Ontario Legal Aid Cuts: class warfare

Legal aid is necessary because legal services cost money, and not everyone can afford them. Lives and fundamental rights to security of the person are often on the line when facing legal challenges. Our legal system doesn’t work for the poor and working poor of society. Recent cuts to Legal Aid  Ontario (LAO) represent a piece of a rotten whole and provides an opportunity to pose larger questions about access to justice beyond breadcrumbs. In this post, I will reflect on these issues, including the role of legal aid,  and the prospects for larger challenges to access to justice.

 

The cuts 

On April 11, the Ford government of Ontario cut Legal Aid Ontario (LAO) by 30%, which amounts to $133 million. As part of the gash, they almost entirely eliminated refugee and immigration coverage, with assistance for filling out Basis of Claim forms still in tact (this is about as minimal as possible). From my understanding, zero legal aid money will go towards refugee hearings, immigration detention reviews and challenges to deportations and other immigration issues. Many will face the peril of navigating the complex maze of Canadian immigration law, squared against legally armed government lawyers, defenceless. Losses will mean self-reps never making their case, getting deported to perilous circumstances, staying locked in immigration detention, being separated from their children, etc.

Cuts to LAO will impact low income people facing a host of legal issues as funding cuts are downloaded by LAO onto community legal clinics.  Parkdale Community Legal Services (PCLS), the largest of these clinics has been put on notice. They have been delivering necessary legal services to their community since 1971 and currently assist with legal issues including housing, worker’s rights, immigration, social assistance and violence.  In a May 3 statement from their board and staff, they stated:

On April 30th, we received communication that Legal Aid Ontario is unwilling to commit to more than one year of funding to the new lease and is unwilling to support any set up costs at the next site. The alternative option presented was for us to move out of our community.

LAO has also indicated that PCLS’ immediate and ongoing funding is uncertain.

The cuts are aimed at poor and working class people facing numerous legal challenges. In response to the cuts, Dana Fisher, spokesperson of the union representing LAO lawyers told CBC:

You’re looking at immediate impacts to defending people’s rights to liberty, to access to justice, to people being able to fight for custody to their children and access to their children, including women who are fleeing domestic violence.

(…)

From the immigration perspective, these are individuals who are facing extradition and torture and persecution and these are real lives that are going to suffer as a result of these cuts,”

 

Why Legal Aid?

Our legal aid system largely developed post World War II in the course of the substantial expansion of (uneven) wealth in society. In the UK, the 1949 Legal Aid and Advice Act was created to regularize the support for poor people having to navigate the legal system.  In Ontario, the Law Society Amendment Act was established in 1951. It helped establish funds for a small number of criminal and civil cases. In the 1970s, community legal clinics grew and eventually spread across the Canada, to assist in the delivery of some legal services to those in need (see this link for a brief overview from LAO). The only reason, I would argue, that legal aid was created at all was due to a contradiction in the rule of law.  The rule of law, one of the axioms of the Canadian legal system, states that no one is above the law and that the law applies equally to all (whether sic king or pauper). The legal system is not supposed to be only for the rich and powerful to abuse the poor. Yet, with a money-based legal system, that is exactly what happens.  To stem the bleeding and offer a palliative to the poorer in society, we have legal aid. It is a painkiller and coagulant to a legal system where the poor are not supposed to have the same chance as the rich.

 

The bigger picture of inaccessible justice

In 2013 the Canadian Bar Association issued a report titled, “Reaching Equal Justice”, which was both an overview of the depth of the problem of inaccessible justice and a call to action by lawyers to do more to stem the gap. The authors noted that there was — and nothing has changed on this front — overwhelming public support for legal aid and measures to make legal services accessible (page 16):

While there is generally low public awareness about legal aid, opinion polls have shown that when asked more detailed questions, people express strong and consistent support for providing adequate publicly funded legal aid. Polls have shown overwhelming support (91-96%), with 65-74% expressing the view that legal aid should receive the same funding priority as other important social services. Canadians believe justice systems must be accessible to all to be, in fact, just – and publicly funded services are required to get to equal justice. The current lack of confidence in our justice system suggests instead a perception that justice is inaccessible and even unfair.

It is no wonder that people think that justice is inaccessible. By and large, it is for most. The entire superstructure of legal services, involving the necessity of ongoing training, membership, liability insurance and overhead makes it extremely challenging to offer low cost legal services. The apparatus simply is not designed to deliver these results, but to favour high costs for wealthier clients and serves to give prosecution a default advantage.

As someone who has struggled to make legal service affordable, as a new lawyer, I can say that the challenge of trying to offer affordable services in private practice can be a balancing act on the edge of a cliff, where the lawyer and the client’s financial survival are both on the edge.

 

The present context

The cuts to LAO could raise a few issues about the legality of further cuts to legal aid, and has the opportunity to create  wedge to bring constitutional challenges to other exclusions from mandated government support for legal services. In a recent article, law professors Sean Rehaag and Sharry Aiken stated:

Currently, legal aid must be provided in many criminal proceedings as a matter of constitutional law. The result is that legal aid resources go largely to criminal law services, at the expense of legal services for low-income people facing eviction, intimate partner violence, workplace discrimination, deportation, being cut off social assistance and other important legal challenges.

(…)

… A Supreme Court of Canada case, New Brunswick v G(J), establishes that legal aid is constitutionally required in certain non-criminal legal proceedings where the rights at stake are very serious, where the proceedings are complex and where the litigant is not capable of self-representing — all factors that are present in many refugee hearings.

(…)

It would be ironic if the Ford cuts lead to litigation that establishes not only a constitutional right to publicly funded counsel for refugees, but that also helps pave the way for constitutionally mandated legal aid for low-income and disproportionately racialized people with other important non-criminal law legal needs.

The G(J) case was a marker for access to justice in Canada. It constitutionalized the right to legal aid in cases where parents risk losing custody of their children to the state. At the heart of the matter was the effect that denying legal representation had on the psychological or physical integrity of a person:

1   The Chief Justice — This case raises for the first time the issue of whether indigent parents have a constitutional right to be provided with state-funded counsel when a government seeks a judicial order suspending such parents’ custody of their children.  It comes before the Court as a result of Legal Aid New Brunswick’s decision not to provide legal aid to the appellant after the Minister of Health and Community Services of New Brunswick sought to extend an order granting the Minister custody of the appellant’s three children for an additional six months.  The decision not to provide the appellant with legal aid was made pursuant to a policy in force at the time of her application which stipulated that no legal aid certificates would be issued to respondents in custody applications made by the Minister of Health and Community Services.

2  I have concluded that the Government of New Brunswick was under a constitutional obligation to provide the appellant with state-funded counsel in the particular circumstances of this case.  When government action triggers a hearing in which the interests protected by s. 7  of the Canadian Charter of Rights and Freedoms  are engaged, it is under an obligation to do whatever is required to ensure that the hearing be fair.  In some circumstances, depending on the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent, the government may be required to provide an indigent parent with state-funded counsel.  Where the government fails to discharge its constitutional obligation, a judge has the power to order the government to provide a parent with state-funded counsel under s. 24(1)  of the Charter  through whatever means the government wishes, be it through the Attorney General’s budget, the consolidated funds of the province, or the budget of the legal aid system, if one is in place.

(…)

58  This Court has held on a number of occasions that the right to security of the person protects “both the physical and psychological integrity of the individual”: see R. v. Morgentaler, [1988] 1 S.C.R. 30, at p. 173 (per Wilson J.); Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123, at p. 1177; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at pp. 587-88.  Although these cases considered the right to security of the person in a criminal law context, I believe that the protection accorded by this right extends beyond the criminal law and can be engaged in child protection proceedings. …

As Rehaag and Aiken pointed out, cuts to funding for legal aid for refugees could be considered a violation of the rights to security of the person, as set out in G(J). Constitutional challenges can raise the level of conversation about the purpose of legal aid and broader issues of access to justice.  However, attention must be drawn to the far larger problem, whereby poorer workers, who are ineligible for legal aid, will still be unable to afford legal services for many important cases, including when they face criminal charges, evictions or lawsuits.

In the meantime, lawyers, legal aid workers, staff of community legal clinics who are being impacted by the cuts and are pushing back, such as PCLS and the union representing legal aid lawyers.

Health care for all: immigration status as a ground of discrimination

February 12, 2019 was a national day of action to call for the inclusion of non-status people in our health care system in Canada. The call to action touches on a gaping hole in human rights protections in Canada: the exclusion of immigration status as a ground for discrimination.

Anyone who has less than Canadian citizenship status in Canada faces discrimination, with those with the lowest status, being non-status, facing the worst of all. Despite this daily reality, immigration status is not included as a ground of discrimination in Canadian law. Canadian law only goes so far as to count citizenship (included in the Ontario Human Rights Code) as a ground of discrimination, but not immigration status more generally. This leaves countless people unprotected.

This post will focus on access to health care for non-status people by focusing on the case of Nell Toussaint and the decision at United Nations Human Rights Committee about her case, which also rebuked the general exclusion of non-status people in Canada from health care. With renewed pressure on the government to include non-status people, it is important to put some more focus on it.

Charter anti-discrimination law

I will only focus anti-discrimination law under the Canadian Charter of Rights and Freedoms because the subject of this post only deals with that.

Section 15 of the Canadian Charter of Rights and Freedoms states:

  1. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Affirmative action programs

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (84)

It has a very short list; however, each item on the list is not a closed box, but open to interpretation if legal precedents are set.* For example, “sex” now includes sexual orientation. In contrast, “national origin” does not include immigration status. In order to include a new category, it requires showing that there’s some “immutable” characteristic that is being used to discriminate against a person. That means something that is a “deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs.” (See Supreme Court of Canada Egan case). The unchangeable aspect has been criticized because, for example, religion is sometimes changed without great personal cost.

One might think that national origin or citizenship is the same as immigration status. It isn’t. Using an example from provincial human rights law, discrimination based on national origin would be, for example, a landlord denying a possible tenant an apartment because that possible tenant is from Pakistan, and the landlord doesn’t rent to people from Pakistan. Discrimination based on immigration status covers many more people. Examples include the one being discussed in this post, as well as the relatively lower standard of non-status person’s liberty in immigration detention compared with the liberty interest of everyone else with regards to detention under the criminal justice system (a subject for another day).

Health care for non-status people

People without status in Canada do not have any guaranteed access to heath care, even for urgent care, unless there is a demonstrated public safety risk (i.e. only if people considered more human are affected). People without status, who may number ½ million in Canada or more, stay sick or injured because they often have no recourse, except for limited services of community health clinics in some cities. The troubling absence of proper access to the of non-status people to healthcare was highlighted in a rebuke of Canada’s denial of non-status people by the United Nations Human Rights Committee in 2018.

On July 24, 2018, the case of Nell Toussaint was decided by the United Nations Human Rights Committee (see Toussaint decision). She came to Canada in 1999 as a visitor, but then remained and worked for many years in Canada. She initially paid out of pocket for her health care expenses. This severely limited her ability to access health care when needed. By 2008, she developed chronic fatigue and her health began to deteriorate further. By 2009, her condition became life-threatening, as she was diagnosed with pulmonary embolism and complications from poorly controlled diabetes. The Committee decided that Canada acted in a discriminatory fashion in her case and commented that the omission of non-status people in Canada from health care coverage through the Interim Federal Health Program (IFHP) was systemic discrimination. Canada was ordered to compensate her (emphasis added):

11.6 The Committee notes the author’s claim under article 26 that excluding her from IFHP coverage on the basis of her “immigration status” is not an objective, proportionate or reasonable means of deterring illegal immigration, in particular as her life-threatening health conditions were not taken into account. The Committee also notes the State’s party submission that in allocating public health care funding, it may reasonably differentiate between those with legal status in the country, including immigrants, and foreign nationals who have not been lawfully admitted to Canada and that legal residence is a neutral, objective requirement that cannot be considered as a prohibited ground of discrimination.

11.7 The Committee recalls its General Comment No. 18 (1989) on non-discrimination, in which it reaffirmed that article 26 entitles all persons to equality before the law and equal protection of the law, prohibits any discrimination under the law and guarantees to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. While article 2 limits the scope of the rights to be protected against discrimination to those provided for in the Covenant, article 26 does not specify such limitations and prohibits discrimination in law or in fact in any field regulated and protected by public authorities. The Committee also recalls that in its General Comment No.15 (1986) on the position of aliens under the Covenant, it stated that the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens. While the Covenant does not recognize the right of aliens to enter and reside in the territory of a State party, the Committee also stated that aliens have an “inherent right to life”. States therefore cannot make a distinction, for the purposes of respecting and protecting the right to life, between regular and irregular migrants. More generally, the Committee also recalls that not every differentiation based on the grounds listed in article 26 amounts to discrimination, as long as it is based on reasonable and objective criteria, in pursuit of an aim that is legitimate under the Covenant.

11.8 The Committee considers that in the particular circumstances of the case where, as alleged by the author, recognized by the domestic courts, and not contested by the State party, the exclusion of the author from the IFHP care could result in the author’s loss of life or the irreversible negative consequences for the author’s health, the distinction drawn by the State party, for the purpose of admission to IFHP, between those having legal status in the country and those who have not been fully admitted to Canada, was not based on a reasonable and objective criteria, and therefore constituted discrimination under article 26.

(…)

13. In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to persons whose rights recognized by the Covenant have been violated. Accordingly, in the present case, the State party is obliged in particular to provide the author with adequate compensation for the harm she suffered. The State party is also under an obligation to take steps to prevent similar violations in the future, including reviewing its national legislation to ensure that irregular migrants have access to essential health care to prevent a reasonably foreseeable risk that can result in loss of life.

The decision is no binding on Canada.

Along the way to the decision of the UN Human Rights Committee, Ms. Toussaint sought a review of her rejected coverage by the IFHP. Her application for review was further rejected by the Federal Court and the Federal Court of Appeal. Interestingly, the Federal Court found that her rights to life under section 7 of the Charter were infringed as a result of being denied IFHP coverage. However, the treatment was considered justifiable, as it was held that Canada could lawfully deny non-status people coverage. The reasoning applied a rather narrow assessment of “choice”, Justice Zinn stating: “Although she entered this country legally, she chose to remain here illegally; there is nothing stopping her from returning to her country of origin.” (at para 93). Leaving a place that she built a network of supports to go somewhere that she had no assurances should not be considered a fair choice.

That being said, there was an interesting analysis about discrimination that may have left a door open for immigration status as a potential analogous ground. The Federal Court did not find that she was discriminated against due to the nature of her disability. With regards to immigration status, Justice Zinn said the following very interesting words (emphasis added):

[81] (...) Only if “immigration status” is an analogous ground could the applicant’s exclusion from IFHP coverage be said to violate s. 15(1) of the Charter.

 [82] The applicant did not argue that “immigration status” was such an analogous ground.  It is not for the Court in Charter cases to construct arguments for the parties or advance them on their behalf.  Given the applicant’s failure to argue that “immigration status” was an analogous ground, the applicant’s s. 15(1) argument must fail.

I believe those words are indicative that the Court would have readily considered the inclusion of immigration status as an analogous ground.

Toussaint decision and immigration status as ground of discrimination   

The decision is not binding on Canada. Even though it is an order, it is not an order Canada must follow. That being said, it does have application, perhaps more than may be apparent at present. First of all, while a decision of the UN Human Rights Committee is not binding on Canada, the International Covenant on Civil and Political Rights (Covenant) was signed and ratified by Canada, with much of it being adopted into the Charter and human rights law in Canada … just not the part about “status” as a ground for discrimination.

The UN Human Right’ Committee’s conclusion about discrimination based in immigration status found a violation of the following section of the Covenant (which sounds close in many respects to s. 15 of the Charter):

26. All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

That brings it close to existing law in Canada. Supreme Court of Canada jurisprudence brings it closer. The 1999 Supreme Court of Canada decision, Baker v. Canada (Minister of Citizenship and Immigration) held that International law, even if not binding on Canada, cannot be ignored. Speaking about the international Convention on the Rights of the Child, the majority stated:

69 (…)   I agree with the respondent and the Court of Appeal that the Convention has not been implemented by Parliament.  Its provisions therefore have no direct application within Canadian law.

70  Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.  As stated in R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 330:

[T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional.  These constitute a part of the legal context in which legislation is enacted and read.  In so far as possible, therefore, interpretations that reflect these values and principles are preferred. [Emphasis added.]

This precedent has been applied countless times to, for example, help protect the best interests of children in decisions considering the removal of a parent from Canada.

Coming back to the subject at hand, the next time there is an opportunity to raise the issue of discrimination of a person based on immigration status, I think there is a case that it should be found an analogous ground due to the effect of the Toussaint decision and ongoing social pressure. The “immutable” characteristic required to add an analogous ground of discrimination to s. 15 of the Charter has some flex and has been responsive to social pressure in the past.

Immigration status is not easily changed. People exist in such a condition in Canada for months or years for complicated reasons. Just leaving may not be so easy.

_ _ _

*The Charter is almost impossible to amend, so the  analogous grounds approach is taken instead.

UN Global Compact for Safe Migration: It does not go far enough

On December 8, 2018, Canada stated that it would adopt the UN Global Compact for Safe Migration. What followed was an unsurprising and reactionary set of protests across the country. People protesting did so in order to try and oppose the idea of more people – who they don’t like – coming to Canada to stay. The reality is that the Compact does not instill any formal obligations on Canada and does not go nearly far enough to respond to the migration crisis.

In this post, I will try and explain what the legal meaning of this Compact is for Canada and demystify some of the issues with the Compact that opponents are raising. These include the idea that the Compact will compel Canada to let in more migrants, that Canadian media coverage will be forced to be pro-migration, and the issues raised with international cooperation among States to support more migration. I will also suggest that far more is needed to support those who are moving due to adverse conditions in their countries of origin. I will not be discussing economic migration in any significant detail because I think that will better be placed in its own piece.

 

The Compact

The (GCSM) was arrived at on July 18, 2018. The Compact is nothing more than a pact to cooperate in order to respond to an unprecedented global crisis of displacement, where over 68 million people have been forcibly displaced and over 25 million have been the victims of persecution. It simultaneously sets out to build cooperation to better facilitate improved economic migration and cooperation to alleviate security concerns people attempt to make journeys to new homes. The issues that the Compact proposes to address include:

  • the increasing number of people displaced due to natural disasters and climate change-induced insecurity, including due to flooding, famine, droughts, shoreline erosion, loss of land to sea level rises, etc;
  • the increasing number of people forced to flee due to persecution due to violence and the threat of violence in a world of increasing insecurity
  • a world of mobile people, where economic migration is both necessary and unstoppable

A large part of the Compact calls for States to better cooperate to develop early warning systems for disasters and to do better disaster mitigation. This is all to prevent the need for people to move from their homes. Another objective is to improve “skill-matching”, so that businesses in different part of the world can meet their employment needs with migrant labour, whether permanent or temporary. Big businesses are no doubt a major driver of this aspect of the Compact. A further objective of the Compact is to ensure global security cooperation, to prevent the movement of those without proper identification. Some of these people without proper identification may be the most precarious of all, obtaining any identification possible to flee insecure conditions. Canada’s Immigration and Refugee Protection Act and Regulations already allows leeway to people with false identification if they procured it in the urgency of trying to flee persecution.

The Compact does not actually change any international or domestic laws. It does not improve or even alter legal entitlements or rights to claim refuge or immigrate to Canada. The Compact does not even come close to a so-called free-for-all for people around the world to move. It does nothing to open borders. It falls short of giving actual responsibility to signatory states to take in more migrants.

 

The Legal Authority of the Compact?

In the first week of December, there was a barrage of media about the Compact forcing Canada to let in more migrants, covering Conservative leader Andrew Scheer’s pronouncement that the Compact was legally binding and would “threaten Canadian Sovereignty“. There were responses to this inaccurate statement.

The Compact is not legally binding, but a statement by all signatory States to do their part for safe migration. It is a follow up to the 2016 New York Declaration for Refugees and Migrants, which is also not legally binding. Specifically, the Compact states (point 7 of the preamble):

This Global Compact presents a non-legally binding, cooperative framework that builds on the commitments agreed upon by Member States in the New York Declaration for Refugees and Migrants. It fosters international cooperation among all relevant actors on migration, acknowledging that no State can address migration alone, and upholds the sovereignty of States and their obligations under international law.

Since it is not legally binding, no state can be compelled to do anything that is stated in the Compact. There is no penalty for disregarding any or all of the objectives in the Compact. For good measure, the Compact is carefully worded so as not to avoid the language of legal obligations, but focuses instead on calls to action. It is an aspirational document.

Still, the Compact is not legally meaningless. It will give direction to existing immigration laws and regulations. The basis for this reasoning has been with us for a number of years already. Even without domestic legislation to adopt international treaties, conventions, compacts or other international instruments, Canada is expected to follow the values and principles of signed international commitments when there are no legal barriers to doing so. This was stated by former Supreme Court of Canada justice former Justice L’Heureux Dubé in the 1999 Supreme Court of Canada decision, Baker v. Canada (Minister of Citizenship & Immigration).

Now that the Compact is in place, and signed by Canada, it provides some better basis for arguing that environmentally displaced persons (aka climate refugees, environmental refugees, etc) should be able to stay in Canada on humanitarian and compassionate grounds. The argument would be that, by way of humanitarian and compassionate grounds, it would be wrong to send someone back to a country to face starvation or death or bodily harm through environmental conditions. But this is not the same thing as arguing that persons are environmental refugees and that Canada has an obligation to provide refuge to them. Refugee claimants can also raise a humanitarian and compassionate claim if their refugee claim fails.

 

Migrants controlling the media?

The Compact states the following under objective 17:

We commit to eliminate all forms of discrimination, condemn and counter expressions, acts and manifestations of racism, racial discrimination, violence, xenophobia and related intolerance against all migrants in conformity with international human rights law. We further commit to promote an open and evidence-based public discourse on migration and migrants in partnership with all parts of society, that generates a more realistic, humane and constructive perception in this regard. We also commit to protect freedom of expression in accordance with international law, recognizing that an open and free debate contributes to a comprehensive understanding of all aspects of migration.

This one objective has raised a very loud false alarm. As reported by Global News, Andrew Scheer stated that the Compact, “attempts to influence how our free and independent media report on immigration issues.”

Again, the compact is not legally binding. No media can be forced to report anything. Furthermore, the protection of freedom of expression under Section 2 of the Canadian Charter of Rights and Freedoms (Charter) prevents Canadian laws from forcing media to be pro-migration. The Compact is merely trying to instill better international cooperation to stop bigoted reporting about migrants and refugees, whereby refugees and migrants are vilified in the cause of jingoistic patriotic fervour for some purist ideal of citizenry, such as white nationalism. Canada agreeing to cooperate, “to eliminate all forms of discrimination, condemn and counter expressions, acts and manifestations of racism, racial discrimination, violence, xenophobia and related intolerance against all migrants in conformity with international human rights law,” is something Canada already has to do in order to be in conformity with its international commitments, human rights laws, the Charter, and all other laws that prohibit discrimination.

Following up on the Compact can finally lead to the clear recognition that grounds of discrimination include immigration status. There has been some movement in this direction at the Human Rights Tribunal or Ontario. A recent decision, provides a precedent for preventing employers from requiring proof of citizenship or permanent resident status for those who are legally allowed to work in Canada. However, this is very little protection. Legislation is needed to ensure protection against discrimination due to immigration status.

 

The protests

There were a number of protests against the Compact (examples: 1, 2, 3, 4; general coverage: 5), shouting slogans such as “Canadians first” and calling for Canada to withdraw from the Compact. It is likely there will be many more, especially in the lead up to the next federal election.

The interesting thing about these protests is that they are in response to exactly nothing. No laws were changed by Canada saying it would adopt the global Compact. All it does is set out a future direction that Canada should be expected to take in the near future.

I do not think that those who organized the protests, including the far-right, anti-Muslim and anti-migrant group La Meute, actually think that the Compact is legally binding. The Compact is clear enough that an average child could figure that part out. These groups are merely opportunists, who are trying to stir up a misinformation laced, anti-immigration fervour to pressure politicians to eventually change domestic immigration laws to build legal barriers at the border.

 

Binding international law to better protect environmental migrants is required

Lack of legal recognition and protection of environmental migrants is a gaping hole in international and domestic law. A refugee does not include a person fleeing from environmental destruction or displacement. These circumstances include directly human-caused events, such as industrial developments and disasters, or (climate change-exacerbated) natural events, such as typhoons. The definition of refugee only includes those fleeing from human-caused persecution. The 1951 Refugee Convention and 1967 protocol were designed only to respond to those who were fleeing from persecution of the Second World War and international and internal conflict that followed it.

This is out of touch with our lived reality. Most of those who are displaced around the world are environmentally displaced. According to a report by the Internal Displacement Monitoring Centre, the total number of new displacements in 2017 was approximately 31 million people. Approximately 19 million were environmentally displaced, with 12 million displaced due to violence and conflict.

Canada needs to do its part to push for binding international law to recognize environmental refugees and for obligations on States, including itself, to take in environmental refugees. Domestic legislation in Canada should be developed simultaneously.

Trying to get rid of a criminal record is further punishment: why the records suspension regime needs to be entirely overhauled

Overview

In this post, I will argue that the process of trying to have a criminal record removed is fundamentally flawed and should be considered unlawful. I am not going to put any time into the subject of cannabis possession records possibly being suspended or pardoned without a fee. There has already been substantial attention on this issue, but it is a drop in an otherwise empty bucket. I will will draw attention to the rest of the bucket.

I say the entire regime of trying to get rid of a criminal record is flawed because the process punishes those with criminal records through fees – that are better described as fines – and scrutinizes those with criminal records for new charges even when they did not result in a conviction.

Removal of a criminal record used to be called a “pardon”, but since the former Harper Government’s Safe Streets and Communities Act of 2012, it is now called a “record suspension”. The distinction is significant. A pardon is supposed to mean that the ordeal is over. A suspension means that it continues to hang over a person’s head and can be brought back, which is made clear in section 7 of the Criminal Records Act. This change points out more clearly that one is not supposed to be able to just get rid of a criminal record in the present order.

 

Why is a criminal record part of the sentence?

When does a person’s sentence for a conviction end? You would think that it is at the time that the person completed their actual sentence, which may include jail and a period of probation. In actuality, a criminal record itself acts as an extension of a sentence. As stated by Canadian lawyers Robert Israel and Christine Mainville in a January 2018 contribution to the Globe and Mail:

In our Orwellian world, with damaging personal information merely a click away, a criminal conviction alone can easily become the most debilitating part of a person’s sentence. And so, for many offenders, the ability to eventually obtain a pardon is critical.

Theoretically, once there has been accountability for the crime through a sentence, the punishment is supposed to end. It does not. Criminal records often prevent convicted people from obtaining gainful employment and obtaining housing. It also results in the inability to travel to the United States and other countries. People with criminal records are also often prevented from volunteering in the community, as coaches or in other situations where a criminal record check is done. A criminal record is supposed to be a burden that hangs over a person’s head after a criminal sentence is complete.

 

The process of removing a criminal record

Criminal Records are legislated under the Criminal Records Act. Under this Act, a person with a criminal record needs to meet the following eligibility criteria to remove the record (I’m leaving out the part on “service offences” while in Service of Her Majesty the Queen):

4 (1) A person is ineligible to apply for a record suspension until the following period has elapsed after the expiration according to law of any sentence, including a sentence of imprisonment, a period of probation and the payment of any fine, imposed for an offence:

(a) 10 years, in the case of an offence that is prosecuted by indictment … or

(b) five years, in the case of an offence that is punishable on summary conviction …

(…)

4.1 (1) The Board may order that an applicant’s record in respect of an offence be suspended if the Board is satisfied that

(a) the applicant, during the applicable period referred to in subsection 4(1), has been of good conduct and has not been convicted of an offence under an Act of Parliament; and

(b) in the case of an offence referred to in paragraph 4(1)(a), ordering the record suspension at that time would provide a measurable benefit to the applicant, would sustain his or her rehabilitation in society as a law-abiding citizen and would not bring the administration of justice into disrepute.

For those who may not be familiar with the criminal law terminology in this section, a “summary” offence is considered less serious and there is generally little to no risk of jail time, especially for a first-time offender. An indictable offence is considered much more serious and often carries a risk of many months or years in jail (such as robbery, murder, aggravated sexual assault and various firearms offences).

Five years and ten years are already long periods to wait. But the waiting time is actually significantly longer than that. The period does not begin until after the sentence was completed. This means that the clock only starts running after any jail, probation or fine has been completed.

Take an example. Let’s say a person was convicted today of an indictable theft offence, where property worth $10,000 was stolen as part of a break, enter and theft. In this example, the person was convicted and sentenced to a one-year jail term followed by another year of probation. This person ends up waiting 12 years after the conviction before a record suspension is even possible. But the story does not end there. Record suspensions are not automatically awarded. They require a paid application and meeting some very discretionary – and improper in my opinion – standards.

There is no real explanation of “good conduct” under the Act, but I will get into what this means in the next section. As for the “measurable benefit”, those with criminal records of indictable offences also must show how removal of the record would be a of benefit to them and good for society as well. What this translates into is people having to explain opportunities that have been denied due to the record – such as better jobs or any job at all – and how such opportunities would be pursued if the record was removed. There also must be an explanation about how a record suspension is justifiable in their case because they are good examples for society, of the redeemed ones among an otherwise bad lot. The onus is on the applicants to show that they are deserving.

 

Pay the fees and “be good” and a record suspension may be in your future

In order to obtain a record suspension, a person has to pay an application “fee” and convince members of the Parole Board of Canada that they are worthy. See the many steps here.

The application fee is $631. This amount will not be affordable and often impossible for those with criminal records. Those with criminal records will not likely be able to obtain employment which offers enough disposable income for such a huge fee. In my opinion, this is not a fee, but a fine. The distinction is important. A fee is a cost for a service. A fine is punitive. In 2012, the Harper Conservatives increased the amount required for a “pardon” (as it then was) from $150 to the new amount of $631.

There were not suddenly 4-times as many people applying for record suspensions, thus requiring 4-times as many resources. The number of people convicted did not grow four-fold, nor at all for that matter. The enormous increase was part of the former federal government’s “tough on crime” agenda. The amount was designed to make life tougher for those with convictions. In other words, it was a punishment. Because the fines have been re-punishing people for offences for which they were already convicted, these fines ought to be seen a contrary to the Canadian Charter of Rights and Freedoms, section 11(h) (emphasis added):

11. Any person charged with an offence has the right

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again.

Another enormous hurdle is the requirement for “good conduct”. The Parole Board of Canada makes decisions on applications for record suspensions. They are guided by the Decision Making Policy Manual for Board Members . I find there to be a problematic and unconstitutional set of directions in the manual, including the following (Part 13.1 of the Manual)(emphasis added):

Decision-Making Criteria and Process

10. When making a decision on a pardon or a record suspension application, Board members will assess whether the applicant has been of good conduct. For applications that involve offences that fall under paragraph 4(a) of the CRA as it read on or after June 29, 2010 and before March 13, 2012, or under paragraph 4(1)(a) of the current CRA, Board members will also assess whether the pardon or record suspension would provide a measurable benefit to the applicant, would sustain the applicant’s rehabilitation into society, and would not bring the administration of justice into disrepute.

Conduct

11. For the purpose of the CRA as it read on or after June 29, 2010 and before March 13, 2012, as well as the current CRA, good conduct is considered behaviour that is consistent with and demonstrates a law-abiding lifestyle.

12. In assessing conduct, the Board is not subject to the same standards as a criminal court. The presumption of innocence and the relating rights are not applicable in the context of a pardon or a record suspension application.

13. The type of information and documentation that may be considered includes:

(a) information from the police about a non law-abiding behaviour that did not result in a charge;

(b)information about an incident that resulted in a charge that was subsequently withdrawn, stayed, or dismissed, or that resulted in a peace bond or acquittal, especially where the charge or charges are of a serious nature, and/or are related to convictions on the record for which the pardon or the record suspension is requested;

(…)

When I first saw these decision-making directions, I had to double check that I was not reading something before the Canadian Charter of Rights and Freedoms. I was not. The decision-maker’s manual is current and is still applicable. The edition of the manual I cited is from April 4, 2018.

There are a number of directions in the manual that disregard rights in the Charter in my opinion. Section 12 in the record suspensions part of the manual states: “The presumption of innocence and the relating rights are not applicable in the context of a pardon or a record suspension application.”

The Charter says the following about the presumption of innocence:

11. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

Section 13 of the manual’s section on record suspensions states that “non-law-abiding behaviour” that did “not result in a charge” or charges that were later “withdrawn, stayed or dismissed, or that resulted in a peace bond or acquittal” could still be used to counter a person’s good character. This is incredibly problematic because the effect of this is that unproven allegations are used to extend a sentence. The presumption of innocence is replaced by a presumption of guilt for those once convicted, and the presumption is not even defeated by an acquittal or withdrawal of the charge(s)

People are regularly denied record suspensions based on new charges that were never proven (no conviction). The result is that the unforgiven person remains tied down by the criminal record and is stuck in a life of poverty and negative stigma.

A government decision which results in an unjustified infringement of a person’s security of the person should be contrary to section 7 of the Charter:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Security of the person was defined in New Brunswick (Minister of Health & Community Services) v. G. (J.), [1999] 3 S.C.R. 46 (S.C.C.), at para. 60:

The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety.

A criminal record or any criminal history that can impact on a person’s ability to fully participate in society has a serious psychological impact, which is by design.

This record suspension regime particularly affects those communities who are regularly targeted by police: people with any criminal history in Black, Indigenous and poor communities in general are often charged or at least investigated by police when there is a crime reported in the neighbourhood. Even when someone is investigated as a suspect, the fact that the police spoke to a person as a suspect, without a charge being laid, is likely “non-law-abiding” behaviour.

The stigmatizing, intentionally negative psychological impact, and life impacting effects of a criminal record have been well recognized in Canadian law. In the Ontario case of J.N. v. Durham Regional Police Service, (2011 ONSC 2892), the court stated (emphasis added):

[127] … to many people, our work and our chosen career is a primary source of our own self-worth and, in fact, is considered a major component of one’s own value as an individual. Many people choose as a goal a certain career; as in the present case, they train for it and can find it devastating when, despite their best efforts, they cannot obtain employment in that field. … in the present case, the inability to obtain work is not connected with the job market or inability to perform, but rather with a withdrawn criminal charge and blemished CIR …

[128] Accordingly, if J.N. is unable to ever be able to obtain employment in her chosen field and is forced to work in unrelated fields of work or rely on public assistance, it can be easily understood to cause serious psychological impact on the applicant. When this results from something arising from your reputation or the stigma attached to criminal charges, this impact would only become more severe. On an objective basis, then, I am able to find that the applicant’s inability to obtain employment resulting from her inability to clear the CIR is, objectively, something which would cause serious psychological impact. This accordingly is something that can affect the security of the person within the meaning of s. 7 of the Charter.

In the Supreme Court of Canada case of R. v. Malmo-Levine (2003 SCC 7), the intentionally stigmatizing and punitive effects of criminal records was noted:

[172] … There is no doubt that having a criminal record has serious consequences. The legislative policy embodied in the [Narcotics Control Act] is that a conviction for the possession of marihuana should have serious consequences. Therein lies the deterrent effect of the prohibition. The wisdom of this policy is, as mentioned, under review by Parliament. It appears that this review has been prompted, in part, by a recognition of the significant effects of being involved in the criminal justice system. For instance, background information from Health Canada states:

[B]eing prosecuted and convicted in a criminal court bears a stigma that can have far-reaching consequences in an individual’s life in such areas as job choices, travel and education. Participating in the criminal court process can also involve personal upheaval.

(Health Canada, “Information: Cannabis Reform Bill”, May 2003)

While courts have very clearly stated that a criminal record has a negative impact on a person’s psychological integrity, they have (so far) not found breaches of security of the person if a person simply has to apply for a record suspension. The existence of a process has been considered fair (See for example: Chu v. Canada (Attorney General), 2017 BCSC 630)

However, being denied a record suspension based on unproven charges, and having the criminal record hang over a person’s head, is something beyond a simple waiting period and going through a process. Such a denial ought to be considered arbitrary and not in accordance with the principles of fundamental justice.

 

Federal Government has claimed they aim to address the injustice but have not

The injustice of the fee was addressed, along with a number of other problems, in consultations with Public Safety Canada in 2016, and a report released in 2017. Among the findings was a staggering drop in record suspension applications. 2011/12 there were 29,829 pardon applications, but the number dropped massively to 12,743 records suspension applications by 2016. The reasons for the drop are those mentioned above: the fines (or “fees” as is wrongly portrayed) and the increased waiting times were particularly emphasized.

Public Safety Minister Ralph Goodale vowed to to overhaul the record suspension regime, removing the punitive elements. Nothing has happened so far.

Now that some attention has been focused on the issue of wiping records for pot convictions, it is time to focus on the bigger picture of injustice. Enough people have been struggling through poverty needlessly, and unlawfully in my view, due to criminal records for offences that occurred many years ago and due to failure to be deemed good and worthy by the Parole Board.

Unionization for inmate workers

A worker is a worker, whether in a factory, office building, field, mine or behind bars. All workers should have the right to a union. Workers need a union in order to minimize – since present social relations will not allow elimination – the great power imbalance between bosses and workers. Where the power imbalance is the greatest, so is the need for a union. Workers in jail are the most vulnerable workers in our society, facing the enormous power imbalance of having a boss who is also their jailor. Despite the imbalance, inmate workers have so far not succeeded in winning the right to a union. In this post, I will cover the fundamental right of workers to a union, how and why inmate workers have been denied this right and explain why a proper application of current employment and labour law should empower inmate workers to succeed in unionization.

I am going to limit the scope of what I am discussing below to federal inmate workers, who number approximately 9,000 in Canada. There is relatively very little inmate labour at provincial institutions, though it is still significant. Unionization has been successful in one case involving inmate workers at a provincial institution, way back in 1977: Amalgamated Meat Cutters. I will return to this case further below when discussing rehabilitation versus work.

The cases referred to in this post are all referenced at the bottom.

 

The development of collective bargaining rights in SCC jurisprudence

The right of workers to a union is a constitutional right. In the 2007 Supreme Court of Canada (SCC) case of Health Services, the SCC stated that the right to unionize is protected under section 2(d) of the Canadian Charter of Rights and Freedoms, the right to “freedom of association.” Over the years, further content was added to the right to collective bargaining. These pieces have included the right to a grievance procedure while a collective agreement is in place (Fraser), the right of workers to a union of their choice (Mounted Police), and even the right to strike (Saskatchewan Federation of Labour).

It is important to pay attention to why the right to collective bargaining has added content over the years. In Mounted Police, the SCC majority stated (paragraph 51):

As we have seen, s. 2(d) functions to prevent individuals, who alone may be powerless, from being overwhelmed by more powerful entities, while also enhancing their strength through the exercise of collective power. Nowhere are these dual functions of s. 2(d) more pertinent than in labour relations. Individual employees typically lack the power to bargain and pursue workplace goals with their more powerful employers. Only by banding together in collective bargaining associations, thus strengthening their bargaining power with their employer, can they meaningfully pursue their workplace goals.

In Saskatchewan Federation of Labour (paragraph 51), the majority stated:

Striking – the “powerhouse” of collective bargaining – also promotes equality in the bargaining process …This Court has long recognized the deep inequalities that structure the relationship between employers and employees, and the vulnerability of employees in this context. In the Alberta Reference, Dickson C.J. observed that:

 [t]he role of association has always been vital as a means of protecting the essential needs and interests of working people. Throughout history, workers have associated to overcome their vulnerability as individuals to the strength of their employers.

Other cases at the SCC have said the same, justifying a constitutional right to collectively bargain. The key point is that workers need the right to collectively bargain to have the ability to assert their human dignity in the workplace. “Human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy are among the values that underly the Charter”, as was restated in Health Services (paragraph 81)

 

Inmates collective bargaining rights denied

Federal inmate workers have tried to unionize on at least two occasions over the last decade in cases that went to labour tribunals over unfair labour practices by the employer. The first two attempts were by the same individual, David Jolivet. Mr. Jolivet tried to sign up fellow inmates at the Mountain Institution at Agassiz, British Columbia and was denied access to them. He first went to the Public Service Labour Relations Board (PSLRB: federal public service) to argue that the employer used unfair labour practices by denying him access to potential members, but was shut out by the Board. In the decision, Jolivet v. Treasury Board (Correctional Service of Canada) 2013 PSLRB 1 [Jolivet], the Board decided that the inmate workers were not public service workers because they were not listed by the Public Service Commission (PSC). The Board added that even if the inmate workers were part of the public service, they were not “employees” in any case. Without employee status, there is no right to collective bargaining. The reason for denial of employee status, in the Board’s view, was that the inmate workers were undergoing rehabilitation more so than actual employment.

Mr. Jolivet took a second crack with the Canadian Industrial Relations Board (CIRB: federal private service under the Canada Labour Code), specifically for the CORCAN inmate workers (Canadian Prisoners’ Labour Confederation and Correctional Service Canada, Re 2015 CIRB 779 [Confed]). CORCAN is an agency under the Correctional Service of Canada that employs inmate workers mainly to produces goods and services for federal government departments. Mr. Jolivet and his fellow inmate workers were shut out at the CIRB as well. They argued that the CORCAN workers fell under the Canada Labour Code because CORCAN is a crown corporation. The Board stated that a Crown corporation could only be created by statute or royal charter, which did not exist in the case of CORCAN.

 

Overcoming the barriers

In the Jolivet decision, the Board ruled that the inmate workers were not listed, therefore were not public service employees. However, the Jolivet decision was made before the SCC’s Mounted Police decision. In Mounted Police, the RCMP workers won a right to be included on the list of public service employees despite having been expressly excluded. The RCMP workers wanted a union of their choice rather than the Staff Relations Representative Committee, which was a labour management body under control of management. RCMP workers were excluded from employee status because the employer thought that RCMP employees with a union of their choice would be compromised in their neutrality, stability, reliability, objectivity and independence. The SCC majority did not see any rational basis on how these values would be compromised through unionization. They held that the RCMP workers were unjustifiably excluded from the exercise of their collective bargaining rights, and that it was underinclusive of s. 2(d) rights to leave them out.

Ironically, a decision that strengthened the rights of RCMP workers ends up useful for inmate workers. If expressly excluded workers can win employee status through the application of s.2(d) of the Charter, so can inmate workers. The major difference is the RCMP workers existed under the Public Service Commission. This difference should not be a barrier since the fundamental outcome of Mounted Police was to take non-employees and turn them into their opposite. If the argument was brought up correctly, it can be quite strong.

While this road is not impassable, it may be very difficult to convince an adjudicator or judge to order inclusion of inmate workers in the federal public service.

The other route, through the Canada Labour Code, was unsuccessful when Mr. Jolivet tried to claim that the inmate workers were employees of a Crown corporation. The requirements for a Crown corporation are a royal charter or creation through statute. CORCAN was not either of those. The other route through the Canada Labour Code is that the inmate workers are part of a “federal work, business or undertaking”, which is inherently under the umbrella of the federal government through s. 91(28) of the Canadian Constitution Act, “The Establishment, Maintenance, and Management of Penitentiaries.” CORCAN workers would fit under this umbrella under two counts. For one, CORCAN operates through the Correctional Service of Canada, as a rehabilitative work program. If the workers are not part of the public service, then they are private sector employees whose work is federal in nature. Secondly, the material they produce is used by other federal government departments, implicating inter-provincial trade and a federal character. In the Confed case, the Canadian Industrial Relations Board said that there is no “residual authority” of that Board to include workers who are excluded from the public service, however, I do not think that is entirely correct. The reason is that every worker has to fit somewhere. I will explain this further below. As for the non-CORCAN workers (all the institutional workers doing the cleaning, cafeteria work, laundry room maintenance, etc), they were not dealt with in the Confed decision. As far as employee status for the purpose of unionization goes, they have not been explicitly excluded from the Canada Labour Code through the common law (to my knowledge).

There is also a recent federal court case, Guerin, which also excludes employee status for CORCAN workers under the Canada Labour Code. I will deal with that case further below, which I believe overshoots in its exclusion of inmate workers from employee status.

The Jolivet decision also excluded inmate workers for not being “employees” due to the rehabilitative character of their work. David Jolivet’s case focused on aspects of employment such as control by the employer, competition for jobs, and other basic details that make an employment relationship. The issue was about control by the employer and whether there was a “real economic benefit” (profit) for the employer through the relationship. The real economic benefit test in Fenton is the test to apply in the case of an employment relationship where there a rehabilitative aspect.

In Jolivet, the Board considered it possible for the inmate workers to be employees, but that the case before it did not meet the test. It considered the possibility largely on the basis of the Amalgamated Meat Cutters case. In Amalgamated Meat Cutters, the Ontario Labour Relations Board found that inmate workers of the Guelph Correctional Centre were employees and they were therefore able to join a union with non-inmate workers at the same meat packing plant. In considering this precedent the Board in Jolivet stated:

It is clear from the foregoing that, for some purposes and in some circumstances, offenders in correctional institutions who participate in work programs could be found to be employees. Evidence of the nature and purpose of the work, the working conditions, and the work’s integration into the employer’s operations, among other factors, would be critical to such a determination. In this case, I do not believe that I have sufficient evidence that would allow such a determination to be made. For example, I have no real evidence of the nature of the work performed by offenders in federal institutions or the integration of that work into the respondent’s operations. On the evidence before me, I could not conclude that offenders are employed rather than participating in work as rehabilitation.

 (paragraph 39)

If more evidence had been introduced, the results in Jolivet could have been different. Also, the Board was not provided other examples of employees who were in an employment relationship, but also benefiting in other ways from it. In particular, there is a very close analogy between inmate workers and student workers, who have also been excluded due to being “students rather than employees.” A number of cases have confirmed that it is possible to be both students and employees, in cases involving interns, post doctoral fellows and co-op students (St. Paul’s Hospital (Re) Between: St. Paul’s Hospital (Hospital), and Professional Association of Residents and Interns (Applicant), [1976] B.C.L.R.B.D. No. 43 at 12 [St. Paul’s], University of Toronto (Governing Council), [2012] O.L.R.D. No. 179 at para 107 [U of T Case], Hotwire Electric-All Inc. [2016] O.L.R.D. No. 896).

Another piece that can bolster the case that inmate workers are employees is the fact that they are so vulnerable. In the SCC decision of Re Rizzo and Rizzo Shoes Ltd [Rizzo] (at paragraph 36), the SCC determined that the status of “employee” provided minimum standards, and that the courts should interpret employee status, “in a broad and generous manner. Any doubt arising from difficulties of language should be resolved in favour of the claimant.”

Inmate workers are extremely vulnerable. Disciplinary infractions at their prison workplace can result in offences on their records, which if accumulated can result in delays in release or other deprivations, which are allowed by section 40 of the Corrections and Conditional Release Act. Inmate workers also make far below minimum wage and have no other possible employer to work for. They also do not have the advantage of access to media to publicize workplace issues. The law should therefore reach over to them and afford them protection of employee status, which is a fundamental requirement to have the right to unionization.

 

Every worker is somewhere

This default position is a matter of legal necessity. As soon as the threshold of “employee” has been crossed, inmate workers must fall either under either the federal public service or the federal private sector and if totally excluded from both, should be allowed to certify under the respective provincial labour relations regime. They cannot be rendered legally non-existent simply because the federal government failed to list them under either the federal public service or refuses to allow inclusion under the private service, casting them out from both the Public Service Labour Relations Act and the Canada Labour Code. The federal government cannot make unionization impossible. As stated in the SCC decision of Fraser:

Laws or state actions that substantially interfere with the ability to achieve workplace goals through collective actions have the effect of negating the right of free association and therefore constitute a limit on the s. 2(d) right of free association, which renders the law or action unconstitutional unless it is justified under s. 1 of the Charter.

Total exclusion of the right to unionize, rather than tempering the right, would fail a section 1 Charter analysis, which only allows reasonable limits to Charter rights. Total exclusion is not a reasonable limit, going far beyond the minimal impairment that is allowed.

 

The Guerin case

In Guerin, the Federal Court had before it an application by inmate workers in CORCAN to contest 30% pay cuts from 2013. The case did not deal with other inmate workers. The inmate workers in Guerin submitted (among other things) that a 30% pay cut was not allowed because they were employees and their pay fell below the minimum standards. The Court considered “employee” status as part of the analysis. In its reasoning, the Court decided that the inmates were not employees because they were in a rehabilitation program, which meant that they could not also be in an employment relationship. The court relied upon two cases, Re Kaszuba and Fenton, but wrongly applied them in my opinion.

In Guerin, the Court reasoned:

[120] In Re Kaszuba and Salvation Army Sheltered Workshop et al., (1983) 41 OR (2d) 316, the Divisional Court of Ontario approved the following passage from the referee’s decision:

If the substance of the relationship is one of rehabilitation, then the mischief which the Employment Standards Act has been designed to prevent is not present and a finding that there is no employment relationship within the meaning of the Employment Standards Act must be made.

This passage was also specifically approved in Fenton v Forensic Psychiatric Services Commission, (1991) 82 DLR (4th) 27 [Fenton] by the British Columbia Court of Appeal.

 [121] In Fenton, the British Columbia Court of Appeal concluded that the work at the Forensic Psychiatric Institute did not constitute employment within the meaning of the Employment Standards Act. Ultimately, the Court closely examined the goal of the Act and reached the conclusion that, if the work is for the purposes of rehabilitation and training, the minimum employment standards set out in these acts for “employees” cannot be applied to work with a different purpose.

What was actually stated in Fenton was far more tempered than suggested in Guerin:

The defendant relies upon Re Kaszuba  v.  Salvation Army Sheltered Workshop et al. (1983), 1983 CanLII 1795 (ON SC), 41 O.R. (2d) 316 saying that the work programs at F.P.I. are therapeutic in nature and not employment as such.  However, Linden J. states very clearly in Kaszuba that the decision is limited to its facts.  He goes on to say further that assisting disabled persons to do useful work will not automatically exempt a sheltered workshop from the operation of the Employment Standards Act, R.S.O. 1980, c. 137, and that there are a number of other relevant factors that should be considered to determine if a rehabilitation relationship exists, such as, (a) the method and amount of payment, (b) profitability of the work, (c) hours of work, (d) various conditions that must be met at work, and (e) the amount and type of counselling.

(page 26)

Neither Re: Kaszuba nor Fenton stand for the position that rehabilitation is mutually exclusive from employment. They state that the overall purpose of the program must be assessed and that an employment relationship may still be found if there are enough indicators of such a relationship despite the rehabilitative aspects. Fenton established the “real economic benefit” test in this light (page 35 of the decision). Very similar reasoning was applied in Amalgamated Meat Cutters and an employment relationship was found in that case, despite the rehabilitative aspects.  

The Court in Guerin also stated that CORCAN was a department under Correctional Service of Canada, therefore the Canada Labour Code did not apply, and that if the inmate workers were employees, they would have to apply under the public service. This would leave them in the same position as they were in Jolivet, off the public service list and ineligible (unless such an argument I have suggested above is successful)

 

Conclusion

If inmate workers are employees, and are not part of the federal public service, they must be part of the federal private sector, and must have access to the Canada Labour Code labour relations regime. If they are denied both, they must fall under the protection of the labour relations regime in whatever province they are in. They cannot continue to be left wandering in the unconstitutional territory in which s. 2(d) of the Charter is entirely unavailable. The exclusion is even more problematic if the employees are vulnerable and in greater need of protective measures, as is the case.

All roads lead to providing inmate workers the opportunity to rectify their circumstances through application of s 2(d) of the Charter. As put by the majority in Health Services:

[82] The right to bargain collectively with an employer enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work.

 

Cases

Amalgamated Meat Cutters & Butcher Workmen v. Guelph Beef Centre Inc, 1977 CanLII 489 (ON LRB) (Amalgamated Meat Cutters)

Canadian Prisoners’ Labour Confederation and Correctional Service Canada, Re 2015 CIRB 779 (Confed)

Fenton v. British Columbia (1991), 56 B.C.L.R. (2d) 170 (B.C.C.A)(Fenton)

Guérin v. Canada (Attorney General), 2018 FC 94 (Guerin)

Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC 27 (Health Services)

Hotwire Electric-All Inc., [2016] O.L.R.D. No. 896

Jolivet v. Treasury Board (Correctional Service of Canada) 2013 PSLRB 1 (Jolivet)

Re Kaszuba and Salvation Army Sheltered Workshop et al. 41 O.R. (2d) 316

Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 [2015] 1 S.C.R. 3 (Mounted Police)

Ontario (Attorney General) v. Fraser, [2011] 2 S.C.R. 3 (Fraser)

Rizzo & Rizzo Shoes Ltd. (Re), [1998] S.C.J. No. 2 (Rizzo Shoes)

Saskatchewan Federation of Labour v. Saskatchewan, [2015] 1 S.C.R. 245

St. Paul’s Hospital (Re) Between: St. Paul’s Hospital (Hospital), and Professional Association of Residents and Interns (Applicant), [1976] B.C.L.R.B.D. No. 43