Carissima Mathen

Carissima Mathen spoke 10 times across 1 day of testimony.

  1. Carissima Mathen, Prof. (Law – University of Ottawa)

    Thank you very much. Section 1 of the Charter states, "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Its purpose is to guarantee all the rights and freedoms in the Charter and to state that those rights are subject to reasonable limits. Now the fact that rights would be subject to any limits might seem counterintuitive but, in fact, in most constitutions there are very few absolute rights. A concern that might be raised about section 1 in particular is that it appears to undermine the way that we understand something as a right because of its reference to democracy, which might suggest that rights can be reasonably limited if a large enough majority in society wants them to be. Sometimes we refer to this as the tyranny of the majority, the idea that in a democracy, minorities can be vulnerable if they lack political power or are very unpopular. Section 1 does not operate that way. For something to be a reasonable limit, it is not enough that a majority, even a super majority really wants that limit. This is because the reference to democracy is not to majority wishes alone but to a broader conception, what does it mean to be a free and democratic society. Section 1 exists not as an exception to rights based on the wishes of a majority but as a confirmation that rights are essential in a democracy. Like everything in the Charter, section 1 is a legal tool, so it has a recognizable and routine framework, in place for almost 40 years, whenever it arises in a legal case. The framework both draws on the actual language of section 1 and how courts have interpreted that language. At the section 1 stage, the burden of proof is on the state, so it is for the government to convince a court that any limit on a Charter right is reasonable and demonstrably justified. Section 1 itself says that a reasonable limit is prescribed by law. This ensures that any limits on Charter rights are traceable to an actual legal rule. That rule can be found in statute or regulation, or more rarely, at common law. This ensures that limits on Charter rights are consistent with the rule of law, which guarantees that all state power is itself authorized by law. Once you start to drill down into whether a limit on a right is reasonable, there are a number of factors that a state will have to address: that the limit on the right is for a pressing and substantial objective, that the limit is rationally connected to achieving that objective, that the limit minimally impairs the Charter right in question, and that there is overall proportionality between the positive or salutary effects of the limit and the negative or deleterious effects on the individual whose Charter rights have been infringed. While section 1 is a legal tool designed to promote consistency in how the Charter applies, it's important to recognize that Charter rights are implicated in extremely diverse situations of varying complexity. It's also useful to recognize that the -- there is a sometimes delicate relationship between the courts and the state when assessing whether a section 1 justification has been demonstrated. To that end, the courts have repeatedly stated that the analysis of section 1 is contextual. It will look closely at the circumstances. While the state must prove its case under section 1, courts also recognize that it is not always possible to do so to a particular degree of scientific or forensic certainty. This may be because the particular objective really isn't amenable to scientific proof, or because the state is operating in a situation where information is simply not yet available or is uncertain. While purely speculative arguments are likely to fail, the courts do tend to give the state a certain margin in which to establish justification under section 1, again, depending on the context. The final point I would make here is that it's natural to see the state and individual or citizens in an oppositional, even antagonist relationship. This is particularly true for some context like criminal law where you have the immense power of the state being brought to bear against a single individual. But sometimes the state is in a different position. It may be trying to balance competing Charter rights. It may be trying to protect the vulnerable, or it may be trying to safeguard certain things or values that in themselves are essential to a free and democratic society. All of those factors may be important to the ultimate assessment of whether section 1 has been made out.


  2. Carissima Mathen, Prof. (Law – University of Ottawa)

    I do, thank you. And I really enjoyed the policy paper prepared by Professor Cameron, and I just do have a few observations that build on the paper. So the first point is I entirely agree that we do need to recognize assembly as an important fundamental freedom in its own right, and particularly in the relationship with expression, while they overlap, they do reflect different components of a free and democratic society. To that end, though, when we think about assembly, as Dean Leckey has just noted, it does have this, what we call an internal limit, an internal qualifier, which is the word, “Peaceful,” which is not -- we do not see that with the other fundamental freedoms, and so our analysis needs to take some account of that. In terms of looking at the right itself, while it often is associated with meaningful activity, I think we might want to be careful that we don’t only see assembly as oriented towards conveying meaning. Because it is a physical activity, it can be addressed toward some other goal that is not closely related to conveying meaning. For example, an assembly could be oriented towards protection of an individual or a place that is really its own goal, separate from any conveyance of meaning to other people. In terms of the word, “Peaceful,” I think here as well it is important to recognize something that distinguishes assembly from the other fundamental freedoms, which is that it is commonly manifested in a physical way. So it is the coming together of people, and it is that physicality that historically, of course, has been seen as very important. But that also makes assembly different from the other fundamental freedoms, and so when we think of the limits on peaceful, I think that the borrowing from expression of the freedom of expression of the notion of violence as being an important qualifier is absolutely appropriate. The Supreme Court of Canada has recognized that threats of violence are not protected under freedom of expression. I would certainly, you know, suggest we could think about whether that’s appropriate for freedom of expression, for freedom of assembly. But, in addition, how we assess what the threat is, I think, may require a slightly different vantage point which is that I think it is useful to consider using an objective analysis of the threat posed by a particular assembly that may take it out of the protected sphere of being peaceful. So this is not dependent on proving the violent intentions of any one of a number of the members of the protest, which I think, first of all, can be extremely difficult to do, but also does not sufficiently engage with the nature of the protest as a whole. So this is not a numbers game; this is a very fact- and context-sensitive assessment of what the assembly is or is becoming. It might also be interesting to consider just as there is a right against forced expression, is there a right against forced assembly? And, again, because of the physical manifestation of assembly, are there circumstances in which people might be involuntarily brought into the context of the assembly? And this might particularly be the case where the nature of the assembly is such that it actually affects the person in their primary residence, so that in order to escape the effects of the assembly, they must leave their residence. Is there a question about whether you are, in that context, perhaps dealing with involuntary or forced assembly. Dean Leckey noted the very interesting question of what the actual fundamental freedom includes, in terms of whether it is just human bodies or other things, and that, I think, was very much brought out in the current situation that we’re considering. And the one point I would make there is that -- and this is not, I would think, as to whether the assembly is peaceful, but whether it is actually a protected exercise of assembly. We just want to be careful that we don’t overread the right of assembly so that it privileges those that have more resources to effect an assembly that becomes more difficult to control. So I would just perhaps suggest that might be something to think about. And then, finally, when we get to the justification section under section 1, certainly the state should be cautious about simply dispersing an assembly. I believe in international law that is seen as a last resort. But in some context, dealing with the assembly more rapidly may actually create the space for maximum enjoyment of the right of assembly going forward, as opposed to because of this very, I think, appropriate reluctance to interfere with the assembly, what you wind up producing is a situation of an entrenched assembly that then has to be dealt with in a much more intrusive way. So I would stop -- I’ll stop there.


  3. Carissima Mathen, Prof. (Law – University of Ottawa)

    Thank you very much. Just a brief point to -- just to clarify, perhaps, the issue around threats of violence. And I just want to be clear that I am here talking about violence against the person. So the criminal -- the classic criminal understanding of violence against the person. So that is interference with people. Those are the kinds of threats I was talking about, not other forms of disruption. But there can be, on an objective basis, an assessment that the nature of an assembly creates a reasonable generalized threat to people who are within the immediate vicinity of that assembly. It will be very much fact specific.


  4. Carissima Mathen, Prof. (Law – University of Ottawa)

    Thank you. I think a really important point about freedom of peaceful assembly is that -- and I take Professor Moon’s point that there are aspects that are common to all the fundamental freedoms, but linked to Professor Bird’s discussion of democratic participation is a very important component of mutuality among citizens when they are confronting the kinds of issues that arise that would be the subject of some exercises of peaceful assembly. And so it’s -- that mutuality I think is very important. And it’s in that context as well that it becomes important to assess the overall nature of the assembly, which may be very messy, which may have inchoate or unknown leadership, which may have multiple assemblies, but from the objective point of view that doesn't make it impossible or indeed remove the need to arrive at an assessment of what the assembly is and the potential risk of interference or level of interference with other citizens that again takes it out of that umbrella of being a peaceful assembly, protected by the Charter, consistent with the underlying norms and purposes of the Charter that warrant this constitutional protection.


  5. Carissima Mathen, Prof. (Law – University of Ottawa)

    So I think it's also fair to look to past practice and it is true that in the past there were protest and assemblies that did involve trucks, but they did not stay, and that seems to have been part of the landscape in which law enforcement was operating, but there was also information indicating that they intended to stay. And so had they taken that to the real statement of intent that would pose a different kind of enforcement problem, then I think that would be the basis on which you could absolutely seek to prevent that mode of assembly. Again, it's -- it comes down to what does the fundamental freedom actually entail. But certainly, given the scale of the vehicles and the information that was widely circulating about what was the intent for those vehicles, at a minimum, yes, you could in that context reasonably restrict them from proceeding in the way that they wanted to, to the positions where they wanted to place those vehicles.


  6. Carissima Mathen, Prof. (Law – University of Ottawa)

    So I think in considering this question, which on its face it does look to be overbroad, it is important to consider the very definite time limits in which the Emergencies Act operates, which is essential to its core feature, and that will factor into whether in the circumstance that kind of prohibition is in fact overbroad. I would also point out that with respect to the prohibition on travel, I believe it was accompanied by a series of exceptions.


  7. Carissima Mathen, Prof. (Law – University of Ottawa)

    No, I just wanted to say that there was some tailoring of the specific travel -- the precise mobility restriction was also accompanied by exceptions. It doesn't ---


  8. Carissima Mathen, Prof. (Law – University of Ottawa)

    --- obviate the fact that some people would have been prevented from travel, and that was indeed the very intention of the ---


  9. Carissima Mathen, Prof. (Law – University of Ottawa)

    --- Regulation.


  10. Carissima Mathen, Prof. (Law – University of Ottawa)

    Just because the question was raised who is the decider, I did just want to point out the interesting separation of powers issues that arises here, because initially you have an executive branch determination, but it is in very short order, subject to legislative oversight and the opportunity, in various ways, to contest that. And so bring -- again referring to what Professor Moon said, the zone for deference here to the decision being made in extremis literally is something that I think could be useful to consider.