites such as Facebook.

At the time, Facebook was still on the rise in Canada, and privacy commissioners biggest fears were the negative impact inappropriate and nudey-or-boozy photos posted openly on such websites could have on reputation and future jobs. Facebook: destroyer of careers.

No one ever imagined, however, the role Facebook would play in law enforcement. Within the five years since I worked for Commissioner Ann Cavoukian, Facebook is credited daily with catching speeders, sexual assaulters and even cheating spouses. More surprising is the evidence is almost always posted by the accused themselves. Facebook: Bringer of justice.

If there are winners to be credited in the riot, they would be (1) Idiocy and (2) Facebook.

Firstly, idiocy because of the sheer numbers of idiots who rioted, looted, burned and vandalized, but the equally as high number of the same idiots who brazenly, arrogantly and stupidly posted and admitted their involvement on their Facebook pages.

Secondly, Facebook because, through its very nature, it helped those delusionally narcissistic folks to easily admit guilt and deliver the crown prosecutor signed, sealed and delivered confessions. As a lawyer, I am not one to praise confessions, but when they are brash and proud, as the saying goes, give a man enough rope and .

Most Canadians would not believe that Canada is a surveillance society and thus think they can do bad things anonymously in public. Unlike England, we dont have many government-operated cameras (CCTV) patrolling public spaces. However, in Canada, as the 2011 riot proves, while government is not operating cameras, every citizen with a cellphone and every business with cameras form a private network of complete public surveillance. And, with the police receiving millions of riot photos, both citizens and businesses are clearly willing to volunteer their services to the state.

For defence lawyers to watch clients caught in the act (from multiple vantage points) is dispiriting, to then see them consciously, and above all, proudly admit to it online, is cringe-inducing.

But folks get what they deserve. Like the good-looking water polo-player, Nathan Kotylak, who thinks that a lawyer, an apology and some restitution will make it all go away. The other problem with many folks is they dont realize that the memory of Facebook and the Internet is eternal.

That one night of boozy-vandalizing fun, which many young guys have had at one point, can be forgiven and forgotten by people. Heck, I even forgive Nathan Kotylak and his rioting colleagues and think they will be productive citizens in the future.

The Internet, however, is not so forgiving. Even once the dust has settled, once the criminal charges are completed, and the community service swept and mopped away, Nathan will still always be that guy.

Forever. On Google.com, one of the first results for a search of his name will always be a photo of him lighting a cop car on fire. In a sense, the punishment meted out by Facebook will be far worse than anything a court could ever give.

I am not religious, but the proverb: pride comes before the fall seems appropriate. No doubt, Facebook helped provide idiots a canvas for that pride. I dont think what we saw in Vancouver on June 15, 2011 was a mass of sociopaths. Instead, I think we witnessed what happens at the extreme of narcissism and selfishness, of destruction in the name of attention or fame, of people who forget that outside of that bubble of me is an entire world right there watching.

Whereas I used to be extremely critical of Facebook and its lack of privacy controls, I can now officially say thank you to Facebook for saving the B.C. taxpayers money by allowing rioters to provide evidence against themselves, free of charge.

I tip my hat to those idiots, and thank you again for posting your guilt on Facebook. Instead of fame and fortune, you found infamy and ridicule. Like the lyrics of a song The Ballad of Brock Anton written by a Vancouver artist about Brock Anton, rioter: My name is Brock Anton, not to be confused with Zac Efron, cause one of us is rich and one of us is a moron.

Kent-Daniel Glowinski is an Ottawa lawyer. He has worked for the Ontario and B.C. Information and Privacy Commissioners on social media issues.

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Running with the lambs

By Kent Glowinski, Ottawa Citizen May 26, 2011

This week, NDP Leader Jack Layton has been meeting with his 103-member caucus, a group liberally sprinkled with "sacrificial lamb" candidates who began the election campaign with no realistic hope of winning. But here they are.

I was once a sacrificial lamb candidate for a political party (also known as placeholder, seat-warmer, or, in Quebec, a "poteaux" candidate). Jean Charest was leader of the party. Jean Chrtien was prime minister.

In 1997, at 18 years of age, I ran as the federal candidate in the federal riding of Skeena (now Skeena-Bulkley Valley), British Columbia for the now-dead Progressive Conservative party.

But those were different times. Back then, we lambs ran. We ran, and we campaigned. I had a nomination meeting (attended by about six people, including my parents, and younger brother), I went to every single election debate, I doorknocked, and I talked to the media. I can still see my father pounding my election signs into the mossy, soggy, wet turf of northern British Columbia.

We even did a stakeout (with borrowed cellphones from the opposing Liberal candidate -thank you Rhoda Witherly) when it turned out former high-school classmates of mine were destroying campaign signs or spray-painting "FAG" (in yellow) across them in the middle of the night. Two of them were arrested after we caught them in the act.

My grandmother, originally from Norway, who had immigrated to Canada with her four brothers and sisters and homesteaded in Smithers, B.C., came with me on the campaign trail as I spoke to constituents in the northern B.C. interior. She even showed me the place where her dad built a log cabin for the family out of old railway ties.

I got 1,106 votes. I lost. Badly. In 2000, under the Honourable Joe Clark, my younger brother, Devin, while at McGill University, ran as the sacrificial lamb candidate for the Progressive Conservatives in the same riding.

He actually went to the riding, gave media interviews, and lived at home with our parents. Again, a sacrificial lamb who actually campaigned.

A decade later, however, things have changed. A lot. Being a sacrificial lamb candidate for a political party means, well, nothing.

Looking, for example, at Ruth Ellen Brosseau, the Honourable Member for Berthier-Maskinong, one who did not have to speak the same language as constituents, live in the riding, ever have campaigned in the riding or, lastly, care at all.

Go on vacation, come home, and you're a member of Parliament.

In fact, as the 2011 federal election has demonstrated, being a name with a warm body is all that matters. It does not even matter that you might have misbehaved in life, had a jaded history, or cannot even be reached by telephone by your own political party -la NDP. Go to Vegas, do nothing, exist. Prerequisites for a member of Parliament in 2011.

That's depressing. Especially for those Canadians who do care, who do give up careers, salaries and time with families, friends and loved ones, for the honour, privilege and sacrifice to become a member of Parliament. Many of whom, by the way, ran in the 2011 election.

I recently had a lot of discussions with friends and family about running again for federal office. I was seriously concerned about how political parties and the public might view it if I ever ran again -but this time for a seat that was "winnable" (as is said in political circles). Literally, as the 2011 election has shown, anyone can run for the right party at the right time and they will become a member of Parliament.

Canadian politics is now just about the brand. Candidates -good, bad, ugly, terrible -do not matter. Run for the right party brand, and win. Like the Conservative candidate in Lethbridge, Alberta. Bring several friends to a nomination meeting, win it, and never campaign. Tell off the media. Answer no questions. Just win. Right party. Right riding. Member of Parliament.

An election with no candidates at a candidate debate. Bizarre. Otherworldly.

I have never been a proponent of proportional representation, but if there is evidence for supporting it, the 2011 Canadian federal election is it. People do not vote for local candidates, aside from the few wellknown members like Scott Brison or Ralph Goodale. They vote for leaders. They vote for parties. Ruth Ellen -who's that? If Canada had proportional representation, parties would have ensured that their top choices for candidates, who were likely to get elected, were Canadians who cared and did not view Parliament as a hobby.

I cannot believe I just made an argument for proportional representation.

I will never judge Canadians for whom they vote. But when I read the headlines about the Qubcois and Qubcoise who voted for NDP members of Parliament who have no connection to their riding, I do wonder if people are paying attention. As they say, you get what you pay for. But I really am concerned about those constituents who elect a member of Parliament who is unable to help with basic things like passport applications, Employment Insurance appeals or navigating bureaucracy.

And also, it pulls on my heartstrings to see people like Scott Bradley, the 2011 Liberal candidate in Ottawa Centre, who door-knocked every day for over a year and campaigned every single day, with his kids in tow, get out-voted by a Conservative candidate who, himself, was just a sacrificial lamb who rarely showed up to debates or campaign events.

Never in my wildest dreams would I imagine a campaign where many Conservative candidates simply don't debate, where unilingual anglophones get elected by sovereignist Qubcois and Qubcoise.

Now, more than ever, I am driven to run for office. I am going to run in a riding that matters to me. And, even if I am a sacrificial lamb for my party, I am going to campaign, I am going to be reachable by cellphone, I am going to debate and, above all, I am going to do it while defending my past and my experience. I will be accountable and accessible.

And I won't be in Las Vegas.

Kent Glowinski is a lawyer in Ottawa.

"Don’t Get Enough Credit? The Need for an Impartial Consumer Credit Report Appeal Tribunal in Ontario", Journal of Law and Social Policy, Vol. 22, 2009, by Kent Glowinski

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"Winning through Analogy: The Strategic Use of the Representative Plaintiff", Irwin Law, Class Action Review, 2004, by Kent Glowinski

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While the substance of the s. 1 test has essentially remained constant, its application has varied with the circumstances.  The Supreme Court of Canada has stressed that the test is flexible and must be applied with sensitivity for the particular context (e.g., Dunmore v. Ontario (Attorney General), 2001 SCC 94 (CanLII), 2001 SCC 94 (CanLII), 2001 SCC 94 (CanLII), [2001] 3 S.C.R. 1016).  Broadly speaking, where a legislature has been obliged to strike a balance between the claims of competing groups, the

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Court has been more inclined to defer to the legislative judgment than where the government acted as the “singular antagonist of the individual whose right has been infringed”,  as is the case with criminal or penal laws (Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (S.C.C.), 1989 CanLII 87 (S.C.C.), 1989 CanLII 87 (S.C.C.), [1989] 1 S.C.R. 927; Libman v. Quebec (Attorney General), 1997 CanLII 326 (S.C.C.), 1997 CanLII 326 (S.C.C.), 1997 CanLII 326 (S.C.C.), [1997] 3 S.C.R. 569).  The Court’s recent judgments, however, suggest that it views the mediator/antagonist distinction as imprecise, and that it will scrutinize the circumstances carefully before determining whether any deference is due:  RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (S.C.C.), 1995 CanLII 64 (S.C.C.), 1995 CanLII 64 (S.C.C.), [1995] 3 S.C.R. 199; Thomson Newspapers v. Canada (Attorney General), supra.

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To meet the test in s.1, two central criteria must be satisfied:  (i) the objective, which the measures responsible for a limit are designed to serve, must be of sufficient importance to warrant overriding a constitutionally protected right or freedom.  The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s.1 protection.  At a minimum, an objective must relate to concerns which are

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pressing and substantial in a free and democratic society before it can be characterized as sufficiently important; (ii) the party invoking s.1 must then show that the means chosen are reasonable and demonstrably justified, which involves a form of proportionality test having three elements:  (a) the measures adopted must be carefully designed to achieve the objective in question.  They must not be arbitrary, unfair or based on irrational considerations; (b) the means, even if rationally connected to the objective in the first sense, should impair as little as possible the right or freedom in question; and (c) there must be a proportionality between the effects of the measures and the objective which has been identified as of sufficient importance.  Even if an objective is of sufficient importance, and the first two elements of the

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proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve.  The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified: R. v. Oakes, 1986 CanLII 46 (S.C.C.), 1986 CanLII 46 (S.C.C.), 1986 CanLII 46 (S.C.C.), [1986] 1 S.C.R. 103.

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In many instances, the imposition of a measure will result in the full, or nearly full, realization of the legislative objective.  In these situations, the third step of the proportionality test calls for an examination of the balance that has been struck between the objective in question and the deleterious effects on constitutionally protected rights arising from the means that have been employed to achieve this objective.  At other times, however, the measure at issue, while rationally connected to an important objective, will result in only the partial achievement of this object.  In such cases, I believe that the third step of the second branch of the Oakes test requires both that the underlying objective of a measure and the salutary effects that actually result from its implementation be proportional to the deleterious effects the measure has on fundamental rights and freedoms.  A legislative objective may be pressing and substantial, the means chosen may be rationally connected to that objective, and less rights-impairing alternatives may not be available.  Nonetheless, even if the importance of the objective itself (when viewed in the abstract) outweighs the deleterious effects on protected rights, it is still possible that the actual salutary effects of the legislation will not be sufficient to justify these negative effects.  I would, therefore, rephrase the third part of the Oakes test as follows:  there must be a proportionality between the deleterious effects of the measures which are responsible for limiting the rights or freedoms in question and the objective, and there must be a proportionality between the deleterious and the salutary effects of the measures: Dagenais v. Canadian Broadcasting Corporation

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The third stage of the proportionality analysis was originally formulated in R. v. Oakes as ensuring a general proportionality between the measures and the York university kent glowinski

pressing and substantial objective of the provision under scrutiny.  This formulation has been criticized as merely duplicating what is already accomplished by the first two stages of the proportionality

proportionality between the deleterious and the salutary effects of the measures."  In my view, the first part of this reformulation is already achieved by virtue of the first two parts of the Oakes proportionality test.  The subsequent development of the Oakes test ensures that the rational connection and the minimal impairment tests are sufficient to determine whether there is a proportionality between the deleterious effects of a measure, and its objective.  The third stage of the proportionality analysis performs a fundamentally distinct role.  Determining whether there is a pressing and substantial objective behind the provision under scrutiny necessarily occurs in the abstract, before the specific nature of the legislation and its impact on the Charter right has been analysed.  Before the specific effects of the measure in question have been scrutinized http://osgoode.yorku.ca/media2.nsf/releases/CADEC3883EA1259085256E58007DBB2D

http://queen-of-the-north-news.newslib.com/story/7588-10/ concretized through the first two steps of the proportionality analysis, it is often difficult to assess, in the abstract, the possible impact on Charter freedoms of a laudable legislative objective.  The focus of the first and second steps of the proportionality analysis is not the relationship between the

kent glowisnki new homepage website measures and the Charter right in question, but rather the relationship between the ends of the legislation and the means employed.  The third stage of the proportionality kent glowinski legal article ssrn

analysis provides an opportunity to assess, in light of the practical and contextual details which are elucidated in the first and second stages, whether the benefits which accrue from the limitation are proportional to its deleterious effects as measured by the values underlying the Charter.  As Professor Jamie Cameron states:  "...this branch of the section 1 analysis asks an important question.  By assessing the proportionality of its deleterious effects and salutary benefits it considers, in direct and explicit terms, whether the consequences of the violation are too great when measured against the benefits that may be achieved.  As such, it is the only part of the current analysis to acknowledge the harm or cost of justifiable limits:  that a constitutional right has been violated": 

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In Oakes, this Court stated that the nature of the proportionality test under s.1 would vary depending on the circumstances.  Both in articulating the standard of proof and in describing the criteria comprising the proportionality requirement the Court has been careful to avoid rigid and inflexible standards. 

 

 In regulating industry or business it is open to the legislature to restrict its legislative reforms to sectors in which there appear to be particularly urgent concerns or to constituencies that seem especially needy.  Legislative choices regarding alternative forms of business regulation do not generally impinge on the values and provisions of the Charter, and the resultant legislation need not be tuned with great precision in order to withstand judicial scrutiny.  Simplicity and administrative convenience are legitimate concerns for the drafters of such legislation: Edwards Books and Art Limited et al. v. R., 1986 CanLII 12 (S.C.C.), 1986 CanLII 12 (S.C.C.), 1986 CanLII 12 (S.C.C.), [1986] 2 S.C.R. 713.

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Section 1 obliges the party seeking to uphold the limitation to establish both that the objective underlying the limitation is of sufficient importance to warrant overriding a constitutionally protected right or freedom, and that the means chosen to reach this objective are proportionate. This analysis must be undertaken with a close attention to the factual and social context surrounding the enactment of the challenged statute; as I noted in Thomson Newspapers, "context is the indispensable handmaiden to the proper characterization of the objective of the impugned provision, to determining whether that objective is justified, and to weighing whether the means used are sufficiently closely related to the valid objective so as to justify an infringement of a Charter right": Dunmore v. Ontario (Attorney General), 2001 SCC 94 (CanLII), 2001 SCC 94 (CanLII), 2001 SCC 94 (CanLII), [2001] 3 S.C.R. 1016, 2001 SCC 94.

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The factors to be considered in applying the Oakes test have frequently been reviewed, most recently in RJR-MacDonald Inc. v. Canada (Attorney General), where both the majority and minority agreed that an approach involving a "formalistic 'test' uniformly applicable in all circumstances" must be eschewed.  Rather, the Oakes test should be applied flexibly, so as to achieve a proper balance between individual rights and community needs.  In undertaking this task, courts must take into account both the nature of the infringed right and the specific values the state relies on to justify the infringement.  This involves a close attention to context.  In my reasons in RJR-MacDonald I stated that the "core" values of freedom of expression include "the search for political, artistic and scientific truth, the protection of individual autonomy and self-development, and the promotion of public participation in .  In the present case, the respondent's expression is expression that undermines democratic values in its condemnation of Jews and the Jewish faith.  It impedes meaningful participation in social and political decision making by Jews, an end wholly antithetical to the democratic process.

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